LO CHUI YUK v. GOLD WIN ENGINEERING LTD AND OTHERS

HCPI 279/2021

[2023] HKCFI 2352

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 279 OF 2021

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J U D G M E N T

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INTRODUCTION

1.  This is the trial of assessment of damages in respect of the plaintiff’s claim herein arising from an accident which happened on 20 November 2018 (“the Accident”).  The Writ of Summon was issued on 25 August 2021 and Interlocutory Judgment had been entered by consent against the defendants on 30 May 2023. 

THE ACCIDENT

2.  It is undisputed that, at the time of the Accident, the plaintiff (who was 55 years old)  was working as a general labourer for the 1^st defendant.  According to the Statement of Claim, at around 9am on 20 November 2018, when the plaintiff and her co-worker were working at a mud pit in a construction site in Kwun Tong, an excavating bucket of an excavator suddenly moved to and down the pit where the plaintiff was.  In order to rush out of the pit so as to avoid being hit, the plaintiff grabbed a metal board by her left hand, and as she did so, she lost her balance and slipped.  Her left shoulder was sprained and/or stretched.  As a result, she suffered personal injuries.

INJURIES AND TREATMENT

3.  The followings are adopted from various medical reports placed before the Court.

4.  On 20 November 2018, after the Accident, the plaintiff attended A&E Department of the United Christian Hospital for treatment.  She complained of left shoulder pain.  Physical examination showed that there was marked decrease in range of motion of her left shoulder in all directions due to pain.  X-ray of her left shoulder showed no fracture.  Diagnosis was left shoulder sprain.  She was discharged on the same day and was given sick leave for 5 days.  She was advised to follow up at general out-patient clinic in one week’s time if there was no improvement.

5.  On 26 November 2018, the plaintiff attended Ha Kwai Chung Polyclinic General Out Patient Clinic.  She complained of mechanical left shoulder pain which was worsened on left limb elevation.  Physical examination showed no local swelling or bruises but there was mild diffused tenderness over her left shoulder.  The active range of movement was limited in all directions.  She was given analgesics and referred to receive physiotherapy treatment.

6.  On 4 December 2018, the plaintiff attended A&E Department of Princess Margaret Hospital (“PMH”).  Physical examination revealed tenderness and muscle spasm at her left shoulder and paraspinal region of the neck.  Grip power of her left hand and range of movement of her left shoulder were decreased.  She was referred to the Orthopaedics Specialist Out-Patient Clinic for further treatment.  During 11 to 19 December 2018, the plaintiff attended the A&E of PMH for three more times because of residual left shoulder pain. She was treated and discharged on each occasion.

7.  On 24 December 2018, the plaintiff attended South Kwai Chung Jockey Club General Out Patient Clinic because of residual left shoulder pain, which got worse on elevation of left upper limb.  Physical examination showed no local swelling, bruise, or tenderness over her left shoulder.  The range of movement of left shoulder was limited in all directions.

8.  On 27 December 2018, the plaintiff first attended the Department of Orthopaedics and Traumatology, PMH upon referral by A&E of that hospital.  She was referred to receive physiotherapy and occupational therapy treatment.

9.  On 15 March 2019, a private MRI of the plaintiff’s left shoulder was performed, with the following results:-

“1. Nearly complete tear of the supraspinatus tendon with scanty intact anterior fibres.

2. Tendinosis of the supraspinatus, infraspinatus and subscapularis.

3. Subacromial/subdeltoid fluid suggestive of mild bursitis changes.

4. Mild gleno-humeral joint effusion.

5. Moderate degenerative hypertrophic changes of the acromio-clavicular joint.

6. No evidence of adhesive capsulitis.”

10.  On 16 September 2019, the plaintiff was admitted into PMH for left shoulder arthroscopy.  An arthroscopic acromioplasty (微創肩關節鏡手術)  was performed on 17 September 2019. She was then referred to have physiotherapy for further rehabilitation. Arthroscopic revealed that there were marked inflamed subacromial tissues and partial thickness tear (3mm)  over articular side of supraspinatus and mild synovitis at rotator cuff interval.  Excision of inflamed bursal tissue and acromioplasty was performed.

11.  As the plaintiff complained of generalized left upper limb weakness, numbness and pain, she was referred to have MRI so as to rule out the possibility of brachial plexus injury.  The MRI of the plaintiff’s cervical spine and brachial plexus was subsequently done on 24 April 2020, which showed cervical spondylosis.  There was no significant spinal stenosis or abnormal cord signal found.  Neither was obvious brachial plexus lesion demonstrated.

12.  The plaintiff had received three courses of physiotherapy treatments in PMH.  The first course was from 17 December 2018 to 21 May 2019, for a total of 8 sessions.  Treatments included hot pack, electrical stimulation and mobilization exercises.  The second course was from 18 October 2019 to 11 December 2019, for a total of 4 sessions.  Treatments included hot pack, electrical nerve stimulation and mobilization exercises.  The third course was from 18 February 2020 to 19 May 2020, for a total of 6 sessions. Treatments included hot pack and mobilization exercises.

13.  From 12 February 2019 to 14 March 2019, the plaintiff underwent work capacity evaluation and work hardening training at the Occupational Therapy Department of the PMH.  She was suggested to be discharged as she was not able to tolerate work rehabilitation due to increased pain over neck and scapula.  Her case was closed on 28 March 2019.

14.  On 23 April 2020, the plaintiff attended West Kowloon Psychiatric Centre for reasons of insomnia and mood symptoms.  The diagnosis was adjustment disorder with mixed anxiety and depressive reactions.  She was treated with SNRI antidepressant and prn hypnotic.

15.  On 11 June 2020, the plaintiff attended the Prosthetic & Orthotics Department of Yan Chai Hospital.  She claimed that she had injured her left shoulder with neck pain.  Soft neck collar was fitted for neck support.

16.  By letter dated 5 August 2020, the Department of Orthopaedics & Traumatology referred the plaintiff to the Occupational Medicine Unit, Kowloon for assessment of degree of permanent loss of earning capacity by the Medical Assessment Board as she had achieved maximal medical improvement in orthopaedic.

17.  On 25 November 2021, PMH closed the plaintiff’s case as it was considered that there was “no additional input from MED/Neurology point of view”.  It was also recorded that there was “no medical diagnosis” in the consultation note.

18.  Intermittently, the plaintiff had also attended Chinese medicine clinic and underwent Chinese acupuncture treatment.

19.  The plaintiff was given a total of 1,793 days of sick leave intermittently from 20 November 2018 to 18 October 2023.

EXPERT EVIDENCE

20.  The plaintiff had been examined by Dr Fu Wai Kee (“Dr Fu”)  (who was instructed by the plaintiff)  and Dr Wong Lok Yan Ian (“Dr Wong”)  (who was instructed by the defendants)  on 1 April 2022.  The orthopaedic experts subsequently prepared a joint expert report dated 6 May 2022 (“the Joint Orthopaedic Expert Report”).

21.  Dr Fu’s opinion may be summarised as follows:

(1)  The plaintiff’s clinical picture is compatible with the diagnosis of soft tissue injury of left shoulder with supraspinatus tendon tear, and such injury should be the result of the accident happened on 20^th November 2018;

(2)  There are degenerative changes in the MRI left shoulder of the plaintiff such as tendinosis and acromio-clavicular joint hypertrophy that should be pre-existing.

(3)  Such degenerative changes are very common in normal population in the plaintiff’s age.  Most are asymptomatic or mildly symptomatic.  The Accident has turned the asymptomatic degeneration into a symptomatic one.  But for the Accident, the degeneration should still remain asymptomatic, and it is almost certain that she would have gone through her life without being affected by the condition.

(4)  The treatment which the plaintiff received is standard and appropriate.  She has reached maximal medical improvement and does not need further treatment. 

(5)  The plaintiff’s condition should be static.  Her current left shoulder pain, weakness and stiffness will persist, and she will have on and off attack of left shoulder pain that will be aggravated by exertion.  She will have some difficulty in overhead activities and excessive movement of left shoulder.

(6)  The plaintiff cannot return to her pre-accident work that required heavy manual exertion.  She is prone to have fall injury when she climbs due to her left shoulder impairment.  She should therefore shift to lighter duties such as security guard or cashier.

(7)  The sick leave issued is appropriate.

(8)  She should be independent in activities of daily living.

22.  On the other hand, Dr Wong opined that:

(1)  The diagnosis is soft tissue sprain injury to the plaintiff’s left shoulder with supraspinatus tendon tear.

(2)  There are degenerative changes in the MRI left shoulder of the plaintiff such as tendinosis and acromio-clavicular joint hypertrophy that should be pre-existing.  Such degenerative conditions could be symptomatic even without the Accident.  The presence of tendinosis of supraspinatus, as shown by the plaintiff’s MRI, made the tendon more prone to rupture with relatively minor sprain as in this case.

(3)  The plaintiff’s left shoulder condition is attributed both to the Accident (30%)  and the pre-existing degenerative conditions (70%).

(4)  The Accident may have advanced the onset of the symptoms by 3 to 5 years.

(5)  The plaintiff’s alleged extensive symptoms could not be explained by the available objective evidence.  While the plaintiff may have residual pain, stiffness and weakness over her injured shoulder, it cannot be that the pain would cover the whole left side of her body.  Further, there is a large discrepancy between what the plaintiff complained and presented during the assessment and what was shown from the surveillance, which shows that she had certainly attained a satisfactory recovery from the Accident. Hence, there may be symptom exaggeration.

(6)  The treatment which the plaintiff received up to May 2020 is standard and appropriate. 

(7)  The plaintiff may have mild residual left shoulder ache and fatigue on prolonged exertion, especially those involving overhead activities. However, her left shoulder condition is, to a very large extent, due to her pre-existing degenerative conditions rather than the Accident.

(8)  She should be able to return to her pre-accident job as construction site general worker with mild reduction in capacity, chiefly on prolonged overhead exertion.

(9)  Sick leave which covers 9 to 10 months after operation should be appropriate.  Hence, sick leave should only be up to May 2020.  That corresponds to the time when she was discharged from physiotherapy treatment in May 2020.

(10)  She should be independent in activities of daily living.

23.  The plaintiff was also interviewed and assessed by Dr Law Wun Tong (“Dr Law”)  (instructed by the plaintiff)  and Dr Henry Kwok (“Dr Kwok”)  (instructed by the defendants)  on 4 August 2022.  According to their joint expert report dated 13 September 2022 (“the Joint Psychiatric Report”), Dr Law opined that:

(1)  The plaintiff has suffered from adjustment disorder with mixed anxiety and depressed mood.

(2)  The severity of the plaintiff’s mental symptoms was moderate before treatment.  She has received appropriate treatment.

(3)  There is no feature in this case which suggests that the plaintiff is malingering.

(4)  The psychiatric disorder is wholly caused by the Accident.

(5)  While the plaintiff has reached maximum medical (psychiatric)  improvement, another six sessions of follow-up consultation are recommended to consolidate improvement already made.

(6)  The plaintiff’s residual mental symptoms are mild and her prognosis is good.

(7)  The plaintiff’s working capacity will not be significantly affected by her mental condition and she is mentally capable to resume her previous job.

(8)  Sick leave of three months from the date of first consultation with psychiatrist is reasonable (i.e. three months from 23 April 2020 – the date on which the plaintiff first attended West Kowloon Psychiatric Centre for treatment).

(9)  The residual mental symptoms of the adjustment disorder are mild.  She is not overtly anxious or depressed in the joint assessment.

(10)  The plaintiff is considered mentally fit to perform all activities of daily living including household chores.  She is independent in personal self-care. 

24.  It was the expert opinion of Dr Kwok that:

(1)  As most psychiatric diagnoses are based on reported and subjective symptoms, attention should be paid to inconsistencies and discrepancies among the information provided.  In the present case, there is reliability issue with the plaintiff and there is a substantial element of symptom exaggeration.

(2)  The plaintiff reported mental symptoms of insomnia, fearfulness, depressive mood, crying episodes, and suicidal ideation.  The clinical picture is compatible with the psychiatric diagnosis of adjustment disorder with mixed anxiety and depressed mood.

(3)  The psychiatric disorder is a result of the Accident.

(4)  The plaintiff has received proper psychiatric treatment, pursuant to which she has only been given a small dose of medication.  The treatment can be tailed off in about 6 months after the conclusion of litigation.

(5)  Due to the mild severity of the plaintiff’s psychiatric symptoms, her prognosis is good, and she has reached maximum medical (psychiatric)  improvement for a long time.

(6)  There are no psychiatric symptoms that would prevent her from returning to her pre-accident job.  Any difficulty of resuming her gainful employment should be related to her physical problem rather than her mental condition.

(7)  Sick leave of three months from 23 April 2020 (the date on which the plaintiff first attended West Kowloon Psychiatric Centre for treatment)  is adequate and reasonable.

(8)  By the time of the Joint Psychiatric Report, the plaintiff’s psychiatric disorder is very mild in severity.  Her current problem is “orthopaedic rather than psychiatric”.

SEVERITY OF THE PLAINTIFF’S PAIN

25.  The main issue in the present case is whether the plaintiff has been suffering from pain as severe as she claimed (even up to now)  such that she cannot return to her pre-accident job as construction site general labourer. 

26.  According to the plaintiff, even after long treatment, she is still suffering from, inter alia, the followings:

(1)  Her left hand has no power at all, and she would have pain even if she lifts stuffs which only weigh around two catties (i.e. around 1.2 kg);

(2)  She has persistent pain on her left shoulder, which would become worse if she lifts up her left arm;

(3)  The range of motion of her left shoulder has been reduced;

(4)  The grip force of her left hand has decreased substantially;

(5)  Her left shoulder pain has radiated down to her left leg;

(6)  Her reliance of her right hand has led to pain at her right arm and right shoulder;

(7)  As she has pain at her left hand, she cannot lift anything by her left hand at all.

27.  As pain is subjective, the Court has to assess the evidence of the plaintiff and come to a finding as to whether or not she indeed has been suffering from pain and, if so, the nature and extent of that pain. 

28.  In that process, the Court has to consider the plaintiff’s credibility.

29.  In Hu Lan v David Golden [2023] HKCFI 873, this Court held that:

“36. When I consider the credibility of various witnesses who had given evidence in court, I shall take the following matters into account:

(a)  Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility;

(b)  Importance should be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events;

(c)  The court will also attach importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement;

(d)  The court should consider a witness’ motive for deliberately not giving truthful testimony.  For example, telling the truth may prejudice his interest, or a just determination of the litigation may affect his interest;

(e)  It is essential to have regard to the entirety of a witness’ evidence. A witness can make mistakes, but the mistakes do not necessarily affect other parts of his evidence. Likewise, a witness may lie. However, lies themselves do not mean necessarily that the entirety of that witness’ evidence is to be rejected.  A witness may lie in a stupid attempt to bolster his case, but the actual case nevertheless remains good irrespective of the lie;

(f)  On the other hand, where it is shown that a witness has been discredited over one or more matters to which he has testified, this fact is relevant to the assessment of his overall credibility; 

(g)  While the court is entitled to take demeanour into account when assessing testimony, it should be borne in mind that demeanour can be deceptive and is therefore to be approached with care.”

30.  I will bear the above matters in mind when I consider the plaintiff’s credibility.

31.  Having considered the entirety of the plaintiff’s evidence, I have come to the conclusion that she has grossly exaggerated her symptoms and disabilities.  I will set out my reasons below.

Surveillance recording

32.  Contrary to what the plaintiff described, the surveillance video recorded on 19 April 2021 (“the Video”)  shows that:

(1)  She had a normal walking gait and arm swing;

(2)  She could put her left upper limb in dependent position without signs of distress;

(3)  She could use her left hand to perform various activities such as holding objects including small bags of grocery;

(4)  She could carry a bag of oranges on her left arm for at least two minutes while she was picking other oranges;

(5)  She could also lift up her left hand so as to scratch the back of her neck and hold up her mobile phone while she was having a telephone conversation;

(6)  She did not show distress during left shoulder movement;

(7)  Her left shoulder movement was better than what was shown in the joint examination by orthopaedic experts held on 1 April 2022.

33.  The plaintiff tried to salvage her case by alleging in her evidence that:

(1)  While the Video shows that she was carrying a recycle bag, this bag was empty at the material time[1];

(2)  She was not holding the bag which contained her chosen oranges in the air, as the bag was sitting on a styrofoam carton;

(3)  What the Video captured was the only occasion when she had used her left hand to carry heavy stuffs;

(4)  She could raise her left hand to the extent as seen in the Video because she had taken painkiller on the day.

34.  Rather than assisting her, the above explanation only further demonstrated that she had no hesitation in making up evidence for the purpose of advancing her claim:

(1)  Upon cross-examination, she confirmed that she had purchased two citrus grandis on the day and had placed them into the recycle bag at the material time.  Her recycle bag was therefore not empty as alleged;

(2)  Her explanation that the bag containing oranges was sitting on a styrofoam carton was apparently newly made up while she was in the witness box:

(a)  While she had devoted a section in her witness statement (“the Explanation Section”)  for the purpose of explaining away what could be seen in the Video (and it had been specifically highlighted in the surveillance report that she was able to carry a bag of oranges with her left hand), she had never referred to such a carton therein;

(b)  The angle from which the relevant part of the Video was taken made it impossible to see directly whether there was such a styrofoam carton as suggested by the plaintiff.  However, if the alleged carton existed, judging from the location where the plaintiff stood, it would have been put right in the front of the stall, and this would have made it very inconvenient for customers to stand in front of the stall and choose what to buy.  This made it very unlikely that there was such a box as alleged. Furthermore, from the Video, it seems that both the plaintiff and the stall keeper had walked past the position where the styrofoam carton allegedly was without any difficulty.  This shows that there was nothing placed on the floor which blocked their way;

(c)  While initially she alleged that the carton was made of styrofoam, she later changed her evidence and said it was a paper carton.  However, shortly thereafter, she said it was a styrofoam box again.  Her constant change of evidence, in my view, shows that she was making this up;

(3)  The plaintiff’s explanation that the Video had captured the only occasion when she had used her left hand to carry heavy stuffs is totally incredible as it is highly unlikely for there being such a coincidence;

(4)  The plaintiff’s excuse that the painkiller had made it possible for her to raise her left hand is also incredible:

(a)  If this is true, then there is no reason why she had failed to mention about this in the Explanation Section in her witness statement;

(b)  It was her own evidence given in court that her range of motion was not helped much by painkiller, and that her left hand could only be raised a little bit if it was assisted by her right hand.

35.  The plaintiff’s counsel explained that she was seen in the Video using her left hand to hold her mobile phone and answer a phone call because her right hand was occupied at the material time.  This explanation cannot be accepted, because if she was indeed in great pain, it would simply not up to her to choose which hand to use.

36.  Mr Lam also submitted that:

“She had watched the video before but when she was asked by the court whether she can raise her left hand/arm above the shoulder even if 夾硬嚟, she still said no and the probability is that, apart from being unsophisticated, she was preoccupied with the pain, affected by her depressive mood, confused and could not understand fully the question.”[2]

37.  The “probability” suggested by Mr Lam is unsupported by evidence.  He has no basis to put them forward at all.  They are therefore rejected.

38.  I do not accept that the plaintiff was as innocent as Mr Lam described.  Although she might not be a very smart witness, it is quite clear to me that she knew how to make use of her alleged body condition so as to earn the court’s sympathy.  An obvious example was that whenever she was cross-examined in court to the extent that contradictions in her evidence were exposed, she would start to say that she felt uncomfortable in her chest.  In my view, that was only a desperate attempt to interrupt or even terminate the cross-examination.

The use of walking stick/umbrella

39.  In her supplemental witness statement, the plaintiff alleged that she needed to carry a walking stick to prevent risk of falling because she always felt dizzy.  She further confirmed during cross-examination that she would always take a walking stick or an umbrella with her whenever she went out alone.  However, this was contradicted by what we saw in the Video, in which she was seen going out alone in the morning and in the afternoon without carrying any walking stick or umbrella.

40.  When she was cross-examined on this matter, she initially said that she had not brought along her walking stick or umbrella once (“一次半次”).  When she was asked to clarify how many times exactly that she had not brought along her walking stick or umbrella, she said she could not recall.  Eventually, after a few more questions, she said she could not recall whether it was once or twice or more than twice that she had not brought along her walking stick or umbrella. 

41.  In my view, the plaintiff was probably telling the truth partially at the end because she had simply lost count.  The reality is that she did not need any walking stick or umbrella at all.  This is supported by the Consultation Summaries of PMH, in which it was recorded that she attended follow-up consultations alone and “walk[ed] unaided” at least on three different occasions on 27 January 2021, 10 March 2021 and 1 December 2021 respectively. Further, when the plaintiff was jointly examined by Dr. Law and Dr. Kwok on 4 August 2022, although she had brought along a walking stick, Dr. Kwok observed that she did not use it to support every step she walked.

42.  In fact, this is consistent with what I observed in court: when she walked from the public gallery to the witness box, she was not assisted by anybody nor did she bring with her any walking stick/umbrella. Yet, she was seen walking normally without any difficulty.

43.  The above further supports my view that the plaintiff had grossly exaggerated her disabilities.

Experts’ opinion

44.  The view that the plaintiff had exaggerated her disabilities is also supported by the medical experts:

(1)  Dr Wong opined that her “extensive symptom could not be explained with all the available objective evidence, and that “there is a large discrepancy between what [the plaintiff] complained and presented during the assessment and what was shown from surveillance, which proved that [she] had certainly attained a satisfactory recovery from the alleged accident. There may be symptom exaggeration”.

(2)  Dr Fu (the plaintiff’s own expert)  noted that the plaintiff’s “current symptoms and signs cannot be completely explained on clinical ground”.

(3)  Dr Kwok also considered that “there are problems of reliability and a substantial element of symptom exaggeration”.

45.  Pausing here, it is noted that Mr Lam for the plaintiff had, in his closing submissions, repeatedly emphasised Dr Law (the plaintiff’s psychiatric expert)’s evidence that he did not find any feature suggesting that the plaintiff was malingering.  Not only that, counsel also submitted that such evidence of Dr Law was not disputed by Dr Kwok.  Although Mr Lam accepted that there may be exaggeration of symptom on the part of the plaintiff, he maintained that there is no evidence of malingering. 

46.  With greatest respect to Mr Lam, I am of the view that such a submission is totally misconceived, for he had assumed that “exaggeration” could not amount to “malingering”.  This apparently is not correct. 

47.  The question here is whether the “exaggeration” referred to by Dr Kwok was “intentional exaggeration” or “unconscious exaggeration”.  In my view, the totality of the evidence clearly points to “intentional exaggeration”, for there is no evidence that the plaintiff had, for example, suffered from an abnormal sick role, just as the plaintiff in Lam Pui Yi Anita v Secretary for Justice & Another (CACV 259/2009, unreported, 27 January 2011)  had suffered.

48.  However, Mr Lam for the plaintiff disagreed.  He referred this Court to what Dr Fu stated below in support of the plaintiff’s case:

“Dr Fu notes [the plaintiff] is diagnosed to have adjustment disorder by psychiatrists and she needs regular psychiatric follow up and treatment. Dr Fu also notes [the plaintiff]’s current symptoms and signs cannot be completely explained on clinical ground. Her clinical presentation should be partly caused by her psychiatric condition as it is well known for patients with depressive disorder they are prone to have abnormal response to pain. Dr Fu believes [the plaintiff] should be assessed by psychiatrists.”

49.  On the basis of the above, Mr Lam submitted that there is expert evidence that the plaintiff who is suffering from depressive disorder is prone to abnormal response to pain.

50.  With greatest respect, this submission is made to be rejected:

(1)  Dr Fu is an orthopaedic expert rather than a psychiatric expert.  I cannot accept Mr Lam’s suggestion that since Dr Fu must have acquired basic knowledge on psychiatry, he was qualified to give expert evidence in this area;

(2)  Properly understood, Dr Fu was only saying that since the plaintiff’s alleged symptoms could not be completely explained on clinical ground, he recommended that the plaintiff be assessed by a psychiatrist;

(3)  Even if Dr Fu did express the view as Mr Lam alleged, such evidence was contradicted by the expert opinion of Dr Law and Dr Kwok, as none of them opined that the plaintiff had assumed any abnormal sick role.  In fact, both psychiatric experts took the view that the plaintiff’s residual mental symptoms of the adjustment disorder are mild and that she is mentally capable of returning to her previous job.  As accepted by Mr Lam, if Dr Fu’s opinion is inconsistent with that given by the psychiatrists, the Court should prefer the evidence given by the latter.

Treating doctors’ notes

51.  The view that the plaintiff’s condition did not match objective evidence is also supported by various medical notes[3] which recorded, for example, that the plaintiff’s symptoms or disabilities did not match MRI and that there was “discrepancy between her symptoms and MRI findings”. Indeed, even Mr Lam himself accepted that “there is some exaggeration”[4].  However, it should be pointed out that insofar it is submitted by Mr Lam that such exaggeration was due to the plaintiff’s depressive conditions, such submission is rejected.

Physiotherapy reports

52.  The plaintiff’s exaggeration of symptoms can also be demonstrated by reference to the physiotherapy reports which have been helpfully summarised by Mr Wan as follows:

Range of motion of shoulder – flexion (F)

Dates	Range of motion
24.12.2018	20
08.02.2019	30
29.11.2019	90
11.12.2019	100
23.01.2020	100
18.02.2020	70
25.02.2020	70
09.06.2020	60

Range of motion of shoulder – abduction (Abd)

Dates	Range of motion
24.12.2018	20
08.02.2019	40
29.11.2019	80
11.12.2019	100
23.01.2020	100
18.02.2020	50
25.02.2020	50
09.06.2020	40

53.  The following observations may be made by reference to the above tables:

(1)  It may be recalled that an arthroscopic acromioplasty (微創肩關節鏡手術)  was performed on 17 September 2019.  It is apparent from the test results above that the plaintiff’s condition had improved after the operation.  This improvement is also supported by Dr Wesley Ng in his report dated 24 September 2020 and by the Consultation Note dated 6 December 2019 prepared by Dr Benny Tse;

(2)  On both 11 December 2019 and 23 January 2020, the plaintiff had been able to have full range of motion in her left shoulder. The consistency of the results of the two tests show that it was not a coincidence.  It is also noteworthy that she had shown having full range of motion not only once but on two different dates which had an interval of around 1½ month;

(3)  However, for unknown reason, her range of motion dropped afterwards.  This is difficult to understand because there is no evidence that she had suffered from any further injury after 23 January 2020.

54.  In my view, it is more likely than not that the reason why the plaintiff had decreased range of motion after 23 January 2020 was because she was trying to exaggerate her disabilities.

My findings

55.  Having taken into consideration the above matters, I am of the view that the plaintiff has grossly exaggerated her symptoms and disabilities. 

56.  I accept Dr Wong’s opinion that the plaintiff at most only has mild residual left shoulder ache and fatigue on prolonged exertion. 

57.  Indeed, such a conclusion is also consistent with what Dr Fu opined, namely, that the plaintiff’s alleged symptoms and signs cannot be completely explained on clinical ground. 

58.  In fact, even Mr Lam accepted that “most if not all the assessing experts opine that the actual conditions of [the plaintiff] should be better than those complained by her”[5].  It is probably because of his recognition of the weakness of the plaintiff’s case that he went as far as to say that “the plaintiff is not relying on her complaints on the pains over her body”[6].

59.  Before I leave this topic, I should also mention that since the above evidence and analysis are sufficient for me to make a finding on the plaintiff’s credibility and her allegation of pain, without disrespect to counsel, I do not propose to go into the question of whether she was lying when she alleged that her dominant hand was left hand. 

PRE-TRIAL LOSS OF EARNINGS AND MPF

Sick leave period

60.  It is undisputed that the plaintiff has been granted sick leave for a total of 1,793 days intermittently from 20 November 2018 to 18 October 2023.

61.  Be that as it may, it is trite that the above is not conclusive for the purpose of assessing the plaintiff’s loss of earnings. The applicable legal principles have been set out in Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd (supra):

“Since the plaintiff’s pre-trial loss of earnings is ascertained by reference to the period during which the plaintiff was prevented by the injuries sustained from returning to work, what has to be ascertained and identified is the length of that period. In my view, that is an exercise that would not require evidence to suggest or imply that those who had granted sick leave to the plaintiff did so improperly. Logically, if the finding is that the plaintiff could have gone back to work after three months, that is the period that is relevant to the assessment and award of pre-trial loss of earnings and no other. Sick leave certificates are no more than a piece of evidence that has to be evaluated in the light of all the available evidence including medical evidence before the court. As Rogers V-P observed in: Choy Wai Chung v Chun Wo Construction & Engineering Co Ltd (unrep., CACV 172/2004, [2005] HKEC 1077)  at para.9, the judge cannot 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.” (at paragraph 18)

62.  In this regard:

(1)  Dr Fu opined that the sick leave issued to the plaintiff by her treating doctors should be appropriate for her condition;

(2)  Dr Wong took the view that, having regard the original job nature and the extent of the plaintiff’s injuries, a period of 9 – 10 months after the operation (conducted on 17 September 2019)  should be appropriate.  Hence, he opined that sick leave should have been granted up to May 2020.  Dr Wong thought that that also corresponded well to the time when the plaintiff was discharged from physiotherapy (in May 2020);

(3)  Both Dr Kwok and Dr Law considered that sick leave for a period of three months after the date of first consultation[7] with psychiatrist is reasonable for the plaintiff’s psychiatric condition. 

63.  On my part, I do not accept Dr Fu’s expert opinion, because apparently he has given his view on an assumption that the plaintiff had not exaggerated her injuries and pain, but this assumption has been found to be wrong above.

64.  Having taken into account the opinion of the other three experts, I find that the plaintiff’s reasonable sick leave should be around three months after the date on which the plaintiff first went to West Kowloon Psychiatric Centre on 23 April 2020 for consultation.  This would bring us to mid-July 2020.  This coincides with Dr Wong’s opinion that reasonable sick leave should be around 9 – 10 months after the plaintiff’s operation (which was conducted on 17 September 2019).  Mr Wan suggested that a slightly more generous approach may be adopted in that reasonable sick leave may be taken to be up to 31 August 2020.  I accept his suggestion.

65.  I am prepared to allow the plaintiff another 2 months or so (up to 20 October 2020)  for the purpose of looking for a job.  I do not think a much longer period should be allowed for this purpose because of the admission of the plaintiff’s counsel of the shortage in labour supply in the construction sector (see further below for my finding on the plaintiff’s ability to return to her pre-accident job).  Hence, it should not take too long before the plaintiff should be able to find a new job after the expiry of her reasonable sick leave.

Whether the plaintiff can return to her pre-accident job

66.  Dr Fu opined that in view of the plaintiff’s current shoulder condition, she cannot return to her pre-accident work that required heavy manual exertion.  It was also considered that she would be prone to have fall injury when she climbs because of her left shoulder impairment.

67.  However, it should be borne in mind that Dr Fu also took the view that the plaintiff’s current symptoms and signs cannot be completely explained on medical ground.  It was therefore Dr Fu’s view that the plaintiff should be assessed by psychiatric experts.

68.  The plaintiff was then assessed by Dr Law and Dr Kwok. 

69.  Dr Law opined that the plaintiff’s working capacity will not be significantly affected by her mental condition and she is fit to resume her previous job.

70.  Dr Kwok opined that “her current problem is orthopaedic rather than psychiatric”.

71.  In my view, Dr Fu must have given his opinion on the basis of the plaintiff’s own description of her physical condition at the joint examination, and it was because of such description that he concluded that the plaintiff could not resume her pre-accident job.  Given the Court’s assessment of the plaintiff’s credibility, such assessment is not reliable because the basis of Dr Fu’s assessment has collapsed.

72.  Indeed, such opinion is also unsupported by the psychiatric experts as mentioned above.

73.  Furthermore, it seems that Dr Fu had also taken into account his view that the plaintiff “is prone to have fall injury when she climbs due to her left shoulder impairment”[8] when he came to his conclusion.  He had considered this aspect probably because the plaintiff had informed the experts that her work required her to climb scaffolding[9]. However, it has never been the plaintiff’s evidence that she had to climb scaffoldings in the discharge of her duty as a construction site general labourer.  Neither did she ever say in her evidence that her inability to climb (whether scaffolding or otherwise)  was the reason why she could not return to her pre-accident work.

74.  On the other hand, I hold that Dr Wong’s opinion that the plaintiff is able to return to her pre-accident job is more reasonable in the circumstances of the case.  This is so even though it appears that Dr Wong had made a mistake when he observed that the plaintiff only made a complaint on neck pain and left upper limb pain for the first time more than 18 months and almost 8 months respectively after the Accident.  I am of the view that that would not affect the conclusion reached.

75.  I therefore hold that the plaintiff should be able to return to her pre-accident job as construction site general labourer. 

Pre-accident average working days

76.  A feature of this case is that the plaintiff met the Accident shortly after she commenced her employment with the 1^st defendant. She started to work for the 1^st defendant on 14 November 2018, and the Accident happened only 6 days later on 20 November 2018. 

77.  The defendants therefore submitted that, given the short period of time which is not probative of the plaintiff’s work pattern, the Court must consider not only the terms of the employment agreement but also the past income pattern (while the plaintiff was working for other employers)  so as to determine the average number of days per month that the plaintiff would have worked.  It was argued that since the figures for the two years immediately prior to the date of the Accident show that the plaintiff had only worked for an average of 14 days per month, the damages for pre-trial loss of earnings should be assessed on such a basis.

78.  With respect, I do not accept this submission, because it has been clearly provided in the employment agreement dated 14 November 2019 between the plaintiff and the 1^st defendant that the plaintiff was obliged to work for 6 days a week with a daily wage of $800. There is no evidence to suggest that the plaintiff would have breached such an agreement if the Accident did not take place. 

79.  I therefore accept the plaintiff’s case that the monthly income which she would have earned from the pre-accident job was $20,800 ($800 x 26).

Calculation of loss

80.  Damages under this head should therefore be assessed at:

$20,800 x 23 months[10] x 1.05 = $502,320

81.  As a matter of completeness, I should mention that even though Dr Wong opined that the Accident might have advanced the onset of the symptoms by 3 to 5 years, given my ruling that only 23 months’ loss of earnings should be awarded, no apportionment is required under this head of damages.

MEDICAL EXPENSES

82.  The plaintiff claims $44,035 under this head.

83.  Given my finding that reasonable sick leave should have been granted only up to 31 August 2020, the plaintiff’s claim under this head should be cut down to $24,967[11].

TRAVELLING EXPENSES

84.  By the same token, the plaintiff’s claim should be cut down to $3,413[12] under this head. 

EXPENSES FOR TONIC FOOD

85.  The plaintiff claims $5,000 for tonic food.

86.  In King Light Industrial Ltd. v. Lo Wai Keung [1994] 3 HKC 54, the Court of Appeal found that there was insufficient evidence to prove that the expenditure incurred on tonic food had been for the purpose of medical treatment of the plaintiff therein.  However, the Court considered it proper to follow the case of Yu Ki v. Chin Kit Lam [1981] HKLR 419 and allow a nominal sum under this head where relatives of the plaintiff had spent money on food which the injured person or the relatives reasonably believed to be helpful in the recovery process even though there was no evidence to support the advisability or suitability of the food.

87.  The same approach had been adopted in To Wei Kei v. Vickcore Engineering Ltd. and Another (HCPI 290/2000, unreported, 11 November 2002), in which a sum of $10,000 was awarded where the deceased suffered from prolapsed C3/C4 disc with residual spinal cord compression and had been hospitalised for 3 months.

88.  In the present case, there is no proof that any tonic food had been taken upon medical advice.  I would follow the aforesaid approach and allow a nominal sum under this head.  I would adopt a figure of $3,000.

POST-TRIAL LOSS OF EARNINGS

89.  Given my findings above on the extent of injury and pain on the part of the plaintiff, I hold that she will suffer no loss of post-trial earnings.

LOSS OF EARNING CAPACITY

90.  Mr Lam contended in his closing submissions that in the event this Court does not allow any post-trial loss of earnings, the plaintiff should be entitled to damages on loss of earning capacity.

91.  This argument was strenuously opposed by the defendants because the plaintiff has not included this head of claim in her Revised Statement of Damages.  Mr Wan relied on what Chief Justice Ma said in Kwok Chin Wing v 21 Holdings Ltd (2013)  16 HKCFAR 663 at [21] in support of his argument that a party ought not to be permitted to run an unpleaded case.

92.  In reply, Mr Lam referred this Court to the case of Smith v. Manchester Corporation, 17 K.I.R. 1, 7-8, in which Scarman LJ stated that:

“Loss of future earnings or future earning capacity is usually compounded of 2 elements. The first is when a victim of an accident finds that he or she can, as a result of the accident, no longer earn his or her pre-accident rate of earnings. In such a case there is an existing reduction in earning capacity which can be calculated as an annual sum. It is then perfectly possible to form a view as to the working life of the Plaintiff and, taking the usual contingencies into account, to apply to that annual sum of loss of earnings a figure which is considered to be the appropriate number of years’ purchase in order to reach a capital figure….

The second element in this type of loss is the weakening of the plaintiff’s competitive position in the open labour market…”

93.  It was thus argued that:

“In this broad sense, ‘loss of future earnings’ or ‘loss of earning capacity’ means the full future loss of earnings which consists of 2 elements: element 1 (reduced future earnings)  and element 2 (handicap in the job market).”[13]

94.  With greatest respect, such an argument is not accepted.  Even if “loss of future earnings” and “loss of future earning capacity” are the same in the broad sense (I express no view on this matter), I am of the firm view that the plaintiff was obliged to inform the defendants by way of pleadings that she was not only claiming for “loss of future earnings” but also “loss of future earning capacity”.  It would be extremely unfair to the defendants if the plaintiff is allowed to “slip in” this claim at the trial, not to mention at the end of the trial.

95.  I will therefore refuse to consider this unpleaded issue.

PSLA

96.  I have already set out the plaintiff’s injuries, treatments and medical conditions above and I am not going to repeat them here.

97.  Mr Lam has referred this court to a number of authorities including Rai Shiva Krishna v Woo Loong Scaffolding Works Company Limited [2018] HKCFI 488, Gurung Santosh Kumar v Pacific Crown Engineering Limited & Others (HCPI 316/2005, unreported, 30 April 2008), Liu Chun Kow Joe v Lee Sau Wing (HCPI 399/2001, unreported, 15 February 2007)  and Kong Lin Fat Johnny v The Incorporated Owners of Chang Pao Ching Building & Another (DCPI 1580/2010, unreported, 12 September 2014)  and submitted that the appropriate “total” amount for the damages for PSLA should be $550,000.

98.  I had emphasised the word “total” in the preceding paragraph because Mr Lam argued that the PSLA award in respect of the plaintiff’s orthopaedic condition and psychiatric condition should first of all be assessed separately, and then the Court should “combine”[14] the two awards so as to arrive at a “total” figure of damages for PSLA.

99.  I do not accept this argument which is unsupported by authorities.  It has always been the court’s practice to take into account all the injuries and disabilities (orthopaedic and psychiatric included)  suffered by the plaintiff and arrive at a global PSLA figure at one go.

100.  On the other hand, Mr Wan submitted that the Court should take into account the authorities of Yip Chi Keung v Ming Tai Construction Engineering Company Limited & Another [2022] HKCFI 543, Yiu Yuen Yee v Johnson Cleaning Services Company Limited [2019] HKDC 1110, Li Wing Kwai v Chan Hau Yu (DCPI 1883/2012, unreported, 5 September 2014), Kong Koon Man Harriman v PBIL Advertising Limited & Another (HCPI 517/2012, unreported, 20 May 2015)  and Rai Shiva Krishna (supra)  and that only $150,000 should be awarded as damages for PSLA.

101.  Having taken into account the authorities placed before this Court, in my view, subject to my ruling below on discount, the appropriate amount of damages for PSLA (covering both the plaintiff’s orthopaedic and psychiatric conditions)  is $200,000.

Pre-existing condition

102.  It is undisputed that there are degenerative changes in the left shoulder of the plaintiff such as tendinosis and acromio-clavicular joint hypertrophy that are pre-existing.  I accept that the pre-existing conditions were asymptomatic before the Accident despite Dr Wong/Mr Wan’s suggestion otherwise which is unsupported by factual evidence.

103.  In the case of Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958, it was held that:

“Where a pre-existing condition is likely to lead to disability and loss in the absence of the injury for which the plaintiff is entitled to recover, the usual method of assessing the recoverable loss is to take account of the risks by an appropriate assessment of general damages. The pre-trial loss of earnings may also be reduced if the risks during the years concerned are sufficiently high...” (at 965E – F)

104.  It was further held that there are three possible scenarios:

(1)  First, where it is almost certain that the plaintiff would have gone through life unaffected by his pre-existing condition, in which case the defendant will be liable for all damage caused;

(2)  Second, where there is a strong possibility that some other event or natural progression of the pre-existing condition will have brought about the plaintiff’s current condition, in which case it will be necessary to assess the degree of such possibility in deciding what reduction is appropriate in the same way as it is necessary to assess the effect of other vicissitudes of life that may abbreviate the plaintiff’s working lifespan and thus abridge his loss; or

(3)  Third, where precipitating event will certainly have occurred at some stage in any event so that clearly an allowance has to be made out, in which case the extent will depend on when such event will have occurred.

105.  In the present case, Dr Fu opined that:

“[…] these kinds of mild degenerative changes are very common in normal population in Ms. Lo’s age. Most are asymptomatic or mildly symptomatic. There is no evidence to suggest they were symptomatic in her before the alleged accident. The accident is not the cause of such degeneration, but took place on top of such a condition. The accident should have turned the asymptomatic degeneration into symptomatic one. If the alleged accident did not have happened, she would have remained asymptomatic now. On the other hand the tendon tear of supraspinatus should be the direct result of the alleged accident.

In consideration of the 3 possible scenarios of pre-existing condition: Ms Lo’s condition belongs to scenario (i)[…] Ms Lo is almost certain to have gone through life unaffected by the condition […]”

106.  On the other hand, Dr Wong held the view that:

“My diagnosis is soft tissue sprain injury to left shoulder with supraspinatus tendon tear. MRI taken after the accident revealed, apart from partial tear of supraspinatus, tendinosis of supraspinatus, infraspinatus and subscapularis, as well as moderate osteoarthritis of acromioclavicular joint. Tendinosis and osteoarthritis are pre-existing and are degenerative in nature. Such degenerative conditions could be symptomatic even without alleged accident. As a matter of facts, some studies suggested that articular side partial thickness tear of supraspinatus could be degenerative instead of traumatic in nature. On the other hand, the presence of tendinosis of supraspinatus, as shown from the MRI, made the tendon more prone to rupture with relatively minor sprain as in this case. I opine her current left shoulder condition is attributed to the alleged accident as well as the pre-existing degenerative conditions.

In considering the 3 possible scenarios of a pre-existing condition […] I opine the condition of Ms. Lo resembles closely to scenario (2), more towards scenario (3).  70% of her current left shoulder condition is attributed to the pre-existing degenerative changes and 30% to her alleged accident.  The alleged accident may have advanced the onset of similar left shoulder symptoms by 3 – 5 years.”

107.  As submitted by Mr Wan (which I agree), it appears that Dr Fu had laid heavy emphasis on the age factor only when he arrived at his conclusion.  It is not apparent that Dr Fu had taken into account the fact that the plaintiff had worked as a labourer for over 20 years.  I therefore do not accept Dr Fu’s opinion that the plaintiff’s condition should fall within scenario (1).

108.  In my view, Dr Wong’s opinion that the plaintiff’s condition falls within scenario (2)  should be accepted.  Indeed, his opinion that “the presence of tendinosis of supraspinatus, as shown from the MRI, made the tendon more prone to rupture with relatively minor sprain as in this case”, was not disputed by Dr Fu.

109.  Having said that, I am of the view that Dr Wong’s assessment that only 30% of the plaintiff’s left shoulder condition should be attributed to the Accident is on the low side, particularly when it is my finding that the plaintiff’s degenerative conditions were asymptomatic before the Accident. 

110.  I hold that 70% of the plaintiff’s left shoulder condition should be attributed to the Accident.  Hence, the damages for PSLA should be discounted by 30%.  The award should therefore be assessed at: $200,000 x 70% = $140,000.

111.  For the sake of completeness, I should also mention that I reject Mr Lam’s submission that the discount should only be applicable to the orthopaedics part of the injuries.  First, as explained, when the Court decides on the appropriate level of damages for PSLA, the Court would take into account all injuries and disabilities at one go.  Second, even on the assumption that the award of PSLA on the plaintiff’s psychiatric condition can be distinguished from her orthopaedic condition (which is not), since the psychiatric problem of the plaintiff was caused by her physical disabilities, it is reasonable and logical for the apportionment to be applicable to the damages for PSLA awarded on her psychiatric problem as well anyway.

SUMMARY OF DAMAGES AWARDED

112.  In summary, the plaintiff shall be awarded the following damages:

Heads of damages	Amount
PSLA (after deducting 30% discount for pre-existing conditions)	$140,000
Pre-trial loss of earnings and MPF	$502,320
Loss of earning capacity	$0
Medical expenses	$24,967
Travelling expenses	$3,413
Tonic food	$3,000
Sub-total:	$673,700
Less Advance Payment	($410,521)
Total:	$263,179

113.  I make the following orders on interest:

(1)  interest on special damages (less the amount of advance payment)  at half judgment rate from the date of the Accident up to the date of this Judgment;

(2)  interest on PSLA at 2% per annum from the date of the writ of summons up to the date of this Judgment.

COSTS

114.  I make a cost order nisi that the defendants shall bear the costs of the plaintiff on the assessment of damages (including all costs reserved, if any), to be taxed if not agreed.  The plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations. 

115.  The above order nisi shall become absolute in the absence of application to vary (which shall be made by letter, if any)  within 14 days hereof.  Any application to vary the costs order nisi shall be dealt with on papers[15].