HUNG PUI MAN v. INTERCONTINENTAL LIMOUSINE COMPANY LTD

DCPI 4214/2022

[2025] HKDC 1211

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 4214 OF 2022

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REASONS FOR JUDGMENT

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1.  The plaintiff claims damages from the defendant, her former employer, for the injuries she allegedly sustained in an accident when she was working on 27 January 2020 (“the Accident”).

2.  At the end of counsel’s closing submissions, I dismissed the plaintiff’s claim. These are the reasons I indicated that I would hand down in due course.

THE ACCIDENT

3.  The defendant provides limousine service to and from the Hong Kong International Airport (“HKIA”). The plaintiff joined the defendant as a chauffeur in December 2017. She was assigned to drive a Mercedes-Benz V-Class saloon car.

4.  As a chauffeur, it was part of the plaintiff’s duties to help passengers put their luggage onto the trunk of the limousine when they were picked up, or to unload their luggage from the trunk at the destination.

5.  The general indorsement on the Writ of Summons sets out the plaintiff’s claim as follows:-

“The Plaintiff’s claim is for damages (together with interest thereon and costs), for personal injuries … in the course of her employment arising out of the negligence and/or breach of the statutory duties of the Defendant … at 香港國際機場一號客運大樓落客區[1] on the 27^th day of January 2020.”

6.  The Statement of Claim dated 9 May 2023 states that, on 27 January 2020 at around noon, the plaintiff sustained injuries to her neck when she was offloading a piece of luggage weighing 30 kg at Terminal 1 of HKIA[2].

7.  In the plaintiff’s witness statement dated 11 September 2023, she describes the Accident to have happened in the following manner:-

7.1.  She starts off the witness statement by explaining that she claims damages for the injuries she sustained at Terminal 1 of HKIA on 27 January 2020: §1.

7.2.  Around 10:00 am on that day, she was assigned to pick up passengers from Regence Royale on Bowen Road to HKIA. She needed to place 2 pieces of luggage (each weighing over 20 kg) onto the trunk of her saloon car[3]. She did not have any assistance. After she quickly placed the luggage onto the trunk by herself, she felt numbness in her hands, and pain and muscle tightness in her neck. She drove the passengers to the airport despite the discomfort: §16.

7.3.  Around 2:00 pm on the same day, she was assigned to take passengers from HKIA to Shouson Hill. There were 5 pieces of luggage, each weighing more than 20 kg. A colleague of hers placed the luggage onto the trunk of her saloon car. But when she arrived at Shouson Hill, she had to unload the luggage by herself. Her discomfort worsened when she did so: §17.

7.4.  She had to call the defendant’s control room, and requested time to seek medical treatment.

7.5.  The plaintiff does not allege in her witness statement that she sprained her neck when she was asked to transport any luggage at Terminal 1 of HKIA on 27 January 2020.

8.  Mr Leon Ho, counsel for the defendant, also refers me to a work injury report dated 31 January 2020, which was signed by the plaintiff. Under the part entitled “Description of accident”, the time was stated to be around noon of 27 January 2020; and the place of the accident was stated to be Terminal 1 of HKIA. The course of the Accident was stated as follows:-

8.1.  The plaintiff felt pain in her neck and shoulder after sending clients from Dynasty Court on Old Peak Road to HKIA, and transferring their luggage (without specifying the number of pieces).

8.2.  Around 2:50 pm, she was assigned to send clients to Shouson Hill. At HKIA, she was already in great pain and could not help clients to load their 5 pieces of luggage onto the trunk of her saloon car; so she had to seek help from colleagues.

8.3.  After she offloaded the luggage at Shouson Hill, her neck was stiff and painful; her hands felt weak as well.

9.  On 21 February 2020, the plaintiff was interviewed by the loss adjusters appointed by the defendant. She signed the typewritten record on 4 March 2020. The plaintiff allegedly described the Accident in the following manner:-

9.1.  At 10:00 am on 27 January 2020, she was assigned to pick up clients from Regence Royale, and drive them to HKIA. She took a piece of luggage in each of her hands, and lifted them from the ground to place them inside the trunk at the same time. Each piece of luggage weighed more than 20 kg.

9.2.  When she returned to the driver’s seat, she felt numbness in her hands and pain in her neck.

9.3.  At HKIA, she offloaded the luggage by taking a piece of luggage in each of her hands, lifting them up from the trunk and placed them on the ground. She then felt stiffness in her upper body; there was pain in her hands and neck.

9.4.  She recounted how she drove clients to Shouson Hill and helped them with their luggage in a way similar to §§8.2-8.3 above.

9.5.  When she was asked whether she thought she could handle the amount of luggage for the 2 trips she had on 27 January 2020, she said she had had more luggage to deal with before without any problem, but she did not know why she was injured this time.

10.  In my judgment, it is obvious that the plaintiff gave different versions at different junctures as to how the Accident happened. While her pleaded case states that the Accident was a one-off event that happened at HKIA when she lifted a piece of luggage weighing 30 kg, the evidence shows that (i) she might already suffered an injury in the morning of 27 January 2020 when she was picking up clients for HKIA; (ii) she might have injured herself when she had to lift more than 1 piece of luggage, or because she decided to lift 2 pieces of luggage at the same time; (iii) the luggage she had to carry that day was just a bit heavier than 20 kg rather than as heavy as 30 kg apiece; and (iv) she might have aggravated her injuries when she had to offload luggage at Shouson Hill in the afternoon.

11.  Despite the different permutations of facts she put forward in the pleadings and in the evidence, prior to cross examination, the plaintiff has not sought to justify the existence of these permutations.

12.  I find the plaintiff to be a poor witness, and I do not accept her evidence at trial as credible and accurate. She explains for the first time under cross examination that (i) the reference to Dynasty Court in the work injury report was mistaken; (ii) she never held 2 pieces of luggage at the same time in her hands; indeed she found such an allegation laughable; (iii) despite she was given the draft of the record of interview prepared by the loss adjusters, she did not actually pay attention to its content before she signed on it. I consider the plaintiff to be making her evidence up as the cross examination went on.

13.  As I shall further elaborate below, I find the plaintiff to be equally unconvincing with respect to the severity of her injuries.

14.  I agree with Mr Ho that it is important for the defendant to know how exactly how the Accident happened, so that it can properly prepare its defence. For example, the defence may be different depending on the volume of luggage the plaintiff had to handle on each day of her work; the evaluation of the defendant’s system of work may call for different consideration if the plaintiff’s claim is based on repetitive stress, rather than an isolated event[4].

15.  As recently as Lo Kwok Kit Sam v Leung Kwok Hung trading as Kaiser (M&E) Decoration Engineering Co & Anr [2025] HKDC 495 (Deputy Judge Patrick Siu; 31 March 2025), the court has reiterated that, for industrial accident cases, if the accident is not shown to have taken place in the way or at the place alleged usually the plaintiff must fail: see the summary of the principles and authorities in §§24-29. I cannot improve on the impeccable summary put forward by the learned Judge; I respectfully agree with him and apply the same rules here.

16.  In my judgment, the plaintiff has not put forward any credible evidence to allow me to find how the Accident actually happened. She has failed to prove her pleaded case as to how the Accident happened. Her claim must stand to be dismissed.

QUANTUM

17.  I shall state my views on the plaintiff’s case on quantum should it become necessary to assess it.

18.  The plaintiff was born in 1983. She was 36 years old at the time of the Accident. She was 41 by the time of the trial.

THE PLAINTIFF’S INJURIES

19.  The plaintiff sought treatment from the Accident & Emergency Department of Yan Chai Hospital (“YCH”) in the evening of 27 January 2020 (ie on the same day as the Accident). She complained of neck pain on movement. She reported tenderness over the left side of her neck. The attending doctor recorded that her limbs had full power with sensation intact. She was prescribed with some painkillers and was given a soft neck collar; and was discharged on the same day.

20.  An MRI of the plaintiff’s cervical spine was obtained on 5 February 2020. This showed mild bulging of her C4/5 intervertebral disc with the formation of osteophytes, resulting in mild spinal canal stenosis. No cord compression was seen. There was narrowing of the exiting foramen, with sufficient severity to encroach on the right exiting C5 nerve root. There was also mild to moderate bulging to her C5/6 intervertebral disc with the formation of osteophytes, resulting in severe spinal canal stenosis. There was mild compression of her spinal cord. There was mild narrowing of the exiting foramen, but no compression of the exiting C6 nerve roots was observed.

21.  The plaintiff attended YCH on 5 February 2020 for physiotherapy. She complained of left neck pain, which radiated down her left arm. The attending physiotherapist recorded that the plaintiff had limited neck flexion and extension; there was also limitation in her left shoulder flexion and abduction. By 29 June 2020, the plaintiff reported a decrease in neck pain. But the limitation in her neck movement still persisted.

22.  Since 12 March 2020, the plaintiff was followed up by the orthopaedic specialists at Prince of Wales Hospital. She reported diffuse tenderness over her cervical spine on palpation. She also complained of numbness in both of her arms. The power in her arms were full but the deep tendon reflexes were brisk.

23.  A repeat MRI done on 19 March 2021 showed that disc osteophyte complex was present at the plaintiff’s C5/6 intervertebral disc. This caused severe narrowing of the central canal. Cord compression with flattening was noted. There was also mild narrowing of the bilateral foramen. Compared to the MRI done on 5 February 2020, there was progression of the changes in her cervical spine.

24.  The plaintiff received an operation on 16 May 2021 for decompression and stabilization of her cervical spine. Diskectomy of the C5/6 intervertebral was done, followed by insertion of an artificial disc. The operation was said to be uneventful. A repeat MRI done on 18 November 2021 showed that there was adequate decompression, and there was no more cord compression[5].

25.  According to the medical report prepared by Dr Chan Hung of Kwai Chung Hospital dated 23 December 2020, the plaintiff was followed up by the psychiatrist at the hospital since 18 October 2017 (ie prior to the Accident) for adjustment disorder with prolonged depressive reaction. She was further diagnosed to have borderline personality disorder in November 2018, and was given treatment since. It was reported that, when the plaintiff attended the follow up on 7 December 2020, her mood was largely settled, but she was still distressed by litigation. Her sleep and irritability improved upon adjustment of her medication. She denied having any suicidal idea or psychotic symptom.

26.  Dr Jacky Lau (appointed by the plaintiff) and Dr Chun Siu Yeung (appointed by the defendant) prepared an expert report on the plaintiff’s orthopaedic condition, after they examined her on 7 June 2022.

27.  Dr Chun opined that the plaintiff should have sprained the soft tissues on the left side of her neck only during the Accident. The disc bulging and associated deficiency observed in her cervical spine was pre-existing and degenerative in nature. Moreover, the symptoms reported by the plaintiff in her left arm were anatomically inconsistent with the possible impingement of the nerve roots in her cervical spine.

28.  On the other hand, Dr Lau opined that, based on the symptoms reported by the plaintiff, the Accident turned the previously asymptomatic degeneration in the plaintiff’s cervical spine into a symptomatic one, by causing acute bulging of the intervertebral disc.

29.  Since Dr Lau and Dr Chun had vastly different views about the plaintiff’s injuries, I would like to set out the legal principles that guided me in assessing the expert evidence.

30.  In Wong Siu Wa v Win Sino Engineering Limited [2018] HKCFI 1663 (Deputy Judge Raymond Leung, SC; 3 August 2018), the court adopted the approach laid down in Loveday v Renton [1989] 1 Med LR 117 at 125 for assessing expert evidence:-

“(a) The mere expression of opinion or belief by a witness, however eminent, does not suffice.

(b) The court has to evaluate the witness and the soundness of his opinion.

(c) Most important this involves an examination of the reasons given for his opinions and the extent to which they are supported by evidence.

(d) The weight to be given to the opinion of an expert depends on:

(1) the internal consistency and the logic of his evidence;

(2) the care with which he had considered the subject and presented his evidence;

(3) his precision and accuracy of thought as demonstrated by his answers;

(4) how he responds to searching and informed cross-examination and in particular the extent to which a witness has conceived an opinion and is reluctant to re-examine it in light of later evidence, or demonstrates a flexibility of mind which may involve changing or modifying opinions previously held;

(5) whether or not a witness is biased or lacks independence.”

31.  As recently confirmed by the Court of Appeal in Lo Wei v Wiser (Hong Kong) Limited & Ors [2025] HKCA 238 (Au & Chow JJA; 19 March 2025) at §20(2), the court is not bound to accept the evidence of an expert witness. It must form its own independent assessment of the expert’s evidence and come to its own conclusions based on the facts and evidence before it. I take this to mean that, if the facts and evidence before it so demand, the court may only accept part of the evidence of an expert.

32.  It is also pertinent to note that, as held in Ale Thak Prasad v Tsang Chin Keung & Anr HCPI 579/2012 (Master Harold Leong; 29 December 2017) at §38, if a claimant’s subjective evidence is not accepted by the court, any expert opinion and diagnosis based on such subjective complaints would also be disregarded. Whilst I have some reservation on whether such blanket rejection of expert opinion must be applicable in all cases once the court refuses to accept a claimant’s subjective evidence, I think, at the minimum, the court should view such expert opinion with circumspect.

33.  In my judgment, the plaintiff is not credible when she complains of persistent pain and numbness in her neck and arms after the Accident. My reasons are as follows:-

33.1.  I agree with Mr Ho that the plaintiff’s reported symptoms cannot be reasonably explained. She first complained of pain in the left side of her neck; repeat MRIs also showed that nerve compression occurred in the left side of her neck. But the medical records show that the plaintiff reported more pronounced symptoms on the right side of her neck as time went on. When she was cross examined on this, she said that both sides of her neck were affected; she might have pain on one side on one day, but on the other side the next day. I find the plaintiff’s explanation the most unconvincing.

33.2.  I do not see any rebuttal by Dr Lau on Dr Chun’s opinion that the plaintiff’s complaint did not correspond to the location of nerve compression in her cervical spine. In my judgment, the plaintiff’s reported complaints are not capable of belief.

33.3.  Despite a successful surgery to decompress her cervical spine, the plaintiff claims that her neck pain has stayed more or less the same since the Accident. This is clearly inconsistent with what can be objectively observed. There is no objective basis to account for the persistence in her neck pain and numbness down her arm.

34.  Given my findings above, I accept Dr Chun’s opinion as having accurately analysed the extent of the plaintiff’s injuries sustained in the Accident.

35.  Dr Lau’s opinion is unhelpful. Apart from the fact that he based his opinion on a wholesale adoption of the plaintiff’s subjective complaints, I find his views simply unpersuasive. At any rate, on the basis of lifting a piece of luggage weighing 30 kg, the force acting on the intervertebral discs in the plaintiff’s cervical spine could not have been so substantial to cause the discs to slip out of the normal position.

36.  Dr Li Cheuk Wing (appointed by the plaintiff) and Dr Yu Wai Tak (appointed by the defendant) prepared an expert report on the plaintiff’s mental condition, after they interviewed her on 18 January 2023.

37.  Dr Yu was of the view that the Accident did not affect the plaintiff’s pre-existing adjustment disorder with depressed mood. Her mental condition, at the time of the interview, was resulted from the natural progression of her pre-existing condition.

38.  Dr Li opined that the chronic pain and loss of job consequent upon the Accident exacerbated the plaintiff’s pre-existing mood problem. The plaintiff still had chronic and mildly depressed mood at the time of the interview. However, there was no psychomotor retardation, which would suggest major depressive disorder.

39.  I prefer Dr Yu’s opinion over that of Dr Li. As can be seen from §51 of the joint report prepared by the expert psychiatrists, Dr Li accepted that the plaintiff had chronic pain, to the extent she described during the interview and noted in the medical records. Since I do not think the plaintiff has been truthful and accurate in describing the severity of her symptoms, this much reduces the probative value of Dr Li’s opinion.

THE HEADS OF CLAIM

40.  The plaintiff claims HK$278,000.00 as damages for PSLA. The defendant submits that the appropriate damages should be no more than HK$100,000.00. I would have decided that HK$120,000.00 would be a reasonable award.

41.  The plaintiff claims that she earned an average of HK$22,616.80 per month at the time of the Accident. There is no serious dispute in this, as the defendant accepts that she earned an average of HK$22,602.40 per month in 2019.

42.  It is trite that the court is not bound by sick leave certificates granted by a claimant’s treating doctors. This is because treating doctors often grant such certificates by reposing trust on the claimant’s subjective complaints: Tam Fu Yip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210 at §18.

43.  I accept Dr Chun’s view that the plaintiff only suffered from minor soft tissue injury in the Accident. I find that the injury did not aggravate or accelerate the worsening of the pre-existing degeneration in the cervical spine. As such, I think damages representing 3 months of her income would be more than sufficient to allow her to recover from the minor injury, and to slowly get back to full work capacity thereafter.

44.  The defendant argues that, because of the COVID-19 pandemic, demand for limousine transport to the airport dwindled down to minimal in 2020. It puts forward evidence to show that the comparable workers in its employ had significantly reduced income in 2020. Therefore, it would have been inapposite to use the plaintiff’s income in 2019 to calculate the damages for pre-trial loss of income.

45.  If it becomes necessary for this court to come to a view, I would simply use the plaintiff’s income in 2019 as the multiplicand. As we know after the fact, the COVID-19 pandemic did not significantly affected international travel to and from Hong Kong before late March 2020. Therefore, but for the Accident, the plaintiff’s income would not have been affected before then, so that her 2019 income should still be reflective of her loss. The defendant in fact accepts that this court may award HK$70,000.00 as the rounded up damages for the plaintiff’s pre-trial loss of income. I agree and so award the plaintiff.

46.  The plaintiff claims HK$271,401.60 as damages for her loss of earning capacity; the defendant submits that no award should be made.

47.  I would have rejected the plaintiff’s claim if the defendant were to be found liable. It is my decision that the plaintiff did not suffer from any loss of earning capacity as a result of the minor injury she had in the Accident.

48.  The plaintiff claims HK$60,400.00 as future medical expenses; the defendant submits that no award should be made.

49.  This claim is based on Dr Li’s view that the plaintiff would require follow-up consultations by psychiatrists. But since it is my decision that the Accident did not cause or aggravate the plaintiff’s pre-existing mental condition, the defendant could not be called upon to pay any damages for this item even if it lost on liability.

50.  The plaintiff claims HK$300,000.00 for medical expenses she has already incurred; HK$5,000.00 for travelling expenses; and HK$5,000.00 for the tonic food she purchased. The defendant submits that a total sum of HK$10,000.00 should be awarded for these expenses.

51.  The bulk of the medical expenses related to the decompression surgery the plaintiff received. The defendant should not be responsible for it. I would have awarded a nominal sum of HK$10,000.00 for medical expenses; HK$1,000.00 for travelling expenses; and HK$5,000.00 for tonic food.

52.  In summary, if liability were established against the defendant, I would have awarded the plaintiff the following damages:-

PSLA	$120,000.00
Pre-trial loss of earnings	$70,000.00
Future loss of earnings	NIL
Loss of earning capacity	NIL
Future medical expenses	NIL
Special damages	$16,000.00
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TOTAL:	HK$206,000.00
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53.  The plaintiff would have been entitled to interest on the general damages at 2% per annum from the date of the service of the Writ to the date of judgment; and half judgment rate on all special damages from the date of the Accident to the date of judgment.

54.  As the plaintiff received HK$738,481.76 in employees’ compensation, she would not be entitled to any further damages in the present case even if I were in favour of her on liability. This serves as another reason for dismissing her claim.

COSTS

55.  The plaintiff was granted legal aid to commence the present case; but her legal aid certificate was discharged on 7 June 2024. Raymond Lam & Associates were originally assigned by the Director of Legal aid to act for her; they remain to be her solicitors after the discharge of legal aid.

56.  The court discussed how an assigned lawyer for a legally aided plaintiff should assess whether there is reasonable, as contrast to a fanciful, chance for the court in deciding the case in the plaintiff’s favour in Cheung Po Chun v Jasmine Cuisine Limited [2024] HKDC 842 (HH Judge Andrew Li; 28 May 2024). There is no need for me to cite exhaustively from that judgment.

57.  I regret to say that the plaintiff’s solicitors appear to me to have failed to discharge their duties properly in preparation of the plaintiff’s claim. Even assuming that the plaintiff’s solicitors were unaware of the work injury report and the record of interview prepared by the loss adjusters at the time when the Writ of Summons was issued on 9 December 2022[6], they must have obtained those documents by way of discovery, if not earlier[7]. Nothing was apparently done to mitigate the inconsistency on how the Accident happened between the pleadings and these documents. Worse still, the plaintiff’s witness statement continued to put forward evidence which was plainly at odds with the pleadings; no ink was spilled to justify, to any extent, the blindingly obvious gap between the plaintiff’s pleaded case and her own evidence. All these happened well before the plaintiff’s legal aid was discharged.

58.  Ms Chan submitted that she had only been briefed shortly before the present case was warned for trial, so there was limited scope in which she could improve the plaintiff’s case. I do not doubt this was the case; but this does not exonerate the plaintiff’s solicitors in any way. In my judgment, there is a prima facie case before me that the plaintiff’s solicitors shall be held personally responsible for at least part of the costs of the present case.

59.  When I dismissed the plaintiff’s claim, I indicated that I would come to my judgment on costs upon receiving counsel’s submissions on the same. I now give the following directions on costs:-

59.1.  The defendant shall file and serve its submissions on costs within 14 days hereof;

59.2.  The plaintiff, and if they so wish to do so separately, the plaintiff’s solicitors and the Director of Legal Aid, shall file and serve written submissions on costs within 14 days thereafter;

59.3.  Submissions shall be restricted to 5 pages;

59.4.  Any factual matters relating to costs should be raised by way of affirmation(s), and be filed at the same time as the submissions;

59.5.  In order to facilitate the Director of Legal Aid to consider his position, the plaintiff’s solicitors shall provide a copy of these Reasons to the Director within 7 days hereof.

60.  My decision on costs shall be disposed on paper upon considering the parties’ respective submissions and affirmation evidence (if any).

CONCLUSION

61.  Based on the above reasons, I dismissed the plaintiff’s claim on 19 March 2025.

62.  For costs, I make an order in terms of §59 above.

63.  I thank Mr Ho for his assistance.