CHEN MUCHAO v. EAGLE SUN ENGINEERING LTD AND ANOTHER

HCPI 311/2022

[2025] HKCFI 2688

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 311 OF 2022

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BETWEEN

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ASSESSMENT OF DAMAGES

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INTRODUCTION

1.  This is the assessment of damages for the personal injuries sustained by the plaintiff (“P”) in an accident happened in the course of his employment on 14 June 2020.

2.  Interlocutory judgment on liability against the 1^st Defendant (“D1”) and the 2^nd Defendant (“D2”) (collectively as “Ds”) was entered on 16 October 2023 leaving damages to be assessed.

3.  In the related employee’s compensation (“EC”) action, ie DCEC 1040/2022, P has already received a sum of HK$1,024,386.30 from Ds (in their capacity as respondents in that case) in full and final settlement of those proceedings.

BACKGROUND

4.  P was a worker employed by D1 to do cleaning work at the Chemical Waste Treatment Centre situated at 51 Tsing Yi Road, Tsing Yi, New Territories. D2 was the principal contractor of the site. The accident which gave rise to this claim occurred on 14 June 2020 when the scaffolding on which P and other workers were working on suddenly collapsed. As a result, P sustained injuries after fallen from the scaffold (“the Accident”).

5.  In the accident report prepared by the occupational safety officer of the Labour Department, it has been recorded that at the time of the Accident, when P was standing on the 4^th level of the working platform of the scaffold where he was required to dismantle some rows of refractory bricks from the incinerator and transferred those bricks up from the 4^th level to the 5^th level, the whole scaffold suddenly collapsed. P fell from 6 metres high. He was hit by bricks and metal rods. P was trapped in the rubbles for about 30 minutes. It has been reported that P has suffered from, inter alia, fracture of right transverse processes, contusion of head, back, waist and legs.

A. Injuries & Treatments

6.  Immediately after the Accident, P was sent by ambulance to the Accident & Emergency Department (“A&E”) of Princess Margaret Hospital (“PMH”). The ambulance record shows that P complained of shoulder injury, abdomen injury, back injury, buttocks injury, upper limb injury and lower limb injury. No complaint of head injury was recorded.

7.  Upon arrival at the PMH, the following condition was found by the resident of the A&E:-

(a) Fully conscious with stable vital signs on arrival;

(b) Tenderness over his back, right flank, right groin and right hip;

(c) Redness over his right flank and right hip;

(d) Back tenderness and mild abrasions over lower limbs; and

(e) Fracture of right-sided transverse processes at T11, T12, L1 and L2.

8.  P was admitted to the Intensive Care Unit (“ICU”) for further management. At the ICU, P was looked after by the trauma team of the hospital, which consisted of doctors from ICU, general surgery, neurosurgery, orthopaedics & traumatology (“O&T”). He only stayed in the ICU for one day.

9.  The orthopaedic injury finding was fracture of right-sided transverse processes from 11^th thoracic to 2^nd lumbar vertebrae. P complained of right-sided low back pain. Conservative treatment was given to him with a soft lumbar corset. No surgery was required.

10.  P was discharged from PMH on 27 June 2020. He was hospitalized for a total of 13 days.

11.  He was last seen by the O&T outpatient clinic on 14 April 2021 when he was walking with a stick. His condition was considered to have reached maximum medical improvement (“MMI”). He was referred to the Medical Assessment Board (“MAB”) for assessment.

12.  It is significant to note that according to the investigations carried out by the Department of Surgery (“DoS”) while P was in hospital, which included CT scans of the whole body and X-ray of the facial bones, chest, shoulders, humerus, forearm, femur, legs, ankle and foot, they only revealed that there was fracture of the right transverse processes at T11 to L2 levels. Upon discharge from PMH, his condition was said to be stable and no follow up was required.

13.  While P was staying in PMH, a CT scan of the brain was carried out on 18 June 2020. No acute intracranial hemorrhage was found. Another CT scan of the brain, naso-and oropharynx was carried out on 20 June 2020. It showed retention change in the left maxillary, bilateral sphenoid, bilateral ethmoid and bilateral frontal sinuses. However, no acute facial bone or orbital fracture was seen. The neurosurgeons saw P on 26 June 2020 again. No active intervention was considered to be necessary. He was given medication and follow up appointments after discharge.

14.  The report from the Department of Neurosurgery (“DoN”) dated 23 July 2022 stated P had regular follow-up treatment at the unit. P complained mainly of right-sided headache and dizziness which could be relieved by medication. On examination, he was fully conscious with no focal neurological deficit. CT scan of brain produced unremarkable result.

15.  P was also given physiotherapy (“PT”) and occupational therapy (“OT”) treatments. In terms of PT, P attended the Physiotherapy Department (“PTD”) at PMH and Yan Chai Hospital (“YCH”). The 1^st PT at PMH was from 13 July 2020 to 17 February 2021. He received a total of 28 sessions of PT. In terms of OT, P received such treatment from 26 January 2021 to 25 March 2021. By the end of the OT treatment, it was noted that his condition has become static. He complained of pain over multiple regions, including head, right shoulder and scapular, lower back and bilateral knee. The occupational therapist assessed P’s condition to be not matched with his previous job demands. His case was closed on 26 April 2021.

16.  Based on the above reports and treatment records, it is clear that P only suffered fracture of transverse processes of the T11 to L2 in the Accident. The only treatment required was that of a soft neck corset and lumbar roll. P has recovered well with the PT and OT treatments given to him. He reached MMI in April 2021 according to his treating doctors and therapists.

17.  Hence, from a medical point of view, whatever pain and symptoms allegedly suffered by P as a result of the Accident after that date must be treated with caution.

18.  P alleges that he developed right shoulder problems in June 2021 and blamed that on the Accident. PT treatment started again on 24 September 2021 at YCH for the right shoulder pain. The treatment finished on 4 January 2022. Thereafter, he was referred again for PT and a third treatment session started at the PTD in YCH on 14 November 2022. This time, P complained that he suffered from low back pain and right shoulder pain. This episode of treatment was completed on 19 December 2022.

19.  His treatment at the Ear, Nose and Throat Department (“ENT”) at YCH on 11 June 2021 was said to have been referred to by the DoN after P complained that he suffered from right side hearing loss about 2 months after the head injury he had allegedly sustained in the Accident. The examination at the ENT revealed isolated right for 4kHz sensorineural loss of 40dB, with other frequencies within the normal threshold. The pure tone audiogram was repeated in December 2021 with the same result. The ENT consultant at YCH concluded there was static mild right high tone sensorineural hearing loss. No active treatment was advised. However, it is noted that the consultant did not state that whether his hearing loss was attributable to the Accident.

20.  Another new condition which P claims to be also related to the Accident was his skin problem. P claims that shortly after the Accident, he has recurrent itchy rash over scalp, neck and both arms for two years. Dr Ho Ka Keung, a dermatologist, in his report dated 27 September 2023 reported that P was first treated at St Teresa’s Hospital’s skin and laser clinic on 4 March 2023. He was given medication for 2 weeks to treat his symptoms. Dr Ho diagnosed his condition as eczema. On physical examination at his consultation with Dr Ho on 12 April 2023, it was found that P was still suffering from eczema.

21.  Rather extraordinary, P had attended a total of 5 separate medical assessments conducted by the MAB. The Form 9 dated 15 December 2023 certified that P suffered a mere 2.5% loss of earning capacity.

B. The Joint Medical Report

22.  P was jointly examined by Dr Law Yee Cheong Wally (“Dr Law”) appointed by P and Dr Lam Yuk Yee Paul (“Dr Lam”) appointed by Ds on 4 December 2023. Their joint medical report was dated 19 March 2024 (“JMR”). Besides the JMR, another single supplemental report was prepared by Dr Law on 20 September 2024. Originally, the parties agreed that the JMR could be adduced as evidence without calling the makers thereof at the trial: (see §1 of Order of Master Kot dated 17 September 2024). However, after this court had the opportunity to read the papers of the case, it came to the view that the opinions of the 2 experts are so polarized that it will not be possible for it to decide on their opinions without having the opportunity to hear their oral evidence. Hence, this court directed the experts to attend the assessment hearing to give oral evidence.

23.  What is quite remarkable about the expert evidence in this case is how little Dr Law and Dr Lam were able to agree on in their JMR. The following are what they have been able to agree:

(a) P suffered from back injury with fracture on T11, T12, L1 and L2. Although Dr Lam has clearly stated in the JMR that it was fracture on the “transverse processes” of those levels of the vertebrae that P had sustained, Dr Law has omitted those 2 keywords. The fracture was said to be compatible to the mechanism of injury and not regarded as pre-existing: See §§88(i), 89(i)-(iv), 90(i)-(ii) of JMR;

(b) The treatments received by P were regarded as appropriate, sufficient and standard: See §§91(i) and 92(i) of JMR;

(c) P has reached MMI: See §95 of JMR; and

(d) P does not require further surgical treatment: See §96 of JMR.

24.  Other than the above, Dr Law and Dr Lam seem to have disagreed on almost everything ranging from diagnosis, treatments, prognosis, need for further treatment, P’s ability to return to work, the appropriate sick leave period and the assessment on permanent disability.

25.  When one reads the JMR, it is almost like the experts were commenting on two completely different patients. It is apparent to me that at least one of them could not be right. That was the reason why this court directed the experts to come to court to give oral evidence so that their opinion can be tested under cross-examination.

(i) Joint examination

26.  When P was jointly examined by the experts, he made a multitude of complaints to them. They included back pain, headache, right ear discomfort, right shoulder discomfort, hand shaking, leg pain on both thighs, shin, foot dorsum with reduced sensitivity on touching, chest wall pain and need to take oral pain killer 1-2 days per week: See §§45-53 of JMR.

27.  Physical examination carried out by the experts at the joint examination revealed the following problems. P walked with a stick in his right hand with normal gait at slow pace. He could perform half of a full squat with hand support but complained of back pain. P could do toe walking and heel walking with normal stability and could stand on single leg with mild instability. There was no scar, swelling or deformity at his back and his right shoulder. The musculature of the right shoulder was symmetrical to the left side in terms of bulk, tone and texture and no difference in girth was found in the lower limbs. There was demonstration of diffuse back tenderness on both sides of the paraspinal muscles and the right shoulder. The motor power of all 4 limbs on all levels was at Grade 4. There was also reduced sensation to light touch at his right shin, calf, foot dorsum and sole and left shin, calf and foot dorsum.

28.  During the joint examination, there were 4 positive results when P was tested for non-organic origin of his back symptoms with the Waddell’s test: See §74 of JMR. They included positive results on head compression, shoulder compression, pelvis rocking and arms elevation. Such results should immediately ring alarm bells for any orthopaedic expert as they are possible signs that the patient is either exaggerating or feigning his symptoms.

29.  What is also significant to note in this case is the fact that P did not suffer a fracture to any of his main bone structure on his spine. What he sustained was fracture to the right side of the transverse processes. As Dr Lam has pointed out in the JMR, the transverse processes are not weight bearing structures in the spine. They serve as muscle attachment sites and are used as lever arms by spinal muscles. The muscles attached to the transverse processes help to maintain posture and induce rotation and lateral flexion of single vertebra and the spine as a whole. Dr Lam has even produced a diagram showing where the transverse processes are located in this particular bone structure. I note that Dr Law did not dispute Dr Lam’s explanations on the above functions of the transverse processes.

(ii) Diagnosis

30.  Dr Law diagnosed P was suffering from (i) back injury with fracture T11, T12, L1 and L2 (but without mentioning the very important fact that the fracture was to the right “transverse processes” only and not to the main structure of the spine itself); and (ii) head injury with cognitive impairment (even though Dr Law is not a neurologist and is not qualified to give expert opinion on this issue).

31.  On the other hand, Dr Lam made the diagnosis of fracture right transverse processes of T11, T12, L1 and L2. In terms of P’s complaint of headache, Dr Lam has fairly pointed out that P might or might not have sustained mild head injury. But he noted that not only there was no medical record of any lump or abrasion on the head in the A&E admission record, repeated CT scan of the brain at least on 3 different dates in 2020 and 2022 showed no evidence of any intracranial hemorrhage or any injury. Dr Lam also fairly pointed out that if there was indeed any genuine neurological origin for the head injury, the treating neurosurgery specialist would have documented it in the medical records/notes. Dr Lam quite rightly made no comment on whether P had indeed suffered any cognitive impairment as they would be, in his own words, “beyond the expertise of orthopaedic surgeons”: See §90 (vii) of JMR.

(iii) Right shoulder symptoms

32.  On P’s right shoulder symptoms, Dr Law opines that they first appeared in PMH’s record on 14 June 2020, with remarks by the “neurosurgery trauma call” team with back pain and right shoulder pain. O&T clinic recorded that P suffered from recurrence of right shoulder pain on 4 August 2021, some 14 months after the Accident. Dr Law’s explanation is that P had been walking with stick since the Accident. In his opinion, it is likely that the right shoulder symptoms occurred as a result of prolonged reliance on the upper limb for support in ambulation. In other words, while Dr Law agreed that the right shoulder symptoms are not as a direct result of the Accident, his view is that those very belated occurred symptoms was due to P’s prolonged reliance on the walking stick for ambulation.

33.  As Dr Lam has fairly pointed out in the JMR, while P had complained of right shoulder pain on admission and there was a finding of right shoulder tenderness with abrasion, no specific treatment was needed or prescribed. There was no further documentation of P’s complaint of right shoulder pain until the orthopaedic specialist follow up on 4 August 2021, some 14 months after the Accident. Dr Lam opines that the initial soft tissue injury to the right shoulder was caused by the Accident but of mild degree and had healed by itself without specific treatment. The shoulder range of motion by the time of the joint examination are functionally comparable on both sides. As Dr Lam points out, Dr Law’s theory that the pain was caused by the prolonged reliance on walking stick for ambulation was contradicted by the medical records. As pointed out by Dr Lam, on 2 June 2022, P was noticed by the doctor at the follow-up clinic that he was holding a walking stick but not using it as a walking support. The fact that he was carrying the walking stick but not relying on it is also confirmed by the surveillance record in November and December 2022.

(iv) Treatments

34.  On this issue, Dr Law made the bold assertion that P’s rehabilitation was interrupted by truncation of PT. He mentioned that it was stopped on 17 February 2021, only to be resumed on 14 November 2022. Therefore, there was no rehabilitation during the above period. Dr Law relied on the reported pain intensity by P on 14 November 2022 which was said to be NPRS 9/10, indicating a marked intensity of perceived painful symptoms on his back.

35.  On the other hand, Dr Lam opines that the mainstay of treatment for the fractured transverse processes is conservative. As the transverse process of a vertebra is not a weight bearing structure, it is expected that they will be healed with or without treatment. Such healing is usually achieved within 6 to 8 weeks. Therefore, Dr Lam considers the initial treatment with analgesics and immobilization with soft corset, PT and OT is appropriate and adequate. Dr Lam disagrees strongly with Dr Law’s opinion that the treatment was interrupted. As shown clearly in the PT record on 17 February 2021 and the OT work rehabilitation assessment report on 25 March 2021, P was discharged due to “static progress”. In other words, he was discharged from those treatments at the time after he had achieved maximum benefits from them. They were not interrupted as opined by Dr Law. Given the fact that Dr Law was not the treating doctor nor was his PT or OT, it is not clear on what basis Dr Law was able to come to such bold view in the JMR.

(v) Prognosis

36.  On prognosis, Dr Law opines that P has achieved partial improvement on the back and right shoulder injury with residual disability, limited by current symptoms in his physical tolerance in prolonged ambulation and sitting : See §93 of JMR. On the other hand, Dr Lam opines that P has achieved full recovery with little or no residual disabilities. He is of the further view that P is a malingerer and had since long recovered from the fracture transverse processes suffered in the Accident. As Dr Lam has fairly pointed out in the JMR, Dr Law has used the term “behavioral response” to describe the vague subjective complaint of pain without identifiable organic causes. While on the other hand, Dr Lam relies on the 4 positive results of the Waddell’s test as well as the surveillance records where it can be seen that P could swiftly bend his back forward and squat down to pick up a small object from the ground and got up again swiftly without any difficulty or sign of pain or stiffness. Further, Dr Lam points out that P’s demonstration of weakness (at reduced muscle power) on both arms and legs on all levels was another example of “voluntary weakness” or sub-maximal effort during the testing. The same would apply to his sensation of both shin, calves and feet. As Dr Lam further points out such findings could not be explained by any anatomical lesion. In terms of his complaint of limitation on his walking ability, P’s presentation at the joint examination with the ability of walking with one stick at a slow pace is in stark contrast with what has been captured by the private investigators when he was being placed under surveillance. P was seen tapping his stick without placing any reliance on it most of the time. On occasions, P was captured carrying the stick without even using it outside.

(vi) Need for further treatment

37.  Dr Law opines that further assessment (of 12-week interval) for prescription of medication and monitoring of any side-effect and symptom progress would be beneficial. On the other hand, Dr Lam opines that no further treatment is necessary in light of P’s attempting MMI and the positive Waddell’s sign.

(vii) P’s ability to return to work

38.  While Dr Law opines that P would require modifications in his pre-accident job (for example to avoid climbing, heavy lifting and prolonged ambulation with breaks), he may also consider alternative jobs like watchman, gas station worker or car park attendant would be suitable. Dr Lam on the other hand opines that P should be able to return to his pre-accident job in full capacity: See §§100-101 of JMR.

(viii) Sick leave

39.  For sick leave, Dr Law opines that sick leave should be endorsed up to 9 January 2024 (almost 43 months). On the other hand, Dr Lam considers that a sick leave period of 9 months up to March 2021 as given by the doctors at the DoN of the PMH will be considered as reasonable.

(ix) Assessment on permanent disability

40.  On permanent disability, Dr Law assesses a 6% of whole person impairment with loss of earning capacity at 5-6%. Dr Lam on the other hand opines that there should be 0% on the impairment of whole person and 0% loss of earning capacity. In his view, P was fully capable of returning to his work. He relies on the positive Waddell’s signs and surveillance recordings made by the private investigators as main reasons.

DISCUSSION

41.  At the assessment of damages hearing before me, there were 2 factual witnesses and 2 expert witnesses who gave evidence. On the first day of the hearing, P gave evidence to support his own case while Mr Hui Kin On (“Mr Hui”) of D1 gave evidence in relation to P’s earnings at the time of the Accident. On the second day of the hearing, as directed by this court, the orthopaedic experts, Dr Law and Dr Lam attended court to give oral evidence and subject themselves to cross-examination by counsel.

C. P’s Evidence

42.  I have had the advantage of listening to P when he gave his evidence in court. I have carefully observed his behaviour and demeanor in court. More importantly, I have the chance to listen to his explanations for all the physical complaints made by him which are either contradictory to the objective medical evidence, or inconsistent with the findings made by his own treating doctors and therapists. At the end of the day, I come to the firm view that P is a malingerer, blatant liar and poor actor.

43.  I shall discuss some of the salient features arising out of P’s oral evidence here which support my conclusion above.

44.  First, I am of the opinion that P is a clear malingerer who stopped at nothing to exaggerate his pain and symptoms. I find him to be such a poor performer in the witness box that most of his evidence concerning his injuries or symptoms are simply not worth believing. For example, he told the doctors at the DoN of PMH that he suffered from mental slowness, poor memory and comprehension (as recorded in the consultation summary on 22 November 2022). However, when giving evidence in the witness box, P had no difficulty in understanding questions from counsel and was able to answer them fluently (but with a lot of exaggeration). He was also trying to act as if he was in great pain and discomfort when sitting in the witness box. And on more than one occasion, he asked the court’s permission to stand up and stretch his back as he claimed he was too painful. He also asked for permission to take medication while he was in the witness box and claimed that he was feeling dizzy. When the surveillance video was played in court, P just slumped lower and lower in his chair with deep frown, display of severe pain and discomfort on his face. I also noticed that when he walked up to the witness box from the public gallery, he relied heavily on his walking stick and walked very slowly.

45.  In my opinion, all the above were acts put up by P at the trial. Because they are very different from what can be observed in the surveillance video footages and are contradictory to the medical notes/records kept by the public hospitals. I find P has grossly exaggerated or feigned most if not all of the pain or discomfort in the witness box. They were just acts put up by him to try to impress or gain sympathy of the court. Not only I find them to be false, I also find P as a very poor actor.

46.  Another reason why I find P as a malingerer is in relation to his claim that he had to rely on a walking stick for ambulation so many years after the Accident. When P was asked by Ms Lee, Ds’ counsel at the assessment hearing, of why it was that during the surveillance he had a walking stick with him but clearly was not relying on it as a support, P’s feeble answer was that he was advised by his physiotherapist to carry the stick all the time in case he has difficulty with balance or headache. When further asked by Ms Lee why it was the case that his movements were seemed to be fluid and normal during the 3 days when he was placed under surveillance, his answer was that he only went out when the condition was better. I have no hesitation to reject such ridiculous answers as they are simply not worth believing.

47.  I also find P had lied to the orthopaedic experts during the joint examination when he reported to them that he “uses the stick for outdoor walking”. Given the fact that the joint examination took place on 4 December 2023 and he was being filmed by the private investigator under surveillance on 21 and 22 November 2022 and 2 December 2022, which was a year before the joint examination, it is obvious that he did not need to rely on his walking stick in carrying out his daily activities since 2022. Medically, there was no indication that his condition had deteriorated during that year which would require him to suddenly have to make use of a walking stick while walking outdoor. I find this is another example of how P has tried to lie to the court and to the experts.

48.  Further, it is equally unbelievable that he had dizziness all the time and was experiencing dizziness while he was giving evidence in the witness box. At one stage, he claimed that his headache was so bad that he asked to be allowed to take his medication while giving evidence. He claimed that his right side of his body, including his right limbs, have been badly affected since the Accident. His headache also appeared on the right side as well. He further claimed that the right upper limb was so painful in the shoulder area that he was not even able to manage to use his right upper limb to do day to day activities like blow-drying his hair without experiencing severe pain.

49.  I have no hesitation to reject such exaggerated and unfounded claims. Not only they were unsupported by the medical notes/records of the public hospitals, there were simply no neurological reasons to support such severe condition. Indeed, if P had suffered such severe head injury as claimed by him in the Accident, one would have expected the doctors at the DoN of PMH would have mentioned this in their reports. However, as mentioned, despite repeated CT scan and follow up treatments, no significant and long term neurological damages or effects have been found by the treating neurologists. What is more significant is the fact that P’s solicitors have never applied to ask a neurological expert to comment on the cause of his alleged serious headache and dizziness. Therefore, we are left with the words of a malingerer. I have no difficulty in rejecting his claim on the alleged severe headache and dizziness.

50.  Another claim made by P in the witness box in relation to his right lower limb’s pain and numbness, especially on the dorsum of the foot, is equally unbelievable in my view. P even stood up in the witness box and demonstrated how painful he felt in his right lower limb in the area above his knee. He also stated in evidence that his left lower limb was not affected. Again, this is clearly a lie because it was contradictory to the objective medical evidence when measurements were taken by the experts to check if there was any muscle wastage on his lower limbs. The medical experts found that the calf girth of both lower limbs were measured at 38 cm and the thigh girth 10 cm above the knee joint line on lower limbs were measured at 44 cm. In other words, there was no muscle wastage in the lower limbs. If P in fact had experienced such severe pain on his right lower limb, one would expect there would be at least some difference in the measurements to reflect the fact that he would try hard not to use his right leg. This is something agreed by Dr Law in his evidence. In my judgment, therefore, P’s claim that he was experiencing severe pain and numbness in his right lower limb is clearly untrue.

51.  Another way to test whether P was telling the truth regarding his injuries is to compare what he told the experts during the joint examination in December 2023 and what he told the court in the witness box in December 2024. While he complained to the experts of continuous headache, there was no complaint of dizziness during the joint examination. Further, while he presented with Grade 4 weakness on all four limbs during the joint examination, in evidence, he said that only his right side was affected. Moreover, while during the joint examination, P claimed that there was decreased sensation to light touch in both lower limbs in the shin, calf, dorsum, sole, when it came to giving his evidence in court, he claimed that his left lower limb was symptom free. He was specifically asked by D’s counsel about his right foot symptom and P confirmed that reduced sensation was felt in the dorsum of his foot, not the sole. As pointed out by Ms Lee, this is again different from the experts’ record that there was reduced sensation not only to the dorsum but also to the right sole.

52.  Yet, another way to test whether P was telling the truth regarding his injuries and complaints was to compare his demeanor and expressions when he was being filmed secretly by the private investigators and his behavior when he gave evidence in the witness box. I agree with D’s counsel Ms Lee that for the 3 days when he was being placed under surveillance, there were two days (ie 22 November and 2 December 2022) during which he left home in the morning and returned home late in the afternoon. He was seen walking everywhere with no difficulties at all. In all 3 days, when he was under surveillance, it was not noticed that he had displayed any painful expression on his face. Nor was he noticed to perform any stretches or other pain relief manoeuvres as he did in court. He was also not seen taking any medication. This is in stark contrast with his constant painful expressions on his face, his severe body stiffness and the need to get up regularly from his chair to stretch himself. In my judgment, it clearly was a show put up by P to try to impress the court. However, in my opinion, it was a very poor performance conducted by a very poor actor. There was simply no objective medical evidence to support his various exaggerated acts.

53.  Another example which demonstrates P was deliberately underperforming during the joint examination is in relation to his ability to squat. During the joint examination, P demonstrated to the experts that he was only able to squat down half way when he complained of pain. However, the surveillance footage captured an instance where he bent down swiftly to pick up a small object from the ground and stood up immediately again to continue opening his wallet to extract money to pay for his meal. It can be seen that his whole movement of squatting down and getting up was spontaneous, effortless and smooth. There was no indication of any restriction, pain or discomfort. His explanation that he was anxious to pick up the object which he had dropped and he felt pain after he stood up is plainly unbelievable.

54.  Last but not least, there is another exaggerated claim that he had lost consciousness in the ambulance and did not know where he was when he regained his consciousness at PMH. This is again very different from the objective evidence. The hospital records stated that he was fully conscious with stable vital signs on arrival. There was no mention of any loss of consciousness to any treating doctors. There was also no record to show that he had lost his consciousness while on the ambulance. This is contrary to his own evidence contained in his witness statement in which he stated that he was fully conscious and was trapped in the rubbles for more than an hour before he was rescued, while he told the experts that he had lost his consciousness after the injury and was trapped for an unknown period of time.

55.  P could not offer any explanation for such stark contrast in his evidence on this part of his case. Again, in my view, the answer lies in the fact that he was not telling the truth.

56.  Mr Wong, P’s counsel, in his closing submissions tries to justify P’s inability to give evidence which is consistent with the objective medical evidence was due to: (1) he is a man who has only received education up to junior secondary school level and being a general labour for his entire working life; (2) he had survived from a very serious accident where he had fallen from a height of about 6 metres and he was trapped for more than 30 minutes by metal scaffolding and bricks; (3) he was categorized as a CAT-I patient, ie life-threatening that trauma team activated when firstly admitted to A&E; and (4) he was not able to articulate himself well in the witness box during cross-examination, in particular, he was very guarded when asked about the minute details of treatment and was apprehensive when asked about his present complaints. Mr Wong submits there was however objective evidence still reconciles with P’s contention. In his submissions, P is still suffering a considerable residual pain which would limit his ability to return to work.

57.  With respect to Mr Wong, in light of the glaring inconsistencies and the totally incredible evidence given by P in the witness box, I do not see how Mr Wong could still submit to the court that P’s complaints are genuine. I find P without any doubt a malingerer who has no shame in grossly exaggerating his condition and symptoms.

58.  Based on the above discussions, I have no hesitation to reject P’s evidence and find that most of his allegations regarding his injuries, complaints and inability to work are totally untrue and not capable of believing.

D. The Expert Evidence

59.  The late Mr Neal Clough (together with his daughter and co-author Ms Michelle Clough) in their seminal work Clough & Clough on Personal Injuries (2023 edition) at §31.019 stated the following regarding medical experts in Hong Kong:-

“Despite the fact that experts declare that they will observe the Code of Conduct and that their duty is to the Court and not the party instructing them, in practice there are experts who are recognised to be “plaintiff experts” and those recognised to be “defendant experts”. Where it is clear that an expert is a “gun for hire”, this has the effect of making their opinion less probative/convincing. It is difficult to understand how two experts looking at the same material and examining the same patient at the same time can come to such diametrically opposed views. It is also noteworthy that where experts’ views are opposing, each expert supports the case that the party instructing him would wish to advance.”

60.  I share the same view as stated by the learned authors in the above passage. Since the Civil Justice Reform (“CJR”) in 2009, it has become an accepted practice in personal injuries litigation that medical experts are only expected to produce their expert opinion by way of a joint medical report (usually after carrying out a joint examination) but without being requested to give oral evidence in court. In my experience, this has encouraged if not caused a lot of experts to become rather robust if not extreme in stating their opinion. Sadly, in a lot of cases, I find some of the experts, as described by the learned authors in the above cited passage, have become “hired gun” for the party they represent. I think one of the reasons why those experts have become so extreme or polarized in their views may be due to the fact that they recognize that, in the vast majority of cases, they would not be required to attend court to give oral evidence and therefore have to justify their opinions as stated by them in the joint medical report in the witness box. Thus, while the introduction of joint examination and joint medical report since the CJR have helped to streamline the examination and reporting process and therefore saved a lot of time and costs, it has also produced a phenomenon over the past 16 years that expert opinions have become more polarized and often not supported by objective medical evidence or records or sound medical theory. This means some of those opinions are not able to withstand close scrutiny and will easily disintegrate under skillful cross-examination. Unfortunately, I find our present case is one of them.

Dr Law’s opinion

61.  With greatest respect to Dr Law, I find his opinion unreliable and unhelpful in this case. At least in one aspect of his opinion, I find it was misleading. I have no hesitation in rejecting his opinion and accept that of Dr Lam’s. More importantly, I think this leads to the critical question of whether the practice of obtaining opinions from 2 different experts in a simple and straightforward orthopaedic case should be allowed to be continued in our jurisdiction.

62.  The following are the reasons why I reject Dr Law’s opinions.

63.  First, in the JMR, Dr Law made a definite diagnosis of head injury as one of the two main injuries suffered by P in the Accident. However, under cross-examination, Dr Law admitted that he was not trained in neurology, so the opinion he gave was out of his expertise. On this alone, that part of his diagnosis should be disregarded. However, what troubled me most when I first read the JMR was Dr Law did not make the important caveat under the JMR that he was not qualified to give opinion on a neurological matter. Instead, he went on to comment on the symptoms and the complaints made by P regarding his head injury as if he was qualified to give such an opinion. In any event, under cross-examination, Dr Law accepted that if there was a head injury, it must have been a minimal one since no abnormality was found on the repeated CT scans. But when it was put to him by D’s counsel that mild injuries would usually result in mild symptoms, Dr Law’s answer was that while the disability may be minor, the symptoms would depend on the patient’s own perception. And it seems that relying on patient’s “own perception” has become the central theme of Dr Law’s evidence. Whenever he could not find any objective evidence to support P’s symptoms, he would rely on P’s “own perception” and P’s claimed apprehension as his explanation. In my view, this is extraordinary as Dr Law is supposed to be an expert who should assist the court to understand the cause of P’s injuries and complaints based on his medical knowledge and expertise and not the patient’s own subjective beliefs or perception. Such kind of so-called expert evidence is not only unhelpful to the court but also seriously undermines the credibility of an expert. I regret to say that I have to remind Dr Law twice during his evidence that he was there to assist the court and not to argue the case on behalf of P.

64.  Second, in relation to Dr Law’s opinion that P’s right shoulder condition was caused by the Accident, it is equally unconvincing. He insisted that it was the prolonged use of the walking stick for about 14 months after the Accident that has led to the right shoulder condition. He further opined that it became worse with time. When Ms Lee, D’s counsel, pointed out to him that in June 2022, P was already observed by his treating doctor to be holding a stick but without using it as a walking support and by November 2022 he was not relying on his walking stick at all. Dr Law insisted that it was the continuous overuse of the right shoulder through the reliance on the walking stick which had caused his present shoulder problem. In my judgment, this is almost like first blindly formed and then persisted with a certain opinion when such opinion was clearly going against the contemporaneous medical records and evidence. Such blinkered approach is not something the court would expect coming out from an experienced orthopaedic expert. Perhaps Dr Law has forgotten that his duty as an expert is owed to the court and not to the party who has instructed him or paid him.

65.  Third, when he was asked to explain the persistence of the right shoulder symptoms of P despite no more reliance on the walking stick since 2022, Dr Law’s opinion is that it was not surprising. He said that without proper treatment his right shoulder would get worse. With respect, this has ignored the fact that P had already undergone two sessions of PT treatment. Each time the treating physiotherapist ended the session due to “static progress”. I therefore do not understand on what basis Dr Law would able to say that P had not received proper treatment for his right shoulder. What is more incredible is the fact that when Dr Law was told that P had complained more severe right shoulder symptoms in the witness box and was given the chance to consider whether he might have a change of the opinion based on that account, Dr Law then came up with the view that there might be some other contributing factors in other “recent daily involvement”. The example he gave was recreational sports involvement. Such opinion certainly is unhelpful and can be safely disregarded as any recent recreation sports involvement have nothing to do with the Accident at all.

66.  Fourth, when asked by the court to explain P’s presentation of worsened shoulder condition in the witness box, Dr Law’s opinion was that shoulder impingement improvement was not in a straight line and could be attributed to other causes like daily activities. He therefore need to look for other contributing factors. When further asked by the court whether malingering or gross exaggeration could amount to such factors, Dr Law’s opinion was “last of the possibility, yes.” I do not expect an expert who has read and signed the declaration under the Code of Conduct would not even consider “malingering or exaggeration” as one of the obvious possible explanations in view of P’s inconsistent and unexplained claims. In my view, for an expert not to even consider the possibility of malingering or gross exaggeration in light of the obvious medical evidence like in this case seems to me to be failing in his duty to the court as declared under the experts’ Code of Conduct. To say this is the “last of the possibility” in the case suggests to me that Dr Law’s opinion is lack of impartiality and objectivity. It is not only unhelpful to the court but also creates unnecessary arguments and prolonged unmeritorious litigation. In my view, such kind of blinkered approach in providing expert evidence should not be encouraged or condoned in personal injuries litigation in Hong Kong.

67.  Fifth, I find at least in one aspect of Dr Law’s opinion is misleading. Under the JMR, Dr Law made the diagnosis that P suffered from “a back injury, with the fracture T11, T12, L1 and L2”: See §88(i) of JMR. This is without the additional qualification that it was the fracture of the “transverse processes” of those levels of the vertebrae that P had sustained in the Accident. In other words, P did not suffer any fracture to the main body of the vertebrae which of course would be a much more severe condition which often would lead to paraplegia or severe disability. Only when he gave evidence in court that Dr Law has clarified what he actually meant was a fracture of its transverse process, not a fracture to the main body of the vertebrae. In my judgment, such description of diagnosis given by an orthopaedic surgeon in an expert report is not only misleading to a layman but also to the court as anybody could have easily taken that to mean that there was a fracture to the main body of the P’s vertebrae, given the very serious picture claimed by P in his complaint. In my view, such misleading description of diagnosis would only help to encourage unnecessary arguments between the parties in the litigation and cause additional unnecessary costs and time. With due respect, I simply fail to understand how Dr Law could have missed out such an important piece of information when this was clearly documented in the various medical notes/records and reports kept by the different departments of the public hospitals from the date of the Accident and throughout his many months of treatments. Perhaps when Dr Law gave that diagnosis, he never thought that he has to come to court one day to justify his opinion.

68.  In this regard, the court is grateful to Dr Lam’s helpful diagram he has provided in the JMR. As explained by Dr Lam in his evidence, as it was merely a fracture of the transverse process, this constitute a simple fracture of normal bone. Like any other bone fractures, they would heal by themselves within 6 to 8 weeks. Therefore, even if there was no treatment, the fracture to the transverse process would heal by itself within such timeframe. This is very different from the false impression given under Dr Law’s diagnosis that P had suffered from fracture of T11, T12, L1 and L2 which implied a much more severe condition. In my view, such misleading opinion coming from an expert will only help to facilitate someone like P (and his legal representatives) to first commence and then to maintain a baseless and exaggerated claim. In my view, this kind of practice should be frowned upon.

69.  Seventh, when Dr Law was asked why he accepted P’s complaint of continuous back pain with intensity at NPRS 9/10 in November 2022, his answer was that he considered P’s discharge from physiotherapy in February 2021 was pre-mature. With due respect, I consider such opinion should be rejected for two reasons. First, the medical notes made by the PT considered P’s condition had already plateaued. Second, Dr Law was neither the treating physiotherapist nor the treating orthopaedic surgeon and therefore have no firsthand knowledge of P’s condition at the time. Therefore, for him to make such bold statement to say that P had been discharged from PT prematurely is not only unfounded but also goes directly against the treatment records kept by the treating physiotherapists.

70.  Eighth, while it was agreed by the experts that the X-ray taken on 28 October 2020 showing the fracture of the transverse processes was not obvious, Dr Law’s ambiguous answer as to whether the fracture had healed or not by saying that the X-ray was not clear because there were other organs in front of the spinal column which would have make a clear view of this site not possible is unconvincing. In this respect, I much prefer Dr Lam’s explanation that the fractures must have been so minimal that they were not captured in the X-ray. This is only consistent with the minor nature of the fracture which would not have resulted in any severe symptoms as claimed by P.

71.  Ninth, when Dr Law was not able to provide an explanation to P’s claimed change in sensation in the lower limbs and the symmetrical lower limb weakness, Dr Law resorted to “behavioral response” as an answer. He could not explain why in the absence of neurological involvement, there was the presence of sensation and weakness symptoms. He could not find any orthopaedic cause for the plaintiff’s alleged comprehension. Again, I find such evidence coming out from an experienced orthopaedic expert rather disappointing. I agree with Ms Lee’s submissions that Dr Law’s attribution of all physical symptoms without any objective evidence in support to “behavioral response” is a valiant attempt to shield P from the conclusion that he was malingering. With respect to Dr Law, this was a rather poor attempt to try to logically explain the very much exaggerated presentation provided by P at the joint examination. It does not assist the court in assessing the true reason or reasons for his physical condition or complaints which are so contradictory to the objective medical evidence. Such opinion is not only unhelpful to assist the court in finding out the real cause or causes of P’s claimed symptoms and condition, it would also encourage unnecessary litigation and help those what have commenced a case on a shaky foundation to continue with it. All these are against the underlying objectives of the CJR which in my view any independent expert should not be willing participant to.

Dr Lam’s evidence

72.  Contrast to Dr Law’s rather extreme and lack of solid foundation opinion, Dr Lam’s evidence seems to be much more balanced and objective in my view. His opinion that P has suffered very little or no residual disability resulting from the Accident and the transverse processes and shoulder had healed for a long time are only consistent with the pathological structure of the bone and the medical history of P. In my judgment, his opinion that P is a malingerer is well supported by the following objective evidence: -

(a) positive results of the 4 Waddell’s test;

(b) P’s unrestricted back movement as shown in the surveillance video footages;

(c) the inexplicable weakness on his four limbs;

(d) the change in sensation of his lower limbs; and

(e) walking extensively without relying on the walking stick but heavily rely on it while during the joint examination.

73.  In my judgment, not only Dr Lam’s evidence was unshaken during cross-examination, his evidence is one which any expert who appear in our court should follow as example. First, they are based on careful analysis of the medical history of the patient as found in the notes and records of the hospitals and medical reports prepared by the doctors and therapists at the public hospitals. Second, they are back up by sound medical theory based on the anatomy and structure of the vertebrae. Third, they are well supported by the surveillance recording which showed unequivocally that the daily activities of P was not in any way affected by his alleged severe symptoms. Therefore, for the above reasons, I have no doubt that Dr Lam’s opinion is far more superior and convincing in this case. I have no hesitation in accepting his opinion than those expressed by Dr Law.

74.  In my humble view, this case is a good example of why in most personal injuries cases, save for those complicated ones involved very severe and multi-faceted injuries, it is unhelpful and counterproductive to have opinions from two different experts in the same field when one single joint expert will do the job. I consider there are strong arguments to adopt the practice of the District Court by using single joint expert reports in personal injuries cases in the High Court as it would help to save costs and unnecessary arguments and facilitate early settlement of cases. In my view, this will help to better achieve the underlying objectives of the CJR. Hence, I consider it may be time for both the court and the practitioners to seriously consider appointing a single joint expert rather than two different experts in the same specialty at an early stage of the proceedings in personal injuries cases in the High Court. In my opinion, this will not only assist the court in finding out the true condition of a claimant more easily, it will also help to save a lot of unnecessary costs and time. In the long run, it is our justice system which will gain the most benefit.

Assessment of Damages

75.  Based on the above findings I made regarding to P’s evidence and the experts’ opinion, I now move on to assess the damages under the different headings of the revised statement of damages (“RSOD”) in this case.

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

76.  Based on the allegations made in regarding to P’s injuries, treatment and current complaints, P claims a sum of HK$800,000 under the head of PSLA in the RSOD.

77.  Mr Wong, P’s counsel, in his opening submissions has very wisely revised the PSLA claim downwards to a sum of HK$600,000. He relied on the following cases as comparables to try to support the revised PSLA claim:-

(a) Chan To Ning v Tsui Yu Ming t/a Ming Tak Electrical Co and Anor (unreported, HCPI 849/2009, 13 November 2013);

(b) Li Sau Keung v Maxcredit Engineering Ltd and Anor [2004] 1 HKC 434 (CA);

(c) Chan Chi Shing v Chan Shu Kuen and Ors [2009] 2 HKLRD 259;

(d) Gurung Durga Bahadur v Kam Tai Construction Company Ltd and Anor (unreported, HCPI 304/2004, 27 November 2008); and

(e) Chong Ko Chuen v Joint Well Metal Company Limited and Anor [2019] HKCFI 827

78.  Mr Wong submits that P’s injury is on the verge of “serious injury” category as defined in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657 at 659.

79.  Ms Lee for Ds’ in her opening submissions maintains the figures that Ds have pleaded under the answer to the RSOD (“the Answer”), which was at HK$300,000. Ms Lee relied on the following cases to support the figure:-

(a) Chan Chi Ming v Sze Hing Sang and Anor (unreported, HCPI 531/2011; 11 December 2013);

(b) Gurung Dhar Bahadur v Po On Construction Engineering Ltd and Anor (unreported, HCPI 303/2010, 4 January 2012).

80.  In particular, Ms Lee said that the case of Gurung Dhar Bahadur has a remarkable resemblance to the present case in terms of injuries. The claimant in that case suffered fracture of the right transverse processes of the lumbar spine at L1-3 and had conservative treatment. He complained of difficulty in walking, intermittent back pain and right leg numbness. General damages were assessed at HK$230,000 back in January 2012.

81.  Mr Wong for P in his closing submissions has considered that P’s injuries are not as serious as those suffered by the plaintiff in the case of Chan To Ning or Li Sau Keung. He agrees that P’s injuries are comparable to the injury suffered by the plaintiff in Gurung Durga Bahadur. He further revised the PSLA claim downwards to a sum of HK$500,000 only. He however submits that the injuries of P are more serious than the 2 cases cited by Ms Lee in her submissions.

82.  In my judgment, P’s injuries are certainly much less severe than those he tried to present to the experts and to the court. As I have found above, he clearly was a malingerer who has grossly exaggerated his complaints and symptoms. It is therefore hard for the court to know the true extent of the injuries suffered by him. However, I would respectfully adopt Dr Lam’s opinion as stated by him in the JMR and in his evidence in court. I find P’s injuries are much less serious than those he had tried to present to the experts at the joint examination and to the court at the assessment hearing. I agree with Dr Lam that his main injuries, ie the fracture to the transverse processes of T11-L2 should be healed within a few weeks after the injury. I also do not find his head injuries, save from those initially sustained in the Accident, were caused by the Accident. Further, I find his shoulder injury, loss of hearing and skin problems had nothing to do with the Accident at all.

83.  In the circumstances, I consider that a sum of HK$300,000 is more than adequate to represent the PSLA award in this case.

(ii) Loss of earnings

84.  Under the RSOD, P claims a total sum of HK$2,327,835.51 which included his claim for the MPF as pre-trial loss of earnings. In the Answer, D say that P is only entitled to a sum of HK$393,120 only.

85.  There are essentially 2 disputes regarding P’s pre-trial loss of earnings. They are:-

(a) his average monthly earnings at the time of Accident; and

(b) the length of the sick leave.

(a) P’s earnings

86.  Under the RSOD, P claims that he would earn HK$39,000 a month, which is based on a daily wage of HK$1,300 and working on an average of 30 days per month. He further claims that, had it not been for the Accident, he would have earned a sum of HK$43,110.60 per month in 2024.

87.  This figure was disputed by Mr Hui of D1 where he explained in his witness statement that when he put down HK$39,000 per month as P’s earnings, P had in fact only been working for D1 for 6 days only before the Accident occurred. Mr Hui produced the records of the average working days for comparable workers for the project that P was involved in at the time of the Accident to support his claim that the average number of working days for those workers was at 24 per month only. Mr Hui amended the Form 2 on 27 September 2022 when he stated P worked for 26 days a month and earned a monthly average of HK$33,800. In the Answer, Ds conceded an average monthly sum of HK$31,200, which is based on the average number of days for the project to be completed. This amount is already higher than the average pay that P said he was capable of earning at the time. This is because according to P’s witness statement, he only earned an average between HK$20,000 and HK$30,000 a month as his daily wage was between HK$850 to HK$1,300 per day. It just happened that when the Accident occurred, he was earning at a much higher rate due to the particular job nature. However, as made clear by Mr Hui in his evidence, the project was for a limited time only and therefore the employment was on a causal basis.

88.  Therefore, I shall adopt a monthly sum of HK$31,200 as his average income at the time of the Accident.

(b) Sick leave period

89.  As for the appropriate sick leave period, I prefer Dr Lam’s opinion and accept that P should be able to return to his pre-accident job at the latest one year after the occurrence of the Accident. As according to Dr Lam, his transverse processes should had been healed a long time ago and his alleged headache are not supported by any objective evidence like CT scan. As I found above, all the current complaints of severe injuries and symptoms are all made by P. They were not genuine at all. I find this is a typical case of a claimant feigning his condition in order to gain a higher sum of compensation from the insurance company. The court do not and will not tolerate this kind of behavior. P’s last ditch attempt to try to show that he has indicated his loss by producing a “Foundation Certificate” and the security guard permit dated only in August 2024 in my view are too little too late. It does not help to diminish his blatant attempt to exaggerate or feigning his physical condition. Therefore, I do not consider any loss of future earnings should be allowed in this case. It is quite clear that he should have been able to return to his pre-accident job within a few months and at most a year after the Accident.

90.  Therefore, for loss of earnings, I will only allow the following amount in this case:

HK$31,200 x 12 months x 105% = HK$393,120.

(iii) Loss of earning capacity

91.  P claims a sum of HK$517,327.20 as loss of earning capacity in this case. This is based on a monthly salary of HK$43,100.60 and for 12 months. Ds’ in the Answer submits that no award should be allowed or alternatively only 3 months of his earnings should be awarded at HK$93,600 (HK$31,200 x 3).

92.  In my judgment, P is clearly able to return to his pre-accident employment. The fact that he did not do so is his own choice. If he thought that he could feign his injuries and physical condition and hope for a substantial amount of compensation, then he clearly has made the wrong decision. The court is not here to allow its precious resources to be wasted in order to entertain such baseless and grossly exaggerated claims. The fact that he was seen to be perfectly normal when he was placed under surveillance back in 2022 shows that he would have no difficulties in returning to his pre-accident employment. Therefore, no loss of earning capacity award will be allowed in this case as P has not been able to show that at some future date he runs a risk of losing his employment due to the injuries suffered in the Accident: see Chan Wai Tong and Anor v Li Ping Sum [1985] HKLR 176 at §§93-94.

(iv) Medical and Miscellaneous Expenses

93.  P claims a sum of HK$10,500 for medical expenses; HK$7,000 for travelling expenses and HK$18,000 for tonic food under the RSOD. Ds stated in the Answer that a sum of HK$15,000 is reasonable for those expenses, subject to the production of receipts.

94.  The medical receipts produced by P shows that a total sum of HK$13,724 had been spent as medical expenses. However, some of those payment were for treatment of eczema which as I found have nothing to do with the injuries sustained by him in the Accident. There are also receipts for PT from YCH in 2024 which are not related to the fracture transverse processes. Therefore, the actual medical expenses spent by P in my view is much less than the HK$13,724 contained in the schedule produced by P in the documents.

95.  As for travelling expenses, a total sum of HK$1,142.50 by way of taxi receipts have been produced. However, the taxi rides stated in the schedule show that they were taken in late 2022 only. According to both his treating doctors and the expert, P had already reached MMI orthopaedically in April 2021. Therefore, straightly speaking, those taxi journeys could not be attributable to the Accident.

96.  As for tonic food, no receipt had been produced by P to justify what amount has been spent. If spent, there was no evidence to show why they are necessary and how it would help in his recovery. Therefore, in my judgment, a sum offered by Ds’ in the Answer at HK$15,000 as medical and miscellaneous expenses is more than reasonable. I shall make that award as special damages in this case.

(v) Future Medical Expenses

97.  This claim is based on Dr Law’s opinion which claims on the basis of HK$1,200 per visit to a family physician or orthopaedic specialist at a frequency of once every 12 weeks until he reaches the age of 65. Therefore, the total sum claimed was at HK$57,600.

98.  As P has reached MMI long time ago as agreed by the experts and the fact that I have rejected Dr Law’s opinion, the claim for future medical expenses will be rejected.

(vi) Summary of Calculation

99.  In summary, I make the following assessment of damages for P resulting from the Accident;

(i) PSLA	HK$300,000
(ii) Past loss of earnings	HK$393,120
(iii) Future loss of earnings	Nil
(iv) Loss of earning capacity	Nil
(v) Special Damages	HK$15,000
	HK$708,120
Less EC payment	(HK$1,024,386)
	(HK$316,266)

100.  Since P had received a sum of HK$1,024,386.30 as EC payment arising out of the Accident, there will be a negative figure resulting from the present assessment. In other words, he would receive nothing under the present proceedings despite interlocutory judgment having been entered against Ds.

Costs

101.  In terms of costs, I am of the view that Ds are entitled to costs on an indemnity basis for the assessment based on the fact that P has brought a totally baseless and grossly exaggerated claim. It has been a total waste of judicial resources and time and costs of all parties concerned. To show the disapproval of the court for such bogus claim in future, I will order P to pay the costs of the assessment on an indemnity basis, such costs to be taxed if not agreed. I will make the above order on a nisi basis and the parties may apply to vary the same within 14 days after the handing down of this judgment. Such application will be dealt with by way of paper disposal.