YIM TIFFANY SONJA formerly known as YIM SHUK YIN v. HONG KONG AIRCRAFT ENGINEERING CO LTD

DCEC 357/2015

[2020] HKDC 694

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 357 OF 2015

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JUDGMENT

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1.  In this application, the applicant claims against the respondent for compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 (“Ordinance”) in relation to an accident on 17 July 2013, according to the date pleaded in the application, when she slipped and fell at a hangar whilst on duty as an aircraft maintenance craftsman trainee.  At trial, the applicant clarifies the date of the accident to be 15 July 2013.

2.  By consent, interlocutory judgment on liability was entered in favour of the applicant on 2 September 2015.

3.  The applicant was 27 years old on the date of the accident.  Both parties agree that she received an average monthly income of HK$11,405.74. Compensation under section 10A has also been agreed at HK$2,656.00.  By trial, a total sum of HK$211,047.37 was paid to the applicant as advanced payment.

4.  On 31 May 2017, the applicant was assessed by the Employee’s Compensation (Ordinary Assessment) Board to have suffered from a loss of earning capacity of 7% and a period of absence from duty of 3 years between 24 July 2013 and 23 July 2016.  By a notice of appeal filed on 16 June 2017, the respondent appeals against both assessments.

5.  In his opening submissions, Mr Tim Wong, counsel for the applicant, does not dispute the following fundamental legal principles cited and relied on by Mr Daniel Chan, counsel for the respondent: -

(a)  on an appeal under section 18 of the Ordinance, the court may confirm or reverse any decision, or confirm or vary any assessment of the ordinary assessment board, and may substitute its own assessment;

(b)  when making an assessment of loss of earning capacity, the court has to start afresh by looking also at other evidence, especially medical evidence, placed before it: Chan Kit v Sam Wo Industrial Manufactory [1989] 1 HKC 115 and Chu Chin Yiau v Ray On Construction Co Ltd [1992] 1 HKC 246;

(c)  section 10(2) of the Ordinance sets out a rebuttable statutory presumption of temporary incapacity during the certified period and the burden rests on an employer to rebut that presumption: Yu Tak Kam v Chu Tung Shing & Anor, unrep, CACV 25 of 2008, 8 October 2009, Kan Wai Ming v Hong Kong Airport Services Ltd [2011] 3 HKLRD 497.

6.  At one point, Mr Tim Wong seeks to rely on, amongst other authorities, Yu Cheung Yim v Lucky Friend Industrial Ltd, unrep, DCEC  160 of 1995, 10 April 1996, Ng Kwok Keung v Wing Sum Construction & Engineering Company Limited, unrep, DCEC 1367 of 2003, 2 April 2004, and Cheung Wan Lun v Hop Hing Construction & Engineering (HK) Company and Another, unrep, DCEC 560/2009, 28 April 2011, to argue that the presumption of temporary incapacity certified pursuant to section 10(2) of the Ordinance is irrebuttable save in a case of fraud.  He then submits that the respondent in this case has not pleaded fraud and to plead fraud distinctly with utmost particularity as required by Order 18 rule 12(1)(a) of the Rules of the District Court or as a matter of civil practice.

7.  Mr Daniel Chan disagrees with the pleading requirement in employees’ compensation applications.  He relies on the effect of section 18 of the Ordinance and says that the court is clearly entitled to consider fresh evidence of malingering by an applicant who can continue to malinger after the start of her claim.  Mr Daniel Chan further points out the Court of Appeal authorities on the section that are referred to this court did not concern any issue of fraud.

8.  I find the submissions of Mr Tim Wong in this regard to be entirely unattractive.  Be that as it may, towards the end of his opening submissions Mr Tim Wong sensibly concedes that a plea of fraud is unnecessary and the court is entitled to find an applicant to be malingering on the medical evidence justifying a different assessment of temporary incapacity.

9.  In fact, the applicant asks, as Mr Tim Wong submits, for an assessment of 10% loss of earning capacity, being 5% loss for orthopaedic disabilities and a further 5% for her psychiatric conditions.  Mr Daniel Chan, on the other hand, argues that an overall 3% loss of earning capacity to be an appropriate assessment.

10.  As for the sick leave period, the applicant asks the court to adopt the full 36-month period as assessed by the Board.  The respondent claims that a period of 9 months to be adequate but no more than 13 months in total for an absence from work.

Injuries and medical evidence

11.  After the accident, which the applicant now gives evidence at trial to be on 15 July 2013, she felt pain in the back and returned home after work for rest.  She first sought medical help on 19 July 2013 by visiting the company doctor who made arrangements for an X-ray to be taken on the next day.  The applicant then attended the accident and emergency department of the Queen Elizabeth Hospital on 20 July 2013 and was discharged thereafter without admission.  No X-ray was taken.

12.  The applicant then returned to the company doctor two days later who referred her to an orthopaedic Dr Lau Sing Kei for further treatment.  There the applicant received one session of physiotherapy and she defaulted for the subsequent session.  On the 29 August 2013, the applicant was admitted to the St Teresa’s Hospital for an MRI Scan of the lumbar spine.  After that, Dr Lau referred the applicant to the orthopaedic clinic of the Queen Elizabeth Hospital followed by treatments at the physiotherapy and occupational therapy departments of the hospital.  In addition, the applicant also attended the Kowloon Hospital for physiotherapy starting on 18 February 2014.  Then on 20 May 2014, physiotherapy treatments took place at the Ruttonjee and Tan Shiu Kin Hospitals.  By virtue of a display of mood problems, the applicant attended the psychiatric client of the Kowloon Hospital.

13.  A joint examination of the applicant was conducted by Dr Fu Wai Kee and Dr Kou Sio Kei on 4 May 2015.  On that day, she had the following complaints: -

(a)  Discomfort from the lower back to both thighs with the level of discomfort being more severe on the right hand side.  She described the discomfort as “no blood feeling” which happened a few times a week sporadically with each attack lasting for 5 to 10 minutes.  Rest and massage were required to relieve the discomfort;

(b)  Continuous low back pain which would increase during the menstrual period and would aggravate after sitting for more than 15 to 30 minutes.  The pain was sporadic and happened 1 to 2 days in a week.  Sitting support, stretching exercise, lying down, analgesic and sometimes injections were required to relieve the pain;

(c)  Persistent swelling in the back for the past 6 months;

(d)  Swelling in the lower limbs with the degree of swell more severe on the right hand side.  The swelling was sporadic and happened 2 to 3 times a month and each time lasting for 2 to 3 days.  Massage was required to relieve the swelling;

(e)  Despite being able to handle activities of daily living, the applicant was unable to take public transportation.  She travelled mainly by taxi.

14.  On physical examination, Dr Fu and Dr Kou observed the following:-

(a)  Generally, the applicant was conscious and alert.  She attended the consultation in a wheelchair but was able to walk with crutches.  She could perform single leg stand but was less stable on the right side.  She could not walk on heels or tip toes and could only half squat;

(b)  There was no scar on the back and lordosis of the spine was normal.  No muscle tightness was found but there was tenderness over the lumbar to lumbosacral region, left and right paraspinal muscles with the right side being more severe.  The applicant was able to bend and reach her lower thigh.  Extension of the back was slightly limited at 20 degrees but lateral flexion and rotation were reported to be at 30 degrees;

(c)  For her lower limbs, both sides had equal length and symmetrical muscles.  Straight leg raising test in supine position was 45 degrees on the left and 30 degrees on the right but in full range in sitting position.  Sensation was found to have decreased by 20% over the left leg and 30% over the right leg.  There was also a 50% decrease in the sensation of both feet;

(d)  Girth of her thighs were both measured at 38cm, but there was a slight reduction in the left calf by 0.5 cm when compared to the right at 36.5cm.  The applicant presented cogwheel weakness and knee jerks were present.  Simulation tests came out negative for axial compression and shoulder movements but positive for pelvic rotation;

(e)  From an X-ray taken on the day of the joint examination, there was normal alignment with no sign of scoliosis of the lumbosacral spine.  Disc spaces of the spine were also seen to be preserved.

15.  In the joint report, Dr Fu and Dr Kou agreed with one another on the following:-

(a)  that the applicant sustained from a soft tissue of the back which was caused by the accident on 17 July 2013.  There was no evidence of pre-existing pathology;

(b)  that the treatments received by the applicant were adequate for her condition;

(c)  no further treatment was required for the applicant as she had reached maximal medical improvement;

(d)  the applicant would have little difficulty with activities of daily living;

(e)  that she should be assessed by psychiatrists.

16.  Individually, Dr Fu held an opinion that the condition of the applicant was static at the time of the joint examination 22 months after the accident.  He considered that her impairment would continue to persist including on and off back pain which required orthopaedic treatment on a need-to basis, difficulty in lifting heavy objects and in long periods of walking.  Dr Fu believed that the applicant could not return to her pre-accident work which required long period of standing and climbing.  He recommended her to work as a clerk.  Dr Fu found that the sick leave period given to the applicant to be appropriate.

17.  For Dr Kou, he also considered that the applicant had reached a maximal medical improvement at the time of the joint examination.  Dr Kou gave the applicant an excellent prognosis as a young person who sustained a minor soft tissue injury in the back and buttock with no structural damage.  He considered that the applicant should have no obstacle to return to her original duty as an aircraft maintenance craftsman trainee and the only determining factor was her subjective perception of disability and limitation.  Dr Kou found that a sick leave period of no more than 6 months from accident should be more than adequate for maximal recovery.

18.  On the questions of impairment of the whole person and loss of earning capacity, Dr Fu gave an assessment of 5% in both aspects whereas Dr Kou only 1%.

19.  On 24 November 2017, the applicant was seen alone by Dr Cheung Hung Kin and Dr Law Wun Tong for two hours.  In addition to the injuries and treatments described above, Dr Cheung and Dr Law noted in their joint report that the applicant claimed to have encountered a number of other issues some time after the accident such as unhappy mood, insomnia, suicidal thought, poor appetite and low interest.  She was annoyed by telephone calls from her company and also suspected about being followed when leaving home.  After attending the Psychiatric Unit of the Kowloon Hospital, the applicant was diagnosed with depression.  She was treated with medications and counselling by a clinical psychologist.  The applicant found the medications to be helpful in terms of making her more calm but other symptoms persisted.  In 2016 the applicant became pregnant and so she stopped her medications.  During this time the applicant lived in Austria where she received physiotherapy every day.  She did not see any doctor until having returned to Hong Kong and followed up at the Kowloon Hospital.

20.  Dr Cheung and Dr Law also noticed from a medical report of Dr Wong Ka Yau Raymond dated 16 October 2017 that the applicant attended the Department of Psychiatry of the Kowloon Hospital since July 2015.  She was diagnosed with recurrent depressive disorder and alcohol harmful use.  Her attendance at the clinic was irregular and she defaulted since 17 February 2017.  In the last visit, the applicant told Dr Wong that she had stopped medication.  She described her mood to be stable and denied having consumed alcohol.  She had trouble with sleep.  On mental state examination, Dr Wong observed that the applicant maintained normal eye contact, her speech was relevant and coherent, her mood was natural, she was reactive and congruent.  Dr Wong did not find her to be psychotic, aggressive or suicidal.  However, the applicant refused medication against advice.  Dr Wong found her to be mentally stable but maintained his finding of recurrent depressive disorder with alcohol harmful use.

21.  At the joint examination by Dr Cheung and Dr Law, the applicant complained of the following:-

(a)  Persistent pain over her back which intensifies with movement.  Complete bed rest would alleviate the pain but the pain could suddenly increase in severity with no apparent trigger.  The applicant had to take pain killers four days a week and she also took irregular injections;

(b)  Weakness in both legs, weaker in the right leg.  Deceased sensation with numbness of both legs and an inability to raise them.  The applicant walked slowly with a frame and had to use a wheelchair after the accident;

(c)  Incontinence in the past 2 to 3 months;

(d)  Inability to do house chores.  The applicant seldom left home and needed help in dressing.  She was independent in self-care.

(e)  The applicant was unhappy every day and cried at times.  She had suicidal thought and was depressed with the employees’ compensation litigation;

(f)  She slept only 3 hours a day and lied in the bed most of the time.  Her appetite was impaired but there was no significant change in body weight;

(g)  The applicant felt hopeless and useless.  She had not concrete plan for the future.  She had low interest and low motivation.  Her concentration was also impaired.  She could read a newspaper or watch a movie;

(h)  After giving birth to a baby in September 2017 the applicant gave the baby away for adoption.  She relied on the support of her family financially and felt indebted to her friends.  Occasionally she went out with friends for movies or meals.

22.  On examination by Dr Cheung and Dr Law, the applicant was found to be medium built, tidy and casually dressed.  She used an electric wheelchair which carried walking sticks at the same time.  The applicant was observed to speak Cantonese fluently, forthcoming and prompt in answering questions.  Her speech was coherent and relevant.  At the start of the interview, the applicant did not appear to be anxious or depressed and had appropriate smiles.  When she talked about the accident, the applicant was seen to become emotional and tearful.  She was ready to share her grievances and both doctors did not observe any abnormal thought or perception.

23.  Both Dr Cheung and Dr Law agreed that the applicant suffered from an adjustment disorder with depressed mood.  They opined that her mood turmoil was reactive to stressors related to the accident but mainly from the residual physical pain and this litigation.  Dr Cheung and Dr Law also agreed that her prognosis was good because the pain was in mild intensity and the other stressor would resolve when the litigation was over.  The doctors considered that the adjustment disorder was caused by the accident in question and consistent with her injuries but its residual symptoms were mild in severity.  In terms of physical function, the applicant was independent in her self-care and daily activities.

24.  There are 3 aspects which Dr Cheung and Dr Law were not able to agree on in their joint report.  Dr Cheung considered that the entire sick leave period of 3 years was justified because of the combined effect of the physical and mental conditions sustained by the applicant.  He also recommended the applicant to continue to receive psychiatric and psychological treatments in Austria because of her residual symptoms for as long as the stressors continue to persist.  Dr Cheung disagreed with the assessment of 7% by the Employee’s Compensation (Ordinary Assessment) Board and opined that 5% loss of earning capacity to be appropriate.

25.  For Dr Law, he opined that 3 months of sick leave from the date of first consultation to be sufficient for the applicant for her psychiatric disorder.  Dr Law considered her condition to have reached maximal medical improvement as the clinical psychologist repeatedly reported that the mood of the applicant to be neutral.  Dr Law gave an assessment of 2% impairment of the whole person and 2% loss of earning capacity due to her adjustment disorder.  Dr Law believed that mentally the applicant was able to return to her pre-accident job and did not need to avoid any activity from a psychiatric point of view.

26.  The applicant was examined by Dr Fu and Dr Kou for a second time on 23 November 2017.  In the second joint report dated 7 March 2018, Dr Fu and Dr Kou referred to a number of new reports which were not available in the last assessment, which included the following:-

(a)  According to a medical report of Dr Lee Fong Lun Henry, the applicant attended the Accident and Emergency Department of the Queen Elizabeth Hospital on 20 July 2013 when physical examination showed mild tenderness over the lower back.  The applicant was diagnosed with back contusion and was discharged with sick leave;

(b)  According to a medical report of Dr Lai Siu Wai, the applicant attended the Lee Kee Memorial Dispensary on 26 July 2013 complaining of low back pain.  X-ray on that day showed a fracture of the coccyx.  The applicant also complained of mild vaginal bleeding since the accident and was told by a private gynecologist to have ruptured a cyst.  The sacral and coccygeal region were tender but there was full power over bilateral lower limbs with normal sensation and jerks.  Straight leg raising test also showed normal results.  The applicant refused to visit the accident and emergency department of a hospital against advice and was referred to the orthopaedic and gynecology department for further treatment.  She returned on 8 April 2014 when tenderness continued to exist over the coccyx and sacral region.  The applicant continued to be followed up regularly at the clinic till 15 May 2015;

(c)  According to a medical report of Dr Wong Chun Kong, the applicant attended the Specialist Out-patient Clinic of the Queen Elizabeth Hospital on 15 October 2013 where tenderness at the back was found on physical examination.  An MRI of the spine showed suspicious haemangioma at T1 level.  Physiotherapy treatments thereafter made an improvement but in a follow up session on 3 March 2016 the applicant complained of left lower limb numbness and weakness for two months.  A further MRI of the lumbar spine was taken on 27 August 2016 which showed a mild lumbar lordosis.  There being no organic cause found for the weakness and numbness, the applicant was discharged from the clinic after the last follow up on 30 August 2016;

(d)  According to the medical report of Dr Wong Ka Yau Raymond and Dr Yip Yuk Cheong Charles, the applicant first attended after a suicide attempt the Department of Psychiatry of the Kowloon Hospital in 2009 with depressive symptoms.  She continued to receive treatment until 2012.  The applicant was reported to be mentally stable until the accident in question.  Then on 24 July 2015, the applicant returned to the clinic by referral for recurrent depressive disorder and alcohol harmful use.  Medications were prescribed and the applicant was followed up by a clinical psychologist with whom she maintained irregular attendance.  By late December 2016, she reportedly stopped medication because of pregnancy.  In a follow up on 27 February 2017, the mood of the applicant remained stable but she had poor sleep.  The applicant denied using alcohol.  She continued to decline medication and defaulted attendance thereafter;

(e)  According to the medical report of Dr Liu Wai Sum, the applicant first attended the psychology clinic of the Kowloon Hospital in January 2010 and had defaulted after 3 sessions which ended in April 2010.  At that time she was diagnosed with depression.  The applicant was referred to the psychological service again in 2015 with recurrent depressive disorder and alcohol harmful use.   After two sessions by which psychological support was given and a contingency plan was being devised for her emotion, the applicant was not seen after 27 November 2015;

(f)  According to the medical report of Dr Jimmy H C Li, an MRI of the spine of the applicant was taken on 28 August 2013.  The result showed features of haemangioma such as a hyperintense nodule at the S5 level and a high signal at the T1 level.  Focal oedema signal was also found at the upper left sacroiliac joint but the marrow signal of the rest of the lumbosacral spine and coccyx were within normal limits.  Alignment of that area was satisfactory.  There was a bulging disc at the L4/5 level with no significant mass effect and no sizeable prolapse.  Lumbar intervertebral neuroforamina was seen to be present but there was no cauda equina or nerve root compression.  A possible functional or haemorrhagic cyst was further seen at the right ovary.

(g)  According to the medical report of a physiotherapist of the Kowloon Hospital Ms Hung Wai Yi Winnie, the applicant received physiotherapy treatment between 18 February 2014 and 7 April 2014.  In the last treatment session, she reported to have 40% improvement in the back condition and then the applicant stopped treatment thereafter.

(h)  According to the medical report of a physiotherapist of the Tang Shiu Kin Hospital Mr Edmond Chan, the applicant attended physiotherapy treatments between 7 July 2014 to 14 July 2015 for a total of 19 sessions.  In the last session, Mr Chan observed a 30% subjective improvement in the condition although pain persisted at the end range.  The range of motion was also found to be the same as the initial assessment.  Mr Chan considered the applicant to have reached a static condition and planned to discharge her after a further short course.  However, the applicant did not attend the following session on 29 September 2015.

27.  On the day of the second joint examination on 23 November 2017, the applicant had further complaints about her condition:-

(a)  The low back pain continued and had no improvement since the last joint examination.  She took 8 tablets of analgesic a day to relieve the pain;

(b)  The weakness in the lower limbs had increased in the last 2 years such that she could not walk with crutches.  The applicant mainly used wheelchair and had difficulty turning in bed.  Numbness had also spread from mid thighs to sole and was more severe in the right leg;

(c)  There was decreased urinary sensation and incontinence.  The applicant had to use diapers in the past month;

(d)  She continued to have difficulty in sleeping and had gained weight.  There was swelling in lower limbs and trunk;

(e)  Activities of daily living could be done by the applicant independently but she required help when going to the bathroom or wearing clothes.  She also required company when leaving home.

28.  On physical examination, Dr Fu and Dr Kou found the applicant to be conscious and alert.  However, they noted that she was unable to stand up from her wheelchair despite help from 2 assistants and crutches, or to climb onto the examination couch of the clinic.  As for her back, lordosis was normal and no scar was found.  There was tenderness over the lumbar to coccygeal region and over both paraspinal muscles.  Apart from a lack of active movement of the back, the applicant had no active range of movement in the lower limbs except to a little degree in the ankles.  Her lower limbs appeared to be flail and flaccid and the applicant was seen to use her hands to lift her legs on and off the footrests of the wheelchair.  The applicant also claims to have a marked decrease in the sensation below the mid-thighs on both legs.  On the other hand, the doctors recorded that the muscles on both lower limbs were symmetrical with the shape in thighs and calves preserved.  The girth of the thighs was slightly reduced on the left hand side but there was no obvious muscle wasting.  There was also no swelling or dependent edema.

29.  For the MRI that was taken on 28 August 2013, Dr Fu and Dr Kou opined that it showed a normal lumbar spine of a healthy young lady.  They also found no bony lesion for an X-ray taken on 22 September 2015 and the alignment of the spine at that time was normal with mild scoliosis.

30.  The applicant was placed under surveillance after the joint examination on 23 November 2017 and videos taken for 3 consecutive days were sent to Dr Fu and Dr Kou for review.  The doctors made various observations from the surveillance videos in their joint report.  For Dr Fu, he found the applicant to have spent most of the time sitting in an electric wheelchair but she stood for short periods of time and walked for short distances with a pair of crutches.  There was no sign of distress when the applicant moved, however, Dr Fu pointed out that she was also not shown to have engaged in strenuous activities.  Dr Fu agreed that the walking and standing abilities of the applicant were shown in the videos to be better than that in the joint examination on 23 November 2017.

31.  Dr Kou had more criticisms about the applicant as follows:-

(a)  After sitting in the wheelchair for 2 hours on 23 November 2017, the applicant was seen to have made attempts to stand up at 2:36 pm.  However, the view of the camera was blocked at this point in time;

(b)  On 24 November 2017, the applicant was seen to have visited different places on that day.  Between 1:26 pm to 2:29 pm, she handled a baby and took photos of the food with her mobile phone.  Between 2:47 pm to 4:06 pm, the applicant talked to another person lively with good eye contact, varied and vivid facial expressions.  Dr Kou considered that the applicant did not show any sign of depression;

(c)  On 25 November 2017, the applicant had been using her wheelchair between 9:32 am to 11:37 am.  At 11:37 am, she was seen to have stood up from the wheelchair in preparation to get into a private vehicle.  The applicant also lunged forward to pick up a bag on the ground before climbing into the passenger seat on her own;

(d)  At 11:56 am on the same day, the applicant exited the private vehicle by herself without issue.  She was observed to be using the crutches as standby aids which she placed in the wheelchair;

(e)  At 12:21 pm, the applicant stood from her wheelchair by herself holding both crutches in her left hand.  She then lunged to her right to adjust the wheelchair and entered a private vehicle without assistance;

(f)  At 1:44 pm, the applicant was seen to have stood from her wheelchair effortlessly and also lunged to her left and right to adjust the wheelchair almost free-handed;

(g)  At 1:45 pm, the applicant slid open the door of a private car and climbed in without difficulty, in the meantime she held the crutches in her left hand as standby aids;

(h)  At 2:33 pm, the applicant carried a baby in a harness fastened to her body and alighted a private vehicle empty handed.  She was seen to be standing for two short periods each of almost one minute while waiting for another person to adjust the harness;

(i)  At 2:36 pm and 3:16 pm, the applicant walked into and out of a building with good control and balance.  She used crutches but did not rely heavily on them.

32.  In the second joint report, Dr Fu and Dr Kou agreed on the following:-

(a)  The applicant sustained a soft tissue injury of the back which was caused by the accident on 17 July 2013.  There was no evidence of a pre-existing pathology;

(b)  The complaints by the applicant about her lower limbs could not be explained pathologically because there was no obvious muscle wasting;

(c)  The unusual clinical presentation might be explained by an unknown psychiatric condition sustained by applicant;

(d)  The treatment received by the applicant was appropriate for her condition.  No further treatment was required except to treat existing symptoms.  The applicant had reached maximal medical improvement but should continue to receive psychiatric treatments;

(e)  For her back injury, the applicant was able to resume pre-accident work as a aircraft maintenance craftsmen;

(f)  A further assessment by psychiatrists should be conducted.

33.  With regard to the unexplained pathology, Dr Fu believed that the complaint by the applicant about weakness and numbness in her lower limbs were most likely caused by her depressive disorder.  Judging from the surveillance video, he agreed that the applicant had magnified her symptoms.  For her prognosis, Dr Fu added that despite the condition becoming static 4 years after the accident, the applicant might have on and off mild back pain which required orthopaedic treatment on a need-to basis.  Dr Fu considered that the applicant would have difficulty in lifting heavy objects, long periods of walking, standing and climbing.  By virtue of a significant reduction in working capacity, he recommended the applicant to assume sedentary duties such as a clerk.  Dr Fu maintained his opinion that the entire sick leave period was appropriate and his 5% assessment for loss of earning capacity.

34.  Dr Kou held a different opinion.  He accepted that the applicant sustained from a contusion to her back from the accident which brought pain for a certain period of time.  However, Dr Kou considered that her symptoms as demonstrated in the joint examination were inexplicably severe and protracted, and out of proportion to the nature and magnitude of the accident in question.  He pointed out that her inability to stand up from the wheelchair with the help of 2 adult assistants, the appearance of lower limbs being flail with no active movement, and generalized numbness did not conform correspondingly with the objective findings of well-preserved muscles, the absence of muscle wasting, normal limb reflexes to show an intact nervous system, and the normal MRI scan results.  Given the surveillance videos which showed self-reliant physical performance, Dr Kou unreservedly concluded that the applicant was pretending to be disabled during the joint examination on 23 November 2017.  He also had doubts about whether the psychiatric condition of the applicant was related to the back injury since according to her medical history she suffered from a mental condition as early as 2009.

35.  The same opinion was given by Dr Kou in the second joint report as in the first, namely that the applicant had an excellent prognosis with no structural injury who would have no difficulty, except from her subjective perception of disability and limitation, to resume her original career before the accident.  He considered that a sick leave period of no more than 6 months to be adequate and repeated his 1% assessment for whole person impairment and loss of earning capacity.

Evidence of the applicant and surveillance

36.  Dr Fu and Dr Kou examined the applicant twice.  They provided detailed analysis of their observations and agreed in both joint reports that orthopaedically she sustained from the accident in question no more than a mild soft tissue injury to the lower back.

37.  In her witness statement, the applicant, when she recited her injuries and treatments received, started at paragraph 9 with the discovery from an X-ray taken on 20 July 2013 at the Jordan branch of the Quality Healthcare Medical Centre of a fractured coccyx which prompted her to seek immediate treatment at the Queen Elizabeth Hospital. Since then, she claimed that the following took place:-

(a)  On 22 July 2013 she visited the company doctor Dr Ng and provided to him the X-ray taken two days earlier.  Dr Ng then referred her to an orthopaedic doctor, Dr Lau Sing Kei.  In the meantime, the applicant applied for 4 days of sick leave from the respondent;

(b)  On 24 July 2013, the applicant consulted Dr Lau.  She complained about swelling at the coccygeal region and difficulty in walking.  Upon studying the same X-ray, Dr Lau recommended an MRI to be taken at the St Teresa’s Hospital.  Between 15 August and 21 August 2013, the applicant continued to be followed up by Dr Lau;

(c)  On 29 August 2013, an MRI was performed over the coccygeal region where haemangioma and disc protrusion were found.  The applicant was hospitalised for 4 days during which she received physiotherapy, electrical therapy, massage treatments, stretching programs, and analgesics.  She incurred over HK$50,000 for medical expenses;

(d)  Thereafter the applicant was followed up by Dr Lau who referred her to the orthopaedic department of the Queen Elizabeth Hospital for further treatment;

(e)  On 15 October 2013, the applicant attended the Queen Elizabeth Hospital where she received occupational therapy.  She continued to complain about swelling at the coccygeal region and had further developed numbness which extended to both thighs.  The applicant also felt a lack of strength and sensation in both legs.  She relied on a wheelchair when travelling afar and crutches for closer places.  Further physiotherapy ensued;

(f)  In February 2014, the applicant started to attend the Kowloon Hospital where she received physiotherapy, electric therapy and heat therapy.  After receiving the various treatments on each occasion the applicant claimed that she felt more pain and had to attend a private doctor for injections.  After 3 months, she stopped visiting the Kowloon Hospital and was referred by a private doctor to the Ruttonjee & Tang Shiu Kin Hospitals;

(g)  At the Ruttonjee & Tang Shiu Kin Hospitals, the applicant claimed to have received different physiotherapy treatments particularly the stretching of the coccyx with the use of equipment. Her last session was on 14 July 2015;

(h)  In the meantime, she continued to receive treatments at the Queen Elizabeth Hospital.  By virtue of continued pain, she was prescribed an antidepressant and on consuming the new drug an allergic reaction resulted.  The applicant was then admitted to the Accident and Emergency Department of the Queen Mary Hospital.  At that time, she complained about her injury to the coccyx and therefore different medication was prescribed to replace the antidepressant.  The applicant then attended follow up treatments at the orthopaedic department of the Queen Mary Hospital until March 2017;

(i)  By virtue of the pain, the applicant was unable to sleep.  She began to attend the psychiatric depart of the Kowloon Hospital in July 2015 and was diagnosed to suffer from depression.  Her last visit was on 27 February 2017.

38.  From 2013 through to 2017, the primary complaint of the applicant according her evidence is the injury to the coccyx.  At the time of the witness statement, which was made in October 2018, she claimed her conditions to be as follows:-

(a)  There was pain in the lower back when she walked for long periods.  When she sat she also found the need to change postures, stand up and bend her back frequently.  Therefore, there was discomfort with both standing and sitting;

(b)  Since the accident, she had to rely on crutches to walk.  As there was no lift in the building where she lived, every time when the applicant left home she had to walk down the stairs one step at a time.  Her boyfriend would bring her wheelchair to the ground level;

(c)  There was muscle tightness at the coccygeal region in addition to pain and numbness which radiated down to both thighs.  Pain in the right leg extended to the right knee and was more severe than the left.  There was a loss of mobility and the applicant found herself to be slow in motion;

(d)  Her legs would suddenly give in when she walked.  The applicant therefore had to use clutches to prevent falling on her knees.  She was also unable to bend forward and touch the ground with her hands;

(e)  Pain in the back and coccygeal region would increase during bad or humid weathers.  She also had problems with sleeping such as needing to change positions frequently, needing to sleep on the side, and sudden cramps in the right leg.  The applicant claimed that she could only sleep for 3 to 5 hours every night.  The lack of sleep had affected her mood during the day;

(f)  after the accident, the applicant avoided carrying heavy items.  She mostly stayed at home which meant a reduction of outdoor activities or meeting with friends to almost none.  She also became bad tempered and had frequent quarrels with her boyfriend.

39.  At trial, the applicant adopted her witness statement as evidence in chief.  She further adopted paragraph 34 of a witness statement made for her common claim in HCPI 617 of 2017 which stated that on 12 May 2014 the applicant worked as an office assistance.  She left on 3 October 2014 because she was unable to cope with the workload.  For that period, she made a total income of HK$47,291.  At the time of this witness statement, she continued to look for new employment but had to rely on her boyfriend for a living for the time being.

40.  Mr Tim Wong then referred to the second joint report of Dr Fu and Dr Kou and asked the applicant why in the examination she was unable to stand up from her wheelchair with the help of two assistants.  The applicant explained that she lived in Discovery Bay which required her to first travel from home by bus to the ferry pier and then from the ferry pier to Melbourne Plaza where the joint examination was held.  On 23 November 2017, for various reasons of delay the entire journey took over an hour.  Her physical condition was particularly bad on that day as she remained in a sitting position in her wheelchair for an extensive period of time.  The applicant accepted that under normal circumstances she was able to stand up from the wheelchair without assistance.  She said that she was able to sit, stand and walk for 5 to 10 minutes before pain and numbness developed.

41.  The applicant confirmed under cross examination that the accident took place on 15 July 2013.  After repeating generally her complaint of pain and numbness from the waist down, she described that on the next day she had difficulty getting off bed.  She was able to walk but only for one or two steps.  Mr Daniel Chan questioned the applicant that given the seriousness of the condition why she had not sought emergency treatment from a hospital but chose instead to wait for 5 days before visiting the Quality Healthcare Medical Centre.  She answered that the doctor was provided by the respondent and her pain had improved by 20 July 2013.

42.  On 24 July 2013, the applicant visited Dr Lau Sing Kei when her coccyx was alleged to be swollen.  According to the applicant, she walked with a limb but did not require any walking aid.  There was no loss of strength in her legs.  Dr Lau then recommended her to seek treatment from an orthopaedic at a Government Hospital.  She therefore attended the Lee Kee Memorial Dispensary on 26 July 2013.  Mr Daniel Chan showed the applicant a referral letter issued by Dr Kwong Hon Kei on that day.  It recorded, which the applicant agreed, that she made a request for a transfer to the orthopaedic and gynaecology department.  Mr Daniel Chan then put to the applicant that Dr Kwong actually advised her to attend the accident and emergency department for treatment which she refused.  The applicant disagreed with the suggestion.  Pausing here, it is to be noted that in the referral letter, Dr Kwong also recorded that on physical examination there was tenderness at the sacral and coccygeal region but straight leg raising test showed full flexion.  Sensation and jerk in the lower limbs were also found to be normal with full power.

43.  The applicant changed her evidence after she was shown the medical report from Dr Lai Siu Wai of the general outpatient clinic.  Dr Lai reported that the applicant was advised but declined to receive further management at the accident and emergency department of the hospital.

44.  After about a month from the accident, the applicant said that she started to limp.  She also developed weakness and numbness in the right thigh.  She was unable to recall when but a walking frame had been provided to her which she used for a few months before switching to a pair of crutches.  Mr Daniel Chan put to the applicant that the injuries she sustained were not as serious as she had described.  He pointed out that according to the medical report of the department of accident and emergency of the Queen Elizabeth Hospital, on 20 July 2013 the major complaint made by the applicant was back pain.  Her general condition was recorded to be good and that there was only mild tenderness over the lower back.  There was no record of complaint about lower limb problems.  The applicant agreed that to be the situation at that time.  Mr Daniel Chan then suggested that there was likewise no complaint made of the lower limbs on 26 July 2013 at the Lee Kee Memorial Dispensary as none was being recorded.  The applicant also agreed.  She defended nevertheless that by October 2013 numbness and weakness in the lower limbs were found by the occupational therapy department of the Queen Elizabeth Hospital.  When it was put to her that for a period of 11 days after the accident the medical reports recorded no more than mild tenderness in the back, the applicant said that she had made other complaints to the doctors all the time.

45.  Turning to the alleged injury to the coccyx, it is the evidence of the applicant that the x-ray slides obtained from the Quality Healthcare Medical Centre were given to the respondent on 22 July 2013.  Then on 26 July 2013 she retrieved the x-ray slides and provided them to the Lee Kee Memorial Dispensary.  She retained the x-ray slides afterwards which, by the time of trial, were kept by her boyfriend.  No other copy of the x-ray slides was available.  The x-ray slides purportedly showed a fracture of the coccyx.

46.  Mr Daniel Chan challenged the applicant that the x-ray slides in question had never been provided to the doctors or produced for trial.  The only incidence of an x-ray to be found in the medical reports was one by Dr Cheng Shan Shan from the department of radiology and imaging of the Queen Elizabeth Hospital dated 12 December 2013.  An x-ray of the coccyx was taken on 10 December 2013 which showed loss of lumbar lordosis and mild degenerative changes.  No fracture of the coccyx was found.

47.  In answer, the applicant remembered providing the x-ray slides to Dr Chin of the orthopaedic department at the Queen Mary Hospital.  She told Dr Chin about a fracture in the coccyx which produced discomfort when sitting.  On examination, the applicant felt pain on pressing and that there was a scratching sensation in the legs when she moved.  The applicant also remembered having to sit and wait outside the clinic for Dr Chin on that day for a long time.  She also walked around while waiting.

48.  Dr Chin Ping Hong Raymond noted about a history of fractured coccyx in his consultation summary dated 15 October 2013.  Mr Daniel Chan highlighted in the summary that Dr Chin found the paraspinal muscles to be normal and relaxed.  The applicant was seen to have sat well for a long time during the physical examination.  Dr Chin also found there to be a lack of pain when pressure was applied at the coccygeal region.  He therefore recorded that these findings were not compatible with what had been revealed by the x-ray.  As such, Dr Chin was unable to explain the symptoms of the applicant.  In response, the applicant did not remember Dr Chin making these remarks during the visit.

49.  After her visit to Dr Chin, the applicant described that her conditions turned worse.  Physiotherapy treatments began at the Kowloon Hospital in February 2014.  At that time, the applicant said that she needed a walking stick for fear of falling on the ground.  The applicant went on to explain that her condition improved at the beginning but as the treatments continued she was unable to bear the pain from the exercises. She had spoken with the physiotherapist about this.  However, the applicant later decided that the exercises were too much for her and stopped attending the Kowloon Hospital.  She sought treatment from the Ruttonjee & Tang Shiu Kin Hospitals afterwards.

50.  This was not how the Physiotherapy Department of the Kowloon Hospital reported to be the situation.  As Mr Daniel Chan referred to the medical report dated 29 September 2017, during the initial assessment on 18 February 2014 the applicant complained of dull aching pain of an 8 out of 10 over the back.  Active trunk flexion and extension had been found to be limited to one-third of normal excursion.  Straight leg raising on both limbs were limited to 30 degrees.  However, the applicant was observed to be able to walk unaided independently on the day of the assessment.  The medical report went on to state that after two months of treatment, the applicant reported a 40% improvement in the back with the pain level reduced to 3 to 4 over 10 on 7 April 2014.  Active trunk flexion had also improved to three-quarters of normal excursion and straight leg raising returned normal results.  Mr Daniel Chan therefore suggested to the applicant that she defaulted treatment afterwards because her condition had improved not because the treatments had made it worse.  The applicant disagreed.

51.  In a consultation summary dated 30 September 2014, Dr Lee Wan Tsi Francis, from the Central Kowloon Health Centre general outpatient clinic, recorded complaints from the applicant about numbness and loss of sensation in the right foot.  Dr Lee also noted however that she did not bear weight on the crutches when she walked in the clinic.  Reading this consultation summary in conjunction with the medical report from the physiotherapy department of the Kowloon Hospital dated 29 September 2017, Mr Daniel Chan therefore further suggested to the applicant that by February 2014 she could walk independently without reliance on crutches or a walking stick.  The walking aids, as Mr Daniel put it, were only for show.  The applicant again disagreed.  She claimed that she had sufficient rest before the consultation on 30 September 2014 and was able to walk for 10 to 15 minutes in front of Dr Lee.

52.  Dr Wong Chun Kong from the department of orthopaedics and traumatology of the Queen Elizabeth Hospital confirmed in his medical reported dated 26 May 2015 that the applicant was first seen at the specialty clinic on 15 October 2013.  On physical examination there was, as recorded, only tenderness at the back.  The applicant then attended follow up physiotherapy treatments at the hospital up to 19 May 2015 and had, according to the medical records, shown improvement.  Mr Daniel Chan suggested to the applicant that unlike what she claimed her condition continued to improve over time.  Although the applicant agreed with what was stated on the face of these medical reports, she claimed that during her visits to different hospitals she had complained of pain and discomfort in the back.  The applicant said that the pain had never completely resided and at times swelling also occurred.  On one occasion when she attended a physiotherapy session using only crutches, her legs suddenly lost strength which caused her to fall on the ground while crossing a road on the way.  From then onwards, the applicant said she started to use a wheelchair.  In support, she specially referred to the consultation summaries from the same clinic dated 4 March 2014 and 17 April 2014.  In the first summary the applicant was recorded to have complained about improved but residual lower back pain and numbness in the lower limbs.  In the second summary, she complained further about lower back pain radiating to the right thigh and numbness the buttock.

53.  Mr Daniel Chan continued further with the medical history of the applicant. Dr Li Ka Kin, from the Queen Elizabeth Hospital, reported that in the consultation carried out on 12 January 2015 the applicant walked with one crutch.  She complained of some back pain and some leg pain.  Physical examination that day showed no tenderness in the spine.  In the following consultation at the same hospital on 23 February 2015, the applicant attended the orthopaedic and traumatology clinic in a wheelchair. However, her overall condition was reported by Dr Wong Chun Kong to be similar as the last visit.  Then on 19 May 2015, Dr Li Ka Kin made almost identical observations noting particularly that the applicant had a non-tender spine.  When these consultation summaries were shown under cross examination, the applicant did not know how to answer.  Her recollection was that she complained of pain on each occasion during the examination of her spine.  She did not understand how come these complaints had not been recorded by the doctors accordingly.

54.  As far as the injury to her spine was concerned, Mr Daniel Chan suggested that it was a minor one.  He began with the medical report of Dr Wong Chun Kong dated 26 May 2015 which stated that the MRI, being, as I understand it, the one taken at the St. Teresa’s Hospital on 29 August 2013, showed only a suspicious haemangioma at the T1 level.  The observation was supported by Dr Chin Ping Hong Raymond from Queen Elizabeth Hospital in a consultation summary dated 15 October 2013.  In a later consultation carried out at the Queen Mary Hospital on 4 December 2015, Dr Wong Yat Wa saw no significant lesion from the MRI in question and found that the symptoms of pain and weakness could not be explained.  Dr Wong further wrote that “patient has high expectation from the current consultation but I really cannot find any spinal problem to explain her complaint”.  These observations were followed by Dr Fu and Dr Kou who agreed in their joint reports that the MRI showed essentially a healthy spine.  Reportedly, the second MRI taken at the Queen Elizabeth Hospital on 27 August 2016 returned a same result. The applicant, when confronted by these reports, accepted that her injury to the spine was not a severe one.

55.  For her depressed mood, as reported by Dr Yu Man Sun from the Lee Kee Memorial Dispensary it was the applicant who made the request for a referral to a psychologist for her sleep problems in the consultation on 15 May 2015.  She first attended the Kowloon Hospital for treatment on 25 July 2015.  At trial, the applicant described her condition to be sometimes good and sometimes bad.  When she spoke of the accident in question, she would develop a sense of falling and therefore medications were prescribed to help keep her emotions under control.  She was more stable, according to the applicant, if she avoided talking about the accident.  On 30 December 2016, the applicant stopped medication voluntarily because of pregnancy.  She agreed that she had not consulted the doctors whether the dosage could be reduced and her decision to cease medication altogether was against medical advice.  The applicant then defaulted psychiatric treatment later thereafter.

56.  In the consultation summary dated 29 July 2015, Dr Yan Wai Ching reported the applicant to have poor drug compliance and drinking habit for stress relief.  After the accident in question she stayed home and became withdrawn.  There was increased drinking and suicidal ideation because of feelings of hopelessness for the future.  When she was referred to the Department of Psychiatry of the Kowloon Hospital, the applicant was observed to have recurrent moderate depressive episodes with alcohol harmful use.  On her second consultation on 11 August 2015, Dr Liu Chung Wo maintained the same diagnosis as for the first visit.  However, Dr Liu recorded, amongst other matters, that the applicant had normal eye contacts and hygiene, coherent and responsive speech, and no psychotic or withdrawal symptoms. She denied having suicidal ideas.  Particularly, Dr Liu observed that the mood of the applicant during the visit was not overtly low.  For the following visit, which took place on 4 September 2015, Dr Liu made similar remarks except that the applicant was recorded to have a neutral mood.  She continued to display a neutral mood in the follow up consultations on 22 September 2015, 16 October 2015, 3 November 2015, 2 December 2015, 9 March 2016, 20 May 2016 and on 17 February 2017.  For her last visit, Dr Wong Ka Yau Raymond noted that the applicant claimed to have a stable mood after having stopped medication for 3 months.  He explained the risks and recommended that the applicant to be on regular follow up.  From all this information, Mr  Daniel Chan suggested that starting from her second psychiatric consultation on 11 August 2015, the applicant maintained a stable and neutral mood. The applicant was unable to give an answer under cross examination.

57.  On 9 November 2015, Dr Mak Ho Yan Queenie from the Queen Elizabeth Hospital issued a referral letter for the applicant’s low back pain.  The referral letter set out the medical history of the applicant.  Particularly, it was recorded that she had no history of a fracture of the coccyx.  Orthopaedically, Dr Mak further stated that, amongst other things, no neurological deficit was found, there was full range of motion in straight leg raising test, the applicant was able to get up from a couch with ease, and the tenderness at the lower back region was superficial.  In the follow up session held on the day of the letter, Dr Mak recorded that there was no radiation of the low back pain to the right lower limb, no complaint of weakness or numbness in the lower limbs, and a slight loss of muscle power with reduced light touch sensation in the right lower limb.

58.  During cross examination, the applicant agreed that she brought the letter to Australia and handed it to a local family doctor.  By virtue of continued pain, the applicant visited the Queen Mary Hospital on 4 December 2015 for a second opinion.  She denied having used the referral letter at that time.  According to the consultation summary by Dr Wong Yat Wa, on physical examination he found the applicant to have normal jerk reactions, normal muscle tones, no mass at the sacral region.  Dr Wong also did not find any significant lesion from the MRI dated 28 August 2013.  For the applicant’s symptoms, he stated that “the presentation is not compatible with common spinal diseases I saw”.

59.  In the same consultation summary, Dr Wong made a number of other remarks including the following: -

“patient has high expectation from the current consultation but I really cannot find any spinal problem to explain her complaint”

“request to see more senior doctor: no more senior staff in clinic”

“request to see CCE, recommend her to contract PRO”

“suggest to have FU mri to make sure that is no new pathology and can compare with the old film”

“contact QEH for patient to be FU”

“Dr. KK Li was contacted after the clinic”

“agree to review the case”

“common consensus is to repeat mri to make sure there is no sinister problem. Secondly it is worthwhile to consult neurologist to exclude nerve problem esp she was a chronic drinker”

60.  Given the position of the respondent that the injury sustained by the applicant to her back was a minor one which would have recovered long before December 2015, the referral letter from Dr Mak and the consultation with Dr Wong were seen as attempts made by the applicant to find supporting evidence for her claim for compensation.  Mr Daniel Chan specifically suggested this to be the reason for her asking for a more senior doctor after the applicant had been told by Dr Wong that he was unable to find any spinal problem.  The applicant claimed that she did not remember about being told there was no problem with her spine or having made the requests for different doctors as recorded by Dr Wong. She said that on 4 December 2015 she carried a hope for Dr Wong to help treat her symptoms.  The applicant did ask to see the president of the hospital but it was not her wish to be sent to a different hospital for treatment.

61.  The continued complaint of pain and weakness in the limbs were then contrasted with the brief period of employment between 12 May 2014 and 3 October 2014 when the applicant alleged to have worked as an administrative assistant.  She described that her job duties were akin to a receptionist which included the handling of phone calls, typing emails to couriers or customers, dealing with purchase orders and invoices, and photocopying.  The applicant sat for most of these tasks but she also had to walk from one end to another end of the office.  However, the applicant said under cross examination that she had not worked for the entire period but was on sick leave since August 2014 because she could not cope with the workload.  Mr Daniel Chan questioned the applicant about the truthfulness of this recent assertion as the fact of sick leave had not been mentioned either in the revised statement of damages or in her witness statement.  The applicant said she was on sick leave for two months until being terminated both for the temporary employment and by the respondent in October 2014.

62.  Finally, Mr Daniel Chan turned to the surveillance videos which were taken for 3 consecutive days from the day of the second joint examination carried out by Dr Fu and Dr Kou on 23 November 2017.  On the day of the second joint examination, the applicant complained of continuous low back pain which did not improve since the first joint examination on 4 May 2015.  The applicant also complained of increased weakness in lower limbs such that she was not able to walk with crutches.  The complaints of the applicant were contradicted by the absence of muscle wasting observed in the second joint examination.  To the contrary, there appeared to be some growth in the girth of both thighs according to the two joint reports.  Mr Daniel Chan further put the following parts of surveillance video to the applicant:-

(a)  On 25 November 2017 at 11:37 am, the applicant waited in a wheelchair on the side of a driveway.  When a vehicle arrived, she stood up from her wheelchair.  The applicant was seen bending forwards to pick up from the floor a bag which she then placed at the backseat of the car while at the same time climbed into the cabin.  The entire process was completed on her own without assistance from anyone or much reliance on walking aids;

(b)  Mr Daniel Chan pointed out that according to the surveillance video, the applicant left hotel at least from 9:33 am on the same day.  She therefore did not appear have any weakness in the legs despite spending two hours sitting in her wheelchair.  The applicant explained that she travelled by bus to a shopping mall that morning which lasted for only about half an hour.  During the bus trip she had the chance to stretch her legs.  She then went to the washroom on arrival at the shopping mall which meant that she did not sit for an extensive long period as on 23 November 2017.  The applicant further claimed that she had pain when she picked up the bag from the floor and had to throw the bag into the backseat;

(c)  At 12:39 pm, the applicant alighted the same vehicle on her own with ease.  The applicant agreed but she claimed to have pressed her hand on the handle before sitting down on her wheelchair;

(d)  At 1:44 pm, at the back of a light goods vehicle, the applicant stood up and then bent sideways to the left to adjust both sides of her wheelchair.  While the wheelchair was being taken care of by two other persons, she walked to the nearside of the vehicle and boarded the back passenger seat on her own.  Mr Daniel Chan suggested that she displayed no difficulty opening the slide door and climbing into the vehicle.  I will further add that for the entire process the applicant also did not appear to be placing any significant reliance on the crutches.  The applicant did not deny what was shown by this part of the surveillance video.  She said that there was a handle of the vehicle with which she pulled herself onto the front seat;

(e)  At 2:33 pm, the applicant was shown sitting on the back passenger seat wearing a baby carrier.  She alighted the light goods vehicle holding an infant in the front.  Another person then helped to adjust the straps over her shoulders while the applicant stood and used both hands to cover the infant with a blanket.  When the applicant was ready to walk away from the vehicle, it was only at this point she collected a pair of crutches from the passenger seat.  After crossing the road, the applicant leaned the pair of crutches on the handrails of the pavement.  She bent slightly forward and turned her back to let the same man tighten a strap of the baby carrier at the waist.  In the meantime, the applicant again used both hands to fix the blanket over the infant.  Mr Daniel Chan suggested to the applicant that crutches were entirely unnecessary.  The applicant disagreed.  I then asked the applicant whether she had considered using a wheelchair instead. The applicant said she had taken sufficient rest beforehand, took pain medications and did some stretching.  Although the infant was heavy, she did not wish her family to become worried that she had a big problem.  She agreed with Mr Daniel Chan that most of the times she was able to walk without the use of a wheelchair.

63.  The applicant ceased to receive from the local hospitals psychiatric treatment in February 2017 and then physiotherapy in March 2017.  It was observed that during the 2 days of trial, the applicant attended court with only one crutch and without a wheelchair.  Mr Daniel Chan then put to the applicant that there was clearly an exaggeration of pain symptoms as the complaints to the joint orthopaedic documents over the examination in November 2017 could not have subsided on their own.  The applicant denied exaggeration and said that she continued to receive daily physiotherapy in Switzerland by the end of 2017.  Allegedly, she still experienced pain and numbness however started to regain strength for daily activities.

64.  In re-examination, the applicant emphasised that when she was in a good condition, which meant sufficient prior rest and a chance to stretch or move about, she could walk without aid and sit for 10 to 15 minutes.  The applicant repeated the incident about a sudden loss of strength in both legs while crossing a road to the Ruttonjee & Tan Shiu Kin Hospitals whereafter she began to rely on a wheelchair.  For the applicant, the wheelchair provided security from falling because her condition was sometimes good and sometimes bad.  Generally, she used a wheelchair for long trips such as travelling to a shopping mall and crutches for closer destinations such as collecting mail from where she lived downstairs.  The applicant denied that the crutches were for show without putting weight on them.  She also repeated her inability to cope with work physically and hence sought sick leave in August 2014 from work as an administrative assistant.

65.  Mr Tim Wong concluded his re-examination by highlighting the diagnosis of recurrent depressive disorder by the psychiatric department of the Kowloon Hospital up to the end of 2015.  The applicant was also asked to confirm about her departure to Austria only to return Hong Kong for 5 to 6 times specifically for this application for compensation.  Her boyfriend and two sons came with the applicant and on each occasion her boyfriend had to take leave from work.

66.  Having considered carefully the hospital notes and medical reports, the surveillance videos and also her demeanor in court, I have no hesitation to reject the applicant as an entirely untruthful witness.

67.  On 23 November 2017, a joint examination was held by Dr Fu and Dr Kou. She complained of continued pain and numbness in both legs with increased weakness in the past 2 years.  At trial, the applicant described her condition to be sometimes good and sometimes bad.  She also vividly remembered about the incident when there was a sudden loss of strength in the legs and fell.  In this regard, I had specifically asked the applicant whether from her experience the loss in strength would happen suddenly.  The answer was yes.  The applicant further added that episodes of loss in strength continued to subsist by the time of trial and could take place without warning.  Mr Tim Wong did not re-examine on this point.

68.  On 25 November 2017, which was only two days after the joint examination, the applicant went with her family to visit the grave of her grandmother.  She held an infant using a baby carrier affixed to her upper body.  I find it alarming for the applicant to have decidedly avoided using a wheelchair, or asking another family member to hold the infant, putting both herself and the infant at a risk of fall given that an episode of loss of strength could happen at any time.  Instead, the applicant was seen, albeit with crutches, to be walking in the parking lot and in a different scene walking up a vehicular passageway with ease.  If an episode took place during these times when vehicles were moving about, the applicant and the infant would both be in potential danger.

69.  The only inference that can be drawn, as I find, is that the symptoms of pain, numbness or weakness in her legs were negligible so much that the applicant felt safe to be carrying an infant by herself.  The observation about her condition is further supported by other parts of the surveillance videos.  The applicant was hardly seen to be using crutches for weight bearing.  She had no difficulty entering or alighting vehicles on her own.  She even helped to adjust the wheelchair or picked up her bag from the ground.

70.  Orthopaedically, the complaints of the applicant were demonstrably contradicted by the objective medical findings. Psychiatrically, her mood was found to be neutral and stable since September 2015.  These do not need to be repeated here.

Conclusion

71.  I find the complaints of pain of the applicant to be grossly exaggerated.  I accept the submissions of Mr Daniel Chan and prefer the opinion of Dr Kou that the pain symptoms of the applicant were out of proportion to the nature or magnitude of the accident in question.  As a matter of fact, Dr Fu also agreed that there was an element of symptom magnification.

72.  Psychiatrically, Dr Cheung and Dr Law were in agreement that the adjustment disorder sustained by the applicant was mild in severity.  I also prefer the opinion of Dr Law on the assessment of the mental condition of the applicant.

73.  Accordingly, the applicant is entitled to employees’ compensation as follows:-

(a)  under section 9, adopting an overall assessment of 3% loss of earning capacity, being 1% orthopaedic loss and 2% psychiatric loss,

HK$11,405.74 x 96 months x 3% = HK$32,848.53

(b)  under section 10, adopting a sick leave period of 6 months for her orthopaedic injuries and a further 3 months for her psychiatric condition,

HK$11,405.74 x 9 months x 4/5 = HK$82,121.33

(c)  under section 10A, the medical expenses have been agreed at HK$3,366.00

74.  There is no dispute that the applicant received advanced payment from the respondent in the total sum of HK$211,047.37. Even allowing interest at half interest rate from the date of the accident to the date of judgment, the applicant has clearly been in receipt of more than adequate compensation from the respondent.

75.  In conclusion, I hereby order:-

(a)  the application by the applicant be dismissed;

(b)  costs of the application be to the respondent to be taxed if not agreed; and

(c)  there be certificate for counsel for trial of the application.