HUNG SAU FUNG v. LAI PING WAI AND ANOTHER

HCPI 204/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 204 OF 2009

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BETWEEN

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J U D G M E N T

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1.  This action arises out of an accident at work which occurred at about 5:15 pm on 30 June 2007. At the time, the plaintiff, who was employed as an apprentice vehicle mechanic by the defendant firm, was called by the two partners of the firm to assist in the transport of a metal drum containing more than 200 litres of engine cleaning oil. The operation went badly wrong and the drum fell onto and crushed the plaintiff’s right foot, causing him an excruciatingly painful injury. Although liability had been contested, at the commencement of trial, Ms Susanna Leong, appearing for the defendant, conceded that the defendant was 100% liable in negligence for this occurrence. Although liability was only conceded late in the day, it had been clear from the outset that the main contest was on quantum. The plaintiff claimed substantial damages in excess of $6 million for the injury he suffered to his right foot. Not surprisingly, these claims were hotly contested.

Injuries and Treatment

2.  The plaintiff was aged 29 at the time of the accident and is now 33 years old.  After the accident, the plaintiff was taken to the Accident and Emergency Department of Ruttonjee and Tang Shiu Kin Hospitals.  He was found to have sustained fractures of the right big toe with displacement and fracture of the 2^nd and 3^rd toes at the proximal phalanx with subluxation.  He was treated and transferred to the orthopaedics ward of Pamela Youde Nethersole Eastern Hospital and was scheduled for surgery on 3 July 2007.  However, he discharged himself on that day, opting, instead, to seek private treatment from Dr James Kong (“Dr Kong”) as he was insured under a medical expenses policy taken out by his mother.  Dr Kong saw him on the same day and admitted him to the Hong Kong Sanatorium Hospital and, on 4 July 2007, carried out an operation of closed reduction with k-wire fixation of the right big toe and 2^nd and 3^rd toes. After his discharge from hospital, the plaintiff was followed up at Dr Kong’s clinic from 9 July 2007 to 24 May 2008.  X-rays taken on 24 May 2008 showed that the fractures had healed well.  On that occasion, Dr Kong noted that he walked unaided with normal gait.  He walked on his heels but had a mild limp when walking on tiptoes.

3.  It is important to chart his progress from the time of the accident up to May 2008.

4.  He had been discharged from the Hong Kong Sanatorium Hospital on 6 July 2007.  At the follow-up on 9 July 2007, Dr Kong noted that x-rays showed that the fractures were well aligned, and the same finding was made on 21 July 2007, when he noted that swelling had decreased.  On 4 August 2007, the plaintiff was noted to be pain-free.  By 1 September 2007, the fractures had healed.  On 21 September 2007, the plaintiff complained of occasional pain on his right big toe and occasional pain on his 2^nd and 3^rd toes.  On 27 October 2007, the plaintiff complained of mild pain.  Similar complaints, including complaint of mild residual pain, occasional pain, not much pain, were recorded on the medical attendance notes of Dr Kong from 27 October 2007 to 28 April 2008.  During this period, Dr Kong detected the presence of mild complex pain regional syndrome (“CPRS”).  This is a chronic pain syndrome of uncertain pathogenesis, usually affecting an extremity, and characterised by intense burning pain, changes in skin colour and texture, increased skin temperature and sensitivity, sweating and edema.  Type 1 often follows tissue injury, but without demonstrable nerve injury, and maybe accompanied by post-traumatic osteoporosis.  Type 2 is associated with injury to the peripheral nerves.  Thankfully, this was resolving by February 2008 and had completely resolved some time thereafter.

5.  The k-wires were removed on 13 October 2007.  On 14 February 2008, Dr Kong noted his complaint of pain after prolonged walking of over one hour.  Upon Dr Kong’s referral, the plaintiff attended 69 sessions of physiotherapy with Ms Isabella Lit (“Ms Lit”) of Atech Health Specialists Ltd from 17 October 2007 to 25 April 2008, and 7 sessions of occupational therapy with Ms Louise Leung (“Ms Leung”) of Canadian Asian Neck and Back Institute (CANBI) between 19 February 2008 and 11 March 2008.  From 8 April 2008, the plaintiff received occupational therapy from Mr Chan Yee Pong Thomas (“Mr Thomas Chan”) of Elite Resource and Consultants Services twice a week for six months, and then once a week since November 2008 for a further two months.  At the same time, he received physiotherapy from 30 April 2008 at the Albert Hui Manipulative Physiotherapy Centre : 32 sessions from 30 April 2008 to 10 December 2008, 59 sessions from 15 December 2008 to 16 April 2010; and these have continued in 2011.

6.  At his last follow-up on 25 May 2008, Dr Kong had referred the plaintiff to occupational therapy for a work hardening course and this had been provided by Mr Thomas Chan.  Between 10 June 2008 and 3 April 2009, the plaintiff consulted another orthopaedic surgeon, Dr Eric Chien. The complaints recorded by him on his notes included stiffness of the big toe and the 2^nd and 3^rd toes, residual pain, mild pain, but these initial complaints changed by October 2008.  On 3 October 2008, Dr Chien noted his complaint that increase in walking intensity on the treadmill produced an increase in right big toe and forefoot pain, and that the plaintiff requested medication for use if there was a severe attack of pain. On 31 October 2008, the complaint of pain included not only walking in ambulation but also “rest pain”.  By 6 November 2008, pain became the “main concern”.  Upon referral from Dr Chien, the plaintiff started to consult the pain specialist, Dr Carina Li (“Dr Li”) of the Hong Kong Sanatorium Hospital from 8 November 2008 and received intensive multi-disciplinary pain management.  On 23 December 2008, Dr Chien noted that he was walking with better gait but still had residual pain at the forefoot area.  He suggested to the plaintiff that if there was no further improvement with pain treatment, the plaintiff was considered to have reached maximum medical improvement (“MMI”) such that he could be assessed by the Medical Assessment Board.  On 3 April 2009, Dr Chien recorded that the plaintiff seemed to be reaching MMI.  After that date, the plaintiff stopped seeing Dr Chien and did not consult any other orthopaedic surgeon, but he continued to attend physiotherapy, occupational therapy, and treatment by the pain specialist.

7.  During this period, the plaintiff was examined by the parties’ orthopaedic experts, by Dr Lau Hoi Kuen (“Dr Lau”), engaged by the defendant, on 30 June 2008, and by Dr Peter Tio (Dr Tio”), engaged by the plaintiff’s legal advisers, on 3 March 2009. 

The orthopaedic experts

8.  At his examination on 30 June 2008 by Dr Lau, the plaintiff complained to him of intermittent pain in the distal part of the right foot which might occur even at rest.  His sleep was disturbed for about one night every week.  The pain was associated with walking for more than 20 minutes and could be felt upon weight bearing or an attempt to run.  It occurred in poor weather and when he was climbing stairs.  On his physical examination, Dr Lau noted that the plaintiff walked normally and without any walking aid and could squat fully.  He could not stand on his right leg alone.  X-ray showed a residual deformity of the IP joint of the big and 2^nd toe and that the fractures had united solidly.  There was no evidence of disuse osteoporosis of the bones of the right foot.  Examination of his right foot revealed tenderness over the big, 2^nd and 3^rd toes. There was stiffness of the toes and wasting of the muscles of the right calf.  Although the fractures had united solidly, there had been permanent damage done to the IP joint of the big toe and the 2^nd toe. There was no physical sign of CPRS1 and x-rays of the right foot did not reveal evidence of abnormal bone loss (osteoporosis) of his right foot.  He concluded that the plaintiff’s right foot had long reached the stage of MMI and that no further treatment was indicated.  He assessed impairment of the whole person at 3 to 4%.

9.  When examined by Dr Tio on 3 March 2009, the plaintiff complained to him of intermittent pain with occasional exacerbation over the whole right forefoot including the 1^st to the 3^rd toes. The pain was aggravated by poor weather, prolonged walking for over one hour and 15 minutes, standing for over 20 to 25 minutes and climbing over four flights of stairs.  He rated the pain to be in the region of 4 to 8 out of 10.  There were occasional attacks of hotness, numbness, swelling and redness over his right forefoot.  He also complained of intermittent pulsation with electrical shocks sensation and numbness over the right foot.  The pain woke him up from bed at a frequency of once weekly.  There was also difficulty for him to put full weight on the right foot so much so that he had to rely more on his left foot when he walked or stood, and this in turn had caused pain over his left lower limbs, especially on the left foot.  During his physical examination, Dr Tio noted that the plaintiff’s gait was normal but slow. There was diffuse tenderness over the whole right foot and the old pin track of the 1^st to 3^rd toes.  There was no muscle wasting of both lower limbs with calves and thigh girths of both lower limbs equal.  The range of movement of the toes was reduced in both the big toe and the 2^nd toe.  The range of movement of the 3^rd toe was normal.  X-rays revealed healed fractures of the right 1^st to 3^rd toes with satisfactory alignment.  Dr Tio did not detect any hair or skin changes on his right foot and the temperature and pulse of the right foot was normal.  It is common ground that the CPRS1 had resolved.

10.  A joint examination was carried out on 18 August 2009 by Dr Lau and Dr Tio, less than six months after Dr Tio’s examination in March. His complaints made to Dr Tio were repeated to Dr Tio and Dr Lau, but with this difference: the plaintiff now rated the pain in his right foot to be in the region of 8 to 9 over 10.  He said that the severity of the right foot pain had increased in the recent two to three months as his activity level had increased recently.  He claimed that he had to consume a full dose of medication prescribed by the doctors he was seeing.  During their physical examination, the doctors noted that the plaintiff now walked with a mild limp. However, he was observed to walk normally when his attention was distracted. He could squat fully, he could walk on his heels but he could not walk on tiptoes, and he was unstable when standing on his right leg alone.  An examination of both his shoes showed an equal amount of wear of the heel and the sole.  On examination of his right foot, both doctors agreed that there were no detectable signs of CPRS1, but there was mild swelling over his right foot and diffuse tenderness over the whole right foot and the old pin track of his 1^st to 3^rd toes.  There was no muscle wasting of both lower limbs with calves and thigh girths of both lower limbs equal. Ranges of movements of the toes were reduced in both the big toe and the 2^nd toe, but the range of movement of the 3^rd toe was normal.

11.  So far as CPRS1 is concerned, I prefer the opinion of Dr Lau who expressed the opinion that there was no physical or radiological evidence of CPRS1 when he examined the plaintiff in June 2008.  If the plaintiff suffered from CPRS1 affecting his right foot at some stage, he should have completely recovered from the syndrome by June 2008.  Therefore, the treatment he had from the pain specialist was not for CPRS1.  Dr Lau’s opinion was consistent with the medical records from Dr Kong to the effect that the CPRS1 was mild to begin with and was resolving.

12.  There was close agreement between the two doctors in their assessment of impairment of the whole person.  Dr Lau repeated his earlier opinion that the plaintiff suffered from a 3 to 4% impairment of the whole person whilst Dr Tio was of the view that he suffered a 4% impairment of the whole person.  Dr Lau was of the opinion that he was expected to have stiffness of his 1^st and 2^nd toes permanently.  The extremely mild degree of muscle wasting of his right calf was the best objective evidence of his satisfactory recovery from the injury to his right foot.  The residual pain in his foot and his problem with weight bearing and walking could not be as severe as he had alleged.  Dr Tio was of the opinion that the residual right foot pain was likely to persist in the future, although the severity of the pain should gradually reduce to a certain degree.  He said that the plaintiff should continue his treatment from the various specialists for another three months before he was stable for a self-exercise.  On the other hand, Dr Lau said that no further treatment, other than taking analgesics on a need to basis, had been required after June 2008.

13.  In their joint supplementary medical report dated 29 March 2011, commenting on the reports of the pain specialist, Dr Tio stated that he did not find any evidence of plantar fasciitis (inflammation of the fibres tissues at the sole of the foot) or swift body weight during the orthopaedic examination.  As four years had passed since the accident, the plaintiff should be considered to have achieved a state of maximal medical improvement.  What he needed was a simple painkiller for pain management and management by the psychologist or psychiatrist for his psychiatric condition.  He did not think that a protracted course of physiotherapy or occupational therapy for over two to three years could be of further benefit to the plaintiff.  Dr Lau noted that pain had biological, psychological and social components.  It was subjective and could not be objectively measured.  However, he observed that there was always the possibility that the pain and disability could be exaggerated.  He noted that during the joint examination in August 2009, the plaintiff was able to walk in a normal fashion when his attention was distracted.  The absence of muscle wasting of the plaintiff’s right lower limb observed by Dr Tio in March 2009 and by both of them in August 2009 could not have happened if he actually suffered from the severity of pain of which he complained.  The symmetrical degree of wearing of the sole of his shoes was concrete evidence that he had been weight bearing equally on both feet and walking in a normal fashion all along.

14.  The absence of muscle wasting is an objective indicator of recovery.  The suggestion by the pain specialist, Dr Lee Tsun Woon (“Dr T.W. Lee”), in his much report dated 11 March 2011, that the plaintiff suffered from right calf muscle wasting seemed to be inconsistent with the findings of the orthopaedic experts and caused me to direct the parties to get a further joint report from the orthopaedic specialists.  This was produced by way of a report dated 15 July 2011.  The two doctors referred to the measurements taken by Dr Tio in March 2009, and by both of them in August 2009, and, finally, by both of them on 12 July 2011.  They agreed from the measurements recorded on those occasions that there was no significant difference between the girths of the lower limbs, and, on that basis, they concluded that there was no evidence of any muscle wasting over the right lower limb.  They noted that the difference of less than 1 cm was considered to be insignificant.  They were not able to comment on the measurements done by Dr T.W. Lee. Dr Lau noted that inter-observer differences in physical findings could often occur in clinical practice and examinations and was one of the reasons why the system of joint examination was introduced.

15.  I accept the evidence of the joint orthopaedic experts, in preference to the opinion of Dr T.W. Lee, and I find that the original muscle wasting, from which the plaintiff had suffered, had resolved by March 2009, by which time he had reached maximum medical improvement.

16.  Having taken a considerable period of time to deal in depth with the orthopaedic examinations and the opinions of the orthopaedic experts, which I find to be of considerable assistance to my resolution of the dispute between the parties in this case, I now set out the plaintiff’s evidence before turning to consider the psychiatric evidence.

The plaintiff’s evidence

17.  The plaintiff was 29 years old at the date of the accident on 30 June 2007 and is now 33 years old.  The plaintiff studied up to Form 5 and then completed a one-year full-time programme in commercial studies at the Caritas Institute for Further and Adult Education in 1998, at the age of 20.  A year later, he was awarded a Craft Foundation Course Certificate in Electronics by the Vocational Training Council, after completing a Craft Foundation Course in that field.  A year later, he completed a course offered under the Youth Pre-Employment Training Programme.  He learned internet and computer job-finding skills.  This was followed by another training course of workplace training for which he received a certificate in 2001.  It was only then that he worked as a clerk with a company called Wealth Creation Ltd for some 3½ years, until September 2004, at a salary of $5,000 per month.  He was out of work after September 2004 until April 2005, when he was employed by Senko as a quality assurance inspector.  He left that job in September 2006 and worked as a part-time electronics appliances product engineer with BenQ from October 2006 to February 2007.  From March to April 2007, he worked as a computer repair and maintenance technician for Luen Keung International Computer Company.

18.  He had a passion for remote control cars from a young age, and, in 2004, he passed his driving test and obtained a driving licence.  He had always been interested and passionate about cars and wanted to work as a vehicle mechanic. Through the assistance of the Labour Department, he found employment as a full-time vehicle repair and maintenance apprentice with the defendant from 10 May 2007, at a monthly salary of HK$4,500.  He worked at the defendant’s garage in Happy Valley until the accident occurred on 30 June 2007.

19.  The plaintiff gave evidence of the impact the accident had on his physical and mental well being. In his witness statement dated 24 December 2009, the plaintiff said that he was then taking half a tablet of panandeine, an analgesic containing paracetamol and codeine, or a panadol tablet from two times to four times a day.  He also took 0.25 mg tablet of Xanax, for anxiety, and occasionally he would also take Nopres 20 mg, for depression, and Solian 100 mg, which is usually prescribed for treatment of blunted emotions and social withdrawals.  He also applied a pain relieving medicated plaster on his right forefoot on a daily basis to relieve pain.  He suffered from side effects of his medication including constipation and gum swelling.  At that time, he still suffered from pain at the sole of his right foot.  The pain felt like electric shock and was an intensity of 7 to 8 out of 10.  When he was seated, there was pain at the sole of his right forefoot, which felt like an ant bite of an intensity of 5 to 6 over 10 and when standing, the pain was about 5 to 6 over 10 with both ant bite and electric shock feelings.  He considered that he could only walk continuously for a little more than one hour because of his pain.  In the same witness statement, the plaintiff challenged the statement of the joint orthopaedic report that there was an equal amount of wear of the heel and sole of both his shoes.  He said that, after the joint examination, he took photographs of his sports shoes and sent them to his solicitors on the same day, i.e. on 18 August 2009.  He had examined his sports shoes carefully on that day and found that there was an unequal amount of wear and that the wear on the sole of the left heel was more than that on the right heel.  I have looked at the photographs in question.  My impression from the photographs is that there was an equal amount of wear on the heels of both shoes.  If anything, I get the impression that the wear on the heel of the right shoe, as shown on the photograph on p.17 of Trial Bundle 6, was more than that of the left heel.  Whilst I refrain from making any finding of fact based on my view of these photographs, I do not accept the evidence of the plaintiff that the orthopaedic experts were mistaken when they said in their joint report that there was an equal amount of wear of the heel and sole of both shoes.  I accept the evidence of the orthopaedic experts in that regard.

20.  In his earlier witness statement dated 21 July 2009, the plaintiff had said that his right foot was always painful, including the sole, joint, operation scars, and the front part, top surface and the middle part of his foot.  It would be more painful if he walked for more than 20 minutes. The pain existed every day.  He said that he was unable to carry out his favourite activities such as war games, badminton and hiking.  He applied for a number of jobs, but there had only been one interview which was unsuccessful. The interviewer said that it was because he needed to attend treatments from time to time during office hours that they could not offer him a job.

21.  In his evidence-in-chief, the plaintiff referred to the surveillance video that had been viewed in court, saying that he had a limp just before he walked up the stairs as shown on the video recording.  He said that he had walked a long time and for a long distance and that his right foot was more and more painful and so his limp became obvious.  His limp became discernable after walking for some 15 to 20 minutes, but it depended on weather and the season.  He had also developed neck and back pain due to his awkward gait and he still had some neck and back pain.  He gave evidence of his pain and suffering in the immediate aftermath of the accident and during his recovery period, when he received care and attention from his mother.  After he had given up his crutches, the time that she comforted him was shorter, between half an hour to 45 minutes, and she did so even up to the present.  In the first six months after he was injured, she spent one to three hours taking care of him, including cooking and helping with household chores.

22.  Although Dr Kong had suggested sedentary work for him, and work as a security guard, he felt that he could not perform such work because he had difficulty moving about.  He had failed his taxi driving licence test in June 2008 because his memory was poor and his concentration was low.  He felt unhappiness because he considered that that was the only feasible job that he could perform.  He described the side effects of his psychiatric medication which included sleepiness, drying of mouth and bitter taste in the mouth, as well as constipation.  He felt sleepy during the day and absent-minded.  He said that he was still in pain although that pain fluctuated.  He accepted that there was improvement in his pain but he dared not try to run or lift heavy weights.  His walking ability had not reached his pre-accident level and the best he could do was to walk about 20 to 25 minutes.  He still had flashbacks about once a week, which brought about anxiety.  The quality of his sleep was not good, because he sometimes overslept and sometimes had nightmares.  He always had pain in his right foot and the pain varied from 6 to 8.5 out of 10.

23.  The plaintiff spoke about his interview for the position of clerk at Fortis Insurance Company.  He was unsuccessful.  He was told by the interviewer that he would find it difficult to get a job with any other company given his many problems, a long term need for medication, and a long term need for treatment.  He was unable to perform work which required him to go out.  He did not apply even for office jobs because of the location and hours of work, and because of the medication that he took.  He did not have confidence in his ability and, therefore, he dared not apply for such jobs.  He said that he had to walk a long distance to go to the MTR and even if there were bus routes that took him to his place of work, he would still need to walk a long distance. The time that he woke up in the morning was not fixed, and if he had to get up at 7:00 am in order to go to work, that would be too early for him.  As far as he knew, he needed to take medication on a permanent basis.  His sleep quality was not good after he took painkillers and sometimes he overslept.

The surveillance video

24.  I have viewed and reviewed the surveillance video. The first part of the video shows the plaintiff on 18 August 2009 leaving Dr Tio’s clinic in Tsimshatsui shortly after 2:00 pm and walking to and boarding a bus on Canton Road bound for Shaukiwan.  He walked slowly but with a normal gait and, more importantly, was filmed ascending the bus by stepping onto it with his right foot and using the right foot as the weight bearing foot whilst he lifted up his left foot from the ground.  This natural action contradicted his claims of severe pain in his right foot.  The second part of the video shows the plaintiff leaving Melbourne Plaza at 12:54 pm on 17 September 2009, walking into Theatre Lane, and then catching a tram at Des Voeux Road near Peddar Street.  As far as I can discern from the recording, he walked in a normal manner and with a normal gait.  The video also shows him alighting from the tram at 1:20 pm at Yee Wo Street, near Paterson Street, and going into a fast food restaurant in Jardine Bazaar four minutes later.  He is shown to leave the restaurant at 1:57 pm, turn into Yun Ping Road, walking slowly but with a normal gait, and ascending a few steps to enter Fortune Court.  I have reviewed the last part of that video a number of times but cannot discern any sign of a limp that the plaintiff asserted could be seen on the video just before he walked up the steps into Fortune Court.  The video recording supports the evidence of the orthopaedic experts that there was an equal amount of wear of the heel and sole of both of the plaintiffs’ shoes. 

The evidence from treating and expert psychiatrist and psychologist

25.  From 10 October 2008 to 28 November 2008, the plaintiff consulted Dr David Lau Ying Kit (“Dr David Lau”) a psychiatrist at St Paul’s Hospital, who diagnosed that he was suffering from post-traumatic stress disorder (PTSD) and prescribed anti-depressant medication.  Dr David Lau referred him to see a clinical psychologist, Ms Heidi Chan (“Ms Chan”), of Youth Outstretch, and he had four sessions with her between 4 December 2008 and 21 January 2009.  Consequent upon her resignation, he started to see another clinical psychologist, Ms Emma T. Wong (“Ms Wong”) on 7 February 2009.  He has continued to see Ms Wong, at least up to May 2011.  The plaintiff also sought treatment from another psychiatrist, Dr John So, from 22 March 2010.  Totally, the plaintiff has received in excess of 50 sessions of private psychological and psychiatric treatment.  The treatment notes, particularly of Ms Wong, give us an insight of the plaintiff’s personality.

26.  I quote from the following attendance notes of Ms Wong, which I have found to be of assistance in my assessment of this case :

“7 February 2009: Litigation ongoing …. strong sense of anger especially his bosses had no remorse …. he illuminated his anger and sufferings ….

21 February 2009: Perceive occupational therapist Mr Edward Chan not understand him very much …. not wanted any medical professional to misunderstand him as he would involve in assessment and affect litigation compensation ….

28 February 2009: Reveal that occupational therapist did not understand him. OT viewed him not persistent to his goal, blamed him not to attempt to work in garage again. However, he insisted what’s important was that he’s unable to do, not he didn’t try. He did not want occupational therapist to write something that’s not true in his report ….

Realize that pain not likely to reduce, he needed to co-exist with the pain …. pain affected his sleep and pain is the immediate cause affecting his mood.

7 March 2009: Felt being dead inside. No chance for him to achieve and prove his ability in [motor mechanic] career …. reveal when seeing a doctor, some question is genuineness and he felt very bad about it. He is a victim but seemed others regarded him doing wrongly.

2 April 2009: Fear of being monitored and asked me to close the curtain. More adjust to pain but litigation is more difficult to deal with .… he wanted to make a decision on job choice according to his anticipated outcome. Ms Wong suggested to the plaintiff to ‘try it first, despite success or not’.

7 May 2009: Realize that his court case may end the earliest in 2010. He originally planned to spend 2-3 years and end it this year but turned out he had to deal with this for 3-4 years. Financial strain. Ms Wong advised him to ‘equip himself, not just to focus on what he wanted to do after compensation. At least focus on present stage’.

25 May 2009: Not forgive ex-employers.

18 June 2009: Pain specialist prescribed sick leave till 7 April. He sought advice from lawyer that he should find a job as there’s no more leave. To Labour Department to find a job .... worried if the company would not hire him and also worried if he successfully got a job offer, he might not be able to fulfil the job requirement .… pain doctor was negative to his litigation outcome. He’s upset about it and made him even more worried. Perceived he had no progress from the career and developed ante point of view. Just had to do what he has done in the past but he did not want to (clerk) .… not like dealing with office politics. In past, he was working in a Japanese company in quality assurance of optic fibre on medical and military equipment. He did his role to reject disqualified products but being blamed by boss as increased staff’s workload. He was too serious about his job duty but turned out being blamed by others. Despite the company offered good benefit, he still quit the job.

10 November 2009: Recently, strongly believed that occupational therapist did not understand him. OT believed he should be able to resume his original post, perhaps several years later. He did not agree, in view of his physical condition, and after several years, physical fitness will be even worse and is too late to start being an apprentice. However, OT is the one responsible to prepare report, and he is therefore irritable. OT suggested him to find other car-related job, e.g. sales, but he did not agree that he was suitable being a sales person.

3 December 2009: Community Rehabilitation Network (‘CRN’) offered him a job of customer service but required him to work regular hours either pm or evening, Mon – Fri, or whole day Sat and Sun. He rejected as he did not want regular hour work, not flexible and not confident to cope with phone calls. Instead, he’d rather attend Excel class starting from 21 December.

24 December 2009: Also expressed negative feelings to OT. He said OT not understood him .… he also perceived OT not want to write report for him (procrastinate) and always change appointment time .… said he was very stressful now as worried about compensation results .…

4 February 2010: Also have no more trust to OT. Will change. He interpreted the OT not care about his case …. wish to find a job with job satisfaction but can’t.

24 February 2010: CRN offered him a job but not fit him.

17 March 2010: Changed to another OT. So far the communication is okay. However, the task arranged need to strengthen his leg. This OT would not push him but adjust according to his pace. He felt good about that.

9 April 2010: Changed to a new psychiatrist Dr John So .… he perceived seeing doctor in St Paul’s Hospital was undesirable. Very small space made him stressful and a crowded environment might trigger his impulsivity. Now, perceived the new psychiatrist was more active to adjust his medication regime. Seeing doctor was not satisfactory, and doctor knew he had Injury On Duty (‘IOD’) and litigation, not seeing him as genuine patient but was very aware of other issues and complicated his case.

29 April 2010: He was referred to see a specialist on feet .… disappointed as (1) doctor said no surgery was suggested as that would not be helpful to his pain (2) Fung had the impression that the doctor did not understand the basic heavy duties of a motor mechanic apprentice. .… in addition, the doctor was cold-blooded .… he interpreted the doctor believed he wanted revenge but he just wanted ex-employers not to hurt people further. He believed his IOD background made doctors bias and not really objective to see his case.

19 May 2010: Spent a lot of time talking about the dissatisfaction towards psychiatrist. Psychiatrist seemed not to trust him and seemed suspected underlying intention on his complaints .… very frustrated about doctor’s attitude.

9 June 2010: He expressed anger and dissatisfaction towards the doctor. Blamed the doctor that knowing nothing about his career but asked him again, only giving judgment prematurely.

30 August 2010: Concerned about litigation, particularly at this mid-late phase .… still not sure how much he will get and can’t plan the future.

21 September 2010: Said recently wanted to find job mainly via Labour Department. However, sent many emails and forms but no return. He mainly applied for clerical post but understood that employers did not want to have a staff had IOD history and he had not qualified for some jobs (not had 5 subjects passed in HKCEE) … wanted to buy a taxi and be a taxi driver .… wanted to sustain a self-employed job as no need to fulfil others’ demand.

25 November 2010: Now learning clerical things in CRN course but clerical job is not his desired job. .… In past, he worked as clerk in an estate property agency. However, too stressful as to manage the door key and to prepare reports for sales person. He quitted without a month’s time. This is evidence to support and realize what are his suitable/capable jobs. He was a mechanic apprentice. He’s capable as proved by the bonus.”

27.  The expert psychiatrist, Dr Ting Sik Chuen (“Dr Ting”), instructed by the plaintiff, and Dr Chung Si Yuen (“Dr Chung”), instructed by the defendant, prepared a joint psychiatric report on the plaintiff dated 19 November 2009.  They reviewed the medical reports in this case, including the medical report of Dr David Lau dated 5 December 2008, Ms Chan dated 19 January 2009, and Ms Wong dated 28 October 2009.  During the mental state examination of the plaintiff, they noted that he spoke coherently and relevantly, that he was not depressed or anxious but that he expressed a sense of uselessness and guilt during the interview.  He had not displayed any features of psychotic symptoms.  He was orientated in time, place and person.  His cognitive functions were normal.

28.  Dr Ting noted that the plaintiff developed recurrent and intrusive distressing recollections of the traumatic scene after the accident.  He experienced intense psychological distress when mention was made of oil-barrel, garage, or related subjects that aroused recollections of the trauma.  He had difficulty in falling asleep, poor attention and concentration.  He had a sense of uselessness and pessimistic thought.  Dr Ting was of the opinion that his clinical presentations were compatible with PTSD.  Although the response to psychiatric and psychological treatment, since December 2008, was guarded, he would require further psychiatric and psychological treatment at monthly intervals for another two years for stabilization.  Dr Ting was of the view that currently, the plaintiff had improved slightly after treatment since December 2008. Although he was capable of most useful functions, he was unable to return to his previous job from the psychiatric perspective.

29.  Dr Chung agreed with Dr Ting that the plaintiff’s complaints were compatible with PTSD.  He noted, however, that symptoms of PTSD were usually at its worst soon after a traumatic event and would show improvement in the ensuing weeks and months.  Although he complained of anxiety symptoms related to the accident during the joint examination by the two psychiatrists, he did not appear to be anxious when he recalled the accident and the anxiety symptoms.  I formed the same view of the plaintiff when I heard his evidence over the course of a number of days.  Dr Chung also noted that he complained of difficulty in sustaining his attention and concentration, but that he assessed his attention and concentration to be normal.  I have also come to the same view based on my assessment of the plaintiff’s ability to field very pressing questions put to him during the course of a very lengthy cross-examination.  Dr Chung said that the main mental sign elicited in the joint examination was his anger in response to the alleged unreasonable behaviour of his employers who had caused the accident.  His complaint of anxiety and depressive problems were understandable and a normal psychological reaction in response to the stresses of the physical symptoms, unemployment, financial difficulty and the present litigation.  Objective signs of significant anxiety and depression were not elicited.  That accords with my own observations of the plaintiff during the course of his examination-in-chief and cross-examination, and also during the time when he was seated in the public gallery of the court room.  His outward appearance gave me the impression that he was under some stress and that he was feeling depressed, which is understandable, given the stress of the present litigation and his financial situation.

30.  I accept the evidence of Dr Chung that the impairment levels caused by the mental problems are mild and compatible with most useful functioning, and that the plaintiff is mentally fit to perform all activities of daily living.  I also prefer the opinion of Dr Chung who said that the plaintiff had undergone appropriate and adequate psychological and psychiatric treatment in the private sector.  I also accept the opinion of Dr Chung that the plaintiff’s mental condition has shown improvement after treatment and that he has reached maximum medical improvement.  Although Dr Ting was of the view that the plaintiff required further psychiatric and psychological treatment at monthly intervals for another two years, I prefer the opinion of Dr Chung that the treatment could be tailed off in one year, at a frequency of one visit every month, at a cost in the private sector, including medication, of about $25,000 for one year.  Although I am tempted to find that the psychiatric and psychological treatment the plaintiff received up to the time of the joint report dated 19 November 2009 was excessive, I refrain from doing so, and I allow the costs he had incurred on such treatment up to 19 November 2009, together with an additional sum of $25,000 to cover reasonable treatment for one further year from 19 November 2009.

31.  However, I depart from the views of Dr Chung and prefer the opinion of Dr Ting on the issue of his ability to return to work as a vehicle mechanic.

32.  The two psychiatrists were in agreement that the plaintiff is capable of most useful functions, and Dr Chung, in particular, highlighted his opinion that the plaintiff was mentally fit to work as a taxi driver, clerk or other jobs appropriate for his physical condition and background.  However, I prefer the opinion of Dr Ting that he is unable to return to his previous job as a vehicle mechanic.  My own observations of the plaintiff and assessment of his personality leave me to conclude that he is not made of such stern stuff that he could return to work in the environment of a garage or other car repair centre without triggering a recurrence of the anxieties that he suffered from in the immediate aftermath of the accident.  However, I accept the opinion of Dr Chung that the plaintiff was mentally fit to return to gainful employment after the sick leave for his physical condition expired.  I am satisfied that the plaintiff’s refusal to return to gainful employment, as documented in the attendance records of Ms Wong, was not due to any residual mental problems that he suffered from.  These residual symptoms were mild and compatible with most useful functioning.  Indeed, in his supplemental report dated 28 February 2011, Dr Ting reconfirmed that the plaintiff was able to return to gainful employment in any field of work suitable for him other than a workplace resembling his pre-accident job.

33.  Dr Chung’s opinion that the symptoms of PTSD were in remission was supported by the interview notes taken by Ms Chan on 4 December 2008 when she recorded that the plaintiff suffered from “nightmares and intrusive thoughts at first few months following the accident.  Denied recurrent, re-experiencing of trauma”.  She stated in her summary under the heading “clinical impressions” that “he might have experienced PTSD after the accident, but some of the symptoms gradually subsided”.  In her report dated 19 January 2009, she noted that the plaintiff described the accident as a shocking and fearful experience.  Four months afterwards, he had had nightmares and distressing, intrusive thoughts about it.  The flashbacks were said to have subsided gradually by the time of the interview, but the plaintiff remained anxious on exposure to reminders of the accident.  Hence, he tried to avoid such stimuli, including garage and metal drums.  He reported psychological distress after the accident.  He expressed feelings of grief over the perceived loss of health and job opportunity.  He also reported stresses related to treatment and litigation, including stigma involved in claiming compensation, and undesirable medication side effects such as decreased concentration, drowsiness and stomach upset. 

34.  Clearly, the plaintiff was suffering more stress from the ongoing litigation than from the residual symptoms of his psychiatric condition which was largely in remission.  The main mental sign elicited during the joint psychiatric examination, namely, his anger towards his ex-employers, was not the result of any psychiatric illness caused by the accident, but the product of his own personality. 

35.  The plaintiff suffered from problems in his relationships even before the accident.  There are many references of his tension with his elder brother in the attendance notes of Ms Wong.  Although it was submitted that his psychiatric disabilities resulted in the deterioration in the relationship with his family members and with his elder brother, I find that his differences with his elder brother pre-existed the accident.  There are many references in the notes of Ms Wong to the two siblings having different values and personalities.  Rivalry among siblings is common and, whilst this pre-existed the accident, it must also be acknowledged that there was a clear deterioration in the plaintiff’s relationship with his elder brother after the accident.  The deterioration of the plaintiff’s relationship with his elder brother was the result of the stresses created by the ongoing litigation rather than from any psychiatric condition caused by the accident.  This conclusion is supported by the attendance notes of Ms Wong, including the note that the plaintiff “viewed elder brother only concerned about his compensation, money-minded .…” and another note that “EB suggested him to buy a taxi with the compensation and he and EB might earn a living together.  He was very angry and replied an email that he has his own plan on compensation and he didn’t know when he would receive and how much he would receive.  He even pointed out explicitly that he suspected EB just wanted to share his money.”

36.  The plaintiff’s relationship problems were not limited to his relations with his elder brother.  He gave evidence that he resigned from his job with Senko, even though it offered good pay, with a starting salary of $6,000 per month, increasing to $7,500 per month in September 2006 when he left that employment.  The reason he gave for leaving the job was that his supervisor disliked him, blaming him for being too strict in his work as a quality controller and unnecessarily rejecting goods as being non-compliant.  It was with great difficulty and after some 30 to 40 job applications before he found another job with a company called BenQ.  He worked part-time there, earning only about $4,200 to $4,500 per month.  I find that it was his relationship problem with the supervisor of Senko that caused him to leave that employment, rather than any attempt by the supervisor to pressure him to accept non-compliant goods, which I do not accept to be the case.

The evidence from the treating physiotherapist and occupational therapist

37.  The first report I looked at is the report of Ms Leung dated 26 February 2008.  Her services were paid for by the employees’ compensation insurers in this case, who were participating insurers under the Voluntary Rehabilitation Scheme set up by the Labour Department.  An exposition of that scheme is set out later on in this judgment when I discuss the role of loss adjusters in arranging for rehabilitation services to be provided to injured employees. This report related to Ms Leung’s assessment on 19 February 2008, when the plaintiff complained to her of intermittent pain in the right 1^st, 2^nd and 3^rd toes, which was aggravated by walking briskly, flexion of the toes, and direct pressure on the toes.  He suffered from stiffness in the right 1^st, 2^nd and 3^rd toes. He had received therapy since 17 October 2007, attending two times a week and, later, three times a week.  He was referred for occupational therapy by Dr Kong on 14 February 2008.  He reported overall subjective improvement of 70% to Ms Leung.  In the follow-up report dated 12 March 2008, prepared after 7 visits, including the initial assessment, Ms Leung noted that the plaintiff did not report significant improvement in the last three weeks, so overall subjective improvement remained at 70%.  In the report dated 17 October 2008, which was prepared after his last session on 11 March 2008, Ms Leung stated that, objectively, he demonstrated minimal progress in the programme after seven sessions.  He was reluctant to progress in the exercise programme, even after repeated encouragement, because he experienced a temporary increase in pain in his 1^st toe after carrying out the exercises.

38.  The plaintiff stopped receiving occupational therapy from Ms Leung and, instead, received occupational therapy at Elite Resource and Consultation Services, starting from 8 April 2008.  In his report dated 15 December 2008, Mr Thomas Chan of that Centre reported that he had undergone eight months of occupational therapy, having two sessions a week from April to October, and one session a week from November up till the date of his report. Treatment was aimed at increasing general strength and tolerance and thereby to enhance basic work capacity.  Although there were fluctuations in his pain condition during the hardening course, improvements were still noted in overall function, including standing/walking, tolerance, balance, lifting and carrying capacity, general physical strength and tolerance in walking/stair climbing. The physical discomfort from physical output had reduced, but his residual pain condition and its fluctuation was still major concerns and hindered his overall functional performance.  Mr Thomas Chan’s assessment of his working capacity was that he would only be able to cope with jobs of light strenuousness, and without frequent standing or walking demands.  However, continuation of the work hardening programme would help to further enhance his strength and tolerance, so that he could fulfil jobs of higher strenuousness. Although he had been prescribed painkillers to control his pain condition, he was reluctant to use them because of their side effects.

39.  On the referral of Dr Lee, the pain specialist, the plaintiff commenced occupational therapy at the Occupational Therapy Department of Queen Mary Hospital on 14 January 2009.  He attended 25 sessions until 4 December 2009.  What is noteworthy from the report of the occupational therapist, Mr Edward Chan, was that the plaintiff rated himself at 8/100 on the well-being index.  Mr Edward Chan noted that the self-perceived well-being rating was very low and that his general happiness goal was also on the low-side as he had given himself a subjective rating of 9/28 on the general happiness scale.  His self-perceived rating on life satisfaction on the life satisfaction scale was 6/35 which was again very low, indicating that he was extremely dissatisfied with his current life.  His assessment in October 2009 showed only slight improvement in these scores. 

40.  The final report from an occupational therapist is that of Mr Eric Fung, also of the Queen Mary Hospital, dated 17 May 2010.  This report showed that his walking tolerance was only 18 minutes on level ground, which was limited by increase of pain, from 7.5 out 10, to 9 out of 10 and that he needed one hour for the partial resolution of pain back to a level of 8.5 over 10. He had limited bilateral lifting capacity and was unable to cope with lifting a weight of 15 lbs.  His squatting tolerance was 47 seconds.  He was able to carry 10 lbs at waist level for 10 ft, but not 12.5 lbs. He complained of significant increase in pain over right toes and right metatarsal area, to a level of 8 to 9 over 10, after any exertion and required more than 45 minutes of partial recovery. 

41.  It is very telling to compare these observations with the examination of Ms Leung, more than two years earlier, during her assessment on 19 February 2008 that the plaintiff had good balance on both legs and single-leg standing, he was able to assume a full squat position, he was able to walk up and down a flight of stairs with a normal gait, able to lift 30 lbs from floor to shoulder level, and able to carry 30 lbs for a distance of 10 metres. Although he reported a temporary increase in pain in his 1^st, 2^nd and 3^rd toes of his right foot during the assessment, all his reported pain returned to base line upon completion of the assessment.  In her report dated 12 March 2008, Ms Leung reported that the plaintiff was able to sustain a squatting position for up to 15 minutes at a time during the exercise programme and able to walk or sustain a dynamic standing position for 30 minutes during the exercise programme.  He was able to carry 30 lbs from floor to waist level, and able to carry 30 lbs for a distance of 10 metres without showing any signs of significant exertion in lifting and carrying tests.  All pain and discomfort returned to base line upon completion of the tests. 

42.  I cannot discern any reason to explain why his condition should have deteriorated to such an extent in the period of these two years.

43.  The plaintiff also received physiotherapy on the recommendation of Dr Kong, such therapy being provided by Ms Lit of Atech Health Specialists Limited.  His first attendance was on 17 October 2007 and, in her report dated 9 October 2008, she noted that he had attended 30 sessions from 17 October 2007 to 31 December 2007.  There was gradual progression after three courses of treatment and the plaintiff noted a 70% improvement of his injury.  His pain increased to 7 or 8 out of 10 when he tried to walk with full weight bearing on his forefoot, and he reported that he was only able to walk for 45 minutes in limping gait with pain.  After 21 sessions of treatment, he reported a 70 to 80% recovery and could run slowly.  The pain over the forefoot reduced from 7 to 8 over 10 to 4 to 5 over 10 when he walked.  He was able to do single-leg stand and full weight bearing on his right leg.  Thereafter, the plaintiff continued to receive another 18 sessions of treatment from 29 February 2008 until the last session on 25 April 2008.  His complaint on 25 April 2008 was that his pain was only felt in full weight bearing and during walking and reached 4 to 5 out of 10, and that he had an overall improvement of 70 to 80%. 

44.  Thereafter, the plaintiff received physiotherapy treatment at the Albert Hui Manipulative Rehabilitation Centre.  In the report of Mr Albert Hui (“Mr Hui”) dated 12 December 2008, he noted that he had his first session on 30 April 2008 and from then until 10 December 2008, he had received 32 sessions of treatment.  On re-assessment on 3 September 2008, he reported that there was improvement in pain in walking, but which he could not assess quantitatively.  In his further report dated 20 April 2010, Mr Hui reported that from 15 December 2009 to 16 April 2010, the plaintiff received another 59 sessions of treatment at his Centre.  His symptoms of pain limited his walking tolerance to about one hour. In his reassessment conducted on 16 April 2010, Mr Hui noted that the gait was much better than that observed a year ago during walking, and that his general mobility was faster and unaided.  His walking tolerance was more or less the same as in the past year.  In his opinion, physiotherapy treatment had reached its full potential.  The plaintiff was not expected to improve or deteriorate.  Finally, in the letter dated 12 January 2011, Mr Hui noted that the plaintiff attended their Centre for treatment once a week for pain control and that his last treatment had taken place on 6 January 2011. He reported that the pain after each treatment had improved for one or two days, but then the pain gradually recurred. 

Pain experts

45.  The court does not usually give leave for the parties to adduce expert evidence from pain specialists, unless the difference between the parties relates to the care regime to be implemented in respect of an injured person. Pain is subjective and it is for the court to assess the evidence of the injured person and come to a finding whether or not he is indeed suffering from pain and, if so, the nature and extent of that pain.  A report from the pain specialist that the injured person is suffering from pain is of no assistance to the court.  This, however, has been a very exceptional case in that the plaintiff sought and received private treatment from the pain specialist, Dr  Li of the Hong Kong Sanatorium Hospital, from 8 November 2008, and received intensive multi-disciplinary pain management treatment from her, from that time up to 2011.  In the course of that treatment and during the course of this litigation, Dr Li has prepared three medical reports dated 27 February 2009, 14 April 2009 and 3 June 2010, which the plaintiff’s solicitors sought to introduce at the trial of this action as reports from a treating doctor.  Although they contained a record of the treatment prescribed to the plaintiff and the diagnosis of Dr Li as a treating doctor during those treatment sessions, these reports were not reports from a treating doctor but were in the form of expert reports.

46.  A report of a treating doctor is always admissible to prove the fact that the injured person was receiving treatment, the nature of that treatment, and the opinion and diagnosis of the treating doctor which was communicated to the injured person.  These are all matters of fact.  Whilst the diagnosis reached and the treatment plan recommended by the treating doctor is the product of his expertise, his diagnosis and treatment plan and their communication to the injured person is a matter of fact.  However, the opinions expressed by the treating doctor in his report are not admissible as expert evidence unless leave to admit it for that purpose has been obtained from court.  That principle is easy to state but sometimes difficult to apply.  It is often a difficult and time consuming exercise to redact parts of a treating doctor’s report containing his expert opinion, which is admissible only with the leave of court, from those parts of the same report setting out his diagnosis and the opinions he has expressed to his patient, which are always admissible as matters of fact. 

47.  Given the great difficulties in attempting to redact those parts of the reports of Dr Li, which came under the umbrella of expert opinion, and those parts which were admissible as factual evidence, I took the exceptional course at the PTR of this case of allowing these reports to be admitted as expert evidence at the trial, at the same time allowing the defendants to adduce expert evidence from a pain specialist of their choice.  This was done, and Dr T.W. Lee prepared a report dated 11 March 2011 and, subsequently, a joint report was prepared by Dr Li and Dr Lee, dated 11 May 2011.  One of the reasons for taking this exceptional course was that Dr Li had advised and recommended a future care regime for the treatment of the plaintiff and, if the trial judge were to make a finding that the plaintiff, indeed, suffered pain to the extent that he claimed, then the question of the appropriate care regime to be implemented would become a live issue, on which he would need expert assistance.  I allowed these reports to be adduced before me under these exceptional circumstances.  Absent such exceptional circumstances, the court should not readily allow expert evidence of pain specialists to be adduced.  Practitioners obtaining reports from treating doctors must ensure that the reports are limited to the diagnosis reached, treatment plan advised, and treatment given by the treating doctor.

48.  The court which receives expert evidence from a medical expert, who was also a treating doctor, must treat that evidence with some caution, bearing in mind the natural tendency of a treating doctor to support his or her diagnosis and treatment plan of the patient.

49.  I have found it very difficult to accept any of the opinions expressed by Dr Li in her various reports in this case.  She had assessed and treated the plaintiff at her pain management clinic at the Hong Kong Sanatorium Hospital since 8 November 2008 and, between then, and 24 February 2009, the plaintiff had 22 pain management consultations with her which Dr Li listed in her first report dated 27 February 2009.  Whilst Dr Kong had recorded that the plaintiff had occasional pain, she recorded that the plaintiff had constant continuous dull aching pain of a score of 4 to 8 out of a maximum of 10, with episodic increased attacks over his right foot.  The pain score was up to 7 to 8.5, especially after longer walking.  His pain had been chronic for nearly 20 months after the injury.  It was not relieved by most analgesics, which caused significant side effects.  In the same report, Dr Li made a diagnosis of “disused syndrome and deconditioning with a very long history of chronic pain with sub-optimal treatment after the accident in 2007”.  However, during his examination four days later, on 3 March 2009, Dr Tio found that there was no muscle wasting.  Dr Li was also of the view that he was likely to have stage 3 CRPS2, with irreversible changes in the soft tissue and bone, severely limited mobility and involuntary contractions of the muscles and tendons that flexed the joint.  None of these “irreversible changes” were found by Dr Tio in his examination four days later.  It is common ground that the plaintiff had mild CRPS1 at one stage, which was resolved quite early on.  I accept the evidence of Dr Lau that it was resolved before June 2008.  Dr Li’s opinion that the plaintiff has “permanent loss of function of his right foot as a normal person like walking, running or wearing slippers, after the crush injury and that he has lost his normal ability and daily activity” is not supported by any experts nor by the surveillance video of the plaintiff, nor by the plaintiff’s own evidence of his abilities.  I do not accept this opinion or Dr Li’s opinion that “he lost his work ability as part-time or full-time worker after the accident as he had pain and significant stress, depression and pain at rest and walking”. This opinion is not supported by any orthopaedic or psychiatric expert opinion. 

50.  In her second report dated 3 June 2010, she noted that the plaintiff had continuous dull aching pain with pain score average 7.5 to 8.5 out of 10, and with episodic flare up of pain, severity of 9 to 10 depending on walking activity.  The pain was severe most of the time.  She arrived at the diagnosis of post-traumatic right foot pain (somatic and neuropatic) with fibrotic scarring, and inflammation associated with post-trauma forefoot deformity, right foot plantar fasciitis (inflammation of the fibres tissues at the sole of the foot) and deconditioning, with swift body weight biomechanics with chronic right foot pain after the accident in 2007.  Neither Dr Tio nor Dr Lau found any evidence of plantar fasciitis or any shifting of body weight.  On the contrary, they noted equal wearing of the sole and heel of his shoes.

51.  Dr T.W. Lee was engaged by the defendant to be their pain specialist.  He examined the plaintiff on 26 February 2011 and reported on his condition in his report dated 11 March 2011.  In agreement with the orthopaedic experts, he was of the view that the features he noted were inconsistent with CRPS.  However, on his examination, he found muscle wasting of 1.5 cm on the right calf and came to the view that the decreased calf circumference on the right side by 1.5 cm was consistent with the decreased use of the right foot for weight bearing and lifting.  This caused some confusion on my part as I had not, in the past, come across a case where a patient originally suffered from muscle wasting and recovered to the extent that he no longer suffered from muscle wasting and, thereafter, without re-injury, again suffered from muscle wasting.  This prompted me to call for an additional joint report from the orthopaedic specialists in relation to the specific issue of muscle wasting, which I have dealt with above.  I accept the evidence of the joint orthopaedic experts and do not accept the evidence of Dr T.W. Lee that the plaintiff suffered from any muscle wasting of his right leg.  As I have found above, he no longer suffered from any muscle wasting by 2009.

The extent of the plaintiff’s residual pain and earning capacity

52.  I have paid very careful attention to everything the plaintiff has said in evidence and weighing that evidence against the totality of the other evidence and especially the expert evidence that has been adduced I have no difficulty concluding that the plaintiff has greatly exaggerated the residual pain and discomfort he suffers in his right foot.  He is not a malingerer, but he has adopted a sick role so effectively that he has convinced himself that he is unable to resume any form of gainful employment.  He walked with a mild limp during the joint physical examination on 18 August 2009 but was observed to walk normally when his attention was distracted.  His explanation, that his pain reduced to the extent that he could walk normally when his attention was distracted, was unconvincing.  As can be seen from my review of the earlier and the later reports from the occupational therapists, I can discern no reason to explain why his condition should have deteriorated to such an extent after 2008.  His explanation that this was due to his increased activity does not ring true given that he spent most of his time idling at home, preferring to attend courses, and the many sessions of occupational and physiotherapy, rather than to take up the gainful employment offered to him by the Community Rehabilitation Network on at least three occasions.  His explanation, that he could attend courses from Monday to Friday staring at 10:00 am up to 3:30 pm because the course instructors allowed him to be late and to leave early, was unconvincing.

53.  The deterioration reported in the later reports can only be explained by the plaintiff’s adoption of a sick role and his self induced belief that “my present condition pressured me with a lot of irritations that prevent me from doing a job”.  He expressed dissatisfaction against many doctors and therapists for the expressed reason that he was being misunderstood and that he did not want them to write something that was not true.  In truth, his dissatisfaction stemmed from his perception that the doctor or therapist concerned did not accept that he was as sick as he himself believed and claimed.  His ability to concentrate during the course of his examination over a number of days, to answer questions over a long of period of time without requesting a break in order to rest, and the manner in which he fielded difficult questions convinced me that he is more than capable of obtaining employment in any field of work that he had undertaken prior to his employment as an apprenticed vehicle mechanic.  

54.  One point that Dr T.W. Lee made, which I found to be self-evident, and which I wholly accept, was that the relentless pursuit of a cure may reinforce the sick role of the patient and detract from the efforts to engage the patient to take a more active role in his own management of his daily life.  This view is further reflected in the joint opinion of Dr Li and Dr T.W. Lee that “the plaintiff’s pain has physical and psychological components including the legal case and compensation.  Assuming a sick role and rumination on the event and grievances against his previous employer may be impeding his rehabilitation.  There is evidence in published literature to suggest that early settlement of litigation leads to improvement.  Our clinical experience concurs with this.”

Is the tortfeasor responsible for the plaintiff adopting a sick role?

55.  The plaintiff will not be able to be gainfully employed unless and until he changes his current belief that he is incapable of doing so, and unless and until he rejects the sick role he has adopted for himself.  Is the tortfeasor to be responsible for the losses that flow from the plaintiff’s adoption of a sick role?

56.  A distinction has to be drawn between conscious exaggeration or malingering, on the one hand, and unconscious exaggeration on the other.  Malingering has been defined in DSM-IV-TR 4^th Edn as :

“…. the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs.”

57.  Conscious exaggeration or malingering involves a deliberate decision by the claimant to feignhis or her injuries or to deliberately pretend that they are worse than they actually are. 

58.  On the other hand, unconscious exaggeration may be totally unintended and may relate to a recognised psychiatric disorder such as somatic disorder, chronic pain disorder, or depression.  If so, the tortfeasor is liable for the full consequences from the accident, albeit that they are wholly unexpected and unforeseen, for he must take his victim as he finds him.  Where the exaggeration is due to an unconscious psychological reaction, the claimant will be entitled to recover the full extent of his or her loss and damage.  Thus, in Digby v Essex County Council [1994] PIQR P53, Sir Thomas Bingham MR said at p.54 :

“The upshot of that report, therefore, is that the orthopaedic surgeon, subject to the possibility of the neurological explanation, concludes that there is no organic basis for the symptoms of which the plaintiff complains, and concludes that there is likely to be a functional overlay, that is, a genuine complaint by the patient and one for which there is no organic basis. It is, as I take it, clearly understood that functional overlay is something quite distinct from deliberate malingering and deliberate dishonest exaggeration.”

And in Ford v GKR Construction [2000] 1 WLR 1397, the Court of Appeal noted the following express finding of the trial judge :

“I do not think that the [claimant] was deliberately lying. I think there is a failure on her part to recognise that there are times when she can do much more than she does, and in fact to recognise that on occasion she does do more for herself. I think there is force in the submission that once the [claimant] was regarded as limited in her capabilities it was easy for her to regard that as the norm, whereas in fact it may reflect the situation when she is at her worst. It is the nature of the illness that it fluctuates.”

59.  In this context, the observations of Potter J in Blyth Valley Borough Council v Henderson [1996] PIQR P64 are worthy of note.  He said :

“But more important, this is a case where, so far as the medical evidence is concerned, it is alleged to be a case of malingering, and ‘although neither side appears so to contend with vigour’ questions of functional overlay are also likely to arise. I consider that question is always present in the judge’s mind when he is faced with two conflicting views in a so-called ‘malingering’ case. He may always be disposed to take the view that although he thinks there is an element of malingering, nonetheless, there is also an element of functional overlay which requires compensation. Whether it is one or both, such cases are par excellence cases where damages are required to be tried together with liability as soon as possible. The view of the judge overally, in relation to liability, may be very much conditioned by his view of the [claimant] in relation to the issue of damages and, in any event, as I say, there is a duty on the adviser to bring the case to trial as quickly as possible.”

60.  The present case falls within that category of case where the courts face considerable difficulty in assessing the amount of damages to award.  As the editors of Kemp & Kemp, Vol. 1 noted in §32-034 (November 2008 Edition) :

“Every personal injury lawyer is familiar with cases in which comparatively minor physical injury is claimed to have produced long-term or chronic pain and disability out of all proportion to the physical insults suffered. Some such claimants are revealed to be malingerers, but many are genuine. The latter class of case produces difficulties in assessing the correct measure of damages, as there is always the possibility that the end of the litigation will bring about a significant improvement in the claimant’s condition. Awards in respect of ‘functional overlay’ therefore tend to be on the low side. ‘Chronic pain syndrome’, a combination of symptoms often characterized by continuing pain for which no organic cause can be found, has psychiatric components and has also founded awards of damages. On the other hand, where pain and suffering as the result of a genuine injury has been increased because of the victim’s low pain threshold or underlying anxiety, etc, the courts will treat this as an ‘egg-shell skull’, and will award the full measure of damages for the pain and suffering actually sustained.”

61.  In Mullins v Gray [2004] EWCA Civ. 1483, the Court of Appeal on 28 October 2004 allowed the appeal from and increased the award of damages made by the trial judge, on the ground that he had not taken sufficient account of the fact that the pain that she undoubtedly did suffer, from the accident causing the whiplash injury to her, was heightened by the enduring trait of anxiety on the part of the claimant.  Gage LJ said that whatever it was that caused the heightened perception of pain in the appellant, whether it was a recognized medical condition or merely because she was unusually sensitive to it, she was entitled to be compensated for it and for the losses that followed from it.  In his view, this was a typical egg-shell skull case.

62.  In the recent case of Lam Pui Yi Anita v Secretary for Justice [2011] 1 HKLRD 56, the Court of Appeal had to deal with the case where the plaintiff had adopted an abnormal sick role.  In his judgment, Rogers VP pointed out that the trial judge had appeared to accept that the plaintiff was suffering from an abnormal sick role and that the trial judge had not specifically found that the plaintiff was malingering.  Rogers VP continued as follows :

“44 …. But, it seems to me that if as a result of an accident and what followed from that, that the plaintiff has suffered loss because she was unable to work because she had involuntarily had serious symptoms, such as pain and restriction of movement, and was not malingering or dishonest about it, I consider that such loss must be recoverable in the normal way .…

46 … It was the defendant’s case that such symptoms and restriction of movement as the plaintiff still has were caused by the extraneous factors listed in … Dr Wong’s report … There are two answers to that. First, that the sickness referred to by Dr Wong nevertheless emanates from the original accident and, secondly, if a party has harmed another by breaching his duty towards them, causing them to be sick, it is his duty and obligation to right that damage. It is also the harmed party’s right to obtain redress and specifically to try to obtain compensation. If in resisting that rightful claim, the party in breach has aggravated the harm to the injured party and caused the sickness that came to the harmed party to linger and remain manifested, then if that sickness and manifestation are not contrived or feigned, the chain of causation from the original accident has not been broken; rather it is the party that has acted wrongfully that has failed to right the damage.”

63.  The resolution of this issue turns, ultimately, on the trial judge’s findings on causation.  Salmon LJ, as he then was, posed the question of causation in these terms in James v Woodall Duckham Construction Co Ltd [1969] 1 WLR 903 at 906C-E :

“… If a man pretends that he is suffering from great disability when he knows very well that he is not, and he tells his doctor he is suffering from pains all over when he feels no pain at all, he may well talk himself into believing that he is suffering from pain. He will suffer from pain in the future, and then he will not be malingering because the pain will be real. But that will not be a pain which has been caused by the accident: the accident will merely be the occasion out of which or after which the pain occurred, and the pain will have been caused by the man malingering – it will be self-induced.”

Although Salmon LJ said, in the passage quoted above, that the pain was caused by the man “malingering”, the man was no longer a malingerer by time the pain had became real, because he had talked himself into believing that the pain was real; as Salmon LJ said: “he will not be malingering because the pain will be real”.

64.  The question of causation is particularly important when the length and distressing effects of litigation has contributed to the adoption and prolongation of an abnormal sick role.  If the defendant’s prolonged resistance to a rightful claim results in a delay in the provision of proper medical treatment and, as a result, the victim of the tort adopts an abnormal sick role, then the tortfeasor is liable for all loss and damage flowing therefrom.

65.  Ashworth J in Bowen v Mills & Knight Ltd [1973] 1 Lloyd’s Rep. 580 said at p.586 :

“It is a truism in the law that the defendants who have injured a plaintiff must take him as they find him, and if defendants injured a man of unusual personality, and that personality is adversely affected by the incident, then the defendants must pay compensation therefor where they would not have expected to do so with a man of normal personality. But equally, it is a true statement of principle that a plaintiff must take himself as he is and not seek to obtain compensation from the defendants for the results which are not from their wrongdoing, but from his own personality.”

66.  In Jefferies v Home Office, Queen’s Bench Division, 26 March 1999, Kennedy J cited the above quoted passage from the judgment of Ashworth J and continued :

“Now, while a tortfeasor must indeed compensate the victim for the consequences of the incident, whether those consequences are the inevitable consequences or are enlarged by the psychological characteristics of the plaintiff, he does not have to compensate the plaintiff for the plaintiff’s personality itself.

It is clear that the work in the prison service was of central importance to the plaintiff and when it was first lost to him the underlying uncertainties and securities of his make-up re-asserted themselves and led to the position in which he is today. In my judgment, that state of affairs was not a consequence of the accident; it is too remote. It is truly a consequence of the reaction of others to his position. It follows from his loss of security and his working out of his own personality, and not something which is attributable to the defendant at all.”

In that case a prison officer suffered personal injuries during the course of his employment when a piece of ceiling plaster fell 50 feet onto his upper back and shoulders. He developed torticollis, an abnormal contraction of the muscles of the neck producing a twisted neck and unnatural position of the head, together with back pain, which proved resistant to attempts at rehabilitation. He also developed depressive symptoms and required inpatient psychiatric treatment and psychotherapy which did not assist in relieving his anxiety and depression. Medical evidence concluded that he was physically fit to resume his work in the prison service as at 31 March 1994. He eventually did return to work but was unable to cope with the physical and psychological demands of his work and, in particular, the requirement to restrain inmates during violent confrontations. He began to experience flashbacks of the accident and reacted badly to attempts by colleagues to make light of it. He instituted proceedings for personal injuries and liability was subsequently admitted by the Home Office. Kennedy J found that the plaintiff had suffered considerable insecurity as a young man and that the prison service had offered him the security that he had always lacked. After the accident and after his return to work, he had a psychological breakdown, which was contributed to by the predictable reaction of the prisoners, and the heavy-handed humour of his fellow officers. Kennedy J only awarded damages for loss of earnings up to the period of time when he could have returned to work, but not for the subsequent consequences brought about by his own personality.

67.  The question of causation is essentially a question of fact for the trial judge to determine, assisted by the evidence of the medical experts and the evidence of the claimant.  Difficulties arise if the trial judge fails to make a finding on the cause of the loss and damages claimed, as occurred in Bryant v London Fire and Civil Defence Authority [1995] PIQR P27.  In that case, the trial judge was confronted with extensive psychiatric evidence which described the plaintiff’s condition as “PTSD”, “post-traumatic neurosis”, “clinical depression”, “depressive illness”, functional overlay”, “neurasthenic condition”, “anxiety state” and “somatic symptoms”.  The judge awarded substantial damages, relying on the unanimous psychiatric evidence that the plaintiff was not a malingerer.  The Court of Appeal allowed the appeal from his decision and ordered a new trial on the ground that the trial judge had failed to conduct a careful analysis of the medical evidence that the case required.  Without such an analysis and, either the acceptance or rejection of some or all of that evidence following upon that analysis, there was no proper basis to support the finding of the trial judge that the claimant had been suffering from psychiatric symptoms attributable to the accident.

68.  Having carefully considered the evidence of the plaintiff and of the treating and expert psychologists and psychiatrists, I find that the plaintiff’s adoption of a sick role was a consequence of his own personality.  As I have found above, his anger towards his ex-employers was not the result of any psychiatric illness, or change of personality, caused by the accident but the product of his own personality.  He had relationship problems at work, and at home, which pre-dated the accident.  The accident and the physical injuries he suffered did not adversely affect his personality but provided him with the occasion and opportunity for his pre-existing personality to manifest itself and lead him to adopt an abnormal sick role, and which he has done so effectively.  I conclude that the defendants are not responsible for the losses that flow from the plaintiff’s adoption of an abnormal sick role.  By way of analogy, let me postulate the example a motorist who drives his car negligently, bumps the fender of the car in front of him, and finds an extremely enraged driver emerge from that car, with a hockey stick, and start to smash his vehicle with that stick. Just as the negligent motorist is not responsible for the excessive violent reaction of the driver of the car he has damaged, so too the defendants here are not responsible of the excessive reaction of the plaintiff, who adopted an abnormal sick role notwithstanding that he was provided with appropriate and timely medical and rehabilitation services.

PSLA

69.  The plaintiff is expected to have stiffness of his 1^st and 2^nd toes permanently.  The extremely mild degree of muscle wasting of his right calf is the best objective evidence of his satisfactory recovery from the injury to his right foot.  Although he continues to suffer from residual pain in his right foot, I find that that the residual pain is not continuous, but occurs from time to time, particularly after exertion or prolonged walking, and in damp weather conditions.  I also find that the pain he suffers from in his right foot is not as severe as he has alleged, and that it can be managed with simple analgesics.  I do not accept his evidence of his problems with weight bearing. He is able to walk normally without a limp.  His ability to walk for a long time, or walk long distances, has been curtailed but not substantially.  I accept the evidence of the orthopaedic experts that he suffers from a permanent impairment of 4% of the whole person.

70.  The PTSD symptoms he suffered from were in remission.  The impairment levels caused by the mental problems are mild and compatible with most useful functioning.  His anxiety and depression arising from the stresses of the on-going litigation ought to abate now that these proceedings have come, hopefully, to an end.  The plaintiff is mentally fit to perform all activities of daily living and can return to gainful employment in any environment other than a garage or vehicle repair centre.

71.  I have referred to the authorities cited to me on the issue of damages for PSLA including Ho For Sang v Lau Sun Choi (HCPI 584/2001), Lau Pai Yam Bottomley v Tai Tung Coffee Co. Ltd (HCPI 745/2002), Boivin v Wong Kin Yin (HCPI 195/2000), Collins v The Star Ferry Co. Ltd (HCPI 491/2000), Yan Kwok Yue v Dong Shu Kei [2002] 1 HKLRD A17 and CMY v Tam Siu Wing [2008] 4 HKLRD 604.  The plaintiff in the present case has striking similarities to the plaintiff in Lau Pai Yam Bottomley v Tai Tung Coffee Co. Ltd.  There was great exaggeration by the claimant in that case, as there is in the present case. The plaintiff in that case was not a malingerer.  Neither do I find the plaintiff here to be a malingerer. Deputy Judge Longely awarded damages for PSLA in the sum of $300,000 in Lau Pai Yam Bottomley v Tai Tung Coffee Co. Ltd. in 2003 to the plaintiff who was 53 at the time of the award.  I award $400,000 as damages for PSLA to the much younger 33 year old plaintiff today.

Pre-trial cost of orthopaedic treatment, psychiatric and psychological treatment and therapy, occupational therapy, and physiotherapy

72.  As stated above, I award as special damages the costs he had incurred on psychiatric and psychological treatment up to 19 November 2009, together with an additional sum of $25,000 to cover reasonable treatment for one further year from 19 November 2009.  I also award the travelling expenses incurred to attend the psychiatric and psychological consultations up to 19 November 2010, as claimed in the Revised Statement of Damages, which I find were incurred by the plaintiff.

73.  I remind myself of the opinion that Dr Tio expressed in the joint report dated 31 August 2009 that the plaintiff should continue his treatment from the various specialists for another three months before he was stable for self-exercise.  In the further joint report dated 29 March 2011, commenting on the reports of the pain specialists, Dr Tio expressed the view that he did not think that protracted course of physiotherapy or occupational therapy for over two to three years could be of further benefit to him and, as his condition was largely static, that prolonged physiotherapy and occupational therapy might not be fruitful, and that such therapies should be limited to two to three years as a maximum and, thereafter, the plaintiff should practise home exercise rather than continue with those therapies indefinitely.  I accept the opinion of Dr Tio and conclude that I should award as special damages the cost of physiotherapy and occupational therapy undertaken by the plaintiff only up to the end of 2009.  I also award the cost of the consultations with the orthopaedic doctors up to 31 December 2009 and the travelling expenses incurred to attend the orthopaedic consultations, and the physiotherapy and occupational therapy up to 31 December 2009, as claimed in the Revised Statement of Damages, which I find were incurred by the plaintiff. 

74.  Insofar as any of the above expenses have been borne or reimbursed by the medical expenses insurer of the plaintiff, the plaintiff will hold the amounts I have awarded in respect of the said expenses on trust for these insurers.

Damages for Pre-trial Loss of Earnings

75.  The pain specialists and the orthopaedic experts are on common ground when they speak of the employability of the plaintiff.  In their joint report, the pain specialists stated that the plaintiff should be able to take up sedentary types of work, such as clerical jobs, which he had done prior to taking up car mechanic apprenticeship.  There might be a need for some flexibility, particularly in the beginning, in the pace of his work, but re-entering the job market might be beneficial to his recovery in the long-term.  I have already held that the plaintiff is unable to return to work as a motor vehicle mechanic because of the substantial risk of the recurrence of PTSD.  However, I find that he is fit to return to sedentary work or work appropriate to his qualifications and previous experiences, such as quality assurance inspector or electronic appliance product engineer, or computer repair and maintenance technician. Dr Lau noted that Dr Kong, his treating orthopaedic specialist, considered the plaintiff to be fit to be assessed by the Medical Assessment Board by mid-February 2008.  He was given sick leave by Dr Kong up to 30 March 2008 and Dr Lau was of the opinion that this was an appropriate period of sick leave for the injury to his right foot.  However, given the initial presence of CRPS1, the residual foot pain, and the psychiatric components of the injury and its aftermath, I prefer the opinion of Dr Tio that the sick leave provided to him from the date of the accident to 7 April 2009 was appropriate.  I award full pre-trial loss of earnings from the date of the accident up to end of June 2009, in order to allow him a reasonable period of time after the end of sick leave to obtain suitable employment.

76.  I find that the earnings of Mr Tang Ka Long, a vehicle mechanic apprentice employed by the defendants in August 2008 who then earned $5,500 per month, increasing to $7,000 per month in June 2011, and then $9,000 per month in July 2011 as a qualified vehicle mechanic, provide a good comparable to assess the plaintiff’s notional earnings in the same field.  I find that, but for the accident, plaintiff would have earned median monthly earnings of about $5,750 for the pre-trial period of 36 months ($4,500 + $7,000) and that he would have earned $9,000 per month as a qualified vehicle mechanic for the last 14 months of the pre-trial period.  Having regard to the statistics from the Census and Statistics Department, and also to the earnings of experienced vehicle mechanics on the defendants’ payroll, I also find that the plaintiff’s post-trial notional earnings, as an experienced vehicle mechanic, would have increased to about $10,000 per month today, rising to about $18,000 per month in seven years’ time.  I find, therefore, that his median post-trial earnings were $14,000 per month for this seven year period.  I also find that he ought to have obtained suitable gainful employment earning median earnings of about $6,000 per month between July 2009 and today, and which would have increased to about $7,500 by today, and further increased to the same level as that of an experienced vehicle mechanic in about seven years’ time from today.

77.  On the above basis, I award pre-trial full loss of earnings and loss of MPF benefits for 24 months from the date of the accident to 30 June 2009 in the sum of $144,900 ($5,750 x 105% x 24).  I also award pre-trial partial loss of earnings and loss of MPF benefits for 27 months from 30 June 2009 to date hereof in the sum of $38,981 (($5,750 + $9,000/2) - $6,000) x 105% x 27).

Damages for Future Loss of Earnings

78.  On my findings, the plaintiff will suffer a future partial monthly loss of earnings at the rate of $1,250 per month for a period of seven years from today.  This loss is assessed by taking the median notional future earnings of $14,000 per month, assessed above, for this seven year period, and deducting from this amount the median of the earnings in suitable alternative employment that he can undertake.  As I have found above, he is able to earn about $7,500 today, and these earnings would increase to the same level as that of an experienced vehicle mechanic in about seven years’ time from today. These two figures produce median actual future earnings of $12,750 per month for this seven year period ($7,500 + $18,000/2).  His future partial monthly loss of earnings for this seven year period is, therefore, $1,250 per month ($14,000 - $12,750).  To compensate for this future partial loss, I assess a gross award of future partial loss of earnings and loss of MPF benefits in the sum of $110,250 ($1,250 x 105% x 7 years) which I would discount to $95,000 by reason of the accelerated receipt of the future loss.

Damages for Loss of Earning Capacity and Loss of Congenial Employment

79.  The plaintiff suffers a handicap in the labour market on account of his inability to work as a vehicle mechanic.  I have already awarded him damages for partial loss of earnings, pre-trial, as well as future, on account of that handicap.  When his earnings in alternative suitable employment reach the level of his notional earnings as an experienced vehicle mechanic, he will no longer suffer any financial loss but that does not mean his handicap in the labour market disappears.  It does not disappear but continues until the time of his natural retirement.  For that continuing handicap in the labour market, I make an award of $50,000 as damages for loss of earning capacity, in addition to my awards for pre-trial and future partial loss of earnings.

80.  Whilst I am satisfied that the plaintiff always had a passion for cars and particularly enjoyed working as a vehicle mechanic, his length of service in this field, as an apprentice serving for less than two months, was insufficient to support an additional award for damages for loss of congenial employment, particularly given the fact that he only entered this field of work in 2007, at the age of 29, and some six years after he had entered the labour market in the year 2001.

Value of Services of Mother, Loss of Earnings of Elder Brother and Other Pre-trial Claims

81.  I accept the evidence that Madam Shirley Yip, the plaintiff’s mother, gave of the care and attention she had provided to him during his stay in hospital and when he was convalescing at home.  I award the sum of $12,000 as the value of the services she provided to him in the first six months after the accident.  She was and is clearly concerned for her son and rightly so.  I express the hope that the end of this litigation will result in a change in his condition and his attitude towards work. 

82.  The plaintiff’s claim in respect of the loss of earnings of his elder brother has not been substantiated to my satisfaction and I decline to make the award claimed in this respect. 

83.  I also award the sums claimed, of $904 being the mother’s travelling expenses incurred to visit the plaintiff in hospital, of $480 for the cost of hiring a wheelchair, and $1,000 for tonic food, which are agreed by the defendants.  It was reasonable for the plaintiff to expend the sum of $500 per month on simple analgesics and I also award the sum of $25,500 being the cost of analgesics reasonably incurred to date ($500 x 51 months).  Save for these awards and the awards set out above, I make no further award for any other pre-trial loss and expenditure claimed by the plaintiff.

Future Loss and Damages

84.  I also award $108,000 for the future cost of analgesics which I assess at a monthly cost of $500 per month, to which I apply a multiplier of 18.  Save for the awards I have made above, I make no further award for the cost of future treatment, or other future costs, claimed by the plaintiff.

Employees’ Compensation

85.  The total gross award I have made above must be reduced by the sum of $304,100, being the amount of employees’ compensation received by the plaintiff, to produce my net award of damages in this case.

Interest

86.  I award interest on damages for PSLA at the rate of 2% per annum from the date of service of the writ until the date of judgment and at 4% per annum on pre-trial special damages, including pre-trial loss of earnings, from the date of the accident until the date of payment of employees’ compensation, and on the remaining balance, if any, after the deduction of the amount of employees’ compensation, at the same rate from that date to the date of judgment. 

The Role of the Loss Adjusters

87.  In the course of the trial, I was surprised to learn that Ms Isabel Hou (“Ms Hou”) of Mclarens Hong Kong Ltd (“Mclarens”) and, later, Ms Michelle Hui (“Ms Hui”), also of Mclarens, had been present during the consultation and treatment of the plaintiff by Dr Kong.  This fact was recorded in Dr Kong’s notes (Bundle 4 : pp.52 and 53).  The note of 27 December 2007 included a reference to an interview with Ms Hou.  It was also recorded that the “patient’s mother has argument and discussion with Ms Isabel Hou”.  The note in connection with the consultation of 14 February 2008 referred to “interviewed with Mclarens Young Ltd; Michelle and mother” and the note in respect of the consultation on 13 March 2008 referred to “interviewed with Mclarens Young Int – Ms Michelle Hui”.  I am aware that Ms Hou and Ms Hui, who were employed by Mclarens at the relevant time, had obtained the plaintiff’s consent to attend the plaintiff’s consultations with Dr Kong.  The plaintiff had sought private treatment by Dr Kong instead of relying on the services of the Hospital Authority because he was an insured person under a medical expenses policy taken out by his mother.  I, therefore, assumed, wrongly, that Mclarens were acting as loss adjusters on the instructions of the medical expenses insurer.  That was not so, and I was informed that, in fact, Mclarens were the loss adjusters appointed by the employees’ compensation insurers of the defendant, and, at all times, were acting as loss adjusters for those insurers.

88.  I can well understand that loss adjusters, investigating a claim on behalf of the insurers concerned, are likely to interview the injured person, and even obtain authorisation from him to enable the loss adjusters to obtain medical records and reports from treating doctors and from clinics and hospitals where the injured person was receiving treatment.  Such documents are discoverable when proceedings for employees’ compensation or common law damages are commenced.  The earlier disclosure of such documents enables insurance companies to assess the claims at an earlier stage, and to make appropriate offers of settlement at an earlier stage, thereby avoiding the costs of litigation if an early settlement can be achieved.

89.  However, I was quite surprised to learn that the practice of obtaining early disclosure of medical reports by loss adjusters, acting on behalf of insurance companies, has enlarged to loss adjusters actually attending the treatment of the injured person, whether by his private doctor or at a Hospital Authority facility.  I was informed that this was the result of the Voluntary Rehabilitation Programme for employees injured at work (“VRP”) which was launched as a pilot project by the Labour Department in March 2003 restricted, initially, to injured employees in the construction industry, and then subsequently extended to all industries.  The details of this programme can be seen on the Labour Department website.  In brief, the programme aims to provide timely and free rehabilitation services to injured employees, for better and speedier recovery, and to facilitate their safe and early return to work.  The programme enables injured employees to access an additional channel to receive free and timely medical evaluation, treatment, and rehabilitation services from medical and rehabilitation clinics in the private sector.  The services are provided by qualified health care professionals, such as specialist doctors, occupational therapists, physiotherapists and registered nurses.  The services are paid for by participating insurers.  The following statements, which I quote in full, appear on the website : 

“What is the rehabilitation process?

The rehabilitation process may vary taking into account individual circumstances and needs. Typical steps involve initial assessment on the medical conditions of injured employees by rehabilitation professionals, drawing up of a suitable rehabilitation plan and explanation of the plan to the employees. During the rehabilitation process, progress reports will be prepared by the rehabilitation professionals. At the end of the programme, they will also prepare a case closure report. Participating insurers should appoint an ‘Injury Management Coordinator’ to coordinate and follow through the whole rehabilitation process.

Injured employees should actively participate in the rehabilitation programme and follow the advice of the rehabilitation professionals. Injured employees have the right of access to their rehabilitation reports. To enable the treating doctors/hospitals to have a better understanding on the recovery of the employees, insurers may provide rehabilitation reports to the doctors/hospitals with prior consent from the employees.”

90.  And, likewise, to enable the rehabilitation service provider to draw up and carry out a suitable rehabilitation plan, the rehabilitation service provider ought to have access to the reports from the treating doctors and clinics, or hospitals, concerned.  It is, therefore, right that the “Injury Management Coordinator” employed by the loss adjusters acting for the participating insurers to this programme ought to obtain such reports with the consent of the injured person. 

91.  However, my concern was with the intrusion of the doctor-patient confidentiality by the attendance of such injury management or healthcare management coordinators during the treatment of the injured employee by his treating doctor.  I, therefore, called for evidence to be called from the persons concerned.  This was adduced in the form of a witness statement from Ms Hou, a physiotherapist who joined Mclarens on 1 April 2005 and left their employ on 18 June 2008.  During this period, she was the head of the Healthcare Department of Mclarens.  She stated that it was the usual practice for the healthcare manager to attend the follow-up appointment of the treating doctor with the injured worker when that was indicated and that consent for such attendance would be obtained from the injured worker. 

92.  Pausing here, it is clear, from the evidence that I have heard on this matter, that such consent was obtained orally and not in writing.  It is clear from the evidence of Ms Hui that she did not specifically remind the injured worker that he had a right of privacy, and that he enjoyed confidentiality in his relationship with his treating doctor, when she obtained his consent to be present at such treatment. 

93.  Ms Hou said in her witness statement that the purpose of such attendance was to communicate with the attending doctor directly so as to understand if there was any way to assist the injured worker to recover and return to work.  Sometimes, they would present the investigation reports in hand, such as x-ray, MRI, to the attending doctor for reference so as to assist the diagnosis.  If additional treatment was needed, they would assist to arrange the same upon approval from insurers.  Both Ms Hou and Ms Hui said that it was quite common for Mclarens’ healthcare personnel to accompany the patients to medical follow-ups with their consent.

94.  According to Ms Hui, who is an occupational therapist and who worked under Ms Hou, their role was mainly to sit in and listen to what the doctors said, in particular, their recommended treatment plans.  This was because the patients might not be able to tell them precisely their condition and status, and they might not take the initiative or have the relevant knowledge to consult the doctors on their need for further tests or options of rehabilitation treatments.  Ms Hui said that, according to her practice, she would not interrupt the consultation process.  It was only towards the end, when the doctors had nothing more to say to the patients that she would, in the patient’s presence and, where necessary, ask the doctors if they would recommend any further or additional tests or rehabilitation treatments to improve the patients’ condition.  If so, she would seek the insurers’ approval to arrange such tests or rehabilitation treatments at the insurers’ expense. The ultimate aim and objective of the health care management was to assist the injured employee to achieve an optimum recovery and to be able to return to work, also reducing the costs to society and to insurers.

95.  I agree that the aim of the rehabilitation programme is laudable and that the participating insurers are to be commended for agreeing to pay for rehabilitation services to be offered by the private sector.  Timely services can be rendered via this programme without the delays that are common in the public sector.  However, as suggested during the cross-examination in Ms Hui, such aims can be achieved, without intruding upon doctor-patient confidentiality, if the healthcare professional waited until the treatment and consultation was completed before attending on the treating doctor, in the presence of the injured employee, in order to ascertain whether any rehabilitation services could helpfully be provided at the insurers’ expense.  In that way, the objectives of the Voluntary Rehabilitation Programme can be achieved without impinging on doctor-patient confidentiality.  The consent of the injured employee to the health care professional of the loss adjusters discussing these matters with his treating doctor should be obtained in writing.  The written consent should contain a clear statement that the injured employee understands that he enjoys a confidential relationship with his treating doctor, that his doctor is bound by that confidence not to discuss his case with any other person, and that he is prepared to waive that confidence provided that those discussions are made in his presence and relate to the rehabilitation services that may be offered by the insurer concerned.  As Sumner J noted in Nicholson v Halton General Hospital and HS Trust [1999] PIQR P310 at p.312 :

“…. There is the right of confidentiality between the patient and his treating doctor which the law will uphold. It is a right which it is for a patient to waive and he can only waive it voluntarily.”

96.  However, much more alarming than the evidence of the healthcare professionals employed by loss adjusters attending during the treatment of injured employees was the evidence of Ms Lam Yi Wan, currently a director of Mclarens in charge of the Department of Casualty (i.e. the claims investigation section of the loss adjusters) and Healthcare, who said that the work of healthcare management and loss adjusting complemented each other and that the casualty (i.e. the claims investigation) team and the healthcare team often worked hand in hand.  The evidence I received clearly showed that the claims investigation section of Mclarens had full access to the reports obtained by the healthcare management coordinators, such as Ms Hou or Ms Hui, and used such material to advise insurers of the reserve to maintain in respect of any particular claim.  As I have stated earlier, it is not a bad thing for insurers to have early access to reports from treating doctors and from the hospitals or clinics involved in the care and treatment of the injured employee.  Such early access is likely to facilitate the early settlement of the claim.  My concern arises from the fact that there is no mention in the written authorisation obtained from the injured employee, for the release of relevant medical reports and records, that the medical notes and records that will be released to the healthcare management coordinators employed by the loss adjusters may also be viewed by the claims investigation section of the loss adjusters to advise insurance companies in respect of the claims in question.  Nor is there any mention of this in the information provided by the Labour Department in respect of the Voluntary Rehabilitation Programme.  This should be clearly spelt out, not only in the written authorisation consent forms, but also by a suitable amendment to the information on the Voluntary Rehabilitation Programme, that is supplied by the Labour Department, which should expressly state that the progress reports prepared by the rehabilitation professionals, including the case closure report, may also be viewed by the participating insurers and by the claims investigation section of the loss adjusters to advise the participating insurance companies in respect of the claims in question.

97.  What I find quite unacceptable, and which occurred in this case, was the fact that it was Ms Hui who instructed Dr Lau on behalf of Mclarens to examine the plaintiff and to prepare an expert medical report on his condition.  Such a report was clearly prepared in contemplation of litigation. Where medical professionals are instructed by loss adjusters on behalf of insurance company to prepare expert medical reports, those instructions ought to come from members of the claims investigations section of the loss adjusters and not from the healthcare management coordinators employed by the loss adjusters.  There should not be any confusion of the two roles, which are quite distinct and should be kept distinct.  If the claims investigator of the loss adjusters works “hand in hand” with healthcare management coordinator employed by the loss adjuster, theyrun the risk of giving credence to the suggestion, which, of course, I do not accept, that the Voluntary Rehabilitation Programme has been set up as a guise to obtain evidence to be used against the injured employee in future litigation.  As I have stated above, the aims of the Voluntary Rehabilitation Programme are laudable.  Timely rehabilitation and intensive healthcare at the outset speeds up recovery, shortens sick leave period, and may assist in preventing the development of chronic and static conditions.  The programme provides a real and genuine benefit to the injured employee, to the insurer concerned, to the employer concerned, and to the general community. 

98.  The healthcare management coordinator should work towards facilitating the timely rehabilitation of the injured employee.  He or she should not be involved in the work of claims investigation.  Members of the claims investigation section of the loss adjusters would be concerned to protect the interests of the insurer concerned and may be motivated to limit their loss.  There must be a clear division in the role of a claims investigator employed by the loss adjuster and the healthcare professional employed by the loss adjuster as the rehabilitation coordinator.  The healthcare rehabilitation coordinator will have to liaise with the treating doctors and the rehabilitation service providers.  If the healthcare rehabilitation coordinator is involved in claims investigation and in advising insurers to maintain a proper reserve and if the same person is also in communication with the rehabilitation service providers, the concern arises that the latter may be influenced by any views expressed by the former.  Although I do not doubt the views of the rehabilitation service providers in the present case, the combination of the two different roles in one individual who communicates with the rehabilitation service provider may cause the court to doubt the opinion expressed by the rehabilitation service providers, whose services are paid for by the insurers concerned, and whose services are obtained at the behest and instruction of those who are concerned to protect the interest of the insurers.

Costs

99.  I was minded to make the usual costs order nisi for costs of the action to the plaintiff but, before I make any order as to costs, I wish to receive written submissions from the plaintiff’s solicitors, within 14 days, setting out reasons why I should not disallow, wholly or in part, the costs incurred in the preparation of the statements of damages and the plaintiff’s witness statements, all of which contained wholesale and totally unnecessary repetitions of the multiple medical reports obtained in this case.  The defendants’ solicitors may also make written submissions to me within 14 days, if they wish to make submissions in respect of the costs incurred in the preparation of the trial bundles and/or the correspondence exchanged between solicitors, or if they wish to oppose the order of costs, which I propose to make, that the costs of the action be paid by the defendants to the plaintiff to be taxed, if not agreed, on the High Court scale.  In that event, the plaintiff’s solicitors may also make written submissions, in reply, if any, within 14 days thereafter.