Yeung Lai Hung v. Ng Bing t/a Sun Fat Restaurant

HCPI 106/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO.106 OF 2001

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J U D G M E N T

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1. This is a claim for damages for personal injury and other consequential losses. The plaintiff, who is a married woman aged 35, came to live in Hong Kong from Yunnan in 1992. She completed her secondary education in Yunnan and was able to find clerical work in Hong Kong. She lives at Ma On Shan, New Territories with her husband and seven-year-old son. In mid October 1997, she found employment with a small accountancy firm called Galy & Co. ("Galy"). She was employed by them to do basic clerical and accountancy work.

2. The defendant was and continues to be the proprietor of a busy restaurant in Kwai Chung called Sun Fat Restaurant ("the restaurant"). It caters to the nearby residents and, I presume, factory workers in the area providing early morning breakfast and lunch. It is open from 6 a.m. to 2 p.m.

3. The defendant is one of Galy's clients. Galy would prepare the restaurant's accounts and tax returns. In order to do this work, Galy would dispatch the plaintiff to the restaurant about once or twice a week in order to collect receipts and vouchers which were required to keep the accounts up-to-date. Once there, she would also do some basic calculations and then return to Galy's offices with this paper work. She started doing this soon after the start of her employment at Galy in about November 1997.

4. On 19 February 1998 she went to the restaurant for this purpose. She arrived at about 11 a.m., collected receipts from the cashier's counter which was situated close to the entrance of the restaurant (see photo exhibit D1). She then took these to an upstairs room where she worked on them for about half an hour. After she had done this, she returned the receipts, which were kept in a plastic bucket, to behind the cashier's counter and then made her way to the toilet. She says that the restaurant floor and the toilet floor were wet and slippery because it had been raining heavily that day. Customers had trailed in with wet shoes and umbrellas and this had caused water to accumulate on the floor. Added to this the floor was littered with the debris one can find in a busy restaurant. Bits of food accidentally falling onto the floor, some of it being greasy, tissue paper and the like and all of this had been trodden over by customers with wet shoes, creating a slippery and hazardous surface to walk on.

5. She came out of the toilet, walking very slowly and carefully, and made her way to the cashier's counter which at this time was manned by Mr Kong, an employee of the defendant. She took the receipts, which were now contained in a bag and proceeded to walk out of the restaurant in order to return to Galy's offices in Kowloon. As she had got round from the cashier's counter to the point marked with an "X" on the photograph exhibit D1, she slipped and fell to the ground. Her right leg went first. She put out both of her hands to try and break her fall. The part just above her buttocks hit the ground first. Fortunately, her head did not strike the floor. She lay on the floor for a short time and then picked herself up. No one came to her assistance. She was in some shock and embarrassed by what had happened to her. Once she had got to her feet, she felt in considerable pain. Mr Kong then came out from behind the counter and gave her a towel to clean her hands which had become dirty as a result of the fall. She then became tearful and could not speak. Gradually she regained her composure. She remained standing for about 15 minutes and when she felt better, she decided to leave and make her way back to the office, which she did by taking a mini-bus from a stop which was about 5 or 6 minutes away on foot from the restaurant.

6. Perhaps I should observe now, at this early stage of the narrative, that the defendant says that this incident did not happen. The plaintiff did not slip and fall in the restaurant. There was no incident of this sort and Mr Kong has given evidence to say that this did not happen. Much is in dispute in this matter. One side or the other is not being truthful. I must return to the defendant's case presently.

7. The plaintiff then returned to her employer's offices and there she saw Miss Lee Tsui Ping who was her immediate superior at Galy, she being the friend of Mr Alfred Wong who had founded the business and who at that time was its owner. She told Miss Lee what had happened to her at the restaurant. In view of this, Miss Lee advised her to seek assistance from a traditional bonesetter and also to go to a hospital. That same day in the late afternoon, she attended the Caritas Medical Centre (see F1). The medical notes show that she told the doctor that she, "slipped and fell today, hit right loin on floor". She complained of right loin pain and right shoulder pain. There was a preliminary diagnosis of "right loin contusion". Tests were carried out and as a precaution, because her urine contained a microscopic amount of red blood cells, she was kept in hospital for observation until 22 February when she was discharged. The diagnosis at this stage was right loin contusion. Notwithstanding that rather straightforward finding the case has a fairly long medical chronology which I will need to return to presently. The medical notes for 19 February do not record the plaintiff as telling the examining doctor that she fell in a restaurant nevertheless the fairest way of looking at this evidence is to consider this as entirely neutral and favouring neither party. She may have told the doctor and he simply failed to record it.

8. On the question of whether the plaintiff fell in the restaurant in the way that she has described, I need to relate one or two other matters which the plaintiff has drawn attention to which she says favours her case. As to the fact that it had been raining, she has given evidence to the effect that the restaurant would usually put matting down at the entrance so that customers might, hopefully, wipe their shoes on it to reduce the amount of moisture brought into the place when they entered. Similar matting is shown in exhibit D1. On this occasion she says there was no matting but that cardboard panels had been placed there and that by the time that she was leaving, the rainfall was such that the cardboard had become saturated and was of little effect in taking up even some of the wetness coming from customers' footwear. She also relies very strongly on the evidence of Miss Lee (her superior at Galy) who has told me that the day following the accident, that is to say on 20 February, Mrs Kwok, the defendant's wife who ran the restaurant, telephoned to say how sorry she was that the plaintiff had fallen on the floor. Related to this evidence is that according to the plaintiff some time later when she had returned to work at the restaurant, Mrs Kwok was very solicitous towards her and when she went in and out of the toilet where the floor was again wet, she held her by the hand and told her not to worry and that she would take care of her so that she would not have another mishap. Both of these pieces of evidence are denied by Mrs Kwok whose evidence I will return to more fully presently.

9. There is a small issue as to warning notices, or at all events the sufficiency of them in the restaurant. It is not the plaintiff's pleaded case that there had been a failure to warn persons coming onto the premises about the slippery condition of the floor but there is some dispute as to whether there were as many notices up in the restaurant as are now shown in the photographs in the court bundle, see pages E4, 6 and 8. The defendant has called his daughter, Angela Ng, who has now lived and studied at Monash University, Melbourne, for a number of years, to say that when she was back in Hong Kong during her university vacation in 1996, she had used her new computer to produce four or five notices with the words "Please mind the Wet Floor" printed on them. At E6, there are two other notices which Mrs Kwok says she had purchased even before 1996. I can fairly dispose of this point now by saying that I accept this evidence and it therefore seems to me that there were sufficient notices in the restaurant to warn people there of the wet floor on the occasions when it became wet. The more significant point in this regard is that the defendant realised that from time to time the floor was apt to become wet for the reasons that I have given, hence the notices and the matting at the entrance on wet days. More about this in due course.

10. This, therefore, accounts for the factual basis of the plaintiff's case. Essentially, that the defendant operated a restaurant which, particularly on rainy days such as this one, had a wet, greasy and slippery floor and that the defendant took no, or at all events insufficient steps to ensure that it was made safe for people coming onto the premises. Although the Particulars of Negligence and Breach of Statutory Duty are general, they are perfectly intelligible. The case is that the floor when wet or strewn with greasy debris from the tables and/or the service of food was not cleaned sufficiently frequently to ensure a dry and slip-free surface and perhaps that other precautions were not in place such as running matting right down the passageways where people would walk during wet weather to ensure a slip-proof surface.

11. On the main issue as to whether this incident happened at all, the defendant's witness is Mr Kong who, according to the plaintiff, was on duty at the cashier's counter and who not only saw her slip but ministered to her by giving her a towel to clean her soiled hands following the fall. Mr Kong, who is in his early 60s now and no longer working at the restaurant, says that no incident of this sort occurred. He remembers the plaintiff when she used to go there to collect the accounting documents. He had worked at the restaurant for a number of years and when Mrs Kwok, the defendant's wife was not on the premises, he could fairly be considered as the person in charge there. I will say more about my assessment of his credibility when I come to my findings in respect of this matter. Suffice it to say at this stage that this witness did not have very much to say, save for his very firm denial that an incident of this type had occurred.

12. The next witness was Mrs Kwok who, as I have already said, is the wife of the defendant and the person who runs this restaurant on a day-to-day basis. She also has no recollection of such an occurrence nor was one reported to her in circumstances where had it occurred, she most certainly would have learnt of it at the time or very soon afterwards. She is also very firm in denying that she had ever spoken to Miss Lee the following day in order to apologise to her for what had happened to the plaintiff on the previous day. She also denies ever having comforted the plaintiff when the plaintiff eventually returned to work fairly shortly afterwards and reassuring her by holding her by the arm when the plaintiff went into the toilet where the floor was wet so that she would not have a further slip and fall to contend with. She is certain about both of those matters. In respect of the cleaning schedule at the restaurant, her evidence is that it is cleaned at about 10:30 a.m. following the initial breakfast rush which starts soon after the restaurant opens at 6 a.m. There is then a bit of a lull until the lunch customers begin to arrive and then the restaurant is cleaned again after it closes at 2 p.m. Her witness statement is at B15 and this is dealt with in paragraph 5 at page 16. She says that there are two cleaning workers to do the regular cleaning and at paragraph 7, she has indicated that if there is any additional cleaning to be done where there has, for instance, being an accidental spillage, then she and the six waiters who were employed there will deal with that as and when such an event occurs. As to rain, she has given evidence that carpet matting is placed at the entrance of the restaurant and a pail is placed at the entrance so that wet umbrellas can be put in there by customers. She has also drawn attention to an awning which is shown in the photographs (see E1) at the entrance to the restaurant which keeps the area immediately around the entrance dry on rainy days.

13. The other evidence which bears on liability concerns that of Miss Lee which is to the effect that notwithstanding this matter the defendant has continued to make use of the services of Galy up to the present time. An important aspect of Miss Lee's evidence is how the plaintiff's complaint to her that she had slipped at the restaurant was dealt with by her. This was an accident as reported to her by the plaintiff in the course of the plaintiff's employment with Galy. Galy was insured for such an event and she reported the matter to the insurance agent who had arranged Galy's policy. According to her, that policy only covered accidents that took place inside Galy's office premises. Such a policy attracts a lower premium than one which extended outside Galy's immediate premises. That being the case, under the terms of Galy's insurance policy, Galy would have been uninsured in respect of a claim brought by the plaintiff against Galy under the Employees' Compensation Ordinance. An employer in such circumstances is required by ordinance to report an accident to the Labour Department. This is done by means of the statutory Form 2. In this case, that form appears at D14. According to Miss Lee, the insurance agent advised her and Mr Wong, the owner of Galy, to report the accident as having occurred in their office premises so that it might be covered under the terms of the existing insurance policy. At D15, one finds, therefore, that the Form 2 recites the circumstances of the accident as : "Accidentally slip and fall in office during working". This, of course, would amount to a fraud on the insurance company which would have received the claim in this form. Had the truth been told the insurer would not have been liable to pay out under the policy. Miss Lee was a party to the completion of Form 2 although it appears that the owner of Galy, Mr Wong, was the person who actually signed the form which was done on 24 February, some five days after this accident. So much appears at D14. Quite apart from the element of fraud against the insurer, this represents a highly unsatisfactory aspect of the plaintiff's claim where on the face of it, the employer is reporting to the Labour Department, who would have played a part in processing the plaintiff's claim, that this accident did not occur at the defendant's premises but at her employer's office, the clearest possible conflict, therefore, in her case. Miss Lee has provided a witness statement which is at B21, together with an English translation. That statement was provided as part of the plaintiff's claim for employee's compensation against Galy (DCEC801/2000). She has, in that statement, explained how it was that Form 2 was prepared with false particulars. The plaintiff's evidence is that she played no part in the preparation of that form and to that extent, of course, she is supported by Miss Lee who says that the plaintiff had told her that she had slipped at the defendant's premises and as I have already recounted, Mrs Kwok is alleged to have spoken to Miss Lee the following day to apologise for what happened to the plaintiff.

14. It seems to me that, in giving evidence in this way, Miss Lee was in a most difficult situation concerning the preparation and submission of Form 2 and I thought it appropriate in such circumstances to warn her of her right against the self-incrimination in answering further questions about the preparation of that form and she elected, as she was clearly entitled to, to remain silent in respect of further questions that counsel for the defendant wished to put to her about that form. I shall also need to return to the significance of this part of the plaintiff's case in due course.

15. It is right to say that when the plaintiff brought her application for employee's compensation, which she did by an application dated 8 September 2000, which of course was seven months out of time (see section 14 of the Employees' Compensation Ordinance), she put her case on the basis that she had slipped and fallen at the defendant's restaurant and so to this extent her evidence is entirely consistent. What then occurred in those proceedings I have found to be somewhat surprising. The insurers who took over the matter on behalf of Galy promptly capitulated. They did not trouble the plaintiff to seek leave of the court to bring the application for compensation notwithstanding the expiry of the two-year limitation period. They did not appear to wish to make any fuss about the clear inconsistency between the accident report as contained in Form 2 when compared to the way the matter had been put in the application for compensation itself, and they settled by a consent order that I was invited to make in that jurisdiction on 8 May 2001. The order appears at A70. The amount paid by way of compensation was $98,674. In the event that the plaintiff receives damages as a result of this action, she must give credit to the defendant in respect of that amount. I am told that in the usual way, there is now an action against the defendant for the recovery of that amount of compensation, which has been brought by Galy in the name of the insurer and that that action has been stayed to abide the outcome of these proceedings. What I get from the history of the litigation in the District Court compensation case is that the insurers of Galy must have entirely accepted the version put forward by the plaintiff as to the circumstances of her accident and presumably they accepted that she had sufficient reasons for not making the application within the two-year limitation period.

16. Another important part of the evidence concerns the weather conditions on 19 February 1998 in the Kwai Chung area. I have before me at page D8 a copy of the rainfall record from the Director of the Hong Kong Observatory, and also at D13 what is described as a copy of the weather report on 19 February 1998 from the Hong Kong Observatory. The one obtained for the plaintiff which is at D8 indicates that no rainfall was recorded at the Observatory's rain gauge at Tsuen Wan which is, of course, close to Kwai Chung and at D13, the rainfall record at Shek Lei Pui Service Reservoir, which again is very near to Kwai Chung, shows no rainfall at all. Not surprisingly the defendant places heavy reliance on this entirely objective evidence to contradict what is after all an important plank of the plaintiff's case that this had been a very rainy day, that the rainfall was such that the cardboard panels which had been placed at the entrance to the restaurant had become saturated by virtue of people trailing in rainwater which had attached to their shoes and umbrellas. This too will need to be given careful attention when I come to assess the rival accounts of this matter.

17. That would ordinarily account for all of the evidence on the question of liability, but where credibility is so crucially in issue, I regard it as important that I should also consider the medical evidence at this stage before I turn to my assessment on credibility. I say that because in this case, it is submitted on behalf of the defendant that the plaintiff is grossly exaggerating the extent of her injuries and the symptoms that she continues to complain of well over four years after the event. The defendant's case is that the plaintiff who has been prepared to tell lies about the location of her fall is now also prepared to grossly exaggerate her medical condition in order to increase the amount of damages that she might receive. This therefore, does become another aid and indeed relevant in my assessment on credibility.

18. There can be no doubt that the plaintiff must have sustained some sort of fall on 19 February 1998. The medical record for 19 February from the Caritas Medical Centre amply confirms that. She was in fact kept in, as I have already drawn attention to, for three days as a precautionary measure. The plaintiff has called Doctor Chun, an orthopaedic surgeon as her expert witness and he has reviewed the entire course of her treatment, the medical notes, X-rays and MRI scans. He has provided a most helpful report which starts at C5 and he has amplified on this report in the course of his evidence from the witness box. His view of this is that the plaintiff sustained a whiplash-type of injury in the course of her fall. By using that analogy he was not seeking to imply that this was by any means a whiplash injury of the type that one finds in a motor car collision, but that the dynamics were similar. The result has been soft tissue injury of the cervical spine. In coming to this conclusion, having reviewed the various X-rays and scans, he was able to draw attention to X-rays taken by him at his examination in February last year, that is to say three years after the accident, which show mild reduction of normal cervical lordosis at the lower cervical spine at C5-6 level when seen from a neutral lateral view. He was able to assist me by showing me the relevant X-ray film. He was then able to compare that loss of lordosis with X-ray films taken on 2 March 1998 which showed that normal cervical lordosis had been lost. Again, he was able to demonstrate this to me by showing me the relevant X-ray. What is really at issue between the parties on the medical evidence is whether the serious symptoms which the plaintiff continues to complain of are capable of being supported by the nature of her fall and injury. A reading of all the medical evidence shows that she returned to the two hospitals that were treating her, namely, the Caritas Medical Centre and subsequently Queen Elizabeth Hospital on a number of occasions and given the nature of her complaints that she continued to be in pain, a number of tests were carried out on her. These included X-ray films and MRI scans. None of the doctors at those hospitals was able to detect any physical reason for the symptoms that she was describing to them. This can all be seen from the original medical notes which appear in the court bundle at section F and also from the medical reports of the Government doctors in the earlier part of section C.

19. By 6 December 1999, some 22 months after the injury, the medical staff at the Caritas Medical Centre came to the view that there was really nothing more that they could do for her (see F77). All types of examination performed by them over this period apparently failed to provide any medical reason for her symptoms and Doctor Yam who examined her on 9 December noted that she should have no more sick leave and that she should be referred to a clinical psychologist, presumably to eliminate or treat any psychological factors that were operating on her mind. The note on the following page shows that she did not wish to undergo such treatment and that note ends with the observation that there should, therefore, be no further out-patient services offered to her.

20. Notwithstanding that, she then went to see the doctors at the Queen Elizabeth Hospital who prescribed further sick leave, physiotherapy and also a fairly lengthy course of occupational therapy to see if that might assist. She also took herself to China for further treatment but also without effect. And so, according to her, notwithstanding the passage of over four years, she continues to suffer the same sort of symptoms. Doctor Chun feels that although her condition is probably a genuine one as a result of soft tissue injury, he is of the view that the symptoms have been exaggerated although he is also of the opinion that the 265 days of sick leave, given intermittently, over this period of time should be considered reasonable. His view expressed on the last page of his report (C18) is that psychological evaluation is to be recommended and that she should do her best to get on with life and work as best she can.

21. Doctor Lam has also given evidence. He is the defendant's medical expert. His evaluation is much more robust. Given the nature of the fall described by the plaintiff, which was not a particularly heavy one and the absence of bony injury, he is of the opinion that these symptoms should have disappeared a very long time ago. He can certainly discover no medical reason for them. He too has referred to the whole of the medical history, the X-rays and scans and he arranged for his own X-rays to be taken and analysed. According to him, this all serves to confirm his view. There has been a noted dispute between the two experts as to the loss of cervical lordosis. As to the early X-rays taken in March 1998, Doctor Chun is of the view that the loss is significant and of course bears out his diagnosis of soft tissue injury whilst Doctor Lam would not necessarily subscribe to such loss of lordosis as being quite so serious. As to the most recent X-rays, Doctor Chun suggests that whilst there has been an improvement, there remains some loss of lordosis. Doctor Lam's opinion on the latest film is that this is perfectly normal for a lady in her mid 30s. This is what he would expect of many individuals of her age. The two experts are also in dispute as to the percentage that should be applied to the impairment of the whole person as described by the American Medical Association, but for my part, I am content to ignore the percentages applied by them. The matter needs to be assessed in accordance with the usual principles for the computation of damages for pain and suffering and loss of amenity.

22. From this review of the evidence, I now need to turn to my findings.

23. In my judgment, the plaintiff has failed to carry the burden of proving on a balance of probabilities that she fell in the defendant's restaurant on 19 February 1998 and that, accordingly, this claim must stand dismissed.

24. My reasons for saying so now follow.

25. I start with what might fairly be described as the neutral evidence. Firstly, I have found the rainfall reports provided by the Weather Observatory most helpful. Whilst none of the precise points of measurement were at Kwai Chung, they were certainly very close to it. All the indications are that there was either no rain or merely trace rainfall. The plaintiff has been at pains to describe heavy rainfall which caused the make-shift cardboard panels at the entrance to the restaurant to become saturated and the traffic of customers coming into the restaurant from outside resulted in a wet floor. Miss Leong, who appears for the plaintiff, has submitted that common human experience in Hong Kong shows that whilst it may be raining heavily at one place that might not necessarily indicate that it was raining nearby. I can understand what she is saying and why she says it, but these are rainfall gauges located north and south of Kwai Chung and it would be strange indeed if those two quite separate locations, both nearby, had not been rained on at all when Kwai Chung itself had received heavy rain. I simply cannot accept that proposition. I find as a fact that for all intents and purposes, Kwai Chung had enjoyed a dry day or at least one with no more than trace rainfall on 19 February 1998. It must follow, therefore, from that finding, that the plaintiff is not telling the truth when she describes heavy rain on that day. Her motive in not telling the truth is that she wishes to create the physical circumstances, a wet floor, which is said to be the cause of her having slipped. This failure to tell the truth on such an important issue must seriously call into question her bona fides as a witness of truth, and one that the court would be comfortable in accepting her evidence.

26. Next, it is helpful to consider her credibility on the medical aspects. Whilst her claim that she continues to suffer painful symptoms four years and four months after the accident is generally supported by her medical expert, Dr Chun, he also feels that these symptoms have probably been exaggerated by her. But in any event, I have come to the conclusion that the evidence of Dr Lam is to be preferred. In coming to this view, I have been such assisted by the medical notes of the hospital doctors who were treating her over a period of two years. Notwithstanding the most extensive tests and assistance, such as physiotherapy and occupational therapy, none of them could find any reason for the continuation of these symptoms. Dr Yam, as early as December 1999, came to the view that there was simply nothing that could or should be done for her on the medical side and he recommended that she see a clinical psychologist, which she declined to do. The distinct impression that I have obtained from reading these notes is that the doctors attending her felt that she was exaggerating the position. I prefer Dr Lam's view that given the nature of what she has described after all as a common fall, should leave symptoms of this sort after such a long period of time and, indeed, I find it strange that Dr Chun is of the view that this is very much the final position and, subject to a discount for exaggeration, he has come to the opinion that this position is permanent. In saying that, he gets support from a continued, albeit much diminished, loss of lordosis at C5-6. From my part, I prefer Dr Lam's opinion that given a fall of this nature, one would have expected recovery very much sooner. Dr Lam gets support from the fact that all the medical evidence points to an absence of any abnormality. The question of the loss of lordosis does not impress him and I accept his evidence that the minimal loss seen in the most up-to-date X-rays should be regarded as perfectly normal for someone of the plaintiff's age. Even Dr Chun has said that the loss of lordosis is only partial, as he described when pointing to the x-ray film.

27. Having preferred the defendant's expert, I conclude that the plaintiff has sought to grossly exaggerate her symptoms to the point of being untruthful. During the whole course of her evidence, she presented as being in great discomfort when sitting down and giving her evidence. She would rather frequently have to stand up and she greatly resented any suggestion that she was feigning symptoms.

28. I have come to the conclusion that the only possible reason for exaggerating the position so fundamentally is that she would wish me to award her very much more by way of damages than she would be properly entitled to in the event that I found liability made out. In this regard, therefore, I also find her an untrustworthy witness.

29. As to her description of the alleged slip, she describes of course that it was all clearly witnessed by Mr Kong who even went to help her by giving her a towel. Mr Kong of course denies all of this. Miss Leong says that I cannot really make very much of Mr Kong's evidence where all he has had to do is to deny the events described by the plaintiff. There is of course some force in that, but I am bound to say I formed the view that he was not really the sort of individual who might go into the witness box and simply deny that something had occurred without any regard to the truth. It is right to say that he was giving evidence more than four years after the event and that, perhaps, he would not be entirely clear about the circumstances but he did say that he recollected the plaintiff as someone who would go there for the purpose of doing the accountancy work and so he clearly knew who the complainant was.

30. I was also impressed by the evidence of Mrs Kwok, the lady in charge of the restaurant. Whilst perhaps she was not the most forthcoming of individuals, I formed the view that she was a perfectly steady sort of person. The important part of her evidence concerns an alleged telephone call that she was said to have made to Miss Lee to apologise for this incident a day or so after it had occurred, and also that when the plaintiff had gone back to work, she was most careful with her in escorting her in and out of the toilet when the floor was said to be wet. She denies having made that telephone call to Miss Lee. That evidence of course comes from Miss Lee.

31. I need to be very careful in what I accept from this witness given her close involvement in the preparation of Form 2 in its original form where, on her own account, she was prepared to go along with the insurance agent in preparing, according to her, a manifestly false document showing that the fall had occurred at Galy's office premises with the motive of making sure that any claim brought by the plaintiff for employees' compensation would be covered under the terms of Galy's policy. That is a very serious matter and I am not prepared to accept the evidence of such a tainted witness unless it is confirmed by other independent evidence which I am disposed to accept. In this case, there is none and so as between Miss Lee and Mrs Kwok, I prefer the evidence of Mrs Kwok that she did not make such a call. She made no such call because there had been no fall and so there was nothing for her to apologise.

32. I am also satisfied that the plaintiff has made up the account about what happened when she returned to work when she says that Mrs Kwok held her by the hand to make sure that she did not suffer another slip. She has made that up, in my judgment, in order to lend further credence to her false account.

33. In approaching the plaintiff's evidence, Miss Leong has invited me to make every allowance for the fact that the plaintiff is not perhaps the most sophisticated type of individual, who has come to Hong Kong relatively recently, that is to say, some 10 years ago and also that she is an excitable sort of person. I have taken all of that into account, as I also have taken into account the fact that her excitable demeanour in the witness box is not of itself something to be held against her. But when one has analysed the evidence as a whole in the way that I have attempted to demonstrate, it has led me to the conclusion that her evidence is simply not to be believed and, accordingly, there must be judgment for the defendant together with costs to be paid by the plaintiff to the defendant. There will also be an order for legal aid taxation of the plaintiff's costs. The order for costs will be an order nisi in the usual way.

34. If this judgment is reviewed on appeal, it might be helpful if I were to indicate, albeit briefly, what my assessment of the plaintiff's damages would have been had I found for her on the basis of 100% liability. I do so in accordance with my findings on the medical evidence which I have already expressed in the course of this judgment which has been in favour of the defendant as to the length of time that she should have suffered from adverse symptoms as a result of the fall that she has described.

Pain, suffering and loss of amenity

35. In respect of this, Miss Leong, for the plaintiff, has submitted that the injury falls short of the serious injury category and that the damages should be in the order of $200,000 to $250,000. The particular feature which is said to support such a range is the fact that this pain has been ongoing since the date of the accident, that it continues, and that very much a final position has been reached. I do not accept that situation. For her part, Miss Yiu who appears on behalf of the defendant, has indicated that the damages under this head should be in the order of $100,000.

36. In this regard, I accept the evidence of Dr Lam which is as follows :

"17. The condition is a stable one. No further specific treatment is required. Madam Yeung should be encouraged to have more self-exercise such as swimming or aerobic. With further training of her general health and physical fitness she should have better working endurance.

18. In general, such back contusion should have minimal effect on her working capacity. She should continue to work as an account clerk, or have other light to moderate manual works suitable for female of her age, body build, and working experience.

19. In general, a contusion of back without actual bony damage could recover in a few weeks' time. The given sick leave has been unduly prolonged. The longer sick leave she was given, the more she would convince herself that she was sick, and less motivated to return to work."

For my part, I would have awarded damages under this head in the sum of $130,000. That, of course, would have been an award based on my finding that she has grossly exaggerated her symptoms and that there is simply no medical reason why symptoms of this sort should have persisted.

37. In respect of two further possible heads of general damages, that is to say, future loss of earnings and loss of earning capacity, I find, having regard to the evidence of Dr Lam, that there should be no award under either of these heads. The plaintiff, according to Dr Lam, should be able to return to her future employment in a clerical capacity, earning the sort of income that she had earned before the fall, and that there would be no future loss of earning capacity.

Special damages

(1) Pre-trial loss of earnings

38. The question here is to determine what the plaintiff would have earned, but for her injuries, less what she has actually earned. Miss Yiu has helpfully summarised the latter in what she has described in annexure B to her written final submission. This, in my view, is a correct analysis of the plaintiff's pre-trial earnings which come to $138,931. Taking the plaintiff's case at face value, had she continued in her employment she would have earned $235,750, assuming she would have continued to earn at the rate of $5,750, notwithstanding the downturn in the Hong Kong economy. If one then deducts from that figure $138,931, that would leave the sum of $96,818. This is what Miss Yiu has submitted, and I accept that as the proper basis for quantifying this aspect of the claim had I found in the plaintiff's favour.

(2)	Medical expenses, travelling expenses, tonic food, herbal medicine, acupuncture, bonesetter
		$31,588
		RMB 780

(These amounts would appear to be agreed between the parties.)

This would have been the amount of damages that in my judgment the plaintiff would have been entitled to receive had she proved her case.