KI TAK YAN v. THE INCORPORATED OWNERS OF KAM YUEN BUILDING, BOUNDARY STREET AND ANOTHER

HCPI 421/2015

[2020] HKCFI 2956

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONL INJURIES ACTION NO 421 OF 2015

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JUDGMENT

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A. Introduction

1.  This is the assessment of the damages of the claim brought by the plaintiff (“P”) for the physical injuries he claims he has allegedly suffered as a result of an accident that took place on 30 April 2012 (the “Accident”). 

2.  Mr Hylas Chung appears for P.  Ms Phillis Loh appears for the 1^st defendant (“D1”).  Mr M T Yeung appears for the 2^nd defendant (“D2”).

B.     The parties

B.1.  THE PLAINTIFF

3.  P was born in April 1964, thus aged 48 at the time of the Accident.    

4.  He has received education up to post‑secondary level. He has obtained a diploma in Human Resources Management and a Diploma in Fire Safety and Engineering.

5.  He has been married twice.  He separated with his second wife in about 2013 or 2014.

6.  P had been working as a fireman since the age of 21.  Immediately before the Accident, his position was Senior Fireman.

7.  P said that prior to the Accident, he enjoyed good health.

8.  P would reach his scheduled retirement age on 19 April 2019.

B.2.  THE DEFENDANTS

9.  D1 is the Incorporated Owners of Kam Yuen Building at 15‑15A Boundary Street, Kowloon, Hong Kong (the “Building”).

10.  The Accident took place inside lift no 2 (the “Lift” or the “Lift Car”) of the Building. 

11.  D2 was the lift contractor responsible for the servicing and maintenance of the Lift.

C.     The Accident

12.  On the day in question, P together with 3 colleagues of his (one Principal Fireman and 2 firemen) attended the Building.  He did so in the course of his employment in response to an emergency call for assistance at Unit E on the 2^nd Floor of the Building. Upon arrival, they together with a tenant of the Building (Mr Chan Chi Kit (陳志杰, “Chan”)) took the Lift to the 2^nd Floor.  After the Lift Car had reached the 2^nd Floor, but before any of the passengers had time to alight, the Lift Car started to descend (the “Descent”).  It only stopped upon the Lift Car hitting the buffer spring on the ground floor inside the lift pit (the “Impact”).  P claims that he has suffered injuries as a result.

13.  The force of the Impact is in dispute.  That bears upon the question of quantum.  As framed by Mr Chung[1], one of the important issues before this Court is whether the Impact was forceful enough to result in the injuries claimed by P.  I will come back to it.

D.    The Claim

14.  On 24 April 2015, the Writ herein was issued.  The Statement of Claim is dated 6 August 2015 (“SOC”). The Revised Statement of Damages is dated 16 February 2017 (“RSOD”).

15.  D1 and D2 have each issued a Notice of Contribution and/or Indemnity against the other. 

16.  The trial of both P’s claim and the contribution proceedings were scheduled to commence before me on 12 March 2019, with 7 days reserved.

17.  On 7 March 2019, pursuant to Order 42 rule 5A, interlocutory judgment on liability was entered against D1 and D2 in the apportionment of 51/49[2] (the “Consent Order”).  Quantum of damages is to be assessed.  All the Notices of Contribution and/or Indemnity have thereby also been withdrawn, and the contribution proceedings discontinued.

18.  What remains is the assessment of damages.

19.  P claims that as a result of the Accident and having been trapped inside the Lift, he “suffered neck and back pain and post‑traumatic stress disorder”[3].

20.  According to the RSOD:

(a) After the Accident, P was sent to the A&E Department of Kwong Wah Hospital (“KWH”).  Muscle spasm was noticed over his back;

(b) He has suffered neck and back injuries, in respect of which he has consulted a number of different orthopaedics and institutions[4]. On 1 November 2016, he was granted sick leave up to 2 July 2017;

(c) He has memory problem, for which he had attended and referred to a number of institutions[5];

(d) He has psychiatric problem[6].  He has anxiety and depressive symptoms that he suffered after the Accident, and has been diagnosed of Post‑traumatic Stress Disorder;

(e) He has frequent urination[7];

(f) He avers[8] that:

“ Current disabilities and constraints of [P] includes [sic]:

(i) On‑and‑off back and neck pain which becomes severe at time of weather‑change;

(ii) Need walking stick in daily life;

(iii) Low back pain will be provoked by sudden movement and prolonged sitting;

(iv) Avoid lifting or moving heavy objects;

(v) Neck pain will be triggered by rapid extension and rotation [sic] the neck;

(vi) Occasional numbness and hot flushed on left leg; and

(vii) Limited range of neck and back movement;

(viii) Mood problem, insomnia and poor memory;

(ix) Fear of riding lifts; and

(x) Urgency of urination and dribbling on occasion.”

21.  In terms of damages, P claims:

(a) under the head of Pain, Suffering and Loss of Amenities, the sum of HK$600,000[9];

(b) under the head of Pre‑trial Loss of Earnings, the sum of HK$2,297,550[10];

(c) under the head of Post‑trial Loss of Earnings, the sum of HK$1,743,828[11];

(d) under the head of Loss of Promotion Prospects, the sum of HK$1,209,293[12]; and

(e) under the head of Special Damages, the sum of HK$54,500[13].

E.     Factual witnesses and expert reports

22.  On facts:

(a) P gave evidence before me.  His witness statement (“P/WS”) is dated 27 June 2016, the contents of which he has adopted in chief;

(b) On behalf of D1, Chan has been called.  He was at the material time the secretary of D1.  His witness statement is dated 27 June 2016, which contents he has adopted in chief.

23.  Three sets of expert reports have been placed before me:

(a) The elevator experts:

(i) Joint Expert on Lift Incident[14] prepared by Ir Lo Kok Keung for P and Dr Albert So for D2 (“J Lift Report”, “Ir Lo” and “Dr So”).  Attached to the J Lift Report are:

(1)  as Appendix 1[15]:

(a)  individual report of Ir Lo dated 14 September 2016 (“Ir Lo/Rep”), and

(b)  Dr So’s comments on Ir Lo/Rep (“Dr So’s Comments”);

(2)  as Appendix 2[16]:

(a)  individual report of Dr So dated 22 September 2016 (“Dr So/Rep”); and

(b)  Ir Lo’s comments on Dr So/Rep (“Ir Lo’s Comments”);

(ii) It should be noted that the above expert evidence was originally compiled on liability[17]. Ir Lo and Dr So were asked to express their opinion on 7 issues.  Most of those issues are no longer relevant.  The one which still is is issue 6 (and in particular the last part thereof), ie:

“ What is the general function of a buffer in a lift pit. What is the normal rate of descending for this type of lift. Could the experts comment from the [Footage] and report what was the descending rate of the [Lift] before grounding.”

(b) The Joint Orthopaedic Expert Report prepared by Dr Lam Chi Keung Johnson for P and Dr Lam Yuk Yee Paul for D1 and D2[18] (“JO Rep”, “Dr Johnson Lam” and “Dr Paul Lam”); and

(c) The Joint Psychiatric Assessment Report prepared by Dr Chung See Yuen for P and Dr Hung Bing Kei Gabriel for D1 and D2[19] (“JPA Rep”, “Dr Chung” and “Dr Hung”).

24.  Despite the fact that the experts do not agree on all their views, their attendance have been dispensed with.  I have been referred by Mr Chung to Chan Chung Keung v Greenroll Ltd t/a Conrad Hong Kong, unrep, HCPI 275/2005 (20 December 2005) wherein Deputy Judge Carlson remarked that:

“ … I will have to navigate my way through what is conflicting medical opinion, and test it against the background of all the other evidence in the case, which I am prepared to accept, in order to decide whose expert evidence is to be preferred.”

I will have to undertake the same exercise in due course.

F.     Medical treatment P has received

25.  The treatment which P has received both for his alleged neck and back pain and psychiatric issues has been set out at §§2 to 11 of the JO Rep and §§10.1 to 10.29 of the JPA Rep.  In summary, P was sent by ambulance to KWH.  He continued to attend General Outpatient Clinics.  He was referred to the orthopaedic clinic of QEH.  He attended the pain clinic of QEH.  He received 3 lumbar facet injunctions for diagnostic and therapeutic purposes.  He attended a private orthopaedic specialist, Dr HT Chow.  He received radio‑frequency treatment (neurotomy) in 2015 to his low back.  He had been referred to the urological clinic of QEH for his urological problem (with urgency/incontinence).  Various investigations including urodynamic study were performed.  He had also been referred to the psychiatric clinic for the nightmares and fear of taking the elevator which P claimed he had.  

26.  Dr Johnson Lam and Dr Paul Lam have reviewed the medical records in respect of P’s alleged problems.  The results are set out at §§1‑28 of the JO Rep under the heading of “Review of Medical Reports” and §§29‑40 under the heading of “Review of Other Reports and Medical Evidences”, which I have considered.    

G.    The Lift, and the scientific evidence in relation to the Accident

27.  I set out and consider first of all (1) certain relevant evidence in relation to the lift, and (2) the scientific evidence in relation to the Accident.  It is important for me to do so before I consider P’s credibility, which Ms Loh and Mr Yeung both attacked.

G.1. THE LIFT

28.  The following matters and features in relation to the Lift, which are not in dispute, are relevant:

(a) The Lift served G/F, 2/F, 4/F, 6/F, 8/F and 10/F (6 stops) of the Building[20];

(b) There are two doors to the Lift:

(i) The Lift Car has a door which slides automatically open or close (the “Car Door”).  It does not have any window or panel opening;

(ii) There is an outside door on each of the floor which the Lift serves (the “Landing Door”).  That door has to be manually pushed open from inside (or pulled open from outside).  Each of the Landing Doors has a fixed glass panel.  The glass of the panel on the Landing Door on the Ground Floor is transparent, whilst the glass of the panels on the other floors appear to be translucent;

(iii) I also note that on the inside of each of the Landing Door, there is a conspicuous number (or “G” in the case of the Ground Floor) showing the number of the floor which that door is on.  Hence, once the Car Door has slid open, and even before pushing open the Landing Door or trying to see through the glass panel, a passenger will know which floor he or she is on;

(c) The light fittings on the ceiling:

(i) According to Chan, there are 4 lights on the ceiling of the Lift;

(ii) ;As described by Chan, they are recessed or inset can lights.  They are recessed in the sense that their housings (which house the lightbulbs) sit above the ceiling.  Attached to each housing is a cover (the “Light Cover”).  The Light Cover is flush with the ceiling surface of the Lift Car;

(iii) Each Light Cover is an aluminum ring with a thin piece of circular glass at the centre, and is attached to the housing with some spring clips.  Each Light Cover is additionally attached to one end of a metal chain (with the other end of the metal chain attached presumably to the housing) so that even if the Light Cover comes loose from the housing, it will hang on to the chain but will not drop all the way down into the Lift Car.

G.2. THE CCTV FOOTAGE

29.  The Accident was caught by the close circuit camera inside the Lift Car.  The camera, from a high angle pointing down, caught both the activities inside the Lift and a small area immediately outside it.

30.  Due to the angle of the camera and the fact that P was wearing helmet, his face during most of the time could not be seen.  But by the 2 strips on his helmet (as worn by Senior Fireman), he can be identified.  The helmet worn by the Principal Fireman has 3 strips.

31.  Two video files have been produced.  The screen shows the time.  The accuracy of the clock is not important, so long as the duration of events can be decided with reference to the time shown.

32.  Together the two video files cover the 2‑hour period between 22:00:00 to 22:59:59 (the 1^st video file) and between 23:00:00 and 23:59:59 (the 2^nd video file) of 30 April 2012.  I call them together the Footage.  The material events took place between 22:58:30 and 23:05:00.  The other parts of the Footage are also useful in showing how the Lift worked and its speed (with reference to the on‑screen time) when functioning properly.

33.  The contents of the Footage are not in dispute (and are indisputable).

34.  Mr Yeung, counsel for D2, has prepared a table[21] describing certain material events as shown on the Footage.  The following are my findings on the material events upon my viewing of the Footage as assisted by the table prepared by Mr Yeung:

On‑screen time	Description
22:58:38	Chan, P and 3 other firemen entered the Lift Car on G/F.    P (as other firemen) was wearing a helmet.  P was holding some tools, stood at the back of the Lift Car with his back against the wall but facing the Car Door.
22:59:05	The Car Door slid closed.
22:59:21	The Lift Car arrived at 2/F and the Car Door slid open.   Chan attempted to push open the Landing Door.
22:59:22	The Lift Car started to descend.  The Car Door remained open during the Descent.
22:59:37	The Lift Car hit the buffer and stopped.  The floor of the Lift Car was a step below the ground level of the G/F lobby.   The Light Cover fell loose from the ceiling at Impact and became suspended by a chain.  Lights remained on.  No one in the Lift Car showed any noticeable motion at the time of the Impact.  They remained standing.  No one fell or bent down.  The Landing Door could not be opened.
22:59:41‑49	P moved slightly to his left and used his right hand to reach for his walkie talkie on his left chest pocket.
23:00:36	P kneeled down slightly, consistent with the motion of him putting down onto the floor the tools in his left hand.
23:00:43	P made his way from the back of the Lift Car to the Car Door.
Between 23:00:43 and 23:03:10	P at the Car Door, checking and looking out and up, and at times using a torch.
23:03:10	The Landing Door was opened.  P was the first one to step out.
23:03:16	The Principal Fireman picked up some tools from the spot where P had apparently put some down earlier.
23:03:20	P came back to the outside of the Car Door, bent down and collect certain tools from the hands of the Principal Fireman when the latter was about to exit the Lift.
23:03:23	All were out.  As could then be seen, the Lift Car was about 30cm below the ground level of the G/F lobby[22].

35.  According to the on‑screen time:

(a) The Lift Car started to descend at 22:59:22;

(b) It hit the buffer spring at 22:59:37;

(c) The Descent took approximately 15 to 16 seconds (the “Accident Descent Time”);

(d) P stepped out of the Lift Car at 23:03:10;

(e) P was trapped inside the Lift Car (from the time the Lift Car hit the buffer spring till he stepped out) for approximately 3 minutes 33 seconds (the “Trapped Time”).

36.  During the 2‑hour period which the Footage covers, there were 5 other occasions when the Lift Car descended from the 2^nd Floor to the Ground Floor.  The Lift was functioning normally during those occasions.  On each of those occasions, the time taken (from the moment when the Car Door had slid closed to the moment when the Car Door just started to open) was consistently about 14 to 15 seconds.  That was very close to (and in fact marginally quicker) than the Accident Descent Time.

G.3. THE SCIENTIFIC EVIDENCE IN RELATION TO THE ACCIDENT

37.  The interpretation of the scientific evidence in relation to the Accident is in dispute.  I consider in turn two relevant issues: (1) the speed at which the Lift Car hit the buffer (the “Impact Speed”), and (2) the force of the Impact (the “Impact Force”).

G.3.A.     THE IMPACT SPEED

38.  Electrical and Mechanical Services Department (“EMSD”) carried out an investigation after the Accident.  It conducted a series of on‑site tests over 7 days[23].  An Investigation Report[24] (the “EMSD Report”) was compiled, and was provided by EMSD to D2 under cover of its letter dated 28 June 2013.  EMSD could not identify the cause of the Accident, and suspected that it was caused by “an unidentified external factor”.

39.  More important for the present purpose is §5.1 of the EMSD Report where EMSD stated that:

“ 5. Observations and Findings

5.1. Information obtained from the CCTV Records

From the CCTV record, a tenant of the building travelled from 10/F to G/F using the lift concerned before the incident. The lift was operating normally at that time. Some time later, the tenant came back together with four firemen. They took the same lift on G/F. When the lift reached 2/F and the lift car door was opened, the passengers inside were about to open the landing door on 2/F. At that time, the lift started to descend, at a very slow but rather constant speed, with the lift car door opened. The descending speed was measured to be about 0.55 m/s which was between the inspection speed (0.25 m/s) and rated speed (1.0 m/s) of the lift. The passengers were trapped inside the lift after a shock. They were later released by another fireman stayed outside.” (emphasis added)

40.  Unfortunately, EMSD did not clarify in the EMSD Report as to whether the “descending speed” of 0.55 m/s mentioned therein was the average speed of the Lift Car during the Descent, or whether it was the speed of the Lift Car immediately before it hit the buffer spring (ie the Impact Speed).

41.  Ir Lo[25] and Dr So in general agree and accept the contents of the EMSD Report.  Both apparently took the 0.55 m/s as the average speed.  That stance appears reasonable, given the Lift descended 2 floors (assumed to be about 8m in distance) in about 15s (and 8 m/15 s = 0.53 m/s).  Ir Lo specifically disagreed if that stated speed of 0.55 m/s was meant to be the Impact Speed[26].    

42.  At §6(g) of Ir Lo/Rep, Ir Lo stated that:

“ The normal range of the descending speed was 1 m/s of the normal operation lift for about ten floors height building. I did not have sufficient data on hand, therefore I could not comment the descending speed of the lift car before grounding. Reference to EMSD’s investigation, the descending average speed of the lift car was 0.55 m/s. So that the impact speed of the lift car striking the buffer was 1.1 m/s …”

43.  In the J Lift Report, Ir Lo expressed difficulty in finding out the Impact Speed, that:

“ The general function of a buffer in a lift pit is to stop a lift, which overruns beyond its bottom landing. It is designed to stop an overrunning lift at 115% of its rated speed. In this case, the buffer is able to stop a lift moving down at 1.15 m/s. It is difficult to find out the descending rate of the lift before grounding. However, my calculation adopting constant deceleration revealed that the rate should be 1 m/s or above.”[27] (emphasis added)

44.  It appears that Ir Lo worked out the Impact Speed of 1.1 m/s as follows[28]. The initial speed of the Lift Car was zero when it started to descend on the 2^nd Floor. He assumed constant acceleration.  The Impact Speed would then be 1.1 m/s:

Average speed  = (Initial speed + Impact Speed) / 2;

0.55 m/s=  (0 m/s + Impact Speed) / 2;

Impact Speed   = 1.1 m/s.

45.  Dr So adopted a different route.  He took the Descent distance to be 8 m (although there is no evidence on the same). He took the Accident Descent Time to be 16 seconds.  He worked out the average speed to have been 0.5 m/s (8m/16s).  Adopting the same formula as Ir Lo used, he worked out the Impact Speed to be 1.0 m/s.

46.  Though reached only with the benefit of certain assumed facts, the conclusions ultimately reached by Dr So and Ir Lo on the Impact Speed are more or less consistent, namely 1.0 m/s or 1.1 m/s, which is the same as or 0.1 m/s faster than (or 110% of) the rated speed of 1.0 m/s of the Lift (1.0 m/s being, as commented by Ir Lo, the “normal range of the descending speed was 1 m/s of the normal operation lift for about ten floors height building”).

47.  I accept those opinion and calculations.

G.3.B.     THE IMPACT FORCE

48.  What is however more difficult and controversial is the Impact Force which the Impact at that Impact Speed generated.

49.  At §6(g) of Ir Lo/Rep, and immediately after the passage which I have cited above, Ir Lo stated that:

“ … The impact force of the lift car was 12444 N (1.27 tonnes) striking the buffer spring (see paragraph 5).”

50.  Earlier in the same report, Ir Lo stated:

“ 4.2. Reference to the DVD which shows that the [sic] when the [Lift] arrived 2/F and open its doors, the lift car suddenly descended with its inside door remaining opened until stopped abruptly after striking the buffer spring in the lift pit. All passengers were trapped inside the lift after shock. Related to the shocking, the ceiling light also drop off the ceiling of the lift car.

…

5. [Having set out his calculations] …

The impact force of the lift car striking on the buffer spring = … 12444 N (1.27 tonnes)

Inertia force exert on [P’s] body = … 863.6 N (194 lbf)

Therefore [P] would sustain 863.6 N (194 lbf), consequently causing injure [sic] to [P].

…

6(f).Related to the shocking after lift car striking the buffer spring in the lift pitch, the ceiling light also drop off the ceiling of the lift car.  It implied that the shocking was not small and [P] sustained inertia force 863.6 N (194 lbf) exerted on his body, such force would cause body injuries.  The purpose of the buffer spring used to absorb the impact force and minimize the human body injuries while the lift car striking the buffer spring in the pitch.”

51.  For the following reasons, I place no weight on those conclusions of Ir Lo (both in respect of the magnitude of the forces and their effects on human bodies):

(a) As Dr So has pointed out[29], which I agree having studied the calculations set out by Ir Lo at §5 of Ir Lo/Rep, Ir Lo, in working out those conclusions, assumed that the Lift Car was on free fall (by taking g, the gravitational effect, as 9.81 m/s²).  He therefore assumed zero upward tension by the hoisting ropes.  In my view, that is not justified.  As Mr Yeung has submitted[30], an object at free fall from at rest for 14s (taking g at 9.81 m/s²) would reach the speed of 137.34 m/s (which is equivalent to 494.42 km/h).  That is not borne out by the Footage;

(b) Further, and again as pointed out by Dr So[31], in working out those conclusions, Ir Lo made assumptions as to the dead weight of the Lift Car and the weight of the equipment which P was carrying, when there is no evidence on the same[32];

(c) Even assuming the accuracy of Ir Lo’s calculations, he has produced no authorities in support of his opinion that the forces “consequently causing injure [sic] to [P]” and that “such force would cause body injuries”.  I note Dr So’s opinion[33] that:

“ … there is no academic or technical base to justify that a force of 863.6 N as stated in [Ir Lo/Rep] acting on a human body for just a small portion of a second only would injure the body.”

(d) I have in any event serious reservations as to whether the views and opinion expressed by Ir Lo’s calculations on the effects of those forces on the human body are within his expertise;

(e) I also note that on 2 occasions in Ir Lo/Rep, Ir Lo referred to the fact that the Light Cover had fallen loose from the ceiling of the Lift Car.  In particular, at §6(f), he said that “It implied that the shocking was not small”;

(f) In my view, that is not a scientific observation.  As Dr So has pointed out[34], “Nobody checked whether the ceiling lamp had been securely fastened before the [Accident].  The falling ceiling lamp could not prove that the impact was big enough to injure a human body during the Accident”; 

(g) I will have something more to say about the Light Cover when I consider Chan’s evidence below;

(h) The function of the buffer spring is also relevant.  As Ir Lo has himself said, “The purpose of the buffer spring used to absorb the impact and minimize the human body injuries”.  And as Dr So has commented[35]:

“ The use of the buffer at the lift pit is to properly stop a descending car in case when it cannot be stopped by all limit switches, the motor drive and the brake. According to the design code, a modern buffer for a lift with rated speed of 1 m/s could most likely be of the type of energy accumulation … with a possible stroke at least equal to twice the gravity stopping distance corresponding to 115% of the rated speed, although an energy dissipation type could also be used …”

52.  I will state my findings on the Impact Force later after I have considered also the evidence of the factual witnesses.

H.    Credibility of factual witnesses

53.  I remind myself when considering a witness’ credibility the importance of considering the inherent likelihood or unlikelihood of the witness’ evidence, the consistency of the witness’ evidence with undisputed or indisputable evidence, with contemporaneous conduct and documents, and the internal consistency of the witness’ evidence.  I need to consider the totality of the evidence.  I warn myself against attaching undue weight on demeanour, though demeanour is obviously relevant when considering credibility.

H.1. P’S CREDIBILITY

54.  For the following reasons, I find that P is not a reliable witness.  In my view, various aspects of his evidence are exaggerative, inconsistent with undisputable evidence, internally inconsistent, inherently improbable, and evasive. 

55.  P’s evidence on the Descent is exaggerative, and is inconsistent with the Footage:

(a) In the course of cross‑examination by Ms Loh, P claimed that after the initial 1 second of slow descent, the Lift just took 2 to 3 seconds to hit the pit;

(b) That is contradicted by the Footage.  P was off by a big margin;

(c) The duration of the Descent is important when it comes to determining the seriousness of the Accident.  A shorter Accident Descent Time (of 3 to 4 seconds) would have made the Accident a much more serious one (compared with the Accident Descent Time of 15‑16 seconds).  P must know about it;

(d) That was not the first time he exaggerated the speed of the Descent;

(e) According to the handwritten medical notes kept by Dr Chan Chi King during consultation on 2 May 2012[36] (2 days after the Accident), P was recorded to have said that he “fell from a height of 10m when the lift which suddenly free fell landing on the grounds”; 

(f) Describing the Descent as a free‑fall is inconsistent with the Footage, and is highly exaggerative of the seriousness of the Accident.  The Accident Descent Time was approximately 15 seconds.  In terms of overall length, that duration is similar to the time the Lift takes to descend from 2/F to G/F when functioning normally.  Further, the Lift did not fall onto the ground but the buffer, which was there to reduce the force of impact;

(g) In fact, in quite a number of other medical or consultation notes, P has similarly been recorded to have told the doctors or psychologists that the Accident was a free‑fall.  Notable examples are:

(i) Consultation Note created by Dr Poon Ting Kong on 28 May 2012 at 09:12 am[37], that:

“ Occupation: fireman

stayed in lift

   and the lift ‘free fall’ for 2 floors.”

(ii) Consultation Note first written by Leung, To Fung (Dr.) on 31 July 2012 at 4:06 pm for consultation dated 31‑Jul‑2012[38], that:

“ IOD on 30/04/2012

   free fall in a lift for 2 floors’ height, standing position after fall.”

(iii) Consultation Note first written by Hui, Kit Man Grace (Dr.) on 12 September 2013 at 10:58 am for consultation dated 12‑Sep‑2013[39], that:

“ C/O: Fell from height on 30/04/2012

-    history of on duty work inside a lift on 30/04/2012 with ‘free falling’ for 2 to 3 floors.”

(iv) Clinical Psychology Progress Note by Clinical Psychologist Yiu Yui‑tsi, Dara, date of attendance 17 August 2015[40], that:

“ During work at an old housing building, fell at lift with 3 colleagues and the client from 2/F to G/F. Remained in standing position throughout the fall since he was not aware that it would free fall …”

(v) The Medical Report of 1 December 2015 prepared by   Dr Cheng Kin‑hung, William, Department of Orthopaedic & Traumatology, QEH[41], that:

“ [P] was initially assessed in our specialist clinic on 19^th October 2012. [P] claimed he was involved in an accident that happened on 30^th April 2012. [P] was working in an elevator, which suddenly went into free falling for two floors of height.”

(h) In the JO Rep, at §1[42], the 2 orthopaedic experts also reported that:

“ According to [P], he was a fireman at the time of the subject accident on 30 April 2012. He said he was inside a lift; the lift suddenly descended (free‑fall) for about 2 storeys, and then hit the ground with strong impact.”

(i) P was evasive when being cross‑examined as to whether he had told the doctors and psychologists that the Descent was a free‑fall. He first of all said “應該無”, or “我唔記得”, then later claimed that “我無講過，我從來無講過 ‘free‑fall’ 呢個詞語。”;

(j) In my view, unless P had, whether in English or Chinese, told them that the Lift Car was on a free fall, those medical professionals would not have used in their respective notes and records the term “free fall”.

56.  P’s allegation that his head was hit during the Accident when the Footage shows clearly that it was not the case:

(a) P has never in P/WS claimed that his head was hit by or against anything in the course of the Accident;

(b) The Footage does not show any;

(c) However, according to the FM Consultation Note created on 29 June 2012 by Fong Ting of Our Lady Maryknoll Hospital, P was recorded to have suffered from:

“ HI in the accident with L temperal [sic] region contused against the lift wall.”[43]

(d) When P was cross‑examined on those records, he claimed that he could not recall.  He also claimed to the effect that since he had poor memory after the Accident, and when asked by the doctors whether his head had been hit, he said that he suspected that he might have sustained some sort of head injuries during the Accident;

(e) In another set of FM Consultation Note (updated by Tsang Wai Man Vivian on 25 February 2013)[44], there was a similar record of:

“ head hit to the lift

worries about his head and brain

   expected for check up his brain”

(f) The reference to head injury and how it occurred were specific.  Even the region of the head that “contused against the lift wall” was specifically recorded.  I do not accept that there would have been such a record if P had not claimed so.  I reject P’s explanations given during cross‑examination;

(g) In my view, P did tell the doctors what were recorded about his head injuries, and that was untrue.

57.  The alleged pain:

(a) At §§10 to 12 of P/WS, P said:

「 10. 當該升降機抵達二字樓停下時，該升降機内門正常地打開。但當我同事擬推開該升降機外面的另一隻門時，該升降機突然在没有人干擾的情況下開始向下移動，期間内門卻一直打開並無關上。

11. 因為事發突然，我不知所措，而該升降機則一直在沒有掣動的情況下下降直至該升降機底槽的硬物撞停。撞擊期間，我感覺頸椎和腰椎劇烈痛楚，撞擊力也引致該升降機的天花裝置塌下來。

12. 是次意外發生後，我們被困在該升降機內。後由我們用對講机呼叫車上的同事前來救援，他用升降機門匙花了好幾分鐘才把該升降機在地下大堂的外門打開，讓我們逐一跨出來。」

(b) When cross‑examined by Ms Loh, he described further the alleged pain and his reaction as follows:

「 問： 直至到佢一撞，撞咗嘅時候覺得點呀？

答：我頸椎同埋嗰個腰椎好痛，因為我完全係冇屈膝，咁好似一個直接嘅壓咁，壓，成條脊椎咁樣壓一次咁樣，由頂壓到落個底咁樣。

問： 痛成點呀？

答： 非常之痛，係點痛嘅，好似一壓，好似咁樣擠一擠壓咁樣囉。

問： 劇烈痛楚，係咪？

答： 係。

問： 係咪呀？

答： 係。

問： 劇烈痛楚，呢個係你個證供嚟嘅？

答： 係，係。

問： 好喇，一撞落去嗰下，咁如果突然間咁樣咁痛，咁你當時嘅--你嘅動作反應係點樣呀？

答： 我個反應，我咪即刻揦住，『嘩，好痛，嘩』咁樣，就係咁樣囉。

問： 可唔可以企起身形容一下呀，做番一次你嘅動作係點樣。

答： 做呀？

問： 你當陣時係點，劇痛呀，頸又痛，背脊又痛？

答： 我就全部收一收縮，跟住就完咗喇，即係好痛，因為突然間...

問： 有冇痛到彎晒腰呀？

答： 冇，冇彎腰。

問： 形容一下你剛才做嘅動作，你係企喺度㗎嘛，係咪？

答： 我係企喺度。

問： 兩隻手揸實？

答： 我唔係，冇揸實呀，我--而家我做畀妳睇啫，我而家揸緊嘢㗎嘛，揸緊工具吖嘛，咁樣好痛囉。

問： 係。

答： 係喇。

官： 唔好想當然喇，你記唔記得你嗰陣時，根據你口供話劇烈痛楚嘅時候你當時嘅反應同埋個身嘅動作係點，你記唔記得呀？如果記得，做番出嚟畀我哋睇。

答： 記得，譬如假如我而家企咗喺度咁樣計，突然之間一扽，就係咁樣囉。

官： 大家可唔可以同意到一個文字嘅描述方法呀？

問： 你個身體成個人伸直咗僵硬咗一下咁樣，會唔會係咁呀？

答： 係喇，係喇。

 官： 唔該。大家同意呢個描述方法吖嘛？冇人反對，okay。」

(c) Despite the sort of intense pain P said he felt, P confirmed during cross‑examination that, despite someone having asked at that time as to whether anyone was hurt, he did not say that he was.  Given the sort of pain P said he felt, I find that inherently most improbable.  P’s evidence in that regard is as follows:

「 問： 好喇，仍然係好痛喎，咁你有冇同任何人--一有人救你--sorry，我問番一樣嘢先，喺架𨋢裡面有--當時有冇人講過任何嘢關於譬如話有冇人受傷，有冇人--有冇人咁樣講過嘢呀其實，係你自己問或者其他人問？

答： 應該有人問，應該有人問過有冇人受傷嘅，尤其是...

問： 你冇，你冇講你受傷？

答： 我唔記得--吓？我有...

問： 你冇講到你受傷，當時喺架𨋢裡面？

答： 我冇講過，我哋凈係話好痛啫，冇講過受傷。

官： 『我哋話好痛』？

答： 我凈係話講咗我好痛，『嘩，好痛』。

官： 你喺架𨋢度話咗你好痛？

答： 我相信我有講過，因為當事時我係好痛。

 官： 請繼續。」

(d) In respect of what P claimed that he had said (ie 「嘩，好痛」)[45], that does not appear in P/WS.  Upon further cross‑examination, he claimed that he was in fact talking to himself (「我同我自己講…『嘩，好痛』」);

(e) P’s bodily motion as shown on the Footage is inconsistent with him being in intense pain.  It does not appear that he froze in pain on the Impact.  Very shortly after the Impact (within 3 seconds), P moved slightly to his left and used his right hand to reach for his walkie talkie on his left chest pocket.  His right hand was free then.  With the sort of intense pain which P said he felt, I find it inherently most unlikely that he did not even try to use his free hand to feel his neck or back.

(f) In this regard, I refer also to the opinion of Dr Paul Lam[46] who, having reviewed the Footage, stated that:

“ The passengers did not fall and they were able to move in the narrow lift compartment. Judging from the observed mobility and movements of each individual climbing up a small step and walking out of the lift without the need of any assistance when they were rescued, none of the passengers showed movement or gesture inhibited by pain, which would often be the case if there were acute injuries…”

58.  Whether P was in fear:

(a) P’s evidence was that during the Descent, as he thought that the Lift would stop, he was not in fear.  However, he said that after the Impact, as he was in an enclosed area, there being no means of escape, and for fear of death, he became in intense fear (“好驚”).  The material part of his evidence in this regard is as follows:

「 問： 喺相比起嚟當日咁樣，呢架𨋢向下『sir』係以一個係唔係好快速度，咁然後佢由2樓去到地下停一停低，停低，撞咗落去，呢啲其實係一啲好少嘅事情嚟㗎，同唔同意？

答： 唔同意，其實首先佢唔係停低，佢係真係撞咗落地下，撞到響，佢係撞到下低個底嗰個彈弓係接觸到低過嗰個地嘅平面撞近1呎，接近1呎，撞咗落去，妳話--係，我--我--我係出生入死二十幾年，但係所有我去嘅工作全部喺我掌握之內，但係今次我喺個密室裡面，係冇辦法逃--逃--逃走，係冇辦法離開呢個現場。

問： 咁你就好驚喇，當時？

答： 係。

問： 好驚，當時？

答： 當時仲係好驚。

問： 好喇，咁停咗之後，架𨋢停咗之後，咁你個感覺係點呀？

答： 我想即刻走返出去。

問： 係咪好驚呀？

 答： 係。」

(b) His evidence that he was in intense fear (“好驚”) has to be considered in the context of the facts;

(c) At the time of the Accident, P had been a fireman for 27 years.  He had taken part in numerous rescues;

(d) The Descent was from 2/F to G/F, not from a great height;

(e) The Accident Descent Time was 15‑16 seconds, hardly different from the time which the Lift Car would have taken when functioning normally;

(f) The average descend speed was only 0.5 or 0.55 m/s (half of the rated speed);

(g) The Impact Speed was estimated to be 1.0 to 1.1 m/s, which was the same as or no more than 10% above the rated speed;

(h) The Car Door was open throughout.  P could see from the “G” sign on the inner side of the G/F Landing Door that the Lift Car had become stationary on the G/F.  He could also see through the glass panel on the G/F Landing Door the activities outside.  The lights inside the Lift all along remained on;

(i) P knew that his colleagues outside would come to his rescue.  He had the means to maintain communication with them;

(j) The Trapped Time was only 3 minutes 33 seconds;

(k) According to the Footage, no one said anything indicative of fear;

(l) In my view, whilst a person in P’s position can be expected to be slightly startled, to say that he as an experienced fireman was in intense fear (“好驚”) is exaggerative;

(m) P claimed further that as a result of the Accident, he became scared of taking lifts.  He said at §27(xi) of P/WS that:

「 自從意外發生後我對乘坐升降機也留有陰影，我要避免乘坐細小及殘舊的升降機。就是乘坐升降機時，我也會不期然心跳加速及冒汗 …」

(n) P’s residential home was on the 23^rd floor. When he was asked during cross‑examination as to whether he had ever, given his fear, taken the stairs back home, his answers were very clear, that he had not, that he had no ability to do that, and that it was impossible for him to do so;

(o) But he was shown to have given an inconsistent version to Dr Chung and Dr Hung.  In the JPA Rep, at §10.25 and 10.26[47], P was recorded to have told the doctors during the joint examination on 16 May 2016 that:

“ 10.25. After the Accident, every time he took an elevator, he was scared. When he was in an elevator, he frequently thought about the Accident. If he heard any strange sounds, he became very scared. He was particularly scared when he rode in a glass elevator at Pacific Place. His home is on the 23rd floor and when he was in the elevator, he distracted himself by playing on his mobile phone or chatting with his son.

   10.26.    However, there was a recent change in his situation. In his building, one of the elevators has been undergoing renovation or repair for over two months. Barriers were erected to cordon off that elevator.  Whenever he saw that the elevator was undergoing repair, he was very afraid.  He could not even take the other elevators which remained in service.  He walked up the stairs to his flat on the 23rd floor.  He avoided going out.  He said that he was able to walk stairs without too much pain.  He told us that he walked from the ground floor to the 18th floor to attend the joint examination.” 

(p) Having been shown those paragraphs, P changed his evidence.  He said first of all that he had done it 2 to 3 times, then confirmed that he had walked up twice and walked down twice, that he did so with difficulties, having had to stop and sit for a rest every 3 to 4 floors. He claimed that he had earlier forgotten about it;

(q) Then P was further cross‑examined as to whether he had walked up more than 10 floors at anywhere else.  He said that he had never done that.  But when shown again §10.26 of the JPA Rep, P then claimed that he had an impression of the incident, that he was very scared that morning when he attended the joint examination;

(r) In my view, the experiences of having climbed 23 floors of stairs at home (on 4 occasions, 2 ups and 2 downs) in circumstances he claimed to the experts, and of climbing 18 floors of stairs to attend the joint examination, are not something a reliable witness would have forgotten.  My view is that, more likely than not, P did not climb any of those stairs, but claimed to the experts that he had so as to exaggerate the seriousness of the psychological issues which he claimed he had.    

59.  Alleged use of walking stick:

(a) P claimed that after the Accident, and because of the pain, he had to use a walking stick until nearly 6 months after he had resumed work.  His evidence in this regard was as follows:

「 問： 唔，一路就一路攞住士的，一路攞到幾時呀？

答： 其實攞到係差唔--係我返咗工之後大概半年喥喇，就慢慢就可以唔用喇。

問： 你係17年7月3號復職嘅。

答： 係喇，係喇。

問： 半年之後即係要去到18年喎。

答： 係喇，冇錯。

問： 即係話你由意外一發生開始之後，第二日開始，直至到2018年初，你都係需要攞住支士的嘅？

 答： 係呀。」

(b) However, in the JO Rep, it was reported that P “Could walk normal gait without a stick”[48].

60.  Inconsistency concerning the use of neck brace:

(a) In P/WS, he said at §15 that:

「 …頸痛嚴重時，我曾需要倚賴戴上頸套2-3個月去減低痛楚。」

(b) But in cross‑examination, he claimed that he had worn neck brace for more than 1 year (“戴咗年幾”).

61.  Inconsistent as to whether he could drive after the Accident:

(a) On the question as to whether he could still drive after the Accident, and after repeated questioning, P’s evidence was as follows:

「 問： 好喇，意外發生三個月之後就發覺好痛，就唔再揸架車，其實keep住架車呢，凈係太太揸嘅啫，係咪咁呀，你個證供？

答： 係。

…

問： ...係咪三個月之內你有揸你個私家車，但係三個月之後就完全揸唔到喇，因為好痛，就之後就係太太揸，你話係咁個喎情況，係咪？

 答： 唔，唔，我諗我--嗱，我再--再--再--再重申一次喇，三個月之前我真係經常揸嘅，但係我發覺--發覺揸長途嘅時候我條腰好痛，我冇辦法再揸，咁之後就由我太太為主去揸車嘅，咁有時呢，呢段時間之內呢，如果有需要嘅話，短路程我都會揸嘅，我唔係完全揸唔到車，我只係唔能夠揸長路嘅車啫，係喇，因為我仍然係可以駕駛嘅，不過唔能夠駕駛長路啫。」

(b) That was however inconsistent with what P was recorded in the Clinical Psychology Progress Note to have told Clinical Psychologist Yiu Yui‑tsi, Dara during an examination on 17 August 2015[49]:

“ - Could drive, but must holding tight to the chair when turning, to prevent bumping action.”

62.  In making my findings above, I have considered Mr Chung’s submissions at §§145 to 151 of his closing submissions.  Mr Chung referred to the case of Choi Sun Hong v China Harbour Enterprise and Another, unrep, HCPI 1084/2007, 20 January 2010.  He submitted that “there are several parallels in the instant case and [Choi Sun Hong]”.  On assessment of credibility, I do not find references to previous cases helpful.

H.2. CHAN’S CREDIBILITY AND HIS EVIDENCE

63.  Chan owns 5 units in the Building.  Mr Chung suggested that Chan is financially interested in the outcome of this action as Chan would have to contribute to the damages. I accept that and bear that in mind.  However, that does not per se make Chan an unreliable witness.  I have considered his evidence.  His evidence is clear, straight‑forward, and is consistent with the Footage.  I do not detect any inherent improbability.  Despite his financial interest in the outcome of the proceedings, I find that Chan is in general an honest and reliable witness.  I accept his evidence over that of P in case of any difference.  I accept in particular:

(a) Chan’s evidence at §§9, 10 and 20 of Chan/WS[50], that:

「 9. 當升降機到達2樓時，升降機的自動内門打開，當我正想推開升降機外門時，升降機就開始慢慢地向下滑，初初速度很慢，後來速度快小小，直到升降機接觸到槽底彈弓，戥了一戥便停下。

10. 當時雖然是戥一戥，使2號升降機内近閉路電視鏡頭的燈罩跌下，令人感覺好似冲擊力很大，其實那燈罩是鬆了，用膠布暫時固定待更換，當時那戥一戥的冲擊力不是很大，各人仍然站立著，整個過程被升降機內的閉路電視拍下。

…

20. 本人聽到有2位消防員聲稱因2號升降機下滑後受傷，甚至精神受損，作出索償。雖然本人不太清楚他們聲稱受傷及嚴重性，但我只是從親身感受角度說，因為我本人亦在2號升降機內，當時下滑的速度及最後戥了一戥的衝力其實一點兒都不大。」

(b) Chan’s oral evidence that:

(i) in the course of the Accident, he did not hear P say「嘩，好痛」; and

(ii) in respect of the Light Cover, it had fallen off before, and Chan had 2 days beforehand used a 3M adhesive tape of about 2 to 3 inches long to stick it back on.  The material parts of his evidence was as follows:

「 問： 咁落到去，我哋見到架𨋢停嘅時候，上高就有啲嘢跌咗落嚟，你可唔可以講下嗰個係咩嘢事呢？

答： 嗰個係燈罩嚟嘅。

問： 係。

答： 嗰個係燈--係四眼燈中其中一盞燈罩嚟嘅。

問： 哦，有四眼燈嘅？

答： 係喇。

問： 呢個係其中一盞？

答： 係喇。

問： 你嘅證供裡面就話『其實那燈罩是鬆了，用膠布暫時固定待更換』嘅，你講一講呢個...

答： 個...

問： 你點知呀，呢樣嘢？

答： 因為嗰盞燈係之前兩日就係鬆咗落嚟嘅，係我親自貼上去嘅，通知咗管--𨋢公司換嘅，係我親自貼咗張膠紙上去嘅。

問： 前兩日，你話鬆咗落嚟呢，係咪又係好似而家咁樣個燈罩跌咗落嚟？

答： 正確，因為佢有條鏈鏈住嘅，有個安全鏈鏈住嘅。

問： 係，一樣係咁樣個燈罩跌咗落嚟？

答： 係喇，係喇。

問： 咁你就自--你親自黐上去嘅？

答： 係喇，係喇，啱喇。

問： 咁當陣時喇，我想講喇，嗰個𨋢準備撞落𨋢槽，喺嗰下，嗰個階段，你點樣形容嗰個電梯嘅速度呀？

答： 個電梯頭頭係慢慢滑落嚟，跟住去到底係快咗少少嘅，跟住撞一撞就停喇。

問： 撞擊力大唔力呀？

答： 一啲都唔大。

問： 撞擊嗰一下，即係架𨋢啱啱一撞落去地下嗰一下，個燈罩又跌落嚟喇，嗰一個階段呢，有冇聽到任何人發出任何聲音或者講任何嘢？

 答： 冇。」

I.      My factual findings in relation to the Accident

64.  I have in the discussions above (and particularly in the course of discussing P’s and Chan’s credibility) expressed my views on a number of material factual issues.  I group them together and reiterate them as follows:

(a) The Accident Descent Time was approximately 15 seconds.  In terms of overall length, that duration is similar to (and in fact marginally longer than) the time the Lift takes to descend from 2/F to G/F when functioning normally;

(b) The average speed of the Lift Car during the Descent was 0.55 m/s, which was half of the rated speed of the Lift;

(c) The Lift landed on the buffer spring, the purpose of which was to absorb the impact and minimize any human body injuries which the impact may otherwise bring about.  According to Dr So, a modern buffer for a lift with rated speed of 1 m/s could most likely be of the type of energy accumulation with a possible stroke at least equal to twice the gravity stopping distance, corresponding to 115% of the rated speed;

(d) The Impact Speed was approximately 1.0 to 1.1 m/s, which was the same or 10% above the rated speed of the Lift;

(e) The Impact Force was mild.  I accept Chan’s evidence[51], consistent with what can be observed objectively from the Footage, that the Impact Force was not strong at all (“一點兒都不大”).  I do not accept Ir Lo’s opinion in that regard;

(f) The Light Cover had fallen off before the Accident.  2 days beforehand, Chan had taped it back on with a 3M adhesive tape of about 2‑3 inches long.  The fact that the Light Cover fell off the ceiling of the Lift upon the Impact does not imply “that the shocking was not small”, as Ir Lo has suggested;

(g) In the course of the Accident, upon and immediately after the Impact, P did not indicate any fear, and did not utter「嘩，好痛」;

(h) He did not feel any pain upon the Impact;

(i) At no stage of the Accident was P’s head hit by or against anything substantial;

(j) P has exaggerated both his feeling about the speed of the Descent, the Impact Force, and his feeling of pain upon the Impact;

(k) The Trapped Time in so far as P was concerned was 3 minutes 33 seconds.  At all time, he had the means to maintain communication with his colleagues outside.

J.      The orthopaedic evidence

65.  Dr Johnson Lam’s diagnosis has been summarized as follows[52]:

“ The diagnosis is soft tissue injury to the back/neck. Dr. [Johnson] Lam opines that it is unlikely that [P] suffered from just mild soft tissue injury to the back/neck; considering the pre‑injury condition, the mechanism of injury condition, and the subsequent chain of events after the subject accident, MRI findings and other investigation findings, and findings at the present assessment, it is likely that he suffered from more significant and at least moderate degree of soft tissue injury to the back/neck, probably causing/significantly aggravating disc protrusion(s)/facet conditions, causing persistent back/neck pain and impairment as a residue of the subject accident.” (emphasis added)

66.  Dr Paul Lam’s diagnosis is different, and has been summarized as follows[53]:

“ The impact force should not cause any injury to the cervical and lumbar spine.

At most, the injury to [P] was only soft tissue sprain although Dr Paul Lam do have reservation as to whether the complaint of neck and back symptoms has been exaggerated.

Dr Paul Lam opined that [P’s] present complaints, if true, are 100% attributed by his pre‑existing degenerative condition in the spine. No one single accident could cause degenerative changes to the spine as revealed by the MRI findings.

The present complaint of [P] is due to his pre‑existing degenerative condition in his spine as soft tissue if [sic] self‑limiting in nature.”

67.  For the following reasons, I do not accept Dr Johnson Lam’s diagnosis.  I accept Dr Paul Lam’s.

68.  Mr Yeung submits[54], and I agree for the following reasons, that Dr Johnson Lam appears to have accepted P’s mostly subjective complaints without adopting a critical approach.

69.  I have expressed my findings above on the Impact Force.

70.  Whilst Dr Johnson Lam expressed the view that it was difficult to estimate the Impact Speed, he said[55] that:

“ …It is probable that the impact was quite great as the lamp cover dropped down (from the ceiling lamp) after the fall.”

71.  I have discussed above the evidence in relation to the Light Cover.  The fact that the it had fallen loose does not support the probability that “the impact was quite great”.

72.  Dr Johnson Lam opined that the Accident could have caused considerable soft tissue injury to the lower back[56].  He said further that:

“ it is important not only to consider the [Footage] and the ‘presumed forces on the spine’, but also the overall evidences including the pre‑injury condition, mechanism of injury, clinical picture that followed, progress of treatment, MRI findings and findings at our joint assessment.”

He acknowledged that “it may be true that in the laboratory situation, there was no academic or technical base to support that a force of 863.6N … can cause injury to a cadaver in the laboratory — as explained above, we are dealing with clinical situations and not laboratory situations”.

73.  But the medical evidence does not support Dr Johnson Lam’s opinion:

(a) There is no medical evidence indicating that P was suffering from “disc protrusion(s)” or other forms of anomalies save prior degeneration:

(i) X‑ray at the A&E Department of KWH on 1 May 2012 — normal[57];

(ii) X‑ray on 2 May 2012 upon referral by Dr Chan Chi King — normal[58];

(iii) MRI on 9 May 2012 upon referral by Dr Chan Chi King — no vertebral body collapse or fracture in the thoracic and lumbar spine noted, though with early degenerative changes[59];

(iv) MRI on 28 November 2012 at QEH upon request of KWH[60] (with emphasis added):

“ MR Whole spine, plain

Mild degenerative changes are noted a lower cervical and lower lumbar spine

Mild builging [sic] discs at C4/5 and C5/6 with indentation onto adjacent cervical thecal sac is noted.

No radilogicla [sic] evidence of radiculopahty [sic] is noted.

No evidence of spinal cord compression is noted.

No abnormal signal is noted in whole spinal cord.

Spinal cord ends at L1 vertebral level.

No bony destruction is noted.

Bony alignment appears satisfactory.

   No abnormal paraspinal mass is seen.”

(v)  The medical report of 15 May 2013 prepared by Dr H T Chow[61] (with emphasis added):

“ MRI scan whole spine in 11 Nov 2012: There is C56 disc degeneration with collapse of the disc space. Modic changes are seen. There is no disc hernia, annular tear seen at the lumbar spine.

Recommendations

…

(3) His pain symptoms are out of proportion of the MRI findings.

(4) The C56 disc degeneration could be one of the component that causing his neck pain and weakness of the muscles around the neck.

(5) The lower lumbar spine has no abnormality shown on the MRI except some degeneration which is common for his age and occupation.

   …”

(vi) In his Medical Report of 27 July 2015[62], Dr Edmond Chung of QEH reported that:

“ MRI of spine revealed mild degenerative changes, but without any obvious neuro compression.”

(vii) Commenting among other matters on the MRI conducted on 28 November 2012, Dr Cheng Kin‑hung William of QEH reported on 29 October 2015[63] that:

“ There was no limb numbness or weakness. Physical examination showed local tenderness and stiffness at the cervical and lumbar region. There was no neurological deficit. X‑rays of the cervical and lumbosacral spine showed mild degenerative changes. [P] was treated conservatively with analgesics and physiotherapy. MRI of the brain and the whole spine performed on 28/11/2012 at Kwong Wah Hospital was unremarkable…”

74.  As Ms Loh has submitted[64], which is supported by the evidence, all medical investigations revealed no abnormality of the brain and the spine, apart from mild degenerative changes.

75.  Dr Johnson Lam reached the conclusion that P “suffered from more significant and at least moderate degree of soft tissue injury to the back/neck, probably causing/significantly aggravating disc protrusion(s)/facet conditions” despite the above evidence.  I accept Mr Yeung’s submission[65] that Dr Johnson Lam has provided no explanation as to why there is such a probability when there was no MRI findings on the disc protrusion, and why he came to that conclusion nonetheless.

76.  In fact, it appears that Dr Johnson Lam was alive to P having been exaggerative of his symptoms, but yet saw fit nonetheless not to adopt a more critical approach when considering his complaints.  In the JO Rep[66], Dr Johnson Lam said:

“ - Considering the overall evidences reviewed and findings at the present assessment, Dr Johnson Lam opines that it is likely that he had considerable improvement with various treatments. It is likely that [P] still has some genuine pain and impairment in the back/ neck despite various treatments.

- Considering evidences and investigation findings (including the MRI findings, various medical reports including medical reports from the orthopaedic specialists), and findings at the present assessment, the degree may not be as severe as what he alleged (eg usually needing a stick for walking when going out; pain provoked by sitting for just 30 minutes; simply extending and flexing the neck can provoke rather severe neck pain).” (emphasis added)

77.  In my view, Dr Paul Lam’s evidence is on the other hand reasonable and logical.  His evidence is also consistent with the overall medical evidence and the Footage.  He opined[67], which I accept, that:

“ … the subjective complaint of back pain cannot be explained by the MRI, diagnostic injection and the physical findings in the examination. It is out of proportion to the mechanism of the injury. Some patients may complain of increased pain one or two days after muscle injury, but this type of paid is usually self‑limiting and resolved with appropriate treatment. Dr Paul Lam disagrees with Dr Johnson Lam of the suggestion that [P] suffered more severe soft tissue injury as this is not supported by the objective findings.”

78.  In making my findings, I have considered Mr Chung’s closing submissions[68] dealing with the joint orthopaedic examination:

(a) at §25, he submits that in assessing the damages, one of the important considerations will be to evaluate whether the Impact was forceful enough to result in the injuries claimed by P.  He then referred to and relied on the opinion of Ir Lo;

(b) I have made my findings on the Impact Force;

(c) I further note Dr Paul Lam’s opinion[69], which I accept, that:

“ Leaving aside the dispute between [Ir Lo] and [Dr So], the sudden change of loading at the bottom of lumbar spine was not significant, i.e. from 194lb static weight to 194lbf. From the medical point of view, the intervertebral disc between each level of vertebrae is designed by nature to absorb the axial impact force along the line centre of gravity. Carrying a child on one’s shoulders may have a greater compression force on the spine but it would not cause any problem as experienced in our daily life. If the impact force is great enough, it is usually the vertebral body to yield causing vertebral fracture rather than damage to the disc. Judging from the medical point of view, the impact force as opined by the experts on liability would have little or no effect on the human spine. Degenerative changes of the cervical and lumbar spine, as the description indicated, and documented in MRI findings, the cause of such is due to self‑degenerative process, accelerated by wear and tear over a long period of time. It did not happen over a course of one day or one accident.”

(d) Mr Chung relied on Dr Johnson Lam’s opinion that other facts such as a passenger’s anticipation and preparedness during the fall should also be taken into account[70].  He then pointed to P’s evidence that did not have time to prepare for the Impact and brace himself[71].  I do not accept P’s evidence in that regard.  The Descent took 15‑16 seconds.  He could see the “G” sign on the inner side of the G/F Landing Door.  If P had in fact felt that the speed of the Descent was fast and he needed to prepare himself for the Impact, he should and would have had sufficient of time to do so; 

(e) Mr Chung then[72] relied on the pre‑accident good health enjoyed by P, the pre‑existing degeneration P had as detected by MRI, and Dr Johnson Lam’s opinion[73] that:

“ … In [P’s] case, from the evidences available, it is likely that the subject accident had caused more significant and at least moderate soft tissue injury to the back/neck, causing persistent pain and impairment in the back/neck. But for the subject accident, even if [P] eventually develops symptoms in the back/neck, such symptoms are likely to be milder and more occasional. In [P’s] case, the subject accident had a major contribution to his present impairment and disability in the back/neck.”

(f) To start with, Dr Johnson Lam’s opinion is based upon his view that “it is likely that the subject accident had caused more significant and at least moderate soft tissue injury to the back/neck”, which view I do not accept;

(g) Having considered the evidence, and for the reasons set out above, I accept Ms Loh’s submissions[74] and Mr Yeung’s submissions[75] that Dr Johnson Lam’s conclusion of a significant or moderate soft tissue injury is based mainly on P’s subjective report of symptoms and complaints.  It is inconsistent with the Footage and other evidence, and is not backed by any objective medical pathological findings.  I do not accept Dr Johnson Lam’s conclusion in that regard;

(h) I have considered Chan Kam Hoi v Gragages et Travaux Publics, unrep, HCPI 815/1995, 7 March 1997.  On the evidence, I accept Dr Paul Lam’s opinion[76] that:

“ 35. Dr Paul Lam opined that [P’s] present complaints, if true, are 100% attributed by his pre‑existing degenerative condition in the spine. No one single accident could cause degenerative changes to the spine as revealed by the MRI findings.

   36.    If [P] is not exaggerating his complaints, Dr Paul Lam opines that [P’s] complaints of degenerative symptoms would have occurred in his life in any event from age 50 to 60, which is the common range of age which patients would complain of degenerative symptoms in cervical and lumbar spine.”

I accept further Dr Paul Lam’s view on Pre‑existing Condition[77], that:

“ Dr Paul Lam opined that the degenerative changes in both cervical and lumbar spines are pre‑existing, which are unrelated and not caused by the alleged accident. Dr Paul Lam disagrees with Dr Johnson Lam on this point as soft tissue injury, as explained above, is self‑limiting and would not last for such a long time, especially that [P] has been receiving treatment.”

79.  Having considered the orthopaedic evidence against other facts of the case, I prefer the opinion of Dr Paul Lam to that of Dr Johnson Lam.  I accept in particular Dr Paul Lam’s opinion on diagnosis as set out above.  I find in particular that P has exaggerated his symptoms and severity of any pain he claimed he had.  I accept Dr Paul Lam’s opinion that the Impact Force should not cause any injury to the cervical and lumbar spine, and that the injury to P was at most only soft tissue sprain.  Dr Paul Lam’s further opinion[78], which I accept, is that “soft tissue injury is self‑limiting and does not require prolonged treatment.  Solely for soft tissue injury as the one experienced by [P], a treatment period ranging from 4 to 6 months would be sufficient”.  On the basis of a mild soft tissue injury, even on Dr Johnson Lam’s evidence[79], “it is likely to achieve good recovery after 6 weeks up to 3 months of treatment”. 

80.  On the evidence, I accept Ms Loh’s submissions[80] that the claimed gradual deterioration of P’s injury is not supported by any objective medical findings or pathology, that that such claimed deterioration is unreasonable and defines medical sense.  I find that P’s symptoms and degree of pain are much less serious than what he claimed to his treating doctors and psychiatrists to be.  He exaggerated them.  I further find that any residue pain which he may have is, as opined by Dr Paul Lam, “100% attributed by his pre‑existing degenerative condition in the spine” “which would have occurred in his life in any event from age 50 to 60”.  I accept his opinion[81] that the “present complaint of [P] is due to his pre‑existing degenerative condition in his spine as soft tissue injury is self‑limiting in nature”.

81.  I accept Dr Paul Lam’s evidence that for the mild degree of muscle injury, sick leave of up to 6 months is appropriate[82]. I note that according to the evidence, P has not after September 2015 received any treatment other than follow up consultations and painkillers prescriptions.

82.  Relevant to the issue on sick leave, I have considered the sick leave certificates[83] and the Medical Board Reports[84] endorsing the same.  As Mr Chung has conceded[85], the Court should not accept blindly the sick leave certificates issued to a claimant.  Sick leave certificates are no more than a piece of evidence that has to be evaluated in the light of all the available evidence before the court[86].  On all the evidence before this Court, I accept Dr Paul Lam’s evidence in this regard, which in my view is consistent with the nature of the Impact and the objective medical evidence adduced.

83.  I have already expressed my acceptance of Dr Paul Lam’s opinion on P’s pre‑existing degenerative conditions in the spine.

K.     The psychiatric evidence

84.  Both experts agreed that P did not meet the diagnostic criteria for Post‑traumatic Stress Disorder[87].

85.  Both experts agreed that P’s psychiatric symptoms are compatible with adjustment disorder with anxiety and he was mentally fit to return to the pre‑accident job.[88]

86.  According to Dr Hung:

(a) whilst overall, P has some psychiatric symptoms which may be attributable to the Accident, they do not qualify for any diagnosable psychiatric disorder [§16.11 of the JPA Rep];

(b) no sick leave is deemed necessary [16.17]; and

(c) P has no impairment in function, and the permanent impairment in his functioning is 0% [§16.21].

87.  According to Dr Chung:

(a) whilst P complains of several anxiety and depressive symptoms during the interview, there is absence of any significant psychopathology [§17.4.b.];

(b) whilst P complains of poor memory, his memory functions are assessed to be within normal limits based on his overall performance in the interview [§17.4.c.];

(c) P has mostly recovered from the adjustment disorder [§17.4.g.];

(d) The impairment levels caused by the mental problems are mild and are compatible with all useful functioning.  P is mentally fit to perform all activities of daily living and housework.  He does not need to avoid any activities from the psychiatric point of view [§17.5];

(e) Sick leave for 3 months from the first psychiatric consultation is appropriate [§17.7];

(f) at §17.9:

“ Purely for the parties’ reference, I find that his loss of earning capacity, due to the mental problems caused by the accident, at 2%. I estimate the degree of permanent impairment of the whole person, due to the mental problems caused by the accident, at 2%.”

88.  Given Dr Chung’s other views that P’s symptoms show no significant psychopathology, that P has normal memory functions, that he has mostly recovered, that P is mentally fit to perform all activities of daily living, and that P was mentally fit to return to his pre‑accident job, I do not understand why Dr Chung nonetheless reached those conclusions on loss of earning capacity and degree of permanent impairment.

89.  I have also found above that P exaggerated before the experts (claiming that he had climbed the stairs at home and to attend the joint examination) as to the seriousness of the psychological issues which he claimed he had.

90.  Having considered the totality of the evidence, I prefer the opinion given by Dr Hung.

L.     The alleged urological problems

91.  In P/WS, at §23, P talked about him having in May 2014 been referred to the Urology Clinic of QEH for follow up.  He has otherwise given no details about his alleged urological problems before that time.

92.  Under cross‑examination, P said that he started to have urological problems about 1 year after the Accident.

93.  According to the record, P first complained about urological problems some 2 years after the Accident.  The referral letter is dated 14 April 2014, which referred P for “recent onset of worsening urge incontinence” [4/181].  In his report of 11 October 2015, Dr Lo Ting‑kit reported that P was first seen in the urology clinic on 15 May 2014.  He was diagnosed with overactive bladder syndrome.

94.  No evidence has been placed before me explaining how the alleged urological problems were caused by the Accident, and why it took more than one year to manifest themselves (or why they started to worsen some 2 years later).

95.  In the JO Rep, Dr Paul Lam opined at §37[89] that:

“ [P] complained of urological symptoms of urgency and dribbling. According to the medical report of Dr Lo Ting‑kit of Department of Surgery of QEH, he was diagnosed suffering overactive bladder syndrome. The alleged accident did not cause any neurological injury as evidenced by both physical examination and MRI findings. Therefore, Dr Paul Lam concludes that the urinary symptoms are not related to the alleged accident.”

96.  Given the delayed onset of the alleged problems, the absence of evidence explaining why, and the absence of any neurological injury, I accept Dr Paul Lam’s evidence in this regard.  I find that the urinary symptoms are not related to the Accident.

M.    Pain, Suffering and Loss of Amenities (“PSLA”)

97.  PSLA is covered by Mr Chung at §§75 to 94 of his written closing submissions.  He submitted that the Accident and the resultant injuries and disabilities have had severe adverse effects on P’s daily life.  He used to be active.  He has since the Accident stopped taking part in almost all physical activities.  His social life has been affected.  He has been much inconvenienced.  Physical exertion has to be avoided.  He has urological problems.  He has issues handing his temper.  He has a loss of sexual desire.  He therefore claims a sum of not less than HK$600,000.

98.  I have made my findings above in respect of the Accident, the Impact, the Impact Force which was mild, P’s exaggerations both in respect of the seriousness of the Accident and his symptoms, that he only suffered from self‑limiting mild soft tissue injury which should have achieved good recovery after 6 weeks to 3 months or upon treatment period ranging from 4 to 6 months, that his present complaints, if true, are 100% attributed by his pre‑existing degenerative condition in the spine, that his degenerative symptoms would have occurred in his life in any event from age 50 to 60, that he suffered only from adjustment disorder with anxiety but not Post‑traumatic Stress Disorder, that he has no permanent psychiatric impairment or impairment in function, and that any urological problems are not related to the Accident.

99.  In his written closing submissions, Mr Chung relied on Lau Koon Loi v Wong Wai Sing & Another, unrep, HCPI 445/2007, 28 June 2011 (amongst other disc protrusion), Suen Kum Fung Kandy v Tsang Cham Kuen & Another, unrep, CACV 75/2008, 29 August 2008 (whiplash injury suffered by the plaintiff as a passenger when the goods vehicle she was in was hit from behind by a bus), Cheung Man Fai v To Yu Bun & Another,unrep, HCPI 886/2003, 29 April 2005 (slight bulging of C4/5 and C5/6 and whiplash injury), Joan Carol Boivin v Wong King Yin & Another, unrep, HCPI 195/2000, 14 February 2001 (severe whiplash injury as a result of a traffic accident) and Luk Yee Lam v Orasa Livasiri, unrep, HCPI 394/2002, 27 November 2003 (disc herniation at C5/6).  The injuries in those case were all more serious that those I have found P to have.  I do not find those cases helpful.

100.  Ms Loh has referred to me to 16 cases on PSLA.  I find the following relevant:

(a) Wong Kin Hung v Chan Wai Ming, unrep, DCPI 1223/2006, 16 February 2007 (neck pain compatible with soft tissue injury) — PSLA HK$70.000;

(b) Ng Ting Chun v Chung Man Chun Philip, unrep, DCPI 1070 of 2007, 19 June 2008 (mild sprain of back with no disc compression, prolapsed disc or disc herniation) — PSLA HK$80,000;

(c) Li Ting Fai v Woo Chi Keung, unrep,DCPI 807/2007, 18 January 2008 (mild case of whiplash neck injury affecting soft tissue only, with mild psychiatric disabilities) — PSLA HK$90,000; and

(d) Yip Mau Kei v Wong Kam Tim, unrep, DCPI 1905/2013, 10 February 2015 (a soft tissue injury with residual back symptoms with mild adverse effects) — PSLA HK$90,000.

101.  Mr Yeung has also cited to me a number of authorities.  I find Chan Lung Hing v Ng Kam Man, unrep, HCPI 405/2012, 20 June 2014 (soft tissue injury to neck and back — PSLA HK$100,000) and Lau Wa Ying (a bankrupt) v Caritas‑Hong Kong, unrep, DCPI 2885/2014, 6 March 2017 (soft tissue injury to her back with a single episode of major depressive disorder — HK$120,000).

102.  Having considered the evidence and the authorities cited to me, I accept Ms Loh’s submissions[90] that, taking into account the adjustment disorder P is found to have had, an award of HK$200,000 is appropriate.  I so order.

N.     Pre‑trial Loss of Earnings

103.  For P’s soft tissue injury, I accept Dr Paul Lam’s opinion that sick leave of up to 6 months is appropriate[91]. 

104.  For his psychiatric symptoms, I accept Dr Hung’s opinion that no sick leave was deemed necessary.

105.  The basic salary P would have received from 1 May to 31 October 2012, according to P’s case and the evidence, was:

HK$28,755 x 1 + HK$29,570 x 5 = HK$176,605

106.  During his sick leaves, P continued to receive basic salary from the Fire Services Department (“FSD”).  According to the Returns of Payroll Emoluments[92], the total taxable payroll emoluments P received for the years ended 31/3/2013, 31/3/2014 and 31/3/2015 were respectively HK$362,798.88, HK$376,860 and HK$266,330.65.

107.  Further, as Mr Chung has accepted, P received advanced payments from his employer in the amount of HK$1,165,740, which sum has to be off‑set against any pre‑trial loss of earnings[93].  As submitted by Mr Yeung[94], which I accept, given that those payments received by P far exceed the loss of basic salary during the 6‑month sick leave period which I have ruled to be appropriate, there should not be any award for pre‑trial loss of earnings in respect of basic salary.

108.  According to the evidence, on top of basic salary, P would also have been entitled to allowances in the total monthly sum of HK$2,208.  The total allowances which P would have received during the 6‑month sick leave period would have been HK$2,208 x 6 = HK$13,248.

109.  I make an award in the sum of HK$13,248 under the head of pre‑trial loss of earnings.

O.    Post‑trial loss of earnings

110.  I accept Dr Paul Lam’s opinion expressed under the topic of “Working Capacity”[95], that:

“ … [P’s] complaints of degenerative symptoms would have occurred in his life in any event from age 50 to 60, which is the common range of age which patients would complain of degenerative symptoms in cervical and lumbar spine. Such kind of degenerative changes do not happen over the course of one day. It took years for the degenerative changes to develop and manifest the findings in the MRI. Patients having such degree of degenerative changes would have no problem to carry out their ongoing jobs and daily activities. [P] should be able to resume his pre‑accident occupation as a senior fireman in almost full capacity. He may experience some pain and aching discomfort when carrying heavy objects.”

111.  At §44 of the JO Rep, Dr Paul Lam said that:

“ For party reference, Dr Paul Lam assessment [P] to have 1% permanent impairment of whole person and 1% loss of earning capacity.”

112.  Dr Hung and Dr Chung agreed that P was mentally fit to return to the pre‑accident job.

113.  Dr Paul Lam has not made clear whether the assessment he expressed at §44 of the JO Rep was the result of P’s pre‑existing degenerative conditions (which appears to be the case given his other views, and in particular his opinion that the “present complaint of [P] is due to his pre‑existing degenerative condition in his spine as soft tissue injury is self‑limiting in nature.”) or otherwise.

114.  But in any event, on the basis of my finding that P had only suffered from mild soft tissue injury to the back/neck, there is no evidence that if P had resumed his employment after 6 months’ of sick leave and continued his employment with the FSD till his scheduled retirement, he would, subject to the issue of loss of promotion prospect which I will next deal with, have suffered any loss in terms of salaries, allowance or otherwise.

115.  In so far as post‑retirement loss of earnings are concerned, Mr Chung submits[96] that “had [P] not been injured and left in his current physical and psychological state due to the Accident, he like most of his colleagues before him, would have continued working in the commercial sector for at least an additional 10 years”.

116.  P’s case is based upon his contention as to what his “current physical and psychological state” is, which I do not accept.

117.  I further and in any event accept the submissions of Ms Loh and Mr Yeung that P’s claim for post‑retirement loss of earnings is not supported by any evidence but is a bare plea[97].  Both in his opening and closing submissions, Mr Chung submitted that but for the injuries, P would have been able to earn an average post‑retirement monthly salary of HK$26,000, but that with P’s injuries, he would only be able to earn HK$13,422 per month.  Those 2 figures are speculative.  In particular, the figure of HK$13,422 is related to P’s alleged disabilities, which I for the reason set out above do not accept.  There is further no evidence, as Mr Yeung has submitted[98], as to P’s willingness to continue to be employed during his post‑retirement period or the type of employment that he planned to take up.

118.  P has adduced some circulars and notices issued by the Civil Services Bureau and FSD on post‑retirement posts.  They do not assist P’s claim in this regard.  I reiterate Dr Paul Lam’s opinion that P should be able to resume his pre‑accident occupation as a senior fireman in almost full capacity.  There is no evidence that on the basis of my findings on P’s injury, P would not be able to apply for those posts or would be prejudiced in his chance.

119.  I make no award under this head.

P.     Loss of promotion prospect

120.  To succeed, the burden is on P to prove that there were reasonable prospects that he would have been promoted to the post of Principal Fireman, and at what time.  He is required to establish a “substantial chance” or “significant chance” of promotion — see Liu Chun Kow Joe v Lee Sau Wing, unrep, CACV 304/2007, 16 April 2008, §§40‑44, and Lai Jianxing v Sakoma (HK) Ltd & Ors, unrep, HCPI 757/2009, 9 September 2011, §§53‑55.

121.  P’s claim in this regard faces two problems.

122.  First, I have rejected P’s claim both in respect of the nature and seriousness of the injuries he suffered as a result of the Accident.  I have also made my findings in respect of the appropriate length of his sick leave.

123.  There is no evidence to suggest that the type of self‑limiting mild soft tissue injuries and adjustment disorder which I find P to have suffered would have affected his promotion prospect.

124.  Second, P’s case is in any event speculative as to whether he would have had any substantial chance or significant chance of promotion:

(a) P has pointed to some previous favorable appraisal reports on him between 2006 and 2012;

(b) Feeling aggrieved that he had not been promoted despite those appraisals, P filed a formal complaint to the FSD on 10 May 2012[99];

(c) On 18 May 2012, the FSD replied[100] that

「 按照上述的程序，符合『極為適合升級』的人員，除經過三重嚴格的評核及挑選外，亦必須在各個工作範疇上有卓越的表現。據了解，你在相關年度的整體工作表現，雖然獲評核為『優』等，惟是在16項工作表現當中，尚有『面對壓力的表現』、『組織能力』、『儀容和舉止』、『與人相處技巧』及『支持/參與部門活動』等數項獲評『良』等，此等獲評『良』等的工作表現項目，雖然是一個高水平的表現，但如要獲得『極為適合升級』的評級，你在該等項目的工作表現仍須要著力提昇。

  你在信中表述自己的年資、年報評級、貢獻和學術都比被推薦的同事優勝。對於你這個人而陳述，我曾諮詢你的XXXXX[101]，雖然他們一般都表示滿意你的工作表現，惟是相比同級同事，你的表現並非十分突出，而你的處事作風與及與人相處尚須改善；具體的意見是你間歇有自以為是、我行我素的表現。你的XXXXX，亦明言在分隊或分局的評核檢討時，基於你在上述各項工作的表現尚有待提升，因此沒有揀選你作為推薦的人選。」

(d) In another letter of 7 June 2012[102] issued by FSD to P, the FSD stated:

「 綜觀九龍西區就有關年度人員的評核工作，是根據部門所訂明的運作規則行事，你不獲考慮及推薦，主要原因是你尚有數個方面的工作水平，仍未達致評核標準的最高級別。對於這個客觀現實，我希望你能虛心接受，將你的力量專注於提升相關工作方面的能力和表現。

…

XXXX在回覆你的信件中，向你說明你的行事有違部門訓令之嫌，是嚴肅而正當的指示。你對此表示嚴正反對，足以證明你『自以為是』，有漠視部門訓令之傾向,令人懷疑你是否擁有正確的分析及判斷能力。作為一名資深的紀律部隊成員，這種態度更是不能接受。我鄭重說明，上述消防訓令必須嚴格執行。」

125.  In the light of such evidence, I am not satisfied that P has established the “substantial chance” or “significant chance” of promotion which he is required to establish.

Q     Special damages

126.  As set out at §142 of Mr Chung’s written closing, P’s claim under this head is for medical expenses of HK$40,000, travelling expenses of HK$5,000, tonic food of HK$8,000 and medical accessories of HK$1,500, in the total sum of HK$54,500[103].

127.  I have looked at the receipts produced.  I allow the professional fees of Dr Chow Hung Tsan in the total sum of HK$24,013, as evidenced by an receipt of 11 October 2013[104].  I am also prepared to allow the bonesetter fees in the total sum of HK$3,000[105].  The tonic foods were however purchased in 2015.  Given the time gap and Dr Paul Lam’s opinion on the nature of the injuries, I am not prepared to allow them.

128.  In summary, I allow the total sum of HK$27,013 under this head.

R.     Conclusion

129.  I assess the damages of P’s claim as follows:

(a) PSLA — HK$200,000;

(b) Pre‑trial loss of earnings — HK$13,248;

(c) Post‑trial loss of earnings — nil;

(d) Loss of promotion prospect — nil; and

(e) Special damages — HK$27,013.

130.  Interest on PSLA is awarded at 2% per annum from date of service of the writ to the date of judgment, and on pre‑trial loss of earnings and other special damages from the date of the Accident to the date of judgment at half judgment rate, and thereafter at judgment rate until payment.

S.     Costs

131.  I note that under the Consent Order, Ds agree to pay P’s costs on liability up to the date of the Consent Order (ie 3 March 2019).

132.  I made a costs order nisi that Ds do pay P’s costs on this action and on assessment of damages from 4 March 2019, to be taxed if not agreed.  P’s own costs are to be taxed in accordance with the Legal Aid Regulations.  Any application for variation shall be made within 14 days from the date hereof, response within 14 days of receipt, and reply within 7 days thereafter.  Any such application is to be dealt with on the papers.