HO KAR CHEE v. TAM KWONG MAN AND ANOTHER

HCPI 439/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 439 OF 2007

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BETWEEN

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J U D G M E N T

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Background

1.  This is the assessment of damages hearing in respect of plaintiff’s claim for damages for personal injury sustained by her in a traffic accident on the 8 March 2006.

2.  Pursuant to a consent order dated 20 August 2007, judgment on liability was entered in favour of the plaintiff against the 1^st defendant with damages to be assessed.

3.  As the motor insurer of the 1^st defendant has gone into liquidation, 2^nd defendant has since joined in the proceedings.

4.  During the hearing, plaintiff acted in person.  Her legal aid certificate had been discharged.  1^st defendant was absent.

5.  Plaintiff is a single lady aged 38 at time of subject accident and at the time of the assessment hearing, she was aged 44.  She lived with her aged parents and brother.  She received education up to Form 7 and later attained higher certificate in Hong Kong Polytechnic on valuation and property management in 1994.  She has also obtained numerous other certificates.  She had worked in the Hong Kong government and later at Hang Seng Bank when she met 2 accidents in years 1995 and 1996.  This all happened prior to the subject accident.  She had claimed for compensation through legal proceedings in court arising from these 2 accidents.

6.  Plaintiff was the only witness for the plaintiff.  There was no witness for 2^nd defendant save that the 2^nd defendant relied on a surveillance tape taken on the 6 December 2007.

Plaintiff’s claim

7.  In the Revised Statement of Damages dated 30 November 2010, plaintiff then claimed that she suffered the following injuries and disabilities as a result of the subject accident.

“2. Particulars of Injuries and Disabilities

(a) Inflammation of the soft tissues around the right knee that include the tendon of the gastrosnemius muscles, the tendons of the pes anserinus, the lateral collateral ligament, the medial collateral ligament, the tendon of the quadriceps muscle at its insertion onto the patella.

(b) Severe right knee pain which is worse in bad weather.

(c) Ambulation is impaired. Have to use umbrella as crutch and to disguise disability.

(d) Walking tolerance is 15 minutes. Standing tolerance is 20 minutes. Sitting tolerance is an hour.

(e) Squatting is difficult.

(f) Difficulty in boarding buses because of knee problem.

(g) Unable to tie shoe laces. Has to extend leg when doing so.

(h) Can jog very slowly, swim slowly along the side of the pool.

(i) Cannot play piano (press pedal), the violin (cannot stand for long), the accordion (cannot place this on knees).

(j) Persistent depressed mood.

(k) Fear of travelling in taxis and other cars.

(l) Impairment of sleep which is shallow totals three to four hours a night.

(m) Lack of energy.

(n) Loss of interest in activities.

(o) Impairment of appetite.

(p) Agitation.

(q) Retardation.

(r) When tense she has diarrhea.

(s) Concentration and memory impaired.

(t) Nightmares of the accident once in half a month.

(u) Flashbacks of the accident occurred daily.

(v) Avoids conversation and thoughts of the accident.

(w) Avoids socializing.

(x) Cold to others.

(y) Irritability.

(z) Sense of foreshortened future in career.

(aa) Feels detached from others.”

8.  In the Re-revised Statement of Damages dated 14 September 2011 said by the plaintiff to have been prepared by her, plaintiff had the following complaints: -

“2.13 Disabilities

The present complaints are: -

The right knee pain is produced: -

(1) after prolonged standing for half an hour

(2) after prolonged sitting for more than 1 hour

(3) after walking for a few minutes

(4) on climbing stairs, especially on going up

(5) on squatting

(6) on running

(7) on change of weather

(8) on carrying heavy weight more than 2 lbs

2.13.2 Weaknesses of the right leg is secondary to pain

2.13.3 Numberness of the right leg

2.13.4 Disturbance in daily living

(1) She cannot climb up to get things from high cabinets

(2) She cannot handle any heavy duties of the household work

(3) She cannot go shopping in supermarkets

(4) She has difficulty in walking far or climbing stairs, so she had applied for a certificate for disable persons to allow her to take a taxi even in forbidden areas

2.13.5 Disturbances in work

(1) She has limitations in the hours of continuous teaching in violin and piano

(2) She cannot travel too far places to give music tuition

(3) She cannot attend further courses in music theory because after the subject injury her income is insufficient to allow her playing the necessary fees and in addition she cannot walk for long distances together carrying the violin

2.13.6 Disturbances in reaction

(1) She stops going to cinemas or attending concerts

(2) She cannot swim for too long distances or too fast

(3) She has to stop all other sport activities which she participated in the past such as jogging, playing basketball, badminton, and swimming

2.13.7 Mental disturbances

(1) She develops frequent insomnia and she cannot sleep well even after taking hynotics

(2) She is afraid to ride taxi again, but she was still taking taxi whenever she required, however she felt to be insecure while she was inside the taxi

2.14 Loss of Amenities

2.14.1 Prior to the accident, the Plaintiff led an active full life, both as regards work and social activities

2.14.2 The Plaintiff has not been able to resume her activities such as swimming, jogging, playing basketball and badminton

2.14.3 The Plaintiff’s enjoyment of work and enjoyment of life have been affected

2.15 Psychological

2.15.1    The Plaintiff has nightmares about the accident and she is afraid of travelling”

9.  Dr Ban Chung Man for chief of services, Department of O&T of Pamela Youde Nethersole Eastern Hospital (“PYNEH”) said in his report dated 15 May 2006 that the plaintiff was managed by their department between 22 October 1996 to 6 March 2001 because of left knee injury.

Plaintiff’s medical history

10.  Since plaintiff had met 2 accidents prior to the subject accident, it is necessary that the court was made aware of the physical and mental condition of the plaintiff prior to the subject accident.  To do so, we need to consider the medical reports compiled in relation to the prior accidents in year 1996 and 1997.

11.  It was said that plaintiff complained of chest and back pain since 23 April 1997.  Permanent disability of 6% was granted by medical assessment board on 12 July 1998.

12.  Plaintiff was subsequently managed by pain specialist and the psychiatrists because of back pain.  Diagnosis was post-traumatic neuralgic.

“Plaintiff was admitted to our department through the Accident and Emergency Department on date of accident and complained of right knee injury while she was getting on a taxi. Examination did not reveal any bruise, swelling and local tenderness around the right knee. Full range of movement of the right knee was observed. After admission, she complained of diffuse buttock, right knee and calf pain. X-ray of the cervical, thoracic and lumbar spine and right lower limb did not show fracture. There was no neurological deficit shown in examination.

Analgesics were prescribed and physiotherapy was arranged.  She was observed in our hospital from 8 March 2006 to 15 March 2006.  She could transfer and walk independently.  Psychiatric assessment on 9 March 2006 suggested that she had a stable mental static. Examination, investigation and observation did not suggest a significant injury to her right knee.  However she complained of persistent right knee pain. Magnetic Resonance Imaging of her right knee was scheduled on 24 November 2006.  Sick leave was requested by patent for further legal action to this episode of injury on 15 March 2006.  Sick leave during the period of hospitalization was granted, i.e. from 8 March 2006 to 15 March 2006.”

13.  Dr Peter Yu, plaintiff’s own psychiatric expert confirmed also that prior to the subject accident, the plaintiff was involved in another accident on 30 June 1995 as a result of which, plaintiff had instructed Dr Yu to prepare the expert report dated 25 February 1998 for the purpose of the related Employees Compensation case no 370 of 1997.  She was said to have been compressed between two heavy rolling metal cabinets and trapped for several minutes whilst at work during which she yelled for help.  She said she had intense pain in the chest and difficulty in breathing after the accident and she went to Tang Shui Kin Hospital Accident and Emergency Department for treatment.  After that she was treated by a private practitioner on date of accident as she said the pain worsened. Later, she was also treated in Orthopaedic and Traumatology Department of Kwong Wah Hospital and Pamela Yonde Nethersole Eastern Hospital (“PYNEH”). Pain relief drugs were prescribed which was said to cause her stomache.

14.  Plaintiff also had a number of radiological investigations done which included a lumbar puncture which led to weakness and numbness of the legs following the last procedure in that previous accident.

15.  In his report dated 27 May 1999, Dr Yu said plaintiff’s pain worsened when weather was humid, rainy and cold.  Plaintiff had difficulty in breathing and vomiting and plaintiff had passed out while in pain and was intolerant of cold.

16.  According to report dated 25 July 1998, plaintiff was unable to left heavy loads or walk fast.  She has to take rest from her work in the bank’s property valuation department.  She was also said to be unable to return to her pleasurable pursuits such as playing musical instrument, piano and violin and accordion or sports like swimming and ball games and shopping.

17.  It was said in the report dated 25 February 1998 of Dr Yu that plaintiff’s sleep and appetite was adversely affected by the persistent pain and she lost weight and was just over 44 kg.

18.  Plaintiff was said to be depressed as to why she was unfortunate and whilst in pain, she would prefer to receive lethal injection.  She was also fearful of people bumping into her or when walking between cars, she was afraid of being crushed.

19.  She also had frequent recalls of this previous accident which distressed her.

20.  She was said by Dr Yu also to be unfit to perform work from time to time and was said to be deprived of pride and satisfaction from her job.

21.  Plaintiff was diagnosed with post-traumatic stress disorder (“PTSD”).

22.  Dr Yu said the chronic pain and PTSD were solely caused by the accident on 30 June 2005.

23.  Drug treatment such as antidepressant and sedatives was employed to relieve depression and anxiety.

24.  At the same time, it was said plaintiff also needed psychotherapy.

25.  Dr Yu also commented that early involvement of psychiatrist was necessary in the treatment of PTSD and chronic pain but unfortunately plaintiff suffered the pain for over 2 years and did not have the PTSD recognized until recently, ie reference to date of report on 25 February 1998.  He said the delay worsened the prognosis or chance of recovery.  He said with psychiatric treatment, there is a small chance of slow improvement and without treatment, her conditions would get even worse.

26.  Dr Yu said it is possible the condition may persist for an indefinite period.  He also assessed his permanent impairment to be 40% of the whole person having regard to severe distress and significant impairment of occipital and social functioning.

27.  Strangely, in relation to the same accident, Dr Yu was asked to prepare a second report dated 27 May 1999 after another examination of the plaintiff.

28.  In this report, it was said that plaintiff was referred to pain clinic of PYNEH and was first seen on 30 April 1997.  She received strong analgesic drugs, painkillers, a combination of acupuncture and injection of local anathetics to the anterior chest wall.

29.  She was also referred to Maclehose Medical Rehabilitation Centre by Dr David Fang and was admitted on 24 August 1998 where she was given physical modalities to reduce her pain, education on how to cope with the pain in her daily activities and also psychological counseling by the clinical psychologist.  She was discharged on 11 November 1998.

30.  According to the report of Dr Yu dated 24 August 1999, plaintiff should continue to attend Pain Clinic at PYNEH.  Analgesics and physiotherapy should continue.  She should also continue clinical psychological service and supportive psychotherapy.

31.  In this second report by Dr Yu, Dr Yu noticed there was little, if any, improvement since the last examination of the plaintiff in January 1998.  He said, with proper treatment, there is small chance of slow improvement.  It is most likely that the conditions will persist for an indefinite period.

32.  Dr Yu assessed plaintiff to be not able to work full time, but only 25% to 50% of the time.  She was said to be unable to cope with outdoor work due to disabilities.  He maintained the permanent disability of the plaintiff due to chronic pain and PTSD at 40%.  He also assessed that plaintiff had lost 60% to 70% of her earning capacity due solely to psychiatric or mental disabilities. The impairment due to physical disabilities were not considered.

33.  Dr Yu said also that the psychiatric and psychological treatment would maintain plaintiff’s then state of mental well-being and prevent further deterioration and that only slight improvement, ie a small reduction in the frequency of spontaneous recollection of the traumatic event is expected.  The treatments, he said, would not result in any significant decrease in the percentages of impairment and loss.

34.  The plaintiff was examined by Mr Chan Chee Hung, the psychiatric expert appointed by the employer of the plaintiff on 15 March 1999 and 23 March 1999, subsequent to which Dr Chan prepared a report dated 26 March 1999.

35.  According to Dr Chan, plaintiff was very anxious during mental examination and show mistrust and anxiety in the assessment and doubted doctor’s neutrality.  She said she was suffering some soft tissue injury involving cartilage and nerve plexuses lacerated during the incident and unluckily the damage could not be detected by any radiological method.

36.  Plaintiff was said by Dr Chan to be dramatic in expression.  She had to recline in the chair with her eyes closed whilst in the waiting room and she cried bitterly in session while expressing her belief that she had no more future.  She stated her employer as unsympathetic.  She was furious that people did not trust her and that she was asked to report sick leave daily and colleagues regarded her feigning and “enjoying” being sick.

37.  Dr Chan said although plaintiff had suffered from contusion of the chest, there was no objective evidence showing that it was a serious one.  He agrees with Dr Yu that plaintiff could be suffering from PTSD provided that her complaints were authentic.

38.  He said pain is a subjective thing and it was difficult to gauge objectively how severe pain was.  He said he hesitated to say plaintiff was malingering for all these few years as it was difficult to be consistent.  On the other hand, pain might be exaggerated by psychological reasons.

39.  Dr Chan said plaintiff maintained her working skills and that if she had good working relationship she would be emotionally more stable and that would result in less pain.

40.  Dr Chan agreed to the treatment suggested by Dr Yu.  He estimated the success rate with treatment would be over 70%.  Prognosis can be expected to be fairly good.  Dr Chan opined plaintiff could certainly remain in sedentary jobs or do free lance tuition work in musical instruments when she recovered.  Dr Chan said from the sick leave record, she could only work 1/3 of the time and there was therefore disability of 67%.  When plaintiff was not in pain, her self care ability was unimpaired.  There was no impairment on intellect, thinking and working skill.  The degree of permanent disability was assessed to be 20%.

41.  On 29 April 1999, Dr Chan prepared a supplementary report on the plaintiff after further instructions documents were considered.

42.  He said as his previous psychiatric evaluation depended much on the information given by the plaintiff and he needed to re-evaluate the case in light of new information.

43.  He said based on the newly available information which included further medical notes and reports from A & E departments of various hospitals and Maclehose Medical Rehabilitation Centre, there was the need to re-evaluate the case.  Reasons were that there were inconsistency in objective signs during physical examination, indicating intentional controlled and altered response to tendon reflexes purported to demonstrate abnormality (pages 6-8 of Dr Chun Siu Yeung’s report), negative finding of objective sign in Accident and Emergency (“A&E”) attendances that substantiate the plaintiff’s complaint of fainting or low blood pressure, absence of signs of flash back or nightmare to indicate the intrusive nature of forced recollection of memory in her diary which has to be present for PTSD.

44.  Dr Chan said he applied the ‘Barkemeyer Callon Jones Malingering Detecting Scale’ to the findings and there were 10 scores indicating 96.7% confidence of malingering.  He said although as he said he found it most unhelpful to consider the plaintiff feigning, in view of the new findings, he said there is a likely chance that plaintiff in fact faked bad in the examinations.  It followed that the severity of her symptoms and the reported disability needed to be assessed with care.

45.  Dr Chan observed that in plaintiff’s diary there was no mention of nightmare or flashback and she was happy to return to work if the others supported her which meant fear of the cabinet did not appear to be important. Her main distress really arose from the bitter words of the others which made her unhappy.

46.  It was said her relationship with the staff turned very difficult in the later days and the same was not due to the injury and that her hatred and revenge and depression were in fact caused by interpersonal problems which arose out of her histrionic and manipulative personality.

47.  Dr Chan continued and said there were also intervening factors which could account for her psychological sufferings, such as her concern for the health of her parents, especially her mother who had been admitted various times to hospital due to heart problem.  It was said her worry had probably caused her to remain sick so as to stay home to take care of the parents.  The other intervening cause was related to interpersonal conflicts which was not related to the accident.

48.  Dr Chan opined that her psychological problem then was not attributed to the accident.

49.  He said further that her complaint of chronic pain and account typical of PTSD, both of which was difficult to find objective tests to support or rule out but from her diary, she does not have the symptoms typical of PTSD and Dr Chan said even if she had such problem by October 1998.  She would have recovered and this did not contribute to permanent disability.

50.  He suggested psychometric tests to differentiate whether her complaints were consciously faking or hysterically exaggerating, the same to be performed by clinical psychologist.

51.  In view of the faking objective signs in Dr Chan’s report and analysis of plaintiff’s behaviour by Barkemeyer-Callon-Jones Malingering Detecting Scale, Dr Chan viewed that plaintiff has probably exaggerated her symptoms and he doubted how much of her alleged pain was genuine.  He substantially decreased his assessment of her disability to 5% awarded to residual pain that was presumably present.

52.  Professor Peter Lee, consultant clinical psychologist of University of Hong Kong had on 23 August 1999 compiled a report after psychological assessment of the plaintiff on instructions of the employer of the plaintiff as well as Citybus Limited.

53.  It was said that plaintiff was again injured in another accident on 30 September 1996 when she alighted Citybus and had her arms trapped between 2 doors.

54.  Strangely the second prior accident was not mentioned in any of the psychiatric expert reports prepared prior to this report by Professor Peter Lee.

55.  Professor Lee in his report said plaintiff had impressed him as overly dramatic, exaggerating, blunt, insensitive and childish in her behavior and social demanour.  Her mood was described to be erratic and histrionic.  She was calm at one moment but become emotionally agitated, shouting and crying (although without tears) at another.  She was also apparently able to calm herself down rather abruptly and dramatically and was able to embark on her extensive list of complaints.

56.  Professor Lee had 2 interviews with the plaintiff and a separate interview with parents of the plaintiff.  Plaintiff, he observed, had sufficient attention and concentration and her cognitive and intellectual functions were intact.  Long term and short term memory was also not inpaired. There was no obvious sign of undue anxiety except that she was easily agitated.  She said she was very unhappy since the accident and injuries and she saw herself as being victim of suppression and exploitation and she self-pity herself.  She is also highly suspicious of other people’s intention but such suspicion had not attained the clinical intensity of a psychiatric paranoid disorder.

57.  Professor Lee opined that the multiple complaints and unresolved problems of the plaintiff all arise as a result of multifarious combination of aetiological factors.  He analysed the case of the plaintiff in detail in his report and had also summarized his expert view in paragraphs 4, 5, 6 and 7 in his report.

58.  The same reads as follows: -

“4. I have little doubt that Ms. Ho suffers much emotional and psychological anguish. In the process of trying her utmost in presenting herself as a victim instead of looking into and dealing with her own weakness and problems, she becomes successful in convincing herself that she is indeed a victim. Her symptoms serve to vindicate for her the long chain of perceived hurts and rejections she had received in the past. I see her present incapacity as being caused and maintained by at least several factors:

· Her pre-existing personality weaknesses and interpersonal difficulties which were aggravated by her increasing work and interpersonal difficulties coinciding with her alleged accident and injury;

· The continuous focus and attention given to her in the process of the litigation process;

· Her deliberate and conscious exaggeration and fabrication of her symptoms;

· An underlying factitious disorder with predominantly physical signs and symptoms.

Factitious disorders are characterized by: intentional production or feigning of physical or psychological signs or symptoms; the motivation for behavior is to assume the sick role; external incentives for the behavior are absent)

In Ms. Ho’s case, apart from her conscious motivation for monetary gains, she is also psychologically motivated by her underlying personality difficulties and her intense desire to seek redress “for being a victim of unfair treatment, interpersonal rejection and redicule”.

5. The element of malingering and deliberate exaggeration of her symptoms was clearly evidenced in the very marked inconsistencies in her presentations throughout my assessment of her. To give a few examples:

· Ms. Ho claimed that she had intense pains even on breaching too hard or on speaking. However, throughout my two sessions of assessment with her, she was clearly able to speak fast and loudly without manifesting or complaining of any signs of distress or pains.

· Ms. Ho’s self reported daily life activities consisting of vigorous daily exercises of at least an hour each morning including jogging, doing push-ups, and swimming are certainly not compatible with her complaints of prolonged and incessant physical ailments.

· Ms. Ho was apparently rather unconcerned about her reported symptoms of faintness and sudden attacks of body weakness with little manifestation of anxiety or fear. She seemed even to take gratification from the fact that she could always call on an ambulance to take her to hospital.

· In contrast to the majority of patients who had to visit the hospital Accidents & Emergency Departments for emergency medical care, Ms. Ho presented with little sense of dread or apprehension.

· In contrast to the obvious dramatization and exaggeration in talking about her symptoms (e.g. vomited at least four bowls of green vomit! She was not able to walk for a few months after a lumbar puncture); Ms. Ho seemed to be more interested in convincing others that she indeed had distressing symptoms rather than interested in dealing with the symptoms themselves.

· Ms. Ho’s MMPI results were clearly indicative that she was deliberately faking bad with an almost indiscriminate endorsement of any item which suggests of being a symptom and a problem.

6. In sum, I feel that an apparently minor office incident was probably blown beyond all proportions as a result of involving someone like Ms. Ho who herself had major personality inadequacies and problems who found herself working in the midst of a perceived hostile and unsupportive interpersonal working environment. The prolonged litigation process together with multiple and inappropriate use of medical attention and resources have served to further prolong and perpetuate Ms. Ho’s conviction of herself as a victim and deserving of a dramatic redress in the form of compensation and personal vindication.

7.  I do not feel that Ms. Ho in her current condition would benefit from any psychological inputs or therapy. Likewise, I feel that any further vigorous medical attention on Ms. Ho’s multifarious complaints would be misplaced and serve only to prolong her incapacitation and unending complaints.  Ms. Ho is unlikely to admit to any significant progress in her condition as long as her litigation is ongoing. However, some individuals with Ms. Ho’s personality and psychological makeup may continue to manifest a degree of psychological impairment even with the conclusion of the litigation and compensation procedures.”

59.  I find his expert report very useful to this court.

60.  According to the medical report dated 8 June 2010 by Dr Chan Man Chak, Resident Specialist, Department of Psychiatry, PYNEH, when plaintiff was seen for psychiatric assessment on 9 March 2006, ie the day after the subject accident, her mental state examination showed that she appeared calm and settled.  Her mood was said to be not overtly depressed.  She was comfortably reading books.  Her speech was relevant and coherent.  Her psychiatric treatment was sustained and the outpatient appointment was arranged on her discharge.

61.  It was said that for few years prior to this report in June 2010, plaintiff’s mental condition remained fairly stable with treatment although there were fluctuation of mood, the same was associated with various social events such as pain symptoms, being unemployed and difficulties in handling legal procedures.  She appeared depressed when talking of court hearings.

62.  Plaintiff was diagnosed to have somatoform pain disorder and she was treated with medication but plaintiff sometimes defaulted in follow up.

63.  Another report was prepared by Dr Ho Chun Sek of Paterson Medical Centre.  Dr Ho said when plaintiff consulted them on 16 March 2006, she mentioned she had sprained injury of bilateral knee.  On 8 March 2006 when she was bonding a taxi.  She said she had bilateral knee joint severe pain and numbness and said she cannot walk.  On examination, he found tenderness over bilateral knee joint and the right side more severe than the left side redness, swelling and bruising over the right knee joint and reduced range of movement.

64.  Dr Ho said on 22 March 2006, plaintiff complained further of right ankle pain.

65.  She was later referred to orthopaedic expert.

66.  Dr Amy Lau in her report dated 15 June 2006 set out the result of the MRI right knee (plain) result which indicated major ligaments were intact with no significant tear or sprained injury and no meciscal tear was detected.

67.  Dr Wan Siu Ho for chief of services, department of O & T of PYNEH in his report dated 28 June 2007 said when plaintiff was first admitted she claimed her right knee was injured while she got onto a tax.  There was, on physical examination, diffuse right knee pain and tenderness with decrease range of motion.  There was no swelling or bruising detected.  There was no evidence of associated injury to ligament and the anterior and posterior drawer tests were negative.  Pain and range of motion improved and plaintiff was discharged on 15 March 2006.  She was then able to walk unaided but plaintiff insisted to purchase a walking stick for ambulation.  She was diagnosed with right knee sprain injury.

68.  MRI was performed on 14 June 2006 and 24 November 2006 and there was no evidence of any structural abnormality inside her knee.

69.  She was referred to pain clinic for management.

70.  It was said on 21 June 2007, range of motion of her right knee was full.

71.  It was mentioned in the report that plaintiff had already resumed her duty as a piano teacher.

Medical expert evidence in the present case

Psychiatric

72.  Parties have adduced a joint psychiatric report prepared by Dr Benjamin Lai for the plaintiff and Dr Singer for 2^nd defendant dated 11 August 2010 subsequent to an examination on 23 July 2012.

73.  Whilst they agree on the use of DSM-IV for diagnosis and history and examination (except where indicated), they disagree on the rest, in particular the diagnosis.

74.  Dr Singer said the plaintiff had serious depressive complaints and anxiety complaints associated with the subject accident in apparent response to the subject accident, consequent to the right knee sprain injury, she complained of severe knee pain, impaired ambulation, inability to play and teach piano, violin and accordion, and worry about impaired occupation functioning and earning capacity.

75.  He said adjustment disorder (AD) with depressed mood and post traumatic stress disorder (PTSD) need be considered.

76.  In deciding on the credibility of the plaintiff, Dr Singer had from page 47 to page 55 of his report set out how the pain suffered by the plaintiff was not supported by any objective signs.  He said in report of Dr Wan, although it was said that on admission, there was diffuse knee pain, the objective signs of bruising and swelling were absent.  The anterior and posterior signs were also absent and so there was no evidence of ligament injury.

77.  X-ray and MRI examination result also did not suggest any structural abnormality in her right knee.

78.  He said further that there was lack of psychological causation for her adjustment disorder because the injury was minor and there was no evidence of adequate physical lesion.  Soft tissue injury (if any), he said, if existed, should have healed long ago and could not have caused AD for 4 years.

79.  He also noted a lot of discrepancy between her complaints to different doctors and the findings in the medical reports eg her ambulatory ability on discharge from hospital, she said she could not walk except with support and was not allowed to get out of bed, was asked to immediately buy a walking stick whereas the report from Dr Ban said she could transfer and walk independently whilst her stay in hospital from 8 March 2006 (ie date of accident) to 15 March 2006.  On discharge, she could walk unaided but she insisted to buy a walking stick.

80.  Plaintiff said she was unemployed since 2 months after the accident whereas she told the treating doctors in PYNEH that she had resumed her duty as piano teacher.

81.  Dr Singer said her complaint of severe depressive mood was inconsistent with her normal mood and on the cheerful side when examined by the psychiatrists and her normal mood when admitted to the physical examination lasting for 3 odd hours, the plaintiff did not appear to be affected by any pain expression.

82.  This complaint of severe knee pain was also inconsistent with her saying that she regularly jog.

83.  At time of subject accident, she was still continuously treated for her pre-existing psychiatric condition though plaintiff said she had already recovered fully from the prior accidents.  Record showed that her last attendance 3 months ago, she had been prescribed psychiatric drugs on follow up.

84.  Dr Singer said in fact her non-accident related problem had also caused unhappiness to her, however the same did not amount to depressive disorder. This explained why she weeped in the interview when talked of illness of her elder siblings.

85.  Dr Singer concluded that plaintiff had mild depressive symptoms at times, not amounting to a diagnosable AD, PTSD or other psychiatric disorder and the same was not caused by the subject accident, but was caused by non-accident related and pre-existing factors.  In fact, the plaintiff had attended the psychiatric clinic in the public sector at the same frequency and for the same type of treatment before and after the subject accident.

86.  Dr Singer also found the plaintiff exaggerating and that her complaints might not be genuine.

87.  He disagreed to the plaintiff suffering from somatoform pain disorder, as diagnosed by the public sector psychiatrist.  He said there must be psychological factors which caused the disorder and the same was absent in the June 1995 cabinet accident as it caused “no definite physical abnormality” to amount for any psychological factors which could give rise to the pain disorder.

88.  Dr Benjamin Lai, psychiatric expert appointed by the plaintiff said he noted that after the subject accident, the plaintiff had continued to receive treatment from the psychiatric clinic.  The follow up interval had been fixed at shorter interval from 16 weeks to 9 weeks.  She was also referred to a clinical psychologist, the last consultation from clinical psychologist took place some years ago.

89.  Dr Lai thought it is compatible that plaintiff has suffered from adjustment disorder with depressed mood (DSM-IV code: 309.0).  The same is a psychiatric condition with emotional and/or behavoral symptoms in response to an identifiable stressors.  In this case, the same consisted of negative feelings of the carelessness of the taxi driver, physical disability following the accident, impaired ability to cope with her work, being laid off from work, unemployment and stress relating to litigation.  He said it was likely that the ill-health of her elderly parents and the need to take care of them had been predisposing factors to her, such that any disability that threaten her ability to take care of them may create a greater psychological impact on her.

90.  Dr Lai noted that even before the accident in December 2005, she had difficulty in coping with the work and therefore any disability would put her to stress making it more difficult for her to work.

91.  Dr Lai admitted it would be difficult to tell if the plaintiff would stop the psychiatric medicine and treatment if there were no subject accident. He said the subject accident had led to development of new psychiatric conditions.

92.  In relation to the doubt raised by Dr Singer regarding the genuineness of the complaints of the plaintiff and/or her credibility, Dr Lai said he was aware of absence of severe degree of underlying physical pathology, discrepancy between information from medical documents and her current psychiatric complaints.  He think it was likely that the plaintiff tended to give a positive answer when she was asked about presence of a symptom, discrepancy between her complaints and the current observations.  Dr Lai said it likely that the complaint of severe depressed mood was only a subjective complaint as her psychiatric symptoms persisted despite sufficient period for recovery of her physical disabilities.  He explained that although the physical injury was minor, it might be that the plaintiff still had the negative feelings towards the taxi driver coupled with her concern for her family members.  These contributed to the perpetuation of her psychiatric symptoms.

93.  Dr Lai further said plaintiff had been cooperative at the interview and this did not support malingering.

94.  He concluded that it was likely that the plaintiff did not make appropriate representation of her psychiatric condition to the doctors or she had tried to depict a worse picture of her conditions to the doctors for the purpose of the examination.

95.  Dr Lai said that he believed it was compatible for plaintiff to suffer from development of psychiatric symptoms after the subject accident and based on the symptoms she had suffered from an adjustment disorder with depressed mood as a result.

96.  As for prognosis, Dr Singer said it was good.  With psychiatric treatment given to the plaintiff after the present proceedings was disposed of, plaintiff would be left with no psychiatric symptoms.

97.  Dr Lai also opined that in view of the mild nature of physical injury, he believed the psychiatric symptoms arising from adjustment to the subject accident should improve further with treatment and conclusion of the proceedings.  Only minor adverse effect or residual psychiatric symptoms are expected.

98.  As for treatment, Dr Singer suggested psychotherapy and that the same in private sitting would be $1,500 per half hour session and he suggested plaintiff to have 6 sessions at intervals of 2 weeks.  The same is also available in public hospital at $100 per session.

99.  Dr Lai suggested both medicine and psychotherapy.  He said plaintiff can continue to receive the same from public psychiatric clinic once in 4 to 6 weeks which cost $200 per session.  A course of 10 sessions of psychotherapy was suggested arranged at 1 session per week initially.  He said in private sector, the same last $2,000 per session of 45 minutes and in public hospital, the same costs $100.  He said treatment can be terminated within 6 months after conclusion of the present proceedings.  Both Dr Singer and Dr Lai assessed the permanent impairment of whole person to be 1% before treatment and 0% after treatment and 1% for loss of earning capacity.

100.  Both psychiatric experts consider plaintiff able to return to her pre-accident job (if her physical condition allowed).

101.  Dr Singer however finds sick leave for the psychiatric disability unnecessary and for Dr Lai, he said he was not aware that sick leave was given to the plaintiff for her psychiatric condition.  He would be willing to endorse few weeks of sick leave on psychiatric condition of the plaintiff.

Orthopaedic

102.  Dr Li Wing Kin plaintiff’s orthapaedic experts in his report dated 13 April 2007 concluded that plaintiff had inflammation of soft tissue and her right knee at the time but the same was not serious.  He also commented that the responses to the tests by plaintiff as displayed was out of proportion to the pathological entities that could be identified.  She showed undue hyper-vigilance to pain and coldness.  He said her responses were affected heavily by psychological overlay and are compatible to result of plaintiff’s PTSD.

103.  Dr Li said plaintiff will have limitation in walking long distances and stairs or carrying too heavy loads or even performing heavy household duty such as cleaning floor or going to supermarket shopping too much.  Her recreational activities were also disturbed significantly as she stopped all sports except swimming.  He considered plaintiff having suffered mild to moderate degree of impairment in her daily life activities but he said the expected impairment that arise from the identified pathology was 5% of whole person impairment.

104.  As for loss of earning capacity, he said judging purely from the orthopaedic view point, he considered plaintiff having mild to moderate degree of work disability induced as a result of the subject accident.  He assessed the plaintiff as having 5% loss of earning capacity.  He also approved the sick leave from 8 March 2006 to 12 April 2007.

105.  Dr Li said plaintiff could return full time as a music teacher but it would be difficult to predict how long it would take her to achieve this goal as her behavior was heavily and adversely affected by her psychological state.

106.  Dr Danny Tsoi, 2^nd defendant’s orthopaedic expert in his report dated 16 July 2008 said plaintiff had only suffered minor soft tissue sprained injury of her right knee in subject accident.  MRI had been preformed 2 times on the right knee and there was no evidence of structural abnormality inside the knee joint.

107.  Plaintiff denied having right knee problem in year 1996 as recorded by Dr Ban of PYNEH.  She was assessed to be suffering from post-traumatic neuralgia.  The injury concerned different areas and not affect the assessment of disability resulting from the subject accident.

108.  Dr Tsoi said the findings of Dr Ho, a private doctor from Paterson Medical Centre, on 16 March 2007, ie day after plaintiff was discharged, found swelling and redness over the right knee of the plaintiff and reduced range of motion of right knee was inconsistent with the findings by PYNEH on discharge the day before and Dr Tsoi could not rule out another injury to the site after discharge.

109.  Plaintiff told Dr Tsoi that she could not walk unaided and could not resume teaching.

110.  Dr Tsoi said that the plaintiff had received treatments from few other orthopaedic specialists and also undergone physiotherapy treatment but with slow progress.  Dr. Tsoi said, this could not be explained by orthopaedic means in the absence of documented structural injury.

111.  Dr Tsoi said during examination of the plaintiff, he noticed a lot of inappropriate signs.  He said active range of motion revealed very limited flexion of knee, however when attention was distracted, plaintiff could at least flex her right knee to ˃ 110˚.  Further though the plaintiff demonstrated generalized weakness of entire right lower limb, there was no muscle wasting nor neurological deficit that could explain such weakness.  The absence of muscle wasting suggested that plaintiff could use her right lower limb for normal ambulation.

112.  Dr Tsoi also disagreed to the diagnosis of post-traumatic complex regional pain syndrome or reflex sympathetic dystrophy suggested by plaintiff’s two other treating orthopaedic surgeon, Dr Fang and Dr Ko.  He said on physical examination of the plaintiff, there was no signs so suggesting.

113.  He opined that the right knee and lower limb condition was much better than she described and demonstrated.  She was therefore either exaggerating her disability or the pain was psychological in origin.

114.  He said more likely, the plaintiff only suffered very minor soft tissue sprain injury of her right knee and she had recovered satisfactorily.  No further treatment was required and follow up was not necessary.

115.  He suggested plaintiff be further assessed by psychiatrist to see if she was malingering or suffering psychological pain.

116.  He assessed the residue arising from soft tissue injury of the right knee to be not more than 1% permanent impairment of the whole person and that orthopaedically, she can return to her job teaching violin and piano in full capacity.  Her employability was not affected and there was no loss of earning capacity is expected.

117.  He said for simple sprained right knee without structural damage, sick leave should be limited to three months.

118.  He added further that residual knee discomfort, if any, would not affect her daily living activities, ambulatory capacity and enjoyment of life.  She had no problem even wearing raised heels shoes.

Tape played in court

119.  The surveillance tape taken on 6 December 2007 was adduced by 2^nd defendant played in court.  It showed that plaintiff though, holding the walking stick, was walking briskly, and for most of the time, the stick was either in the air or was not leaned on by the plaintiff for support whilst walking.  The plaintiff was seen leaning forward against the glass cabinet of a jewellery shop doing window shopping.  She also managed to squat at least 2 times and maintained in this position for quite a long time and was also able to get up after that, unaided and without any problems.  There was no expression of pain evinced throughout the tape.

120.  During the surveillance, the plaintiff was carrying a big racksack at her back.  At one time, she was seen putting the racksack on her back whilst walking without stopping.

121.  In fact, according to Dr Michael Tsang, the clinical psychologist appointed by plaintiff’s former solicitor, on different examination dates, plaintiff was seen carrying the rachsack on her bag and she was walking with normal gait and did not appear depressed.

122.  This showed at least on 6 December 2007, she did not really have a problem in ambulation.

123.  This contradicted most of her present complaints in the Revised Statement of Damages.

124.  The severity of the effects of the right knee injury as depicted in the Revised Statement of Damages was exaggerated out of proportion from what we saw on the tape shown in court.

125.  If she could go shopping, there was no reason why she would not go to church services as she claimed.

126.  On her own evidence, she could jog and swim, and such, there was no reason why she could not enjoy movies or concerts.

127.  Again on evidence before this court, one could not agree that the plaintiff could not play piano because her right foot cannot engage the pedal.

128.  In my view, the injury from the subject accident might have delayed her taking music courses or examinations but it certainly should not affect her ability to return to these matters shortly after the accident as the recovery of the injury should only take few months as it was very minor, according to most treating doctors and experts.

129.  Bearing in mind the psychiatric reports of Dr Chan and Dr Yu covering the prior accidents, the lasting adverse effect of the subject accident on the plaintiff must be minimal.

130.  As said, I prefer the evidence of Dr Tsoi and Dr Singer and their assessment of the lasting effect of the subject accident on the plaintiff.

131.  According to them, the permanent disability on the whole person orthopedically and psychiatrically is only 1% and 1% (if without further psychiatric treatment) or 0% (if treated psychiatrically further) respectively.  It is said there is no loss of earning capacity for the orthepaedic aspect of the injury and only 1% for the psychiatric aspect of the injury.

132.  Again, I do not accept plaintiff’s saying in paragraph 33 of her witness statement where she said at time of accident, she was a full time tutor teaching violin.  Documents from these employers had provided her saying as incorrect.  She was only teaching for small numbers of hours per month.  What the plaintiff said in paragraph 33 was incorrect as documents really showed she was still employed by the same companies before and after the subject accidents.

133.  As shown on the tape, her claimed disability ie inability to squat or cannot stand for 20 minutes just was not true.  She also said she could not sit for more than 45 minutes teaching piano.  In court however, she sat for several hours without any expression of discomfort or pain and she did not ask for short breaks during the few days of assessment hearing.  In any event, there is nothing to prevent a piano teacher changing her posture during lessons.

134.  As said by Dr Michael Tsang in his report dated 16 October 2007 the plaintiff also sat for few hours during his examination without showing any pain or discomfort.

135.  There was simply nothing evidencing her allegation that she was a full time music teacher before the accident or that she was earning anything near $10,000 per month as a music teacher, let along “few tens of thousands” as she told the psychiatric experts in this case.

136.  From her conduct/performance on court, I do not agree that she need a special chair if she should in future take violin examinations.

137.  According to Dr Tsoi, there is nothing to prevent the plaintiff wearing raised heel shoes which I accept and so what she said in paragraph 36 of the Revised Statement of Damages would not happen.

138.  As mentioned earlier, the tape showed she could squat and therefore the allegation of the plaintiff in paragraph 37 and paragraph 40 of the Revised Statement of Damages could not be maintained.

Plaintiff as a witness

139.  It was said by Mr Sakhrani, counsel for the 2^nd defendant that the plaintiff was evasive in answering questions where the answers might be adverse to her, that her evidence was inconsistent.

140.  In the report of Dr Li Wing Kin, plaintiff’s own appointed orthopaedic expert dated 13 April 2007, the plaintiff’s pre-accident monthly earnings from her job as a music teacher was said to be $10,000 to $12,000 per month on an average.  She said she earned only $1,500 on an average after the accident.

141.  However, when plaintiff was assessed by Dr Danny Tsoi, the orthopaedic expert appointed by 2^nd defendant on 14 January 2008, she told Dr Tsoi that she had been a full time piano and violin teacher for more than 10 years.  She also told Dr Tsoi that for 2 years, ie since the subject accident, she had not been able to teach piano.

142.  In the Revised Statement of Damages dated 30 November 2010, she described her occupation at time of accident as “property management/music teacher” and occupation after the accident as “music teacher and tutor (part time basis)”.  Her pre-accident and post-accident monthly salary was said to be $15,000 and $800 respectively.

143.  In the Amended Revised Statement of Damages dated 14 September 2011 prepared by the plaintiff as her updated Revised Statement of Damages, plaintiff said at time of accident, she was a private music teacher teaching violin for several companies and earning monthly of $16,000 on average and that after the accident, on expiry of the sick leave and up to trial, she earned only $6,000 per month.  She said after trial, she expected to earn not more than $12,000 per month and therefore there would be a monthly loss in income of $4,000.

144.  It is noted that upon enquiry with the Inland Revenue Department on 6 October 2006, the solicitors for the plaintiff was informed that the plaintiff had not filed any tax return for 5 years prior to the enquiry, ie from 7 October 2001.

145.  Further it is noted that the plaintiff was granted certificate for wavier of charges for the medical treatment she received from Hospital Authority between 7 September 2005 to 8 December 2010 (defendant’s trial bundle page 224 to page 245).  It is doubted that had the plaintiff been earning $16,000 per month, how could she be so entitled.

146.  When plaintiff was assessed by the psychiatric experts in the present case, she told them she was a piano teacher at time of accident and that at time of assessment on 23 July 2010 she was unemployed.

147.  When assessed by Dr Danny Tsoi, she told him she was unemployed at time of assessment, ie on 14 January 2008 and that for more than 10 years prior to the accident, she was a full time piano and violin tutor.

148.  Further, when interviewed by the psychiatrists in the joint examination, she told them that she had been a full time violin tutor in a music company earning several tens of thousand dollars a month.  She said since the accident, she had not worked because solicitors of the defendants rang and checked with the music company her income.

149.  She said she could have worked in property management, maintenance and security earning $8,000 to $9,000 per month if she did not have her leg problem or she could work part time.

150.  Plaintiff said in her witness statement dated 19 May 2009 that she had been a part time music teacher since she graduated from Form 5 and before the prior accident in year 1995.  She said since year 2004, she had switched a number of jobs, as student assistant, cashier in canteen, property management assistant, valuer and estate agent of landed properties, secretary.  She said each time she was dismissed after working for short period.  She had registered also with the job placement section of the Labour Department.

151.  She said 1 odd month before the subject accident, she was employed full time as a tutor by various companies earning $12,000 per month on average.

152.  I cannot understand really how a person could be full time tutor in various companies at the same time.

153.  In any event, there is no documentary evidence tendered by the plaintiff to prove that her pre-accident income is $12,000 per month or several tens of thousands.  There was no bank statements, letters from employer etc to such effect.

154.  In witness statement of the plaintiff dated 19 May 2009, plaintiff said PYNEH on her discharge did ask her to buy a walking stick for ambulation.  This saying contradicted the medical records of the hospital that the plaintiff could walk independently unaided on discharge.

155.  A day after the discharge from hospital the plaintiff did present herself and told Dr Ho of Paterson medical practice that complained that she had bilateral knee injuries.  In x-examination, she denied having made such complaints and denied she had problem with her right ankle.

156.  As said by Dr Danny Tsoi, it was in direct contradiction or inconsistent with the medical records of PYNEH, previous complaints of the plaintiff and prior findings.  Dr. Tsoi said it was likely that there was another accident subsequent to the discharge from hospital.

157.  I agree that only the right knee injury was related to the subject accident.

158.  Despite her alleged fear of riding in a taxi, in this witness statement, she admitted taking the taxi for medical consultations to the bonesetter.

159.  In paragraph 19 of the plaintiff’s witness statement, she said 2 months after discharge from hospital, psychiatric treatment was arranged for her at PYNEH until date of her witness statement.  This was not quite true because she did not mention that she had in fact for few years prior to the subject accident been receiving psychiatric treatment from the hospital.  In fact, she had a psychiatric assessment the day after the subject accident ie 9 March 2006.  Although in x-examination, plaintiff said the assessment had nothing to do with the prior accidents but was related to the subject accident, I have reservation to accept that.  Clearly the appointment was fixed much earlier.

160.  Nevertheless, it did not really matter because according to medical records, she was no doubt still receiving medications for her psychiatric condition in December 2005, shortly prior to the subject accident.

161.  In court, she was asked many times when was the time she returned to work after the prior accident in 1995.  It took a lot of questioning for her to reply.  After a long pause, she said she worked part time in year 2002 and full time for Polytechnic in year 2003.  When asked why she said in her witness statement that she worked as part time music teacher in year 2004, she said that was incorrect and that her former solicitor did not let her read after he prepared the witness statement and before she signed.

162.  Despite plaintiff herself admitting to job switching in the period prior to the subject accident in year 2006, she disagreed to the question put to her by Mr Sakhrani that before March 2006, the plaintiff was incapable of finding and holding onto a job for long.

163.  Again when she was x-examined that she was not correct in telling Dr Tsoi that prior to the subject accident, she had been working as a full time piano and violin tutor for 10 years, she disagreed and said she had been so teaching since she graduated from Form 5.  The problem was how could she have been working as a music tutor full time for 10 years when she had all the changing of jobs including the full time job at Hong Kong government and hang Seng Bank?  It is clear that she had not been forthcoming in admitting her wrong. She even continued and said that when she was still injured because of the subject accident, she was teaching piano.  This again contradicted her saying that because of the knee pain, she could not step on the pedal and play piano.

164.  In court, she said after the subject accident, she gave music lessons intermittently whilst in wheelchair.  She said she took the taxi to travel. This showed that even if she feared rides in taxis, the said fear was not significant.

165.  Again she was evasive when asked about the frequency of her giving music lessons before and after the subject accident.  Despite asked, she did not answer but just uttered something irrelevant not answering the question.

166.  When asked if there were documents supporting her pre-accident monthly earnings of $10,000 to $12,000, she replied that she had applied for traffic allowance making up to monthly earnings $12,000.  She agreed she did not have any evidence in support of this contention.  She said further when x-examined that because she did not have a steady job, she did not file tax return with the Inland Revenue.  She said she was always paid in cash.

167.  In court, questions were put to the plaintiff that in fact after the subject accident, she was, according to the letters from the music companies disclosed by the plaintiff herself, earning more than before the accident. Plaintiff agreed but she said she needed to take the wheelchair and the taxi, thus incurring more expenses.

168.  From the records disclosed, the income of the plaintiff as a music teacher was not affected by the subject accident.  The monthly earnings subsequent to March 2006 was more than that of and prior to March 2006.

169.  Plaintiff against failed to answer the question put to her regarding her saying to the psychiatric experts preparing the joint report that she was earning per month several tens of thousands of dollars as a music teacher, whether she was actually earning so much.  Instead she replied her total income as a music teacher was about $10,000 per month.  Then, after a long pause, she changed her evidence and said she had at one time earned so much a month.

170.  In court, plaintiff denied that her right foot was injured apart from right knee.  If one, however read the Amended Revised Statement of Damages dated 14 September 2011 which the plaintiff said was prepared by her, it read “para 2.1.1 injury to the right knee and foot”.  Plaintiff on being further asked agree that her right foot was not injured.

171.  Plaintiff disputed the medical records of PYNEH which said on discharge she could move around independently and unaided.  She said the hospital records was incorrect, and that actually she needed 2 persons assisting her when she walked and she also needed the wheelchair.

172.  When asked as to why one day after discharge Dr Ho of Paterson Medical Centre said she had bilateral knee pain, plaintiff replied she had just told him right knee injury.  She did not explain why Dr Ho had such mistake.  In fact, Dr Ho said in his medical report that plaintiff complained of bilateral knee sprain injury and severe pain and numbness.  He also found redness swelling and bruising which was absent the day before as found by Dr Ban of PYNEH.  When asked if plaintiff did create the redness and swelling herself before she went to see Dr Ho, plaintiff explained that she might have allowed the Chinese medicine put on the right knee by the bonesetter for too long as she wished to get a quick recovery.

173.  Plaintiff was asked why she had to consult 3 different orthopaedic surgeons upon her discharge from hospital for such simple sprain right knee injury, she said because of the severity of pain, she needed treatment to relieve the pain.  She said Dr Ban is not a specialist, she also said one doctor refused to treat her after one consultation and the other said he was busy and the diary was full.

174.  Plaintiff was also questioned as to why in the hospitalization period she never had nightmare of the subject accident and yet on the first day after discharge, she had nightmare (as she made such complaint).  She replied that nightmare was not immediate and would come afterwards.

175.  In answering this question, plaintiff further said for few months, she could not work and she was worried about the injury.  Yet she herself had produced documentary evidence from the music companies showing her income in the post accident period, covering April, May and June 2006 which indicated she had worked in these months immediately after the subject accident.

176.  Plaintiff was x-examined why could she only tell of her fear riding in taxi for the first time when examined by the psychiatrists, she said she had earlier told Dr Chan she had such fear though the same was not recorded which was not her fault.  But why would all the other treating doctors and medical reports fail to include it in their numerous reports if they were told.  Were they actually told of this fear?

177.  Further, according to the plaintiff’s evidence in court and in her witness statement, she had been taking taxi to teach music lesson and to visit the bonesetter.  As said, her fear, if exist, definitely was not affecting her significantly as she claimed.

178.  Plaintiff when questioned agreed that she was not placing weight on the walking stick on the day the surveillance tape was taken.  She agreed she went shopping that day for gift for her mother as well as bread, vegetables etc for the family.

179.  This contradicted the Amended Revised Statement of Damages where she said she could not do shopping for the family.

180.  There is no doubt in any mind that the evidence of the plaintiff is not reliable.  As demonstrated above, her complaints to the doctors was inconsistent and different.  Even her own expert Dr Lai agreed that she was trying to impress others of the severity of the accident injury and that it would be unreliable to relay on her subjective findings in making the assessment.  As said by Mr Sakhrani, this is a damaging assessment by her report on the reliability of her evidence.

181.  When Dr Lai diagnosed adjustment disorder, he had relied on her bare assertions.  At page 58 of the report, he wrote “based on her symptoms …” and at page 65 he expressly said he relied on her symptoms to diagnose.  It follows therefore if her complaints were not genuine, as now shown, the diagnosis would not be safe.

182.  Mr Sakhrani also pointed out further inconsistency in evidence of the plaintiff.  Although it was noted in joint report of Dr Singer and Lai that post-accident the plaintiff said she lost 20 odd pounds and did not regain the lost weight.  This was not mentioned in any of the hospital reports nor in the plaintiff’s own witness statement.  When cross-examined about the genuineness of this assertion, the plaintiff merely responded that the hospitals did not measure her weight.  When she was pressed to explain why Dr Chan Man Chak from the Department of Psychiatry of PYNEH, who last saw the plaintiff in March 2010, did not mention any weight loss in his report dated June 2010, again, the plaintiff responded by saying that it was the doctor’s fault because “I tell them ten things, but they won’t put it all down;” and in the joint psychiatric report, it was stated that the plaintiff, as a result of the 1995 accident, suffered severe pain which persisted till 2003, and that she was depressed, had insomnia (which she denied in court), had nightmares of the accident, loss of energy, and suicidal ideas (which she denied in court).  She also claimed that in the three years before the 2006 accident she had no mental problems.  Yet, the Certificate of Waiver of Medical Charges issued by the Department of Psychiatry demonstrates this is unlikely to be true.

Conclusion

183.  In this case, the court was assisted with numerous medical reports.  I find particularly the joint psychiatric report by Dr Singer and Dr Lai, the orthopaedic reports by Dr Danny Tsoi and Dr Li Wing Kin and the psychiatric reports prepared by Dr Chan and Dr Yu way back in the year 1998 and 1999  and medical report by Dr. Ban of PYNEH useful.

184.  It is not disputed that the plaintiff here met 2 accidents before the subject accident and that as a result, she had been receiving psychiatric treatment prior to the time of the subject accident.  Although she said she had fully recovered within the 3 years prior to the subject accident, which appeared initially to be accepted by Dr Lai who later qualified the same by saying it could be difficult to tell if plaintiff could stop the psychiatric medicine and treatment if the subject accident was absent.  It also remains a fact that 3 months prior to the subject accident, in December 2005, the plaintiff attended psychiatric follow up and had received psychiatric medications.  If she had indeed recovered, why would the doctor give her the medication and why would she take them?

185.  I do not accept that the plaintiff at time of subject accident was mentally sound.

186.  If one considers the psychiatric reports of Dr Chan and Dr Yu and the history of treatments received by the plaintiff throughout the years up to the subject accident, it is clear that she was still suffering from psychiatric aftermath of the prior accidents and receiving psychiatric treatment, including medication up to the time of the subject accident.

187.  As said by Dr Singer in the joint psychiatric report, it was apparent that the mild depressive symptoms of the plaintiff was not of such weight as to give rise of PTSD or AD nor other psychiatric disorder.

188.  The analysis by Dr Singer in his report was very helpful and I prefer his expert evidence to that of Dr Lai.  He had explained at length as to how he aimed at his diagnosis, making reference to findings and diagnosis of different treating doctors and court experts over the years, result of x ray and MRI investigations and the observation of the plaintiff during the examination.

189.  On the other hand, Dr Lai whilst admitting that the plaintiff had still been receiving psychiatric treatment at time of accident seems to support saying of the plaintiff that she had fully recovered from her psychiatric condition and by saying the subject accident had resulted in new psychiatric conditions. He had tried to tie the subject accident to the psychiatric condition of the plaintiff with the other “predisposed factors” which are really totally unrelated to the accident but rather problems of the plaintiff herself.

190.  Bearing in mind the very minor physical sprain injury of the right knee and, in view of the background physical and mental state of the plaintiff, I have no hesitation to prefer the expert opinion of Dr Singer.

191.  Having considered the psychiatric state of the plaintiff, we now turn to consider her injuries from the orthopaedic perspective.

192.  The useful reports for consideration would be the one by Dr Li Wing Kin and that of Dr Danny Tsoi.

193.  Dr Li in his report has sought to explain the “out of proportion response” of the plaintiff to tests performed as possibly resulting from plaintiff’s PTSD.

194.  He had also arrived at his conclusion based on plaintiff’s complaint of limitation in walking long distance or carrying too heavy loads.

195.  First, as I have accepted the opinion of Dr Singer, plaintiff was not suffering from PTSD.  There was therefore no reason for her to be exaggerating her responses.

196.  Secondly, referring to the surveillance tape shown in court, though the plaintiff was carrying the walking stick in her hand, she was not using it most of the time for support.  She did manage to walk for long distance, squatting at times and also carrying a big racksack on her bag going on a shopping spree. It is therefore incorrect when Dr Li said the plaintiff could not assist in shopping or looking after her parents.  On her own admission in court, she had been buying food for the family on the day.

197.  Dr Li said plaintiff stopped all sports except swimming, but in fact, out of her own volition, she said she regularly jogged.  The assessment by Dr Li of the plaintiff is therefore not reliable.

198.  Dr Tsoi on the other hand had dealt with in depth the materials before the court, the inappropriate signs during examinations, the lack of muscle wasting when plaintiff said she had weakness of right lower limb.

199.  I have no doubt to accept the findings of Dr Li as his expert opinion are well reasoned and supported by objective signs and evidence, that her right knee simple sprain injury had recovered satisfactorily and no follow up treatment orthepaedically was necessary.

200.  I also accept his assessment of 1% permanent impairment of whole person. There is no reason why plaintiff would not return to her pre-accident job and that the subject accident does not affect her employability othopaedically.

201.  Now coming to the different heads of claim for damages by the plaintiff on her Amended Revised Statement of Damages, described as the “Revised Statement of Damages” dated 14 September 2011.

Pain, suffering and loss of amenities

202.  The plaintiff claimed the injuries and disabilities as a result of the accident as set out earlier in paragraph 7.

203.  Firstly, she admitted the injury was to the right knee, not the right foot as set out in the “Revised Statement of Damages”.

204.  As discussed earlier, I find the injuries simple sprain right knee injury which should recover within short time.  There is no evidence of structural damage to any tissue within the right knee.  All ligaments were intact.

205.  As the defence pointed out, there is simply no reliable evidence to support her claim for severe pain which caused her to faint.  The experts said orthopaedically the same should have recovered.

206.  This court had earlier set out and chose to prefer the expert evidence of Dr Singer, the plaintiff at the time of subject accident clearly was still suffering the psychiatric condition that requires medication and regular follow up.  I do not find as Mr Sakhrani put it, any convincing or reliable evidence that the subject accident caused an aggravation of any pre-existing psychiatric condition or that her psychiatric condition had all along been anything more than mild.

207.  It is submitted that as this is a minor sprain that recovered after conservative treatment, leaving only possibly mild residual pain at times, and a short period of hospitalization followed by physiotherapy with no significant lasting effect, the award under the head should be $50,000.

208.  Defence relied on the cases of Tam Wai Chun v Chor Sui Kwong unrep, DCPI 2647 of 2007, Wong Wai Hong v Woo Kin & Another unrep, DCPI 643 of 2006, Cheung Man Fu v Great Vantage Develoopment Ltd (trading as or in the name of Golden Elephant Thai Restaurant) unrep, DCPI 1165 of 2005.

209.  Here and now, the plaintiff was only expected to have mild or minimal residual pain from the accident.  I do not accept her other complaints as genuine or was the result of the subject accident for reasons said.  The pain was not as severe as she suggested.  She was, as demonstrated in the tape, able to walk with normal gait.  In fact, on her discharge from hospital, she could walk independently unaided.  That was already 6 odd years ago.

210.  The evidence of Dr Tsoi, the orthopaedic expert for the defence, said that she suffered from 1% permanent impairment of the whole person orthopaedically.  I accepted this assessment.

211.  Both psychiatric expert Dr Singer and Dr Lai also assessed the permanent disability of the whole person to be 1% before further psychiatric treatment and 0% after further psychiatric treatment.  The same are also accepted.

212.  The plaintiff was aged 38 at time of accident and presently she is aged 44.

213.  I rely on the case of Tam Wai Chun which again involved knee injury with no fracture, few days hospitalization followed by physiotherapy and residual pain which caused the plaintiff there unable to take up some sports. The award under PSLA was $80,000.  The case was decided 4 years ago.

214.  In Wong Wai Hung case, there was sprained right ankle without fracture or ligament damage.  He was discharged from hospital on same day and he received physiotherapy.  He had difficulty on squatting, heel walking, tip toe walking etc.  He was given 14 months sick leave and plaintiff was assessed to have 1.5% permanent disability of the whole person.  He was awarded $80,000 under this head.

215.  In our case here, I find the award of $100,000 appropriate.

Pre-trial loss of earnings

216.  As discussed earlier, the plaintiff gave different versions as to what her pre-accident monthly earnings was.

217.  In court, she did produce documents from the various companies where she worked giving music lessons.  The same actually showed no decrease in income after the subject accident.  The income of the plaintiff after the 8 March 2006 accident was recorded to be higher than that before, even though as a fact that plaintiff was hospitalized between 8 March 2006 and 15 March 2006.

218.  Despite what the plaintiff said, I find as a fact that the plaintiff all along was not able to maintain a full time job for long and she was just a part time music teacher giving lessons to students when she was asked to at time of the subject accident.

219.  As her evidence is unreliable, I could only rely on documents tendered by me to calculate her pre-accident monthly earnings.

220.  The same was in February 2006 $1,409.4 (ie $275 + $1,134.4) there was no evidence of income for January 2006 or December 2005.

221.  I find it fair that the plaintiff should be awarded a sum representing the income she could reasonably obtain based on the monthly income at the time of accident for the period she was hospitalized.

222.  The award under this head is accordingly $1,409.4 x 7/30 = $328.90.

223.  Although Dr Li has endorsed the 12 months of sick leave, it is a fact that the plaintiff already resumed working shortly after discharge from hospital and so there would not be any loss of income during this sick leave period.

Post-trial loss of earnings

224.  According to Dr Tsoi and Dr Singer, the expert opinion of whom I prefer, the plaintiff could return in full capacity to her pre-accident job after the subject accident.  The subject accident had no lasting adverse effect on her returning to her pre-accident job.

225.  Accordingly, I do not find there is any post trial loss of earnings going to be suffered by the plaintiff and there is nil award under this head.

Loss of earning capacity

226.  The plaintiff here only suffered mild sprain injury of right knee.  Dr Li, othopaedic expert for the plaintiff said there would be 5% loss of earning capacity whilst Dr Tsoi, the expert opinion of whom I prefer said there is 0% loss of earning capacity.

227.  As for the psychiatric experts, both said that there would be 1% loss of earning capacity should plaintiff not further psychiatric treatment and 0% should she complete the suggested psychiatric treatment.

228.  I take the view the plaintiff would not be disadvantaged in the labour market and even if she could be, the same must be mild.  Having regard to her very modest income at time of accident, I consider the award of $50,000 proposed by 2^nd defendant as sufficient.

Special damages

Medical expenses

229.  Plaintiff had produced receipts for medical treatment.  This court noted some were incurred in respect of right knee injury and right ankle injury, as the latter was not related to subject accident, as admitted by the plaintiff, the medical consultation fee would be apportioned so that leg would recoverable under this proceedings.

230.  Total medical fees and expenses awarded to plaintiff would be $15,394.

Medicine fees

231.  As for charges for purchasing medicine oil and medicine, the receipts of the same totalled $195.

Stationery and postage

232.  Plaintiff had produced also expenses for purchasing stationery and postage.  As they form part of the costs of the action, they would not be considered here.

Meals and flat heel

233.  As for fees for diaries and flat heel shoes, the consumption of the former was not necessitated because of the accident and was therefore not recoverable here.

234.  As for flat heel shoes, there is no medical evidence in support of the same being required or necessary.  The same is not awarded here.

Travelling expenses

235.  Lastly, going to travelling expenses, only those in connection with the medical treatments are allowed.  The other travelling to and from lawyers, legal aid departments and to and from medical experts for assessment would be considered part of the costs of the proceedings and would not be counted here.

236.  Accordingly, only those shown to be the receipted and recoverable travelling expenses under this head would be awarded.

237.  The sum of $15,394 is awarded under this head.

Future medical expenses

238.  The only medical expenses are those relating to the recommended psychotherapy which costs $100 per session in public hospital and $1,500 per session in private setting.  Dr Singer suggested 6 sessions at intervals of 2 weeks.  As the plaintiff had been receiving treatment from private setting, I allow the cost of treatment in private setting.  The cost for each session as said by Dr Lai in private setting is $2,000 per session and he suggested 10 sessions.

239.  I would award $20,000 for this treatment as the report was 2 years ago and there would possibly be an increase in this fee and also considering the median figure of $1,750 per session.

240.  I would also award $5,000 for future medical expenses to cater for medical treatment on need to basis by a general practitioner if residual pain need be treated in future calculated at $250 per consultation.

241.  Total award under this head is therefore $25,000.

Future travelling expenses

242.  The travelling expenses for consulting the doctors are estimated at $100 per consultation.  That would give us $1,000 for the psychotherapy and $2,000 ie 20 consultations for future consultations.

Tonic food

243.  The plaintiff did not make a claim under this head in the Revised Statement of Damages dated 14 September 2011 although in the witness statement, she did say she had used $5,000 towards tonic food.

244.  No receipt was produced.

245.  As the same was not pleaded, no award is made under this head.

Summary of awards

246.  I therefore give judgment against the defendants in sum of $146,400.70.

Interest

247.  The plaintiff would be awarded interest at 2% per annum on PSLA from the date of issuance of writ to the date of judgment and at half of the judgment rate for pre-trial loss of earnings and special damages from the date of the accident to the date of judgment.

Cost

248.  I also make an order nisi that costs of the proceedings be to the plaintiff, the same be made absolute on expiration of 14 days.  Having regard to the amount of the award, the same shall be at District Court scale, the same to be taxed if not agreed.

249.  This is an obvious case which should have been started in the District Court.