AU YEUNG LONG TAK v. LA SALLE PRIMARY SCHOOL AND OTHERS

HCPI 916/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 916 OF 2011

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JUDGMENT

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I. INTRODUCTION

1.  Au Yeung Long Tak (“P”) was a teacher of La Salle Primary School (“D1”).  D1 was managed by its School Management Committee (“D2”) whose managers included inter alia Mrs Pau Chan Wai Yee (“Mrs Pau”)[1] and Mrs Leung Chow Ka Ping (“Mrs Leung”).[2] Hong Kong Adventure Youth Association Limited (“D3”), established on 7 March 2003, provided services for organising adventure activities (歷奇活動, “Adventure Activities”/“Games”).  D3’s shareholder and director was/is Ms Shum On Haun (“Ms Shum”).

2.  There was no dispute that:

(a)   P was born on 19 July 1954, ie almost 52 years old on 28 June 2006 and just shy of 60 years at trial;

(b)   at the material time, P was 6ft 1in tall and weighed 180lbs;

(c)   P started to teach since 1975, and he taught Chinese language, mathematics and physical education (“PE”);

(d)   in 1995 P started to teach at La Salle Primary School (Afternoon School) (“LSPS(AS)”) which in 2002 became D1, and he would retire when he was 60 years old;

(e)   D1 had 6 classes of P5 pupils (ie Classes 5A to 5F) with about 38-40 pupils for each class;

(f)   P was not a P5 class teacher, but taught Chinese language, mathematics, PE and general studies at D1;

(g)   D1 organised post-examination extra‑curricular activities (“Post-Exam Activities”) in June/July of each school year for its Primary 1-6 pupils;

(h)   for the 2005/2006 school year, D1 engaged D3 to organise Adventure Activities on 28 June 2006 for Primary 5 (“P5”) pupils (“Event”) as part of its Post-Exam Activities;

(i)   the Event took place at D1’s school hall (“Hall”);

(j)   the teacher-in-charge of extra-curricular activities for the 2005/2006 school year was 余通僑主任 (“Mr Yu”);

(k)   the teacher-in-charge of the Event was the students’ guidance teacher Mrs Tai Chan Wai Hang (“Mrs Tai”);[3]

(l)   D3 designed/proposed three Games for the Event, ie 信任梯 (“Trust Ladder”), 羅馬炮架(“Game 2”) and 大腳八 (“Game 3”) (collectively, “Three Games”);

(m)   Mrs Pau, Mr Yu, Mrs Tai, P and other teachers were present at a school meeting held before the Event[4] (“School Meeting”);

(n)   Mrs Tai was responsible for preparing/distributing the event memo (活動備忘) for the Event;

(o)   according to “(2005-2006)期終試後的學習活動監堂表(附件 2)” (“Roster Table”) prepared by Mr Yu and distributed at the School Meeting, the Event had 2 sessions from about (i) 8:15am to 9:40am (“1^st Session”) and (ii) 10:00am to 11:30am (“2^nd Session”) with recess in between (“Recess”);

(p)   due to tight time schedule, Recess was actually cancelled on 28 June 2006;

(q)   according to the Roster Table, one teacher was assigned to supervise each of Classes 5A-5F for the 1^st and 2^nd Sessions, and P was assigned to supervise Class 5D for the 2^nd Session;

(r)   apart from Mrs Tai, there were 11 teachers on duty for the Event[5] (“Duty Teachers”);

(s)   there were about 230-240 pupils and 7 teachers (including Mrs Tai and the Duty Teachers) for each of the 1^st and 2^nd Sessions;

(t)   D3 had 11 red-shirted staff/instructors/helpers (“Instructors”) at the Hall when the P5 pupils took part in the Three Games.

3.  The goal of the Trust Ladder for the Event was to challenge the “comfort zone” of the P5 pupils to enhance their self-confidence, mutual trust and team spirit, and its play method was as follows:

(a)   each horizontal “ladder” positioned 2-2½ft above the floor had 6 or more pairs of pupils (“Rod-holders”) with (i) each pair holding an aluminium rod[6] (“Rod”) to form a rung and (ii) all Rod-Holders lining up their Rods to form the “ladder”;

(b)   plastic chairs were placed at both ends for the participant who was to climb the “ladder” (“Ppt”) to get on and off;

(c)   the Ppt would say out loud “我願意接受挑戰, 請大家支持我”, and other pupils would respond with “我哋支持你”;

(d)   the Ppt would step on the 1^st Rod and then climb the “ladder” by bending his body and putting his hands on the shoulders of the Rod-holders on both sides for balance;

(e)   the Instructor would give a helping hand to support (扶一扶) the Ppt or hold up (托一托) the Rod(s) if necessary.[7]

4.  P claimed that at the 2^nd Session, upon encouragement by the P5 pupils and a male Instructor and upon further encouragement by the P5 pupils and the male/other Instructors, P climbed the Trust Ladder by stepping across the Rods held by pupil Rod-holders with help from the Instructors who (a) stood behind them and (b) rotated forward to help other pupil Rod-holders in tandem with P’s progress on the “ladder”.  The last Rod wiggled as P stepped on it, which caused him to “strike a balance” and thereby suffer back injury (“Accident”).  P claimed against D1, D2 and/or D3 (collectively, “Ds”) for damages for personal injuries.

II.  D2

5.  There is no dispute that D1 was P’s employer, but Mr Tsui, counsel for P, submitted D2 was also P’s co-employer.  First, Mr Tsui referred to “津貼小學申請教員津貼表格” dated 27 July 1995 signed by the acting supervisor and letter by the Education Department (“ED”) to “Supervisor/Principal” dated 2 October 1995 in relation to P’s employment.  In my view, these documents were not definitive because irrespective of any employment, (a) D2 had a statutory obligation to manage D1, and (b) D1 had a statutory obligation to correspond with the ED only via D2.[8]

6.  Secondly, I cannot see the relevance of the letter by the Labour Department (“LD”) to insurance brokers dated 26 February 2007 enquiring whether the latter would admit liability for employees’ compensation (“EC”) when D1 named itself as P’s employer in the Form 2 dated 3 November 2006 and submitted to the LD (“Form 2”), and P himself sued D1 as his employer in DCEC741/2008 (“EC Action”). 

7.  Thirdly, even the letter by Mrs Leung “on behalf of [D2]” to P dated 6 January 2009 on sick leave issues pursuant to P’s employment as certified teacher “in our school establishment” cannot assist because P’s pleadings expressly averred he was/is in the employ of D1.[9] P’s case against D2 rested on its management of D1 rather than on it being P’s direct employer, and Mr Tsui conceded in closing submissions there was no plea that D2 was P’s co-employer.  Hence, Lee Tin Yeung v Chiu Chow Association Secondary School & ors[10] and Ko Hon Yue v Liu Ching Leung[11] are of no assistance, and I find that at the material time P’s employer was D1 and not D2.

8.  More importantly, D2 supervised the general management of D1, but was not in charge of and would not interfere with D1’s daily operation/management for which Mrs Pau was responsible with assistance from Mrs Leung and other staff.  D2 was not involved in the Post-Exam Activities and Event which were D1’s day-to-day school affairs.  P failed to establish D2 owed him any duty of care, and his claim against D2 is liable to be dismissed.  But even if I am wrong, P also failed to prove his case against D1 (and hence also against D2).

III.  PARTIES’ RESPECTIVE CASE

9.  P’s complaints in negligence against D1 were inter alia:

(a)   approving the Trust Ladder for the Event without assessing its risks for, say, possible Ppts such as teachers (“Possible Ppts”);

(b)   failing to ensure P’s safety whilst performing his school duties (including failing to provide a safe system of work);

(c)   failing to warn P of risks of danger (eg the Trust Ladder was only suitable for P5 pupils) and/or to stop P from climbing the Trust Ladder, and hence failing to provide competent staff to work with and/or supervise P;

(d)   selecting/approving D3 as service-provider for the Event without proper assessment;

(e)   thereby exposing P to danger of injury. 

P also contended D1 was (i) in breach of implied terms of P’s employment contract in failing to ensure P’s safety/health, and (ii) vicariously liable for negligence by D3 as D1’s “servants/agents” under express agreement to carry out the Event, and for negligence by Mrs Tai in failing to ensure the safety of the Possible Ppts.

10.  P’s complaints in negligence against D3 were inter alia:

(a)   failing to design/carry out the Trust Ladder safely for the Possible Ppts particularly when teachers might be “role models” for pupil Ppts;

(b)   failing to carry out adequate risk assessment that pupil Rod‑holders (i) might not have sufficient strength to hold up the Rods for the Possible Ppts, and (ii) might disobey instructions and/or play with or let go of the Rods;

(c)   failing to advise D1 and the Possible Ppts of the dangers in climbing the Trust Ladder;

(d)   failing to take adequate steps to ensure the safety of the Possible Ppts, eg failing to correct improper posture adopted by them when on the “ladder”;

(e)   causing, encouraging or permitting P to climb the Trust Ladder.

11.  The Ds denied liability, and put P to strict proof of the actual happening/circumstances of the Accident.  D1/D2 claimed (a) D3 was an independent contractor approved after consideration of inter alia their organisation, services, experience and staff qualification, (b) the Three Games were approved after discussion with D3 and consideration of their safety/suitability, (c) D3 gave appropriate instructions/demonstration and properly carried out the Event, (d) P as a Duty Teacher was assigned to supervise and maintain order/discipline of the P5 pupils (“Teacher Duty”) for the Event, and D1 had not instructed its teachers (including P) to participate in the Three Games designed for P5 pupils.  Alternatively, D1 averred that the Accident was caused by the negligence of D3 and/or caused/contributed by P’s own negligence.

12.  D3 also denied liability, and claimed (a) D1 had approved its proposed programme for the Event, (b) appropriate risk assessment had been done, (c) suitable briefing/demonstration had been given during the Event, (d) adequate number of Instructors had been deployed, and (e) reasonable safety measures had been adopted.  D3 denied having encouraged P to climb the Trust Ladder designed for P5 pupils, and averred that P participated out of his own volition and he completed the Trust Ladder without complaint/injury.  Alternatively, D3 claimed the Accident was caused/contributed by P’s own negligence.

13.  There are contribution proceedings between D1/D2 and D3, but given the outcome of the main action below I need not discuss such contribution proceedings in any detail.

IV.  PROCEEDINGS

14.  In assessing the credibility of factual witnesses, I bear in mind not only their demeanour in court but also the intrinsic value of their evidence upon considering the totality of their evidence against the chronology of events, the documentary evidence and the inferences based on inherent probabilities and/or undisputed facts.

15.  Mrs Tai, Mrs Pau and Mrs Leung were impressive and, in my judgment, truthful witnesses.  They performed their duties in a responsible, attentive and assiduous fashion.  Their evidence was consistent with their statements and documents.  The Event happened 8 years before trial and all 3 witnesses had retired, so it was unsurprising they could not remember some matters/events, but they adopted a responsible approach to giving answers that they could honestly recollect and support.  I am also impressed by Ms Shum and Ms Kam Pak Chi (D3’s part-time Instructor, “Kam”) who were frank, forthright and helpful.  Their approach to the Trust Ladder was conscientious and professional. 

16.  I find P to be an unsatisfactory witness.  His evidence was in various instances in conflict with and indeed belied by the documents.  He was not above making up his case when he was unable to offer an explanation and when inaccuracies in what he was saying were exposed.  Some assertions he made under cross-examination were contrived and inherently unreliable.  In my view, where the substance of the evidence of the Ds’ witnesses differed from that of P on any issue of real importance, the evidence of the former is to be preferred.  The evidence of Mr Yuen Kin Long (a pupil who attended the Event, “Mr Yuen”) is of limited assistance because he only had a glimpse of P before P climbed the “ladder”.  The evidence of Ms Chang Sze Sha (P’s girlfriend, “Ms Chang”) concerned P’s condition after 28 June 2006, which is immaterial to the question of liability.

17.  There were some video-clips of Trust Ladders at activities for other schools and at the Event, and some photographs of Trust Ladders at the Event. The reports by the parties’ single joint orthopaedic expert Dr Tsoi Chi Wah Danny (“Dr Tsoi”) dated 3 August 2010 (“Ortho Report”) and by their single joint psychiatric expert Dr Benjamin Lai (“Dr Lai”) dated 26 November 2010 and 23 May and 17 June 2011 (collectively, “Psy Report”) were adduced without calling the makers.

V.  LIABILITY

18.  It is useful to separate the analysis on liability over 3 periods, ie before, during and after the Event.  The Accident allegedly occurred during the Event, but facts/matters in the other periods also shed light on the reliability or otherwise of the parties’ respective case. 

(a)  Pre-Event period

19.  Knowledge of Adventure Activities  P claimed he had no idea what Adventure Activities were all about, but in fact all teachers had previously attended a “教師發展日” to experience Adventure Activities. P claimed he just took photographs for the event, but I prefer the evidence of Mrs Tai/Mrs Pau that all teachers participated in the Games.  I find it doubtful that P abstained from participation throughout the 3-hour event meant for promoting team spirit amongst D1’s teachers of which P was one.  But on whichever side of the lens, P would have appreciated what Adventure Activities were about, and his denial was specious.

20.  Organising the Event  All involved parties (including P) knew the target Ppts of the Event were P5 pupils and not teachers.  Mrs Tai was tasked to find a service-provider and identify suitable Games for P5 pupils, and to report to Mrs Pau for her approval.  Mrs Tai studied D3’s proposal (amongst proposals by other potential service-providers) for the Event and Three Games, information about D3’s organisation, experience and staffing (but not each staff’s qualifications), and D3’s flyer/photographs on Adventure Activities it had previously organised (including the Trust Ladder for other schools) (“Previous Events”).  Mrs Tai/Ms Shum discussed D3’s proposal many times (which led to the decision to cancel the Recess), and Ms Shum inspected the Hall for the Event.  D1 did not enquire whether there had been any accident/injury during D3’s Previous Events, but I accept Ms Shum’s evidence there was none. 

21.  The materials D3 submitted to D1 included a draft written agreement between D1 and D3 (“Draft Agreement”):

“……

對象: 240位五年級同學(共六班)

……

費用: HK$5,000 (一位社工+9位工作人員及以下程序所需)

……

[timetable for the Event]

……

1)雙方根據以上內容資料為協議基礎。

2)[D3] a)負責安排以上活動程序以及程序內所需的費用。

b)不會負責購買有關的活動保險。

3)[D1] a)需聯絡及通知同學/老師一切活動事宜

……”

D3 also gave an explanatory note for the warm up exercises and Three Games (“Explanatory Note”):

共3項，每項80人，輪流參與不同遊戲

……

22.  Mrs Tai made progress reports to Mrs Pau on potential service-providers and proposed arrangements/cost (including an oral report on matters in the Explanatory Note).  Mrs Pau found the Three Games similar to PE exercises which P5 pupils should be able to handle with reasonable safety and interest.  Mrs Tai asked D3 to increase the number of Instructors from 9 to 11-13.[12] D3 also prepared a memorandum for the Instructors (“Instructors’ Memo”):

“……

對象: 240位五年級同學(共六班) 分別輪流參與3項遊戲 即每項遊戲80人

……

導師: …… (13人)

The Instructors’ Memo had a timetable as in the Draft Agreement and a description of “啟導遊戲” and “歷奇遊戲_1” as in the Explanatory Note.  Eventually, Mrs Pau approved the Three Games and D3’s appointment as service-provider for the Event.  The Draft Agreement was finalised and signed by D1 and D3, but D1 no longer retained a signed copy.

23.  I am satisfied (a) D3 had pertinent and reasonable experience in organising Adventure Activities (including the Trust Ladder) and was a suitable/competent service-provider for designing and carrying out the Event, and (b) the Trust Ladder was within the abilities of and reasonably safe for the P5 pupils and D1 had carried out appropriate risk assessment.

24.  D3 as service-provider  Since 2003 D3 had organised many Trust Ladders for schools, companies and other entities.  Ms Shum was a social worker since 1995/1996 with experience in organising outdoor activities and Adventure Activities for teenagers.  D3 would provide 4 days’ training and 40 hours’ practical experience for its part-time Instructors (who were usually programme assistants for NGOs).  The 4 Instructors for the Trust Ladder at the Event had half year to over 3 years’ experience in handling Adventure Activities.[13]  In my view, D3 and its staff had reasonable skill/experience and D3 had made sufficient deployment of Instructors for the Event and Trust Ladder. D3 had also carefully planned the Event and Three Games.  I find D3 to be a reasonable and competent independent contractor suitable for organising and carrying out the Trust Ladder. 

25.  Risk assessment vis-à-vis the Trust Ladder  D1/D3 fairly accepted the Three Games were not risk-free. But every now and then schoolchildren, particularly less athletic ones, do suffer mishaps inside/ outside the classroom, and the answer is to minimise risks rather than to look for “no accident” protection. For the Trust Ladder (a low to medium element Game),[14] Mrs Tai/Ms Shum did consider the risk of lack of attention, loss of balance, and slip and fall.  Eventually, Mrs Tai issued the Event Memo to inter alia class teachers for them to tell the P5 pupils to have breakfast and wear sports shoes for the Event,[15] and D3 made detailed plans for the Trust Ladder[16] with inbuilt precautionary measures:

(a)   D3 would give initial explanatory/safety briefing (with demonstration) to all P5 pupils on the purpose/rules of the Game, which together with the warm up exercises were designed to help the pupils concentrate and pay attention.

(b)   The pupils would be divided into small groups for, say, climbing the Trust Ladder, and after the Rod-holders were matched in size and positioned, the Instructor would give another small‑group explanatory/safety briefing.

(c)   The Instructor would stand next to the pupil Ppt who would voice his willingness to participate and his request for peer support, and the other pupils would voice their support, which exchange would enable the Instructor to assess their readiness for the Game.

(d)   The Instructor would check that the pupil Rod-holders held the Rods in the posture described in the Explanatory Note.

(e)   If the pupil Ppt was ready, he could start to climb the “ladder”, and the Instructor would check that he adopted the posture of having one foot on one Rod and one hand on the shoulder of a Rod-holder on either side for balance and distribution of weight.

(f)   If the pupil Ppt appeared reluctant, the Instructor would need to understand why.  If the pupil Ppt had not focused his attention, the Instructor would shuffle and re-position the Rod-holders and invite him to start again after he collected himself.  If the pupil Ppt still appeared reluctant, other pupils could proceed first, and their success might convince the pupil Ppt to try again.  But if the pupil Ppt was still not ready, the Instructor would not force him.

(g)   As the pupil Ppt climbed the “ladder”, the Instructor would walk alongside the “ladder” behind the Rod-holders, and “托一托” a Rod if help was needed.  Upon reaching the end of the “ladder”, the Instructor would help the pupil Ppt alight from the “ladder”.

26.  In my view, the Trust Ladder was suitable for P5 pupils and both D1/D3 carried out adequate risk assessment.  P acknowledged “這活動無危險性”,[17] and testified that he did not perceive any danger to the P5 pupils so he did not stop them from climbing the Trust Ladder at the Event.  Actually, all P5 pupils completed the Three Games without any mishap. 

27.  But Mr Tsui referred to video-clips/photographs of Trust Ladder(s) that showed (a) a pupil joked/cried for others to “let go” and (b) a pupil went underneath the Rods of a “ladder”.  He complained that D3 failed to assess the risk of pupil Rod-holders disobeying instructions and/or playing with or letting go of the Rods.

28.  Even though Ms Shum had never seen pupil Rod-holders let go of their Rods, I accept young pupils could be boisterous and/or playful.  But Ms Shum was right in saying the video-clips/photographs were snapshots and the Instructors at the scene were best placed to distinguish between harmless horseplay and potential danger.  I also agree the effective way of dealing with spontaneous pupil reactions was for the Instructors to abide by the measures in paragraph 25 above, stay alert of any developing situation, control/calm boisterous and/or playful pupils, help the Rod-holders concentrate on their task by lining them up and making sure they adopt the correct posture, and orally remind them to hold the Rods tightly and not to let go.  D1’s Duty Teachers (including P) were also there to perform the Teacher Duty. 

29.  Anyway, there was no evidence that the pupils at the “ladder” P climbed disobeyed instructions, fooled around or let go of the Rods.  P claimed it was the Instructors rather than the pupil Rod-holders who actually held the Rods when he climbed the Trust Ladder, and they tried their best to keep the Rods steady to help him complete the Game.  I do not see how Mr Tsui’s complaints had any causative relevance.

30.  So, irrespective of any risk assessment by D1, I find D3 was well able to organise and carry out the Event (including the Trust Ladder) for the P5 pupils, and there were reasonable precautionary measures to minimise potential risks.  But on balance I further find that D1 through Mrs Tai/Mrs Pau had reasonably/sufficiently assessed D3’s capability as service-provider for the Event, and had carried out appropriate risk assessment.

31.  D1’s duty of care But P complained that D1’s risk assessment was inadequate as it failed to anticipate the Duty Teachers might climb the Trust Ladder and to put safety measures in place to address this possibility.  It is true that up until the Event Mrs Tai/Mrs Pau were not told and they did not anticipate the Duty Teachers might participate in the Three Games and/or any danger might befall them.[18] I find such stance reasonable since the targeted Ppts for the Event were the P5 pupils, and the Duty Teachers were responsible for performing the Teacher Duty rather than climbing the Trust Ladder.[19]

32.  I disagree Mrs Tai/Mrs Pau should have anticipated some teachers might wish to climb the Trust Ladder given the close teacher/ pupil relationship at the school and the Event was to enhance team spirit.  Although Ms Shum/Ms Kam agreed schoolchildren might appeal to their teachers to participate in the Games, these appeared to be spontaneous happenings (as was Mrs Tai’s own experience at the Event).  Bearing in mind (a) there was no evidence D1 had prior experience of organising Adventure Activities for its pupils, (b) my rejection below of P’s claim that D1 encouraged its teachers to participate in student extra-curricular activities, and (c) P’s insistence he would not have climbed the Trust Ladder merely on entreaty by the pupils and what persuaded him was the encouragement by the Instructors, any failure by D1 to take into account the matters raised by Mr Tsui had no causative relevance.  Even if there was no conflict between teachers performing the Teacher Duty and climbing the Trust Ladder in the absence of express prohibition by D1, it still begs the question whether D1 could have reasonably foreseen teacher participation at all.  On balance I am not persuaded D1 was negligent in failing to anticipate P and/or other Duty Teachers might climb the Trust Ladder at the Event and/or to warn them not to so participate. 

33.  Insurance coverage  Mr Tsui criticised D1 for not checking/ ensuring D3 had insurance cover.  Such specific allegation did not feature in P’s pleadings or even in Mr Tsui’s written opening submissions. In my view, it should have been expressly pleaded to enable the Ds to respond by way of pleadings and/or evidence.  P could not just rely on a broad allegation that D1 failed to arrange a competent service-provider to host the Event.  On such basis, such allegation falls away.

34.  But even if I am wrong, there is still no merit to such argument.  Mr Tsui referred to Gwilliam v West Hertfordshire Hospital NHS Trust & ors[20]where the claimant was injured using a “splat-wall”[21] during a hospital fair.  The hospital had paid extra to benefit from the service-provider’s public liability insurance, but it expired just before the fair.  The hospital as occupier was held to owe a duty to the claimant to see that she would be reasonably safe when using the premises to which she had been invited which extended to use of the “splat-wall” (an activity that was inherently risky), and hence the hospital was bound to enquire into the service-provider’s insurance position.  But this is a far cry from the present circumstances where P was not a target Ppt of (and was not invited to climb) the Trust Ladder, which activity was not suggested to be inherently risky.  Indeed, D1 did not owe any duty of care to P in planning the Event and/or in choosing the service-provider, so D1 would not have to enquire into D3’s insurance position for the Duty Teachers. Anyway, D1 through ED had insurance cover for its pupils for activities within the school premises.

35.  D3’s duty of care P argued D3 must have known from its Previous Events that teachers might climb the Trust Ladder, and it failed to carry out risk assessment, set up protective measures and/or warn D1 to protect the Possible Ppts from risk of injury.  D3 agreed that sometimes in the extra time after the pupils had completed the Games they might in a happy mood spontaneously appeal to their teachers to climb the Trust Ladder, and some teachers might humour them but some might decline, which was indeed what happened at the Event.[22] On balance I accept the evidence of Ms Shum/Ms Kam that because the target Ppts were pupils and not teachers, as a matter of practice D3 would not invite teachers to participate, but in their previous experience all teachers who climbed the Trust Ladder did so without mishap.

36.  Ms Shum suggested that the approach to risk assessment for adult participation would be similar.  Although the Instructors would check the adult Ppt’s apparent height, built and weight, they would also consider whether or not he/she appeared fit.[23] Ms Kam gave more detail as to how the Instructors would handle teacher Ppts:

(a)   if the teacher appeared reluctant, the Instructor would control the pupils’ excitement and bring the Game to a close;

(b)   if the teacher wished to participate, the Instructor would support him/her in the same way as for a pupil Ppt, but the Instructor would position the pupil Rod-holders more tightly together and adopt the proper posture for holding the Rods;[24]

(c)   as the teacher climbed the “ladder”, the Instructor would walk alongside and (if necessary) “托一托” a Rod from behind a pupil Rod-holder, and the Instructor could make room to do so for by leaning on the shoulders of adjacent pupil Rod‑holders and stretching an arm from behind to “托一托” a Rod.

37.  Ms Kam said the above arrangements would enable the pupil Rod-holders to support quite heavy weight,[25] but in any event if there was any mishap the likely person to get injured would be the pupil Rod-holders rather than the teacher Ppt as it might be painful on the arm/hand to support sudden increase/shift in weight.  Ms Kam also said the Instructor could tell the teacher Ppt’s fitness/ability from his/her posture and first step, and hence would be able to react and help accordingly.  Ms Shum said if the Instructor considered any adult Ppt unfit to climb the Trust Ladder, he/she would say so. 

38.  In light of D3’s knowledge of possible teacher participation from its Previous Events, I accept D3 as service-provider/organiser of the Event owed a duty of care to potential teacher Ppts.  But it is not enough to show that a duty of care arose.  The question is, given a duty, how much care was to be exercised, and whether it was achieved.  The ordinary standard of care is reasonable care, but the question is plainly fact-sensitive. A tribunal of fact can only be directed to apply the standard of reasonable care if it is explained what amount of care the law regards as reasonable under the circumstances of the case being tried, which should be proportionate to the gravity and imminence of the risk to be guarded in the relevant context.[26] So although the matters in the above paragraphs suggested it might be foreseeable that teacher participation could have been done reasonably safely, I propose to revisit this issue (if necessary) after my findings on the circumstances of the alleged Accident. 

39.  Teacher as “role model”  But I reject P’s complaint that D3 in designing/conducting the Trust Ladder failed to consider that teachers would have to set examples and act as “role models” for pupil Ppts.  On balance I prefer Ms Kam’s evidence that teacher participation was usually spontaneous happenings rather than “role model” demonstrations.  She explained that the most effective “role model” for a timid/reluctant pupil Ppt would be the successful completion of the Game by his fellow pupils which would give him assurance that even a schoolchild (rather than an adult) could climb the Trust Ladder. 

40.  School Meeting  I accept Mrs Tai’s evidence that none of the Post-Exam Activities was discussed in any detail at the School Meeting.  Rather, it was said that the teacher-in-charge for each activity (Mrs Tai in the case of the Event) would issue an event memo in due course.  Anyway, the teachers would have known from past Post-Exam Activities that the Duty Teachers’ function was to supervise the pupils, so in my view P would have known of the Teacher Duty even if he had not received the Event Memo.

41.  P claimed that Mrs Pau at the School Meeting encouraged (and invited suggestions for improving) teacher participation in student extra-curricular activities (including the Event) to which P suggested it would be better for female teachers to wear slacks and sports shoes for such activities.  P said Mrs Pau found this to be a good idea and instructed Mrs Tai to so remind the teachers (which she did by way of the Event Memo).  But on balance I prefer Mrs Tai’s evidence that there was no such discussion, and that she specified “衣著: 輕便，女老師不適宜穿裙子” in the Event Memo because she just thought it would be inconvenient for female teachers wearing skirts to walk around, squat down or sit on the floor during the Event.  In my view, this could not have been any encouragement for teachers to participate in the Games at the Event otherwise, as Mrs Tai pointed out, she would have asked all male/female Duty Teachers to wear sports shoes like the P5 pupils. 

42.  Further, P’s allegations never featured in his witness statements, which he tried to say was unnecessary because D1 described “在意外發生時現場進行的活動” in its Form 2 as follows:

“2006年6月28日本校五年級同學舉辦「歷奇」活動，其中一項為二人承托一枝木棒，成為一條「火車軌」。參與活動的人仕由踏著木棒的一方慢步到另一方，是項活動需全體參與，並鼓勵一些膽怯的同學，鼓起勇氣去完成。” (my emphasis)

P suggested the phrase “是項活動需全體參與” included teachers because only teachers could be “role models” to encourage timid/ reluctant pupils to participate in the Games at the Event, a contention which I have rejected.[27] Further, Mrs Pau confirmed the phrase “是項活動需全體參與” in the Form 2 (which she signed for D1) referred to “本校五年級同學”, which, in my view, accords with a sensible/objective contextual reading of that passage.  I do not believe Mrs Pau encouraged teachers to participate in student extra-curricular affairs when the Duty Teachers had to perform the Teacher Duty. 

43.  Event Memo  Mrs Tai issued the Event Memo on 27 June 2006:

“各位五年級班主任:

明天「歷行共成長」試後活動將於早會後假禮堂舉行。請通知學生以下事項:

時間: 8:00a.m. -11:30a.m.

地點: 六樓禮堂

目的: 提升同學的自信心和增加同學之間的團隊精神

活動: 啓導遊戲(我要你鼓勵、霹靂無敵乾坤手、貓追老鼠)

歷奇遊戲(大腳八、信任梯、羅馬炮架)

分組: 10人一組(請通知學生自己屬於的組別，如5A第一組)

……

備註(學生):

1. 學生衣著 : 校服(白恤衫、白短褲)、白球鞋

2. 小息 : 時間緊湊、不設小息，……

……

備註(當值老師):

1. 歷行會將會派11位歷奇遊戲員到校主持活動，所有活動將由他們負責。

2. 老師請準時出席，看管學生秩序。

3. 衣著: 輕便，女老師不適宜穿裙子

……”

The Event Memo reminded the Duty Teachers that their duty was to be punctual and to perform the Teacher Duty. 

44.  On balance, I accept that on 27 June 2006 Mrs Tai personally distributed the Event Memo to Mrs Pau, P5 class teachers and Duty Teachers (including P), and as P was not around she put it on his desk at the teachers’ room (“Teachers’ Room”).  Mrs Pau had previously reminded Mrs Tai to use the school’s new intranet to distribute the Event Memo, but at that time the teachers were still not used to it and Mrs Tai did not send the Event Memo by that medium.

45.  P claimed he had not seen the Event Memo until the present action, but in my view Mrs Tai must have distributed it on 27 June 2006[28] in the usual manner.[29] There was no plausible reason why Mrs Tai would have omitted to give a copy to him.    

46.  P knew Mrs Tai should issue the Event Memo, but strangely he expressed no surprise when 27 June 2006 came and went without it.  P claimed that on the following morning he asked another Duty Teacher Patrick Tang (“Mr Tang”) who told P he too had not received the Event Memo. P further claimed that Mrs Tai (when he saw her at the Hall at the 2^nd Session) insisted she had given him a copy, so she would not give him another copy and she did not tell him what his duties were.  I do not believe P.  It would have been natural on P’s case for him to tell Mrs Tai or state in his witness statements that Mr Tang also did not receive the Event Memo, but he never did so.  Also, there was no plausible reason for Mrs Tai to stonewall his queries when even on P’s case she knew he was a Duty Teacher for the Event and she was quite ready to tell him the Recess had been cancelled and he did not have to adhere strictly to the Roster Table to only supervise Class 5D.

47.  In fact, P never denied he received the Event Memo in his witness statements.  His purported explanation now was that (a) he asked Mrs Pau for the Event Memo when she started to prepare the Form 2 in mid-October 2006 but D1 was unable to find a copy, and (b) the school clerk secretly gave him a copy in November 2006 but told him to keep quiet. 

48.  On balance, I prefer Mrs Tai’s evidence that following D1’s usual practice of keeping the event memo in the folder of the group responsible for the event, the Event Memo was kept by the guidance group (輔導組) of which she was the student guidance officer.  In September/October 2006, P asked for the Accident/injury to be reported to the LD, and Mrs Pau asked Mrs Tai for a copy of the Event Memo, and Mrs Tai annexed it to her incident report to Mrs Pau dated 26 September 2006 (“Mrs Tai’s Report”).[30] I find on balance that Mrs Tai did distribute and P did receive the Event Memo, and P’s denial was a poor attempt to deny awareness of what was going to happen at the Event. 

(b)  Event

49.  1^st Session  D3 had 11 Instructors for the Event.  The P5 pupils and Duty Teachers were divided into 3 large groups (each with about 80 pupils) in 3 activity zones.  The Trust Ladder activity zone was in the front part of the Hall.  Each large group comprised 2 P5 classes with 3-4 Instructors and 2 Duty Teachers, and was further divided into small groups.  The Explanatory Note and Instructors’ Memo provided for 4 “ladders” with 2 for each class (and hence 19-20 pupils per “ladder”) under the charge of 1 male and 3 female Instructors.

50.  At the initial briefing session, Ms Shum explained the goals/ programme, play methods (with demonstration by D3’s staff), and things to note,[31] and she led the pupils to do the warm-up exercises.  Mrs Tai circulated around the Hall to oversee the Three Games, and she saw the Instructors (a) checking/correcting pupil Rod‑holders to ensure they exerted strength and adopted the proper posture, and (b) following pupil Ppts’ progress on the “ladder” by walking alongside and lending a helping hand if necessary. The pupil Ppts all completed the Trust Ladder safely.  The Duty Teachers performed the Teacher Duty and saw to it the pupils would not get over-excited.  Ms Shum then gave directions for the Duty Teachers to line up the pupils to rotate to the next activity zone for the next Game, and the Instructors gave small-group explanation/demonstration at the beginning of each new Game.[32] It was therefore immaterial that P did not attend the initial briefing session at the 1^st Session.

51.  2^nd Session  In light of my findings, by the time P reported for duty at the Hall at about 10:00am, he already knew about the Three Games and the Teacher Duty.  P claimed Mrs Tai suddenly asked him to take photographs of the Event, so he returned to the Teachers’ Room to pick up his gear, but he gave up after 1-2 photographs as he had not charged the batteries and the quality of the photographs were unsatisfactory. But I prefer Mrs Tai’s evidence that on the day before the Event she invited P (who had a reputation amongst the teachers of being good at photography) to take photographs for the school publication, and he did take quite a few photographs of the Event which were later turned into the school office.[33] Mrs Tai explained she spoke to P the day before the Event so he could bring his camera.

52.  During the 2^nd Session, the Three Games proceeded as in the 1^st Session.  Mrs Tai circulated around the Hall to oversee the Three Games and rotation of the pupils from Game to Game.  Ms Shum/ Ms Kam/Mrs Tai all said the Event was successfully completed without any mishap/fall or any report of accident/injury.  But P claimed he suffered back injury as a result of the Accident.  There were no eyewitnesses, but I find P’s account of the Accident inherently implausible, and his credibility undermined by the unreliability of his overall evidence.

53.  Decision to climb the “ladder”  P claimed there was only 1 “ladder” at the Hall when he climbed the Trust Ladder.  2-3 pupils had already climbed it, and several others had queued up for their turn.  A pupil (possibly the 4^th or 5^th one to take part) was reluctant despite persuasion by pupils/Instructors. P encouraged the pupil, but the pupil turned around to ask P to try first.  The other pupils also implored P to climb the “ladder”, but he told them the Trust Ladder was for pupils and not teachers.  The Instructor(s) then said some teachers also climbed the Trust Ladder, which Game was said to be also suitable for adults, but P again refused as he believed (a) the pupil Rod-Holders would not be able to support his weight, and (b) he would crush them if he held onto them.  P was adamant he would not have participated with only pupil Rod-holders holding the Rods even when (i) pupils clamoured for his participation and/or (ii) other teachers had climbed the Trust Ladder. 

54.  P claimed the male Instructor went off to fetch (and he returned with) at least 3 more Instructors. The 4 Instructors directly held the 1^st and 2^nd Rods from their positions behind the pupil Rod-holders who just pretended to do so as not to obstruct the Instructors.  If a pupil Rod-holder had small build, the Instructor would wrap his arms around him to hold the Rod.  If a pupil Rod-holder had large build, he would have turn slightly sideways to make room for the Instructor to hold the Rod.  Initially, Mrs Tai was about 10-20m behind P, but he could no longer see her when he got onto the chair at the starting point.  The Instructors gave an explanation/demonstration before P climbed the “ladder”.  P explained his decision to limb the “ladder” in his 1^st witness statement as follows:

“當時，我心想校方為了學生及老師的安全必定會仔細甄選代辦活動的組織，所以，[Instructors]應有專業的知識或資格。此時，有旁的同學在叫喊口號以作支持，加上四名[Instructors]亦參與鼓勵及直接提供協助，將我的疑慮為之清除，況且附近的[Mrs Tai]及其他老師沒有阻止更似乎沒有意思不鼓勵老師參與，我也沒有其他不參與的理由，也違背了[Trust Ladder]活動原本打算向同學傳遞互相信任、增強自信心的原意，加上相信眾導師的判斷及經驗，所以，我只好同意參加遊戲，並踏上第一支鋁棒。”

55.  On balance I do not believe P was urged to climb the Trust Ladder because a pupil asked him to be a “role model”,[34] but I accept the pupils in their excitement made a general appeal to him to take part.  I do not believe there was just 1 “ladder” at that time.  The programme indicated there should be 4 “ladders”;[35] Ms Kam said there was more than 1 “ladder”; Mr Yuen accepted there might be more than 1 P5 class for the Trust Ladder at any one time (which would have meant more than 1 “ladder”) even though he could not recall whether there were other “ladders” when he glimpsed P at his “ladder”; and in September 2006 Mrs Tai’s Report stated that in the 2^nd Session “約80名學生分三組進行「信任梯」活動”.  In my view, there must have been more than 1 ongoing “ladder” when P took part.

56.  That being the case, given there were just 4 Instructors for the Trust Ladder and other Instructors were in charge of other Games, the male Instructor could not have arranged 4 Instructors for P’s “ladder” as alleged.  Ms Kam (being 1 of the 4 Instructors for the Trust Ladder) confirmed no teacher climbed her “ladder”, and she did not assist at another “ladder”. 

57.  P relied on Mr Yuen’s evidence that from afar he glimpsed P standing on a chair with 2 Instructors holding the 1^st Rod, but he turned away and did not watch after that. It was P’s case that when he was about to climb the “ladder” the 4 Instructors (2 on each side of the “ladder” standing shoulder to shoulder) were holding the 1^st and 2^nd Rods.  Mr Yuen did not say his view was partially obstructed, and with the benefit of a wider angle of vision when watching from afar, I find it strange he only noted 2 Instructors holding the 1^st Rod but was unable to give any clue at all as to who held the immediately adjacent 2^nd Rod.  On balance, I am not persuaded Mr Yuen’s snapshot glimpse was reliable.  It is also unclear whether the 2 Instructors Mr Yuen saw were giving the explanation/demonstration before P climbed the “ladder” or whether they were holding the 1^st Rod for P to step on it.

58.  In light of the above and having heard Ms Shum/Ms Kam whose evidence I accept, I am not persuaded the male Instructor encouraged P to climb the Trust Ladder.  The Instructors knew the target Ppts of the Event were the P5 pupils, and pupils getting excited by the Adventure Activities was not an unusual phenomenon. That being the case, I see little justification for any Instructor to depart from the usual practice of letting the teacher himself/herself to decide whether or not to participate.  Mrs Tai confirmed she took part because of jovial requests by the pupils and implicit agreement by the Instructor (which she clarified to mean that the Instructor neither encouraged nor objected, but when she chose to take part the Instructor watched over her participation and helped her complete the Trust Ladder), which was a cry from the overt encouragement P suggested.

59.  I also do not believe P gave considered and analytical thought to all the matters in paragraph 54 above when deciding to climb the Trust Ladder.  I have rejected P’s evidence that he acted as “role model”.  Indeed, the evidence of Ms Shum/Ms Kam, the video-clips of Trust Ladders at other schools, and Mrs Tai’s own experience all suggested teacher participation was invariably a spontaneous happening.  I find P’s claim that he considered, say, D1’s selection of service-provider for the Event and the Instructors’ professional knowledge/ qualification, to be embroidered afterthoughts.  Likewise, I reject P’s alleged reliance on failure by Mrs Tai and other teachers to stop him.  Although he initially saw Mrs Tai was 10-20m behind him, he had no idea where she and other teachers were when he moved to the starting point of the “ladder”.  I prefer Mrs Tai’s evidence that she was not paying attention to P’s “ladder”, and when she saw P was about to get off the “ladder” she was close to Game 3 at the back of the Hall. In my view, Mrs Tai must have been quite far away when P got on the “ladder”.  I find on balance Mrs Tai did not know P would climb the Trust Ladder.  In all the circumstances, I reject P’s explanations which were nothing more than unconvincing attempts to bolster his alleged reliance on D3 (and hence D1). 

60.  I find on balance P climbed the “ladder” out of voluntary choice, and neither D1/D3 encouraged him.  Mrs Tai agreed she acceded to the pupils’ appeal after assessing her own ability, her medium build, and pupil safety. Only 3 other female teachers of medium/slight build climbed the trust “ladder” during the Event, and even though the video-clips showed male teachers in other schools took part in the Trust Ladder, the 3 male Duty Teachers[36] for the Event did not. But it is unnecessary for this court to speculate why P climbed the “ladder”, eg whether or not he acceded to appeal by the pupils in an atmosphere of joviality or otherwise.

61.  Accident  P claimed he slowly put his left foot on the 1^st Rod, and then his right foot on the same Rod.  He had to bend over more because of his height, and he kept one hand (and sometimes both hands) on the Instructors’ shoulders.  P in his 2^nd witness statement stated “沒有認真留意由第三支[Rod]開始[Instructors]及學生們位置及他們是如何走位的”, but said under cross-examination the Instructors who held the 1^st Rod would rotate forward to hold the 3^rd Rod after he stepped onto the 2^nd Rod with both feet, and the Instructors who held the 2^nd Rod would rotate forward to hold the 4^th Rod after he stepped onto the 3^rd Rod with both feet, and so on.  He would pause with both feet on a Rod to wait for the Instructors to rotate forward and then to signal him whereupon he would place his hands on the Instructors’ shoulders for balance and slowly put one foot on the next Rod. 

62.  P claimed that as he neared the end of the “ladder”, he bent his back and had both hands on the shoulders of the Instructors holding the 6^th Rod.  As P put his left foot on the 6^th Rod with his right foot still on the 5^th Rod, the 6^th Rod wiggled and sank slightly by 2-3in (“感到[Rod]突然有搖晃或下墜的感覺”), which caused him to almost lose balance whereupon he had to exert himself to maintain balance.  P said he felt slight pain in the back, so he stopped and told the Instructors the 6^th Rod wiggled just then and caused pain in his back.  He asked the Instructors to move the chair closer to enable him to alight more easily, and the Instructors asked a pupil to do so.  P paused for 3‑4 seconds before putting his right foot forward to get off the “ladder”.  When he landed on the floor, he felt increased pain at his lower back, so he asked the male Instructor to tell Mrs Tai (who was quite far away near the 2^nd Game) he had to return to the Teachers’ Room to rest.  But his back pain increased even after some rest. 

63.  Since I do not accept there were 4 Instructors at P’s “ladder”, it follows I also reject P’s case on the arrangements for holding the Rods, which arrangements I find to be inherently implausible.  It flied against the obvious purpose/aim of the Trust Ladder (ie to enhance teambuilding and mutual trust/cooperation) to have pupil Rod-holders pretending to hold the Rods to give false support to the teacher Ppt.  Further, as Ms Kam explained, it would be unsafe for the Instructors to wrap their arms around the pupil Rod-holder because the Instructors in that posture would not be able to exert strength.

64.  I also do not believe P climbed the “ladder” in the way he alleged. Fundamental to the Trust Ladder was the concept of distributing weight by crouching on the “ladder”, holding onto the shoulders of the Rod-holders on each side, and having one foot on one Rod.  On balance I do not believe P had both feet on one Rod and both hands on the shoulders of the Instructors standing behind the pupil Rod-holders.  Bearing in mind the Rod was almost 1m in length, the pupil Rod-holders stood behind both ends of the Rod and the Instructors stood behind the pupil Rod-holders on both sides of the “ladder”, P would have to really stretch himself to hold onto the shoulders of the Instructors standing behind the pupil Rod-holders of the 6^th Rod whilst both of his feet were on the 5^th Rod.  It would have been obviously apparent to any reasonable person let alone all 4 Instructors that such stretched posture (if possible at all) would not be conducive to balance.  I do not believe P climbed the “ladder” in such manner.

65.  This must be compared with Mrs Tai’s experience of a female Instructor “assisting” her to climb the “ladder” by checking the pupil Rod-Holders were holding the Rods correctly, giving a hand where necessary, and helping her to alight, and with Mr Yuen’s observation of 3 female class teachers climbing “ladders” formed by pupils of their own class. Both accounts were consistent with Ms Kam’s explanation of the process of teacher participation.  On balance I find P’s account of his “ladder” and how he climbed it unconvincing.

66.  I also reject P’s account of how the Accident happened.  The 1^st documented account of a wiggle and slight drop of the 6^th Rod came almost 4 years after the Event in the Statement of Claim. Various post-Event accounts either gave a different account,[37] or stated that the onset of P’s back pain was after and not during the activity.[38] On P’s account, he claimed he slowly put his left foot on the 6^th Rod to see whether it could take his weight (which meant his body weight was still mainly on his right foot on the 5^th Rod) whilst both hands were on the shoulders of the Instructors holding the 6^th Rod.  He claimed that just as he did so the 6^th Rod wiggled and sank slightly.  The video-clips of teachers of other schools taking part in the Trust Ladder showed that hand-held Rods would usually wiggle and sink a little (similar in range to the drop of the 6^th Rod) when the teachers stepped on them.  I agree with Mr Lim, counsel for D1/D2, that what happened to the 6^th Rod was nothing extraordinary, and with most of his weight spread over 3 limbs and his left foot just placed on the 6^th Rod, it is doubtful whether there was sufficient trauma/energy to cause P to almost lose balance and so strain his back such that it would cause immediate pain.  There was no suggestion the Instructors let go of the Rods; instead P said they did their best to keep the Rods steady and help him to complete the Game. 

67.  I am not persuaded P injured his back in the manner he said.  Mrs Tai had a glimpse from afar of P about to get off the “ladder” and she thought nothing more of it when he did so without apparent accident/ injury and the pupils happily clapped hands.  On balance I do not believe P told the Instructors he hurt his back and/or he requested for the chair to be repositioned to enable him to alight more easily.  I cannot see the pupils clapping/cheering if P had announced he was hurt and needed help to get off the “ladder”.

68.  I am also unconvinced P asked the male Instructor to report to Mrs Tai and he left immediately to take a rest.  Mrs Tai said she remained at the Hall after the Event to direct school workers to tidy up, and no one reported to her of any accident/injury.  It is even more telling that P as Duty Teacher was required to bring Class 5D to the ground floor after the debriefing session and award presentation, and no one asked Mrs Tai to assign (and she did not assign) any other teacher for the task, so Mrs Tai believed (and I accept) P must have brought Class 5D to the ground floor. 

69.  I reject P’s case on the Accident.  Since neither P nor Ds pleaded any alternative case, P’s claim is liable to be dismissed, and it is unnecessary for me to consider D3’s standard of care and/or any breach thereof, whether P was contributorily negligent and/or whether D1 was vicariously liable for D3’s conduct[39] and/or Mrs Tai’s conduct.  In coming to this view, I have also considered the post-Event matters canvassed below.  Whilst I accept it is probable that P might have suffered some soreness/discomfort in his back from climbing the “ladder” upon requests made by the pupils after “全組同學完成”,[40] there is no need for this court to speculate how it actually came about, including whether it was because of “[playing] game at school, walking on wood Need to bend over noticed pain next day”,[41] “[no] clear mechanism of injury …… sudden LBP after a certain school activity”,[42] “[patient history]: 28/6/06 injured back, by bending over sharp pain”[43] or any other reason. 

(c)  Post-Event period

70.  Report to D1  P claimed he reported his back injury to Mrs Leung on the same day because he could not find Mrs Pau, but despite his back pain he had to lead the school’s athletic club for an overnight event 3 days later (“Athletic Event”) because no replacement teacher was available.  Mrs Leung agreed that some time before the Athletic Event she saw P who told her he was hurt during the Event, but he eventually attended the Athletic Event as 2 other PE teachers were not available.  But Mrs Pau said she saw P at her office or the school office on the same day after the Event, and was told P had back soreness/pain after taking part in the Event (but it was not a formal report of injury on duty), and she told P to take some rest.  On balance, I prefer the evidence of Mrs Leung/Mrs Pau who frankly accepted there was mention to them of back discomfort from the Event, and I also accept there was no formal complaint of work duty.

71.  29 June 2009  P claimed he was woken up by pain at 4:00 am, but upon enquiry was told that the doctor at Town Health Centre (“THC”) had gone off duty.  He said he was in such pain the following morning that Ms Chang had to support him to a taxi to attend THC.  Dr Lee Kwok Sun’s medical report dated 18 December 2012 noted he had “back injury in school on 28-6-2006” with complaint of low back pain but no lower limb neurological sign for which he was granted 3 days’ sick leave.  At the follow up on 4 July 2006 he claimed the back pain started to radiate down the right thigh (which was different from P’s letter to the LD dated 2 February 2007 that stated “背部劇痛及大腿(右)刺痛” when he attended THC on 29 June 2006).  The differing accounts give pause for concern as to their reliability, and on balance I find P had back pain/soreness but not severe as he suggested. 

72.  Athletic Event  P attended the overnight Athletic Event but claimed he could not move much because of back pain.  I prefer Mrs Pau’s evidence (which P denied) that she attended the event and saw P active amongst pupils/parents.  Only 2 teachers joined the evening barbecue, which meant, in my view, P had much to do looking after the pupils for the 2-day event.  I do not accept his back pain/soreness was severe or significant. 

73.  Summer holidays  P claimed he consulted bonesetter on 3-4 and 6-7 July 2006, but D1 threw away the sick leave certificate.  He attended follow up at THC on 4 July 2006, sought Chinese herbal treatment in Shenzhen in July/August 2006, and returned to THC on 18 August 2006 complaining of persistent back pain with right thigh radiation.  X-ray revealed only degenerative changes at L3/L4 without disc narrowing.  P did not work from 6 July to 18 August 2006.  On 23 August 2006, THC gave a referral letter for P to see “orthopaedic surgeon”, which stated he had “Back sprain injury on 27/6/2006” and “persistent lower ® back pain, radiated to ® thigh, LL power → normal …… x-ray → degenerative changes ……”

74.  Bus incident  P in his letter to the LD dated 2 February 2007 claimed he felt back pain again on 23 August 2006 as he alighted from a bus going to Kowloon, so he immediately took a taxi to the accident and emergency department (“AED”) of Queen Elizabeth Hospital (“QEH”) where he received treatment at 10:29pm.  The medical report dated 27 August 2010 noted information from the triage nurse and P indicated P’s back pain occurred when walking down the bus staircase as the bus made an abrupt turn.  P suggested the triage nurse mistook his account as a traffic incident. According to his 2^nd witness statement, P took a double-decker bus to QEH as he “想去[QEH’s AED]看醫生，要求轉介骨科診治”, and he had to grab the railing (which act exacerbated his back pain) when he was about to go down the staircase from the upper compartment and the bus made an abrupt turn.  But under cross-examination P said his original intent in taking a bus to Kowloon after dark/dinner was to make enquiries at the QEH information desk for orthopaedic referral pursuant to THC’s referral letter, but he went to the AED because of what happened on the bus. 

75.  On balance I do not believe P.  I am not persuaded that he thought QEH’s outpatient service (as distinct from the AED) would be manned late in the evening, which account in any event was different from his statement evidence, and he did not explain why he would go to QEH to make enquiries when on his case (a) he was in pain, (b) he lived in Taipo, (c) he got THC’s referral letter in Taipo, and (d) there were other hospitals much closer to home, eg Prince of Wales Hospital (“PWH”) or Alice Ho Miu Ling Nethersole Hospital (“AHMLNH”). 

76.  Although the origin of back pain could not be clinically differentiated, on balance I find P suffered a back/neck sprain on the bus as it made an abrupt turn, and he attended QEH’s AED for treatment.  The physiotherapy report dated 29 January 2009 by Kowloon Hospital (“KH”) tellingly revealed that P obtained referrals for back and neck pain management from QED’s AEH.  KH carried out initial physiotherapy assessment for the back on 25 August 2006 and on the neck on 2 September 2006. It was noted P had neck pain aggravated by forward and lateral flexion.  Physiotherapy for neck pain started in September 2006, and the neck pain subsided on re-assessment on 24 November 2006.  P never complained the Accident caused neck pain, so he plainly suffered a separate back/neck strain incident on the bus severe enough to require physiotherapy treatment.

77.  September/October 2006  P claimed that in August 2006 when he was still on sick leave, D1 requested him to attend a kick-off meeting at the end of August or September 2006 but was non-committal about reporting his work injury to the LD.  When he returned to the school for the meeting, he found out D1 had thrown away his sick leave certificates, falsely claimed he had received the Event Memo, and still had not made report to the LD.  But I have already found P had received the Event Memo, and I therefore reject his account.  I prefer Mrs Pau’s evidence that P did not apply for sick leave, submit sick leave certificates or demand report to the LD over the summer holidays,[44] which was why D1 notified him to attend the kick-off meeting.  I also find that some sick leave certificates were subsequently submitted by P to D1.

78.  P attended PWH’s orthopaedic clinic on 7 September 2006 and was treated conservatively with physiotherapy.  In September 2006, P pressed D1 to lodge Form 2 to the LD, and claimed to have discussed with Mrs Pau the description of the Accident after which Form 2 was completed.  He further claimed he was advised in early October 2006 that D1 would not submit report to the LD, so he had choice but to report the Accident to the LD himself. 

79.  Mrs Pau agreed that in September 2006 P pressed D1 to report his alleged injury on duty to the LD, but D1 disputed P’s demand to specify that D1 requested him to take part in the Trust Ladder.  Mrs Pau decided to look into the matter, and asked Mrs Tai and D3 to submit reports.  On 26 September 2006, Ms Shum reported by fax that after a small group led by a female Instructor had completed the Trust Ladder, the pupils invited a tall teacher (who took photographs) to take part, but “此舉並非活動需要，故[D3]不會要求老師參與，但亦無需阻止，只在旁留心觀察情況”, and the teacher completed the Game, “完成後並未見老師在異樣或接到有關受傷不適的報告”.  Mrs Tai also made Mrs Tai’s Report on the same day that gave an account consistent with her evidence. Mrs Pau noted from such reports no one actually witnessed the alleged Accident, so she had many telephone conversations with P on the description of the Accident, which contributed to some delay in D1’s report to the LD.

80.  On balance, I prefer Mrs Pau’s account that P did not apply for sick leave over the summer break, and he started to press for report to the LD for compensation claim when school started.  D1 took time to investigate into the matter and to liaise with him over the description of the Accident.  Interestingly, upon questioning as to why he did not refute Mrs Pau’s suggestion that it was he who asked D1 to specify in the Form 2 that D1 requested him to take part in the Trust Ladder, he blamed his solicitors for not showing him Mrs Pau’s 2^nd witness statement (served more than a year ago) until a week before trial, but there was no application for leave to amplify on his response to Mrs Pau’s allegation in his evidence-in-chief.  In my view, this is an unconvincing explanation.

81.  Report to the LD P submitted “工傷意外通知書” dated 31 October 2006 (“P’s Notice”) to the LD, and he wrote in the box for “請敍述意外如何發生及損傷性質，並說明僱員當時正在進行的工作” as follows:

“2006年6月28日本人被安排往本校六樓[Hall]，負責看管五年級學生進行歷奇活動。期間和學生一起攀過一些「人造路軌」，這活動並無危險性，但本人活動後腰背疼痛，6 月29日往醫生診治，(於該項活動時扭傷)” (my emphasis)

On 17 November 2006, P replied to requisitions by the LD on “詳細說明當日意外發生的經過及[P]是如何受傷的 ……” as follows (“P’s Reply”):

“6月28日上午10時30分，我在學校六樓[Hall]帶領學生參與「歷奇」活動，我在參與學生活動中「火車軌」時，扭傷腰背，到活動完畢後，感到小許痛楚，當晚產生劇痛。” (my emphasis)

82.  Although P claimed “活動後腰背疼痛” in P’s Notice meant he had pain after taking a step on the “ladder”, an objective reading of P’s Notice would suggest he had pain after completing the activity (as was made evident in P’s Reply).  P argued he did not give full/accurate details in P’s Notice since he was only required to “敍述” (and not “描述” or “詳細說明”).  But P’s Notice did ask for an account of how the accident happened, and he could not explain why he described the activity and pain but not state how the Accident happened.  Further, the description in P’s Reply that he felt a little pain after completion of the activity did not sit well with his present account.  P tried to brush this aside by saying staff at the LD told him whatever he stated was irrelevant since only D1 could submit the Form 2.  I do not accept P’s weak rationalisations, which reflect desperate attempts to bolster unconvincing propositions.

83.  D1 submitted the Form 2 signed by Mrs Pau to the LD.  It was stated in the box for “請敍述意外如何發生及損傷性質，並說明僱員當時正在進行的工作” that:

“2006年6月28日[P]被安排往本校六樓[Hall]，負責看管五年級學生進行歷奇活動。期間和學生一起攀過一些「人造路軌」，這活動並無危險性，但[P]於課後表示腰背劇痛，並往大埔康健綜合醫務中心，由李國新醫生醫治，証實腰背扭傷。”

Further the box for “在意外發生時現場進行的活動” stated:

“2006年6月28日本校為五年級同學舉辦「歷奇」活動，其中一項為每二人托一枝木棒，成為一條「火車軌」。參與活動的人仕由一方踏著木棒，由一方慢步到另一方，是項活動需全體参與，並鼓勵一些膽怯的同學鼓起勇氣去完成。”

I agree with Mrs Pau that in the relevant context “全體参與” necessarily referred to P5 pupils.  I also accept Mrs Pau’s evidence that she asked P to write out how the Accident happened, but she removed “需要和同學一起爬過信任梯” from P’s Account before she signed.  Apart from this, she largely relied on P’s account since there was no eyewitness, which was why she stated “……願意証明[P]在6月28日在學校扭傷背部一事屬實，並無虛假” in D1’s written explanation to the LD on 3 November 2006 for late submission of Form 2. 

84.  In conclusion, P failed to establish any liability on the part of any of the Ds.  But in case I am wrong, I shall briefly turn to the issue of quantum on the assumption (which I disagree) that he suffered back pain injury as a result of the alleged Accident.

VI.  QUANTUM

(a)  Personal history

85.  P was divorced in 2002, and his ex-wife had custody of his son.  Since 2004 he cohabited with Ms Chang.  P claimed that before the Accident he was sporty and in good health.  The Ortho Report recorded P as right handed, but he claimed his left hand was stronger, ie he played ball and performed other functions (except writing ad using chopsticks) with his left hand.

(b)  Work history

86.  Since 1975 P taught at 啟智小學 and helped train pupils for inter-school athletic events with some success.  In the 1980s he taught at Tai Po Old Market School, and coached high-jump, basketball and athletic teams with good results.  In 1994 LSPS(AS) invited him to coach its basketball team, and in 1995 he joined LSPS(AS) as certified master to teach Chinese language, mathematics, general studies and PE, and to coach the basketball team.  He also coached D1’s athletics and swimming teams which won prizes at inter-school competitions.  But P confessed to Dr Lai that other teachers might not be happy with him over such achievements, and they complained he was difficult to deal with.  He also revealed he used to teach higher classes, but was gradually put to teach lower classes. 

87.  Mrs Pau said P’s teaching performance was “非常非常一般”, he was “鹵莽” in his work, his judgment was inadequate, and he often caused D1 embarrassment.  When Mrs Pau was still LSPS(AS)’ vice-principal, a group of parents complained P gave a P4 test paper to P2 pupils who therefore got low marks.  P’s then wife had also asked Mrs Pau to keep an eye on P because there were many pupils’ essay books lying about at home, so D1 had to vigilantly check whether he marked homework on timely basis.  P was given 2 unrecorded verbal warnings, and in 2002 Mrs Pau as principal administered a recorded verbal warning to P for incorrect marking of 60% of some school papers. 

(c)  Injuries, treatment and return to work

88.  I refer to the matters in Part V(c) above.  At KH’s physiotherapy assessment on 25 August 2006, P complained of back pain, but active trunk rotation and lateral flexion was full and pain free, and straight leg raising (“SLR”) was 80º over both sides.  P attended PWH’s orthopaedic clinic on 7 September 2006, and was treated conservatively with physiotherapy.  Private MRI on 13 September 2006 showed degenerative disc worse at L3/4 with protrusion but no neural compression, which was “[essentially] normal examination”. 

89.  In September/October 2006, P claimed to be depressed/ angry at the way D1 treated him.  On 13 October 2006, hydrotherapy started.  P returned to THC on 29 November 2006 complaining of right back pain down to right buttock.  On 20 December 2006, hydrotherapy started again.  Physiotherapy lasted until 21 February 2007, but P reported only mild overall improvement.  P was referred to occupational therapy for further work hardening training.

90.  P claimed his mood worsened in 2007-2008 when he was troubled by his injuries and by the way D1 treated him.  He claimed to be socially withdrawn, poor in self care, and had suicidal idea.  P said he was asked by D1 to pack his belongings, and when he refused they were forcibly delivered to him.  Despite P’s aggrieved perception, I find D1 was making teaching arrangements rather than targeting him.  Mrs Pau explained that since September 2006 P’s sick leave disrupted pupils’ studies, and D1 finally found a replacement teacher willing to work on longer-term basis, so D1 had to make room by clearing out P’s desk/locker and returning his personal belongings (eg clothes/shoes) to him.  On 23 February 2007, P attended THC and complained of insomnia, and was referred to see psychiatrist. 

91.  In March 2007 P developed weakness in his ankle (right foot drop).  On 24 March 2007, P complained to Dr Y T Tse of Congruence Orthopaedics & Rehabilitation Centre (“CORC”) of back pain radiating to right thigh and numbness of right leg.  P was prescribed medications with a crutch as walking aid.  On 29 March 2007, P was admitted to PWH because of increase in pain and onset of right lower limb weakness.  MRI done on 3 April 2007 showed he had prolapsed intervertebral discs but no nerve compression or specific lesion.  P was discharged on 11 April 2007, and was referred to physiotherapy and occupational therapy. 

92.  The orthopaedic surgeon at PWH referred P to AHMLNH’s pain clinic for symptomatic treatment of back pain.  He was seen on 26 May 2007, and over the next few months the pain clinic helped him learn coping strategies.  Although P claimed the nerve conduction test on 22 June 2007 showed abnormality in his right leg, the test result confirmed there was no electrophysiological abnormality to account for his symptoms.  On 2 October 2007, P saw CORC’s Dr Ko Wing Man (“Dr Ko”).  He still had back pain but sciatic pain had lessened.  On 9 October 2007, Dr Ko referred P for private physiotherapy at CORC, but the response was unsatisfactory.  P claimed that after initial improvement up to end of 2007 and early 2008 his symptoms worsened afterwards.  On 26 November 2007, P saw AHMLNH’s clinical psychologist.  He had regular clinical psychology follow up for mood management and pain-coping.

93.  P attended 15 sessions of physiotherapy at AHMLNH from 10 January to 27 March 2008.  At the initial assessment, he complained of deep pain over back, pain over right buttock and anterior aspect of right leg, and parathesia over medial aspect of right lower leg.  But “[give] way resistance was noted on muscle testing of right lower limb.  …… Waddell sign was charted 4/5”.  By 27 March 2008, there was little subjective improvement, but “[muscle] power of right quadriceps was grade 4 with give way resistance …… [diffuse] pain was noted at back when on gentle palpation …… [he] walked with one elbow crutch and reported walking tolerance was 15 minutes ……”

94.  Work assessment by AHMLNH’s occupational therapy department dated 2 January 2008 recorded P’s claim that he could not walk/stand without elbow crutch.  It was noted “Waddell’s Inappropriate Symptoms Questionnaires: 4/5, Indicate +ve inappropriate symptoms”.  The doctor from the pain clinic remarked P was advised to continue mobilisation, and “use of crutches will be on PRN [pro re nata, ie when necessary] basis”.  P suggested the inappropriate signs were neurological and not orthopaedic features as demonstrated by the abnormality in his right leg in the nerve conduction test (but this assertion was belied by the test result).  P was last seen at PWH’s orthopaedic clinic on 10 March 2008.  Consultation at AHMLNH’s pain clinic on 26 May 2008 indicated reliance on elbow crutch, and the doctor urged P to walk more without support of walking aid.

95.  P underwent medical assessment on 4 June 2008 and was due to report for duty on the following day, but he submitted a sick leave certificate and asked Mrs Pau whether he could return to work over the summer holidays and resume sick leave in September. She refused since P should abide by medical advice.  P claimed that in July 2008 Mrs Pau asked him to consider resigning rather than taking extended sick leave, which he refused.  On balance I prefer Mrs Pau’s frank admission that she wished he would resign for the good of the school/pupils given his weak teaching performance, but she never asked him to do so.  P all along remained as D1’s full-time teacher, but as a subsidised school D1 had to pay his salary and handle his paid/unpaid sick leave in accordance with ED’s requirements.

96.  P had another course of physiotherapy at KH from 13 August to 17 September 2008.  At the initial assessment on 13 August 2008, P complained of stretching pain on right side of back and thigh (8/10) and pins and needles over right posterior thigh and leg.  Back pain was aggravated by movement and walking with non-specific tenderness over back but no neurological deficit.  SLR was 30º with pain over right side and pain free on left side.  On 17 September 2008, P reported mild improvement.  On 18 November 2008, P saw pain specialist Dr Sze Tak Suen (“Dr Sze”), and was treated conservatively over the following year with steady improvement.  Dr Ko arranged for MRI lumbar spine on 13 December 2008, which showed spondylosis with small marginal spurs, prolapsed intervertebral discs at L3/4 disc with no lumbar root impingement. 

97.  According to the work capacity evaluation by PWH’s occupational therapist dated 29 January 2009, P showed poor physical/ work capacity and poor sitting/standing/walking tolerance, and the objective/subjective assessment reflected he could not resume even sedentary work.  P strongly relied on left elbow crutch, but (a) no significant “worn out” shoes were noted (if his weight bearing was mostly on left side and he had to drag his right foot), and (b) weight bearing to left side or body leaning over right side was not significant in walking, weight-shifting or standing posture.  “In general, if he actually found (R) LL weakness, he must put on opposite (R) side elbow crutch for (R) LL support rather than using (L) side crutch to prevent fall onto (R) side”.  It was concluded that:

“He had attended 1 session of Ax. He expressed many excuses that he could not any perform formal work simulated Ax WITH or WITHOUT crutches because of poor LL stability. However, some observable behaviour(s) …… that he could probably finish some work simulated tasks in a certain extent but he showed reluctance even several reassurance. Thus, his overall work capacity could not be concluded. In view of low participation in home mobilization after relying on crutch support & he presented a strong SICK role during our Ax. We suggested him to consider early retirement. ……”

98.  When P was seen at AHMLNH’s pain clinic on 5 January 2009, his pain condition remained stable.  P had symptoms of depression, insomnia and low mood, and was referred to psychiatrist for further management.  P was first seen at Tai Po Hospital’s psychiatric outpatient clinic on 3 March 2009, and was followed up regularly.  The diagnosis was adjustment order, and his prognosis would depend on other stressors, eg severity of his back pain.  Up until December 2010 P was overall emotionally stable, and the same diagnosis and prognosis were maintained.  P felt better in mood/initiative after psychiatric treatment. 

99.  In September 2009, P’s father passed away.  P told Dr Lai he was not affected by his father passing away, but Ms Chang revealed P was a bit upset that his son did not attend the funeral.

100.  On 21 December 2009, PWH’s orthopaedic department issued recommendation for light duty for 6 months (ie until end of June 2010).  In April/May 2010, P joined the COPE programme, and was given sick leave until 3 June 2010.  He resumed work on the following day, and was able to manage because he only had to supervise examinations and mark papers over summer.  On 6 July 2010, there was aggravation of low back pain, and he had to take 3 days’ sick leave. Dr Sze in his letter dated 20 July 2010 recommended that P be allowed to bring his work home so as to minimise travel to/from school during the summer holidays.

101.  By his letter dated 10 June 2010, Dr Sze suggested that when P resumed work in September 2010 he “should not be allocated to teach PE lesson and he should be allocated with the minimal amount of work in the first six months”.  So D1 arranged for him to teach 27 lessons per week (ie 10% less than usual) of “lower class” mathematics, general studies and information technology with no PE lessons (to avoid physical strain) or Chinese language lessons (to avoid heavy workload in marking homework and taking up extra-curricular responsibilities). Despite grumbling by other teachers, D1 arranged for them to lead pupils up/down the stairs during recess and end of the school day on P’s behalf.  Mrs Leung said such arrangements were discussed/agreed with P. 

102.  P claimed his medications made it difficult for him to cope.  He walked slowly and his back was painful.  His concentration/ efficiency were worse; he was forgetful and could not catch the pace of teaching.  He was worse in managing pupils and in organising/ expressing himself.  He prepared a test paper which could not be used and had to be re-done by a colleague.  The curriculum had changed, and he feared for his job.  He was unhappy/angry with Mrs Leung and his colleagues whom he thought had no regard for his condition.  By October 2010 he had to apply for periodic sick leave, and by February 2011 he had to take longer no-pay sick leave.  He returned to work on 27 May 2011 because school duties were lighter at that time.  He claimed Mrs Leung asked him to be a “0.5 teacher” with work/salary reduced by half, but he refused.

103.  Mrs Leung said D1 did not see any real attempt by P to resume work after 27 May 2011. P continued to take intermittent sick leave, resuming work after using up his sick leave entitlement, and applying for sick leave again after having earned sick leave days.  This seriously affected teaching arrangements and pupils’ studies, but at that time D1 could not go behind P’s sick leave certificates.  So it was decided to engage a full-time teacher for the 2011/2012 school year to take up P’s teaching duties, and such teacher would be paid by D1’s “堂費” collected from the pupils whilst P as D1’s full-time teacher continued to receive salary and/or sick leave pay under ED’s guidelines for subsidised schools.  Since then P only handled light temporary work (ie deal with library matters and check pupils’ book reports), but he claimed he still had difficulty in coping because of his medications.

104.  P still complained of disabling low back pain, generalised weakness of whole right lower limb, numbness and pain over right lower limb that significantly affected his ambulation capacity and activities of daily living.  He complained of poor weight-carrying (but could do grocery shopping), walking and sitting tolerance, and relied on Ms Chang for household chores.  He claimed he did not like to go out anymore.  He complained of difficulty in cleaning toes, putting on standard shoes and managing staircases in taking MTR.  He stopped having sports and/or sex with because of pain.  P further claimed he still had insomnia and poor concentration/efficiency.

(d)  Ortho Report

105.  Dr Tsoi’s clinical diagnosis was musculotendinous strain since nerve root compression and/or peripheral nerve lesion was ruled out.  The degenerative disc and protrusion were the result of natural degeneration and unrelated to the Accident.  Despite several courses of physiotherapy and occupation therapy, P noticed progressive weakness with pins and needles sensation over right lower limb.  Dr Tsoi said such poor response could not be explained orthopaedically. 

106.  Dr Tsoi noted P held single elbow crutch with right hand.  Physical examination revealed tenderness at low back, but no muscle spasm, no wasting of lower limb muscle, normal muscle tone and normal knee/ankle reflexes for lower limbs.  Further, shoulder pressure/ elevation increased low back pain, and simultaneous pelvis trunk rotation significantly increased low back pain.  Dr Tsoi said such positive simulation tests were features of symptom magnification.  P demonstrated a lot of inappropriate signs, eg there was no medical explanation for the generalised weakness of the whole right limb; the cogwheel pattern of weakness was usually due to voluntary underperformance; P’s SLR for right leg was lying 20°/sitting 70° and for left leg was lying 50°/sitting 70° (but normally a patient with sciatica would have similar SLR regardless of body position); and the grossly limited back movement and failure in single leg standing, squatting and heel walking were unexplained.  In summary, Dr Tsoi considered P’s complaints and apparent disabilities were non-organic in nature. 

107.  Dr Tsoi opined that the musculotendinuous strain had long attained maximum medical improvement (“MMI”).  There would be residual back soreness upon exertion and after vigorous manual activities, but the actual degree of pain should be less serious than P described and demonstrated.  No further orthopaedic treatment would be required, and prognosis was good. Dr Tsoi assessed the effect of musculotendinuous strain to be 3% permanent impairment of whole person.

(e)  Psy Report

108.  Dr Lai noted P developed psychiatric symptoms, including psychological stress, sleep disturbance and other psychological symptoms such as depressive features and suicidal ideas.  Dr Lai found such psychiatric symptoms compatible with an adjustment disorder with depressed mood. During examination by Dr Lai, P was a bit agitated when he talked about his negative experience at school after the Accident, but gross degree of depressed mood was not observed.  He was in the normal range of cognitive functioning.  Dr Lai considered P was then suffering from mild symptoms of his psychiatric condition, and opined that his psychiatric condition might have contributed to a mild degree of his sensation of pain, especially when he was worse in his psychiatric condition in September 2010 when he returned to work and encountered negative experience.  But other than the complaint of pain, Dr Lai did not think P’s other physical complaints could be explained on the basis of his psychiatric condition.

109.  Dr Lai opined that the psychiatric prognosis depended on development of the stressors.  P would have better mood if his pain and physical disabilities were less.  In 2010 he also faced the problem of a changed curriculum/system upon return to work. Dr Lai said that based on absence of severe degree of underlying physical pathology, his normal pre-morbid personality, motivation to get well and return to work, improvement of symptoms to treatment, P’s psychiatric condition had a favourable prognosis, and it was likely he would have only minor residual psychiatric symptoms after completion of further psychiatric treatment.

110.  Dr Lai expected P’s permanent disabilities to be in the mild range, and his level of impairments would be compatible with most useful functioning.  He would have no problem in self-care and activities of daily living, and could take public transport.  He might continue to have minor residual symptoms, but little/no increased risk of decompensation under stressful situation after completion of further psychiatric treatment.  Dr Lai assessed permanent impairment of the whole person for P’s psychiatric condition to be 2%-3%.

(f)  Pain, suffering and loss of amenities (“PSLA”)

111.  Upon careful consideration of the medical reports/records and expert medical opinion against P’s and Ms Chang’s evidence, I accept on balance the opinion of Dr Tsoi/Dr Lai, and find that P’s back condition was/is less severe than P suggested, and that he exaggerated his symptoms/problems.  I also note P had degenerative spine and back/ neck strain due to the bus incident on 23 August 2006, which were unrelated to the Accident.

112.  In the final analysis, P suffered a musculotendinuous strain in his back which caused mild and not severe back pain. P had received extensive conservative treatment, but his symptoms progressively worsened.  There was no clinical justification for his condition to run a deteriorating course.  Instead, as Dr Tsoi said, P’s back condition had long reached MMI.

113.  Although Dr Tsoi suggested symptom magnification might be related to concommitant psychiatric illness, Dr Lai made clear that other than contribution in a mild degree to sensation of pain P’s other physical complaints could not be explained by his psychiatric condition, so there was no medical explanation for P’s generalised weakness of the whole right limb, grossly limited back movement, restricted sitting/standing/walking tolerance, etc.  In my view, the complaints P made, especially of radiating pain and numbness of right lower limb, were not attributable to the musculotendinuous strain allegedly caused by the Accident.

114.  Since 2007/2008, medical personnel noted give-way resistance on muscle testing, alleged diffuse back pain, difference in supine/sitting SLR, and positive Waddell’s signs.  Such inappropriate signs were also noted by Dr Tsoi in 2010.  Further, ever since 2007/2008, medical personnel tried to wean P from his elbow crutch, some doubting his reliance on it and others urging him to limit use to when necessary.  But even up to trial, P was still allegedly reliant on the elbow crutch.  Mr Lim submitted that P’s use of the elbow crutch on the wrong side and his disagreement with Dr Tsoi’s record of his using the right hand (which P did not ask Dr Tsoi to clarify) to hold the walking aid were evidence that he was merely using it as a prop.  But P explained that his left arm was always stronger than his right arm, and both he and Dr Tse felt he should use left elbow crutch.  But even if Dr Tsoi mistook P for being right-handed and even if P usually carried the elbow crutch with his left hand, Dr Tsoi’s view that it was unnecessary to use of any assistive device in ambulation and that walking/sitting tolerance would not be affected was consistent with the treatment medical personnel’s (a) observations of P’s underperformance with no significant shift of weight-bearing to left side, and (b) efforts to wean P off his elbow crutch.  I bear in mind there was no medical justification for his right leg condition and his reliance on the elbow crutch, and there was no muscle atrophy.  Indeed, P said he was able to train every day with a weight tied to his right leg. 

115.  Dr Tsoi further opined P should be able to take care of himself and perform most activities of daily living, and he could play sports although his performance might be slightly affected by residual back soreness.  On the whole, I find P had magnified the extent of pain/discomfort/disability he experienced after the Accident, and as early as in January 2009 PWH’s work capacity evaluation already reported he had a strong sick role.  That being the case, Ms Chang’s evidence of P’s general condition after the Accident would not have carried the matter much further.

116.  As regards his psychiatric condition, I accept Dr Lai’s opinion that P was suffering from mild symptoms of his adjustment disorder. Given my findings above in relation to P’s interaction with D1 after the Event (and in my view D1 did not act unreasonably towards him) and his post-Accident orthopaedic condition (which Dr Lai said would affect his psychiatric prognosis), his psychiatric symptoms allegedly as a result of the Accident would not have been severe.  In my view, P was not an effective teacher even before the Accident, and he had not been coping effectively with his work as seen from the incidents that led to the verbal warnings, the fact his then wife found accumulated pupils’ essay books at home, and his admission to Dr Lai that his relationship with colleagues were not easy and he was already removed from teaching higher classes to lower classes.  In my view, his weak teaching performance contributed to his inability to adjust to the new curriculum/system when he resumed teaching (which Dr Lai regarded as a relevant stressor), but this was unrelated to the Accident.  I also accept Dr Lai’s opinion that P’s psychiatric condition would further improve with the recommended treatment.

117.  On the question of sick leave, save for brief spells during summer holidays and when P attempted to resume work as explained above, he was on sick leave from 29 June 2006 to 26 May 2011.[45] Thereafter, he took on and off sick leave, but resumed work over the summer holidays.  Mr Lim suggested that P’s sick leave should not go beyond February 2007.

118.  Dr Tsoi opined that normally sick leave for musculotendinuous strain seldom exceeded 6 months.  Dr Lai opined that over the course of P’s psychiatric condition from September 2006 to November 2010 he might have required sick leave when he was worse in his psychiatric condition for a period of 5-6 months (which would not have to be continuous).  Dr Lai further said P might need a further 4-6 weeks of sick leave as he had been away from work for some time and would need to adjust to resumption of work, but P is now retired.

119.  In Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd,[46] Le Pichon JA said such sick leave certificates were no more than a piece of evidence that had to be evaluated in the light of all the available evidence including medical evidence before the court, and the judge could not be bound by the mere issue of sick leave certificates: the issuance of such certificates would be primarily because of the subjective symptoms reported to the doctors by the plaintiff.

120.  In view of the subjective nature of P’s complaints of pain/numbness and the magnification of his symptoms/disabilities that formed the underlying premise for the sick leave certificates,  I consider reasonable sick leave for P’s orthopaedic injury was up to December 2006.  However, the onset of P’s psychiatric symptoms only came about in September 2006, and he might need psychiatric sick leave to cover the period when he was worse in his psychiatric condition (which might not entirely overlap with his orthopaedic sick leave).  Since Dr Lai estimated 5-6 months’ psychiatric sick leave, I allow a period of 12 months for P’s overall sick leave.

121.  P claimed he was entitled to an award for PSLA of $450,000, but D1/D2 suggested such award should not exceed $70,000. I have considered the authorities cited by Mr Tsui[47] and Mr Lim[48] on awards for PSLA.  The injuries/disabilities allegedly caused by the Accident were well below the serious injury category despite aggravation by psychological condition.  Bearing in mind that the injuries suffered by the plaintiffs in the above authorities were not exactly the same as those suffered by P in the present action, I have to consider the relevant award in the context of the present circumstances.  Using the above authorities as a guideline but considering the particular circumstances of this case, I am persuaded that an appropriate award for PSLA would be $170,000.

(g)  Past loss of earnings

122.  There was no dispute that P received full pay except for 2 periods of unpaid sick leave from 17 January 2009 to 3 June 2010 and from 18 February to 26 May 2011.  His notional earnings as D1’s full-time teacher for those periods were agreed between P and D1/D2 at $619,800.47.

123.  Dr Tsoi opined that P should have been able to resume his pre-injury job as primary school teacher including teaching PE, but he should take precaution and posture modification when demonstrating activities/skills involving vigorous back movement on weight lifting.  Dr Lai opined that P was mentally fit to return to his pre-injury work or any other work appropriate to his physical abilities.  From a psychiatric perspective, Dr Lai was of the view P should be able to return to his pre‑injury work within 6 months after he was considered physically fit to return to work as considered by the orthopaedist (ie within 6 months after expiry of sick leave for his physical disabilities).

124.  Given my view that appropriate orthopaedic sick leave was up to December 2006, P should be able to return to work in July 2007 which would be suitable as work was lighter over the summer holidays (but whether he was assigned lighter work or not would not have affected his earnings).  According to the schedule attached to Mrs Leung’s 2^nd witness statement, P took 314 days of paid sick leave during such period for which he had received full pay.  But since Mr Lim asked for credit to be given for EC received by P (which included the period from the Accident to June 2007), P’s notional loss of income for sick leave days during this period, ie $391,096[49] x 314 days of sick leave ÷ 365 days = $336,449.71, should be taken into account.

(h)  Future loss of earnings

125.  Mr Tsui confirmed there would not be any claim for loss of earning capacity, but P claimed for loss of future earnings in a lump sum of $500,000.  P pleaded that but for the Accident he would have been able to work after his retirement until he is 75 years old earning $25,280 per month for athletic ($400 x 2 sessions/week) and basketball ($500 x 3 sessions/week) coaching, calligraphy tuition ($300 x 2 sessions/week) and private tuition for mathematics and Chinese language ($320 x 6 sessions/week).

126.  Given my findings above, any future loss of earnings would not be related to the Accident.  Anyway, given his degenerative back condition, it is highly doubtful whether P could have worked until 75 years, especially in relation to sports coaching.  Further, he had not been an effective teacher, and it is also doubtful whether he will be able to secure such busy post-retirement work as suggested.  In any event, apart from a dated advertisement for Chinese calligraphy tutor in 2008 at $2,400 per month for 2 sessions/week, and his own experience more than 20 years ago of basketball coaching at $400 per session, there was paucity of evidence as to the likely earnings of the above part-time work.  I am not prepared to make any award under this head of claim.

(i)  Special damages

127.  P claimed for accrued medical expenses in the sum of $165,489 which were receipted.  Mr Lim submitted P should only be entitled to $5,050 being PWH’s treatment expenses for 2006 and one attendance at CORC on 24 March 2007.  I disagree.  Plainly, Dr Lai accepted P suffered from some mild symptoms of adjustment disorder with depressive mood partly due to the stressor of his physical disabilities.  Although I have concluded that P had exaggerated his physical disabilities, there was still the underlying musculotendinuous strain (albeit less severe than P alleged).  Further, P was justified in seeking psychiatric and/or psychological treatment from AHMLNH and Tai Po Hospital in view of his adjustment disorder or symptoms thereof.

128.  Dr Tsoi said further orthopaedic treatment was not required but he should continue treatment with pain specialist and psychiatrist.  Plainly, pain specialist treatment was not for addressing physical/ orthopaedic issues but for dealing with mind-body dualism issues in pain-coping.  In my view, irrespective the extent/degree of his pain and functional disabilities, P would have benefited from pain specialist and psychiatric/psychological treatment, but not from orthopaedic treatment.  That being the case, I allow items 1-2, all items for AHMLNH and all items for Dr Sze in the schedule of medical expenses at pages 527-530 of the trial bundle.  I therefore award the sum of $50,615 for accrued medical expenses.  As a corollary, P’s claim for travelling expenses of $18,357 would have to be adjusted.  I am also not persuaded he would need to travel by taxi all the time.  He should able to manage bus transport after his condition stabilised.  I am prepared to grant a global award of $5,000 under this head of claim.

129.  P claimed for tonic food expenses in the sum of $23,286.  Whilst such sum was receipted, the receipts were from the period of 2008 to 2009 and there was no evidence as what tonic food was purchased.  At that time, he should be suffering from mild symptoms of adjustment disorder, but his physical condition allegedly as a result of the Accident would have reached MMI.  Only a reasonable sum will be awarded where there is no evidence as to the advisability or suitability of tonic food from any doctor or herbalist or person with medical knowledge.  Following Yu Ki v Chin Kit Lam[50] and judging from the nature of P’s injuries and disabilities, I allow a global sum of $5,000 for his claim under this head.

130.  P claimed massage expenses of $9,969 incurred during 2008-2009.  As explained above, his back condition had long reached MMI. But as Dr Tsoi pointed out, there would be occasions when he would have residual back soreness after exertion and/or vigorous manual activities.  In the circumstances, I award $3,000 under this head of claim.

(j)  Future medical treatment

131.  Dr Lai opined further psychiatric treatment was required which P could receive in the public sector at an average frequency of about 2-4 weeks and at $200 per session.  He further said it was likely that he would require 1-2 years of psychiatric treatment or 1 year after the conclusion of the current litigation, but continuing psychiatric treatment in the future was not expected.  Dr Tsoi said further orthopaedic treatment was not required but he should continue treatment with pain specialist and psychiatrist.

132.  Mr Lim submitted that claim for post-trial pain specialist treatment was not warranted because P had exaggerated his disabilities.  Mr Tsui submitted that P’s claim under this head should be $58,400 comprising psychiatric treatment for 26 visits over a year ($26,000 or $1,000 per visit) and pain specialist treatment for 24 visits over a year ($32,400 or $1,350 per visit).  Dr Lai opined that psychiatric treatment could be obtained in the public sector, but it is unlikely that public sector psychiatric treatment would allow the frequency suggested by Dr Lai.  I am prepared to award $1,000 x 20 sessions = $20,000.  No basis was shown for bi-monthly consultations for the pain specialist.  Roughly in line with past attendances, I am prepared to allow monthly consultations, ie $1,350 x 12 = $16,200.  I allow $36,200 under this head of claim.

(k)  Summary

133.  I summarise the above awards as follows:

		HK$
	PSLA	170,000.00
	Past loss of earnings	336,449.71
	Future loss of earnings	--
	Medical expenses	50,615.00
	Massage expenses	3,000.00
	Tonic food expenses	5,000.00
	Travelling expenses	5,000.00
	Future medical expenses	36,200.00
		606,264.71
	(Less EC)	(569,141.85)
	Total:	37,122.86

VI.  CONCLUSION

134.  I therefore dismiss P’s claim against D1, D2 and D3.  I also dismiss the respective contribution claims by D1/D2 and D3 against each other.  There is no reason why costs should not follow event.  I grant a costs order nisi that (a) P do pay D1, D2 and D3 costs of the action (including all costs reserved, if any) to be taxed if not agreed, and the P’s own costs be taxed in accordance with Legal Aid Regulations, and (b) there be no order as to costs in respect of the contribution proceedings between D1/D2 and D3.