SIU SIU KING v. WONG CHAK WING

HCPI 479/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 479 OF 2003

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J U D G M E N T

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1. This is an application by the Plaintiff for damages she suffered as a result of a traffic accident.

The Accident

2.  On 24 June 2000 at about 5:18 p.m., the Plaintiff was traveling on-board a double-decked bus (registration no. JJ 5448) with her son and relatives.  She was sitting on a double sitter seat on the first row on the right hand side of the lower deck compartment.  The bus was traveling towards Shek O along the Shek O Road.  When the bus was negotiating a band on the road, the bus braked abruptly.  As a result, the Plaintiff was thrown to the front and hit against the partition board behind the stairs leading to the upper deck of the bus.  According to the witness statement of the Plaintiff, she said her legs hit against the partition wall and were injured.  After the accident, the Plaintiff was taken to Pamela Youde Nethersole Eastern Hospital (“Eastern Hospital”) for treatment.  After treatment, she was discharged on the same day.

3.  It is not disputed that at the material time, the bus was driven by the Defendant.  Liability was admitted by the Defendant and interlocutory judgment was entered against the Defendant on liability with damages to be assessed.  The matter came before me for assessment of damages suffered by the Plaintiff.

Issues

4.  The Plaintiff has a long history of treatment and according to her evidence, she could not return to work.  As stated in her witness statement, apart from the whiplash injury, she developed into some kind of unknown neuro disease and she was admitted to hospital several times.  And around September 2003, her condition worsen and was admitted to Queen Mary Hospital.  She is currently confined to the Fung Yiu King Hospital under treatments. Currently, she has to be bed bound although she could sit on a wheel chair.  She could not take care of herself, including going to toilet and bathing.  She has to be assisted by the nurse.  It is her claim that her condition is a result of the accident.

5.  The Defendant disputed the seriousness of the injury of the Plaintiff.  The Defendant argued that the Plaintiff only suffered from a mild whiplash injury and should have recovered and be able to return to work in 2001, after her sick leave period.  The Defendant strongly objected that the condition of the Plaintiff since September 2003 is caused by the accident.

6.  I am not medical expert and have to determine her condition on the evidence and in particular, the expert evidence.  I have a thick bundle of medical reports from government hospitals and private practitioners.  I would refer to them later.  It appears that most of the treating doctors and medical experts could not explain the cause of her current condition.  Dr. James Kong, an orthopedic expert commissioned by the Plaintiff to examine her in 2005, opined that she was suffering from Spinal Cord Injury without Radiographic Abnormality (SCIWORA).  Another orthopedic expert Dr. Lau Hoi Kuen, who was originally instructed by the Plaintiff and now commissioned by the Defendant to give evidence in Court, disagreed. 

7.  The primary issue for determination is whether the Plaintiff is suffering from the injury she claimed or at all, and if so, whether it was caused by the accident. 

8.  Another issue in dispute is whether her divorce was a result of the accident.  She divorced her husband in 2001.  If so, this must be taken into account in assessing her damages.

9.  The initial dispute on the pre-accident earning of the Plaintiff has been resolved during the trial.  It is now settled that she was earning $2,932.50 per month as a part-time secretary for Madam Chow Mei Ling, and $3,499.70 as a sale lady for a health food company.

10.  According to the Revised Statement of Damages filed by the Plaintiff on 22 September 2006, when she was legally represented, she claimed the following heads of damages:   

		$
(a)	PSLA	600,000.00
(b)	Pre-trial loss of earning	952,699.63
(c)	Future loss of earning	120,850.00
(d)	Future medical expenses	15,000
(e)	Medical expenses	300,000
(f)	Traveling expenses	10,000
(g)	Tonic food	65,000
(h)	A pair of scotch	88

Some adjustment has to be given in light of the revised and agreed monthly earning when I come to assess her loss.

11.  The Plaintiff had been represented by a number of solicitor firms for most of the time of this action.  At the assessment before me, she is unrepresented.  She is assisted by her brother, Mr. Siu Chin Ming (蕭前明) to conduct the proceedings and I granted him leave to cross-examine the witnesses and to make submission on behalf of the Plaintiff.

12.  All the pleadings and medical evidence are presented in English, as they were obtained when the Plaintiff was legally represented.  There is no translation.  With the agreement of the Plaintiff, I prepare this judgment in English and interpretation would be arranged for the Plaintiff when it is handed down.

Injuries and Treatment

13.  To assess the injury of the Plaintiff, it is necessary to go through the treatment she received since the accident.  After the accident, the Plaintiff was first admitted to Eastern Hospital.

14.  According to the medical report from Eastern Hospital dated 21 January 2004, the Plaintiff complained of left knee injury in the accident on admission.  There were bruising over her left knee.  The range of movement was full and there was no joint effusion.  She was treated and discharged.

15.  After discharged, the Plaintiff received some treatment from bonesetters.  She was admitted to St. Paul’s Hospital from 10 July 2000 to 14 July 2000 and was treated by Dr. Lee Po Chin.  According to a referral letter dated 14 July 2000 written by Dr. Lee, the Plaintiff complained of pain and unstable gait.  MRI examinations of the Plaintiff were carried out at St. Paul’s Hospital. According to the MRI report on cervical spine dated 11 July 2000, small posterior central disc protrusion at C3/4 and C5/6 was found with no spinal stenosis and no change in the spinal cord.  The MRI report on lumbar spine found that there are posterior central disc protrusion at L3/4 and L4/5.  There is a small board based disc protrusion at L5/S1.  MRI report on brain finds no abnormality. 

16.  The Plaintiff was referred to Eastern Hospital by St. Paul Hospital for treatment and was admitted to the Department of Orthopedics and Traumatology on 14 July 2000.  In the said referral letter, Dr. Lee mentioned “clinical examination revealed features compatible with mild central cord syndrome.”

17.  According to the medical report from Eastern Hospital dated 21 December 2000, on referral from St. Paul’s Hospital, the Plaintiff was sent to their neurologist for assessment.  Nerve conduction test and MRI of thoracic spine shows the condition of the Plaintiff was essentially normal.  Her condition improved with oral analgesics and physiotherapy, and she was discharged on 28 July 2000.  According to Eastern Hospital, at latest follow-up on 24 October 2000, the Plaintiff still complained of mild back pain and tremor over both legs.  Sick leave was granted by Eastern Hospital from 14 July 2000 to 3 July 2001.  The last visit to Eastern Hospital for treatment was 24 April 2001.

18.  According to the report from the physiotherapist of Eastern Hospital dated 6 February 2002, the Plaintiff received physiotherapy treatment starting from 3 August 2000.  There was not much progress.  Her range of movement of the back was still rather limited when the treatment was stopped on 28 December 2000.

19.  On 5 December 2000, the Plaintiff was interviewed by clinical psychologist at Northern Hospital.  The Plaintiff complained of persistent headache and neck pain since her injury.  She also complained of numbness that radiate to the upper limbs and right lower limb.  The Plaintiff also complained of psychosocial stress.  She could not work after the injury.  Her husband who worked as a construction worker had an unstable income and complained that she was a burden to him.  And in early 2001, after a verbal conflict with her husband, the Plaintiff left home and stayed at a friend’s place.  She decided to terminate the marriage.

20.  The Plaintiff received 3 sessions of treatment by the clinical psychologist of Eastern Hospital and the Plaintiff terminated clinical psychology services after the session on 27 February 2001.   According to the report dated 2 January 2004, the psychologist opined that the Plaintiff showed adjustment disorder with anxious and depressive mood.  Her problem was likely to be precipitated by the accident and the persistent neck and back pain.  Her anxious and depressive mood was also perpetuated and complicated by her marital relationship problem.  

21.  In the period from 11 October 2000 to 29 December 2000, the Plaintiff consulted Dr. Johnson Lam on nine occasions.  No medical report from Dr. Lam has been produced.

22.   Since her last visit to Eastern Hospital on 24 April 2001, there is no further record of medical treatment for the Plaintiff in Hong Kong, until sometime in 2003.  For the period since July 2001, the Plaintiff said in evidence that she received treatment in Guangzhou, China.  There is no medical report on the treatment she had in China.  The only records are the receipts for the Chinese herbal medicine she purchased, or purchased by her family members.

23.  The Plaintiff was examined by Dr. Lau and Dr. Chung in 2003, as hereinafter mentioned.  It is clear from their respective reports that they were not the treating doctors for the Plaintiff.

24.  On 18 September 2003, the Plaintiff was admitted to the Orthopedics and Traumatology Department of Queen Mary Hospital for further investigation and treatment.  According to the medical report from Queen Mary Hospital dated 11 December 2003, when the Plaintiff was admitted to the hospital, she complained her back pain increased recently.  She did not complain of any lower limb weakness and numbness.  On examination, the general condition was fair.  Lower limb power was decreased as limited by pain.  No sensory deficit was detected.  The x-ray of her lumbar sacral spine showed mild degenerative change.  She was admitted to the Orthopedic and Traumatology Department for investigation and management.   

25.  According to the medical report from Dr. Wong Yat Wa of Queen Mary Hospital dated 28 January 2004, Dr. Wong recorded that after admission, the Plaintiff complained of back pain, neck pain and bilateral upper limb numbness with swelling.  Physical examination revealed generalized lower limb weakness.  Upper limb was normal.  Radiographic examination of the cervical and lumbar spine revealed mild degenerative changes.  MRI examination of the whole spine supports the diagnosis of mild degeneration of spine without significant nerve compression.  Rheumatologist was consulted for the bilateral hand “swelling”.  No rheumatogical problem was found.

26.  The Plaintiff developed two episodes of “lost of consciousness” in the rehabilitation hospital.  But all her vital signs were normal.   The doctor opined that most of the Plaintiff’s complaints could not be accounted for by clinical evidence.  In summary, Dr. Wong opined that the Plaintiff was found to have mild degeneration of her spine.  Most of her complaints could not be accounted for by objective clinical evidence. 

27.  The Plaintiff was assessed by the clinical psychologist of Queen Mary Hospital.  According to the report of the clinical psychologist dated 15 December 2003, the Plaintiff complained of pain, dizziness and periodic loss of consciousness.  Her pain intensified since 2002 and the pain even rendered her unable to walk recently.  The Plaintiff discussed her position with the psychologist.  She expressed feeling of helplessness and hopelessness.  The psychologist noted that the Plaintiff had much grievance with medical staffs and her lawyers.  She was determined to pursue litigation to seek compensation to her loss due to the injury.

28.  Clinical psychologist carried out a personal test called the Minnesota Multiphasic Personality Inventory.  She opined that the validity of the Plaintiff’s profile was doubtful.  Her test profile was highly elevated and was similar to individuals known to deliberately fake bad by simulating or exaggerating psychopathology.  She also appeared to have an extremely elevated scores on the depression scale and the schizophrenia scale.  The psychologist opined that the Plaintiff’s personality, her perception towards her problem and the proceeding of litigation may have exacerbated her complaints of pain as well as her clinical presentation.

29.  The Plaintiff was then transferred by Queen Mary Hospital to Fung Yiu King Hospital for rehabilitation treatment.  She has been staying in Fung Yiu King Hospital since 7 October 2003 until now.  I shall come to the oral evidence of Dr. Kwok of Fung Yiu King Hospital herein later.

Orthopedic Experts

30.    The Plaintiff has consulted Dr. James Kong and asked him to give evidence in Court.  His first report was given in 22 March 2005.  Dr. Kong opined that the Plaintiff’s clinical picture is compatible with ‘central cord symptom’ with worsening of signs and symptom over period of time.  Her neurological deficit and clonus are likely to persist and remain permanent.  He advised the Plaintiff to consult a neurologist for a second opinion.

31.  After giving this short report, Dr. Kong gave another report dated 24 June 2000 with some estimation of future medical expenses which the Plaintiff required in future for rehabilitation.  He also mentioned that the current injuries are likely caused by the accident. 

32.  On 25 July 2003, Dr. Kong gave his 3^rd report, a more detailed report on the physical condition of the Plaintiff after examining the Plaintiff.  The Plaintiff was transferred to his clinic in a wheel chair.  The Plaintiff could talk fluently for about 10-15 minutes.  Then her voice became “tongue-tied” which persisted throughout the rest of the interview.  But she could still express her idea with appropriate choice of words.  Her speed of response to question was normal but she tried to avoid answer question directly.  And multiple attacks of jerky movement of limbs were noted, typically proceeded by gradual worsening of “tongue-tied speech”.  The Plaintiff cried for help.  There was no tongue biting or urinary incontinence associated with the attacks.

33.  The Plaintiff stayed in lying position throughout the examination.  She could only turn her neck by 20 degrees to her left side, being limited by pain and muscle tension.  In the upper extremities, muscle tone was normal and there was no muscle wasting.  On testing volitional power, involuntary jerky movement developed over her arms (without lower limbs involvement) with a slight elevation of her arms.  In the lower extremities, muscle tone was also normal and there was no muscle wasting.  On testing volitional power, the Plaintiff developed jerky movement on her lower limbs (without involvement of upper limbs). 

34.  Dr. Kong in paragraph 5 of his 3^rd report diagnosed the Plaintiff was suffering from SCIWORA.  The majority of SCIWORA patients have pathologies which may be revealed by MRI.  However, Dr. Kong said it is not absolute that all pathologies including central cord syndrome can be excluded on the appearance of MRI alone.  It is probable that the Plaintiff may belong to the minority group with “central cord syndrome” with slowly deteriorating clinical features.

35.  Dr. Kong opined that the Plaintiff had reached the state of maximal medical improvement.  He assessed the Plaintiff as suffering from a 5% impairment of the whole person for the accident.  But he added that, the Plaintiff being bed bound and wheelchair bound for more than a year, it was reasonable to foresee that she could not resume her pr-injury occupation.  It would be difficult to contemplate what kind of jobs could be suitable for her.

36.  In the 4^th report of Dr. Kong, he commented on the report of Dr. Lau dated 17 April 2003 (hereinafter referred) and said that the mere presence of positive “Waddell Stimulation Test” simply suggests the patient is trying to convey a body massage to the examiner that he/she is still suffering with pain.  It would be erroneous to suggest that the patient is malingering.

37.    Dr. Kong also referred to the referral notes of Dr. P.C. Lee dated 14 July 2000.  Dr. Kong then claimed that Dr. Lee made the clinical diagnosis of mild central cord syndrome based on (a) the lower limbs weakness was more severe than the upper limbs (b) reflexes of both lower limbs were brisk.  He further commented that the elapse of 2 weeks between the dates of accident and when MRI inspection was carried out at St. Paul Hospital might be the reason why MRI of spine did not reveal any oedematous changes.

38.  In the 5^th Report of Dr. Kong dated 7 June 2006, he explained further that the mechanism of injury resulting in central cord syndrome involves hyperextension with pinching of spinal cord between a thickened liagamentum flavum and protruding anterior osteophyte or disc.  And he suggests that at the time of the accident, when the Plaintiff was thrown backward and forward a few times, these may be viewed as sudden hyperextension injuries of her cervical spine.

39.  Dr. Kong gave evidence as expert evidence. 

40.  Counsel for the Defendant Ms. Loh cross-examined Dr. Kong on his reports.  On his account of the diagnosis of Dr. Lee that the Plaintiff has central cord syndrome as set out in paragrph 37 above, Ms. Loh put to him that there is no written record that Dr. Lee had made such finding.  In reply, Dr. Kong said he got the information from Dr. Lee when he talked to Dr. Lee personally, on 2 occasions when they were jointly examining some other patient.  Ms. Loh asked for any written record of his conversation with Dr. Lee and Dr. Kong admitted that he had not recorded the same in his file, but he said he had good memory.   

41.  When Dr. Kong was cross-examined on the fact that SCIWORA would affect the upper limb of a patient more severely, Dr. Kong agreed.  When questioned why the Plaintiff appeared to be affected more severely with her lower limbs, Dr. Kong did not answer the question directly.  But he agreed that if the Plaintiff’s upper limbs were more severely affected than the lower limbs, this would be more compatible with SCIWORA. 

42.  Ms. Loh put to Dr. Kong that, given SCIWORA happen almost exclusively in children, and the lower limb of the Plaintiff is more severely affected, it is only a possible explanation of the Plaintiff’s syndrome.  Dr. Kong said it is probable.  He said there is symptoms magnification, which may be caused by (i) psychiatric illness; or (ii) for the sake of compensation.

43.  When he was cross-examined on the fact that the Plaintiff does not have muscle wasting while she claimed weakness and she was bed bound for 2 years when he examined her, he conceded that he could not explain from orthopedic point of view.  It had to be determined by psychiatric expert.

44.  When cross-examined, Dr. Kong maintained his view that elapse of 16 days may cause any injury to the central cord to disappear.  But he did accept that when there was no MRI finding when MRI was carried out shortly after the injury, the prognosis should be good.  Any sickness and symptoms should have been recovered in 1 to 2 years’ time.  And he considered that the Plaintiff could recover in 2001 or 2002.  Her condition in 2003 was difficult to explain. 

45.  On further cross-examination by Ms. Loh whether the syndrome in 2003 is caused by the injury, Dr. Kong agreed that the chance is very minimal.  He accepted that on balance of probability, he could not say that the condition in 2003 is caused by the accident.

46.  And on his comment that he could not contemplate what kind of jobs would be suitable to the Plaintiff, he accepted in the cross-examination that this was not based on medical opinion, but on the fact that the patient informed him that she was bed bound for more than a year.

47.  And on his assessment of 5% impairment of the Plaintiff, on cross-examination, he admitted that 5% is much lower than a SCIWORA patient who had to be bed bound.  He then said he had suspicion on her degree of injury.

48.  Filing of medical evidence by the Plaintiff was ordered by Master Kwan as early as on 8 December 2003.  Initially, medical evidence is to be limited to one orthopedic consultant, Dr. Lau Hoi Kuen and one psychiatrist consultant, Dr. Chung See Yuen for the Plaintiff.  The Plaintiff has disclosed the reports from these medical experts.  At the hearing before Master Kwan on 28 April 2006, the Plaintiff indicated that she would not rely on the expert opinion of Dr. Lau.  The Plaintiff had no objection to the Defendant to rely on the medical report of Dr. Lau. 

49.  In the 1^st Report from Dr. Lau dated 17 April 2003, it was recorded that the Plaintiff complained to Dr. Lau she had headache, back pain radiating to her left shoulder and left side of the upper back.  There was persistent pain in her low back and she could not bend down to pick up anything even light in weight.  She could not sit for more than 10 minutes.  She suffered from numbness of both upper limbs, persistent in nature.  The symptom was more severe on the left side.  There was pain and weakness on both lower limbs, persistent in nature.  The pain became severe after walking for 30 minutes or sitting down for a longer period of time. 

50.  Dr. Lau also recorded that the Plaintiff informed him that she moved to Sweden with her friend in July 2001 and has stayed there since then.  The Plaintiff disputed this and I would come back to this point later with the evidence of the Plaintiff.

51.  Physical examination of the Plaintiff by Dr. Lau revealed : -

(a)    defuse tenderness over the neck;

(b)   defuse tenderness over the whole back from the thoracic down to the tip of the spine;

(c)    absence of muscle spasm over neck and lower back;

(d)   absence of muscle wasting of her limbs;

(e)    simultaneous contraction of the antagonistic muscle of her limbs when she was tested for motor power (this mean that she is not putting in genuine effort in the test);

(f)    complaint of severe pain with gentle pressure on the vertex and rotation of the trunk at the pelvis (positive Waddell’s Simulation Test).

52.  In his report, Dr. Lau opined that all the above observations suggested that the Plaintiff was having abnormal pain behaviour or an excessive adoption of a sick role.  The presence of inappropriate symptom and signs mean that they could not be explained in terms of identified pathology.  He commented that the Plaintiff was for some reason exaggerating her disability and is attempting to convene to him that something was seriously wrong with her.  There was definitely an element of psychological overlay in her symptom and signs.  Her symptom and signs could not be explained on anatomical or orthopedic basis.

53.  He further commented that the accident on 24 July 2000 should only cause contusion injury to neck and back.  The appropriate period of sick leave for the contusion injury to her neck and back should be about 6 to 9 months.  Dr. Lau also said on her present stage of injury or weakness, psychological evaluation was needed.  She may require the expert care of the psychiatrist.  But orthopedic wise, the Plaintiff should have no problem in continuing with her pre-injury job.

54.  The Defendant obtained a supplemental opinion from Dr. Lau to comment on the said diagnosis of Dr. Kong in his reports.  Dr. Lau in a report dated 9 July 2006 disagreed with the conclusion of Dr. Kong.  Dr. Lau explained the concept of SCIWORA.  It described spinal cord injury without evidence of vertebral fracture or malalignment on plane radiographs and CT scans.  However, the symptom does not account for possible lesions demonstrated on MRI scans.  The symptom is rare.  While the symptom can occur in adults, SCIWORA occurs almost exclusively children as especially younger than 8 years old. 

55.  On commenting the diagnosis of Dr. Kong, Dr. Lau also referred to the medical report by Dr. Guardian Fong (which I shall refer to later herein) who inspected the Plaintiff with Dr. Kong.  Dr. Fong has commented that in the presence of jerky limb movement at the time of the assessment, the neurological findings did not allow him to make specific comments on the diagnosis of central cord symptom with a reasonable degree of medical certainty.  Dr. Lau doubted how Dr. Kong could conclude SCIWORA.

56.  Dr. Lau also referred to the referral letter by Dr. P.C. Lee dated 14 July 2000, and commented that Dr. Lee did not describe the findings leading to the diagnosis of mild central cord syndrome.

57.  Dr. Lau also pointed out that central cord syndrome would have a greater effect on upper extremity than in lower extremity.  According to Dr. Kong’s observation, the Plaintiff had lower limbs affected more than the upper limbs, were relatively spared.  Dr. Lau commented that Madam Siu should not be diagnosed as having central cord syndrome based on the clinical findings observed and recorded by Dr. Kong.

58.  Dr. Lau also commented that if the Plaintiff had been so severely disabled and had been bed bound and remained hospitalized in the past few years, there should be obviously wasting of her limbs.  But according to observation made by Dr. Kong and Dr. Fong in July 2005, there was no wasting of her upper or lower limbs muscle.  He suggested that these were very objective evidence that the Plaintiff could not have been so severely disabled.

59.  On the comments of Dr. Kong that the lapse of 2 weeks between the injury and the first MRI could explain the edematous change of the cord may have decreased or subsided to such a degree that it could not be observed by MRI study, Dr. Lau disagreed with Dr. Kong’s comment.  Dr. Lau agreed that there have been report in the medical literature that patient was SCIWORA could have no pathology of the spinal cord reviewed by MRI.  But he said it was extremely rare.  On the other hand, even accepting the fact that the Plaintiff did not have positive MRI finding after spinal cord injury, it shown definitely that the immuring findings are predictive of the outcome and clinical status of patient with SCIWORA, i.e. a minor haemorrhage or oedema only dissociated with a moderate good recovery and absence of abnormal cord sign suggested the patient would make a complete recovery.

60.  Dr. Lau had given evidence in Court as an expert. 

61.  Dr. Lau explained the Waddell’s test he used when examining the Plaintiff is a test to assimilate pressure on the back of the patient.  If the patient gave reaction, it shows she was exaggerating.  Dr. Lau accepted that exaggeration may be due to psychological reason and he could not exclude such chances.

62.  On the delay in taking MRI study, Dr. Lau opined that recovery in nervous system is slower than muscle.  A problem cannot disappear in 16 days.  He further commented that if Dr. Kong believed the Plaintiff had central cord syndrome, the disability should be over 20%.

Psychiatric Expert

63.  The Plaintiff was examined by Dr. Chung See Yuen in May 2003.  Dr. Chung opined that the Plaintiff is suffering from adjustment disorder with mixed anxiety and depressed mood.  The mental disorder was characterized by the development of emotional or behavioural symptoms in response to an identifiable stressor.  The disorder was caused by the accident and aggravated by the unemployment and the associated financial problems.

64.  Dr. Chung noted that the mental problems are mild.  Her daily activities are mainly impaired by her physical problems.  The Plaintiff was mentally capable of performing all activities of daily living.  She was mentally capable of returning to her pre-accident jobs.  A short course of psychological treatment was recommended.

65.  It is noted that Dr. Chung also recorded that the Plaintiff said she went to live with her friends in Sweden in July 2001.  She came back to Hong Kong in March 2003 for the present litigation.  She will go back to Sweden next month.  This is again denied by the Plaintiff.

66.  There is another psychiatrist instructed.  When Dr. Kong was instructed, the Plaintiff also instructed Dr. Law Wun Tong, a psychiatrist, to assess her condition.  According to Dr. Law’s report dated 26 July 2005, he recorded that the Plaintiff had suffered back pain after she was injured in accident on 24 June 2000.  She had complained of severe pain of her body and become disabled because of the pain.  Her complaints appear to run a fluctuating course. 

67.  Dr. Law commented that the severity of pain and disability as complained appear to be out of proportion with the extent of physical injuries.  Dr. Law further commented that mentally, the Plaintiff had suffered from low mood, insomnia, impair appetite and irritability.  This mental symptom was reactive to the physical complaints and also the subsequence psychosocial stressors, including her marital discord and her son’s problem.  Her mental presentation was compatible with an adjustment disorder with depressed mood.  The psychiatrist disorder was mild in severity.  Dr. Law also commented that the physical complaints are not caused by the psychiatric condition.  He suggested that there was exaggeration of the severity of her complaints.

Neurologist Expert

68.  The Plaintiff had also consulted a specialist in neurologist, Dr. Guardian Fong.  In his first report dated 29 July 2005, Dr. Fong recorded that the Plaintiff informed him that she suffered from sudden backward and forward swing for a few times at the accident.  There was no obvious head injury and she had no lapse of consciousness.

69.  At the time of examination, the Plaintiff complained of residual headache, neck pains, back pains, personality change, generalized weakness and intermittent seizure-like disturbance requiring prolonged back rest and total dependent activity of daily life.  She had to have constant care from Fung Yiu King Hospital.

70.  At the examination, the Plaintiff developed repeated jerky movement of limbs.  Dr. Fong commented that the attack was typically preceded by gradual worsening of “tongue-tied speech” and followed by a gradual built up of bizarre jerky movement of either upper or lower limbs in isolation or in any combination.  She would cry for help and request her brother to hold her legs or apply analgesic ointment on her face, which could terminate or alleviate her attacks.  During attacks, she could talk with appropriate response with worsening “tongue-tied speech”.

71.  On neurological examination, Dr. Fong commented that the Plaintiff demonstrated a moderate degree of global cognitive dysfunction with the impairment in test of orientation, calculation, registration and memory, concentration, general knowledge and abstract thinking.  She could not write and most of her responses were incorrect.  Segmental examination shown normal visual fields and extraocular eye movement.  There was no nystagmus.  Cranial nerve examination was normal although her tongue movement was hesitated and slow. 

72.  Dr. Fong commented that the jerky movements were not typical of epileptic seizure.  There was no oxygen desaturation (no clinical cyanosis) during the attack.  When attacks involve both upper limbs, she could manage to talk or call for help.  There was no tongue biting.  She had no postictal confusion/drowsiness.  Dr. Fong finally concluded that her non-epileptic seizure is unlikely to be the direct consequence of her possible head injury.

73.  Dr. Fong also commented that it is extremely doubtful if the Plaintiff had a head injury at the time of the traffic accident in June 2000.  Even if she has the head injury it must be very mild.  There was no physical impact to head or neck.  There was no loss of consciousness or post-traumatic amnesia.

74.  Dr. Fong further opined that had the Plaintiff had a very mild head injury, the usual natural history is one of gaudery recovery over a period of 3 to 6 months.  The possibility of her symptomatology consistent with the diagnosis of a very mild post concussion syndrome may remain.  From neurological perspective, her post concussion syndrome account for 2% impairment of the whole person. 

75.  Dr. Fong commented that most mild head trauma recover during the first 3 months of accident, while some minor improvement continue up to 6 months.  With the Plaintiff’s injury, she should have recovered sufficiently by December 2000 (i.e. 6 months after the accident) to be able to resume gainful employment.  In conclusion, Dr. Fong opined that from the neurological perspective, the Plaintiff should be able to engage in some forms of gainful employment at 6 months.  The recommended sick leave is 6 months.  He did not comment if the Plaintiff could return to her pre-accident job. 

76.  Dr. Fong commented that the Plaintiff demonstrated a diffused and generalized impairment of cognitive functions of moderate severity.  The degree of impairment identified on the mental state examination is unusual comparing to her mental complexity and her performance at the rest of interview.  This cast serious doubt on the validity of the mental state examination.

77.  In a supplemental report produced by Dr. Fong, he supplemented what he said in the earlier report by adding that diagnosis of non-epileptic seizure does not equivalent or imply that the Plaintiff is pretending or fake her condition.  He also elaborated that while the non-epileptic seizure is not likely to be a direct consequence of cause of head injury, psychiatrist’s assessment is crucial for determining the relationship of her convulsion attacks and her underline psychiatric/psychosocial problem (if any).  At the conclusion of this supplemental report, Dr. Fong said that in the presence of jerky limb movement at the time of assessment, the neurological examination findings did not allow him to make specific comments on the central cord symptom her reasonable degree of medical certainty.

Evidence of the Physiotherapist

78.  The Plaintiff had also produced a report from a physiotherapist Ms. Ada Yu.  Ms. Yu had examined the Plaintiff at Fung Yiu King Hospital. 

79.  According to her report, the Plaintiff needs intensive special attention of a 12 months physiotherapy treatment.  The best diagnosis of Madam Siu is that she has a better control of her upper limb and she can use most of the functional activity with her upper limb and for the worst case, the Plaintiff’s pain may be so severe that prevented her from active limb training and she needs to stay at nursing home. 

80.  Ms. Yu attended Court to be cross-examined by the Defendant on her report.  She accepted that this was her first appearance in Court as expert evidence.  She had only met the Plaintiff once on 10 March 2006 for about 2 hours in Fung Yiu King Hospital.  And her report was only based on what she observed in the 2 hours.  And there was certain information that appears in her report appearing as questionnaire.  This was filled up by the Plaintiff.  She accepted that the questionnaire may not reflect the truth and on her physical condition, Ms. Yu admitted that she had not carried out any test on muscle wasting.

Evidence from Fung Yiu King Hospital

81.  It is also helpful to take into account the evidence of Dr. Kwok Hau Yan, an assistant consultant of the Department of Orthopedic & Grammatology of Fung Yiu King Hospital.  He is not an expert witness and is a witness of fact.  Dr. Kwok was called because of a letter dated 7 March 2008 that he gave to the Defendant’s solicitors.  Paragraph 4 of his letter stated that the Plaintiff’s clinical condition has reached a static stage.  The medical team had advised her to discharge from Fung Yiu King Hospital in around April 2004.  The Plaintiff refused to make arrangement of her discharge.  The Plaintiff continued to stay at Fung Yiu King Hospital since April 2004 and no active treatment had been given to the Plaintiff since then. 

82.  Dr. Kwok was summonsed by the Defendant and to be cross-examined by the Plaintiff.  In his evidence Dr. Kwok gave the comment of the hospital that the Plaintiff had reached a stage of no further treatment could be given.  He suggested there were reasons to believe the Plaintiff had recovered but he was not clear on how he came to that conclusion.  I disregard this comment.  He also commented that they had reports on a number of occasions that the Plaintiff had left Fung Yiu King Hospital without telling them.  They had to report to the Police.  He also read out the record that the Plaintiff was sent to Prince Wales Hospital between 7 June 2004 and 3 July 2004 for treatment.  According to the record, the Prince Wales Hospital could not find any costs of her condition.  And according to the record of Fung Yiu King Hospital that he had, the Plaintiff had lost conscious, including on the date of 18 September 2008, but the record of her vital signs, such as blood pressure, pulse and blood contents, are normal.

83.  When cross-examined by Mr. Siu, Dr. Kwok admitted that no written order for discharge had been given to the Plaintiff.  Dr. Kong agreed it was only given orally.  And it was put to Dr. Kong that there was some improvement including that the Plaintiff could now use a wheel chair to move around.  Dr. Kong maintained that there is no treatment given to the Plaintiff. 

Evidence of the Plaintiff

84.  The Plaintiff gave evidence in Court.  She sat on a wheelchair.  I note that her legs were in constant jerky movement.  She appeared to be very alert and could understand the questions put by Counsel to the Defendant.

85.  The Plaintiff had given a witness statement dated 5 March 2004.  It was prepared with the assistance of her then solicitor, Messrs. Lawrence K. Y. Lo & Co.  She had also filed an affirmation on 9 September 2006 in reply to the interrogatories served by the Defendant, when she was then represented by Messrs. K. H. Yuen & David Cheung.  The witness statement was explained to the Plaintiff by the Court interpreter when she gave evidence and she said it is not all correct.  She made explanation on her medical expenses and tonic food expenses.  She also said that her marriage breakdown resulting in the divorce was a result of the accident.  Her son did not have the chance to study in university, as she could not take care of him.

86.  According to her statement, her legs hit against the partition board during the accident.

87.  When cross-examined by Counsel if she hit her left knee as stated in the medical report from Eastern Hospital dated 21 January 2004, the Plaintiff said she was hit everywhere on her body.  She said at the time of the accident, in that 10 odd second, she was like a tumbler, being thrown towards the partition wall in front, and was bounced back on the chair. She claimed that she had informed Eastern Hospital that her back was injured, and she had pain. 

88.  After being discharged by Eastern Hospital, the Plaintiff said in her statement that she later had neck and back pain and had persistent headache.  She consulted Chinese herbal doctors for four to five times but without improvement.  From the medical receipts produced by the Plaintiff, what she referred as Chinese herbal doctors should be the 10 treatments from Chinese bone setters.  The first Chinese bonesetter had a record that she suffered injury to her right knee.  She subsequently consulted another bonesetter who recorded that she suffered injury at her waist and knees.  In the last receipt, there was mention of injury to her neck.

89.  For the period from September 2000 to July 2001, the Plaintiff spent over $68,000 on Chinese medicine and tonic food.  She explained that these are medicine purchase by her family members in Guangzhou and brought to Hong Kong by her relatives or friends.  These were recommended by a doctor in China called “易哥”.  There are no details of this doctor.  She had not visited the doctor but she had given him her MRI reports and discussed her condition with him over the phone.

90.  Counsel also pointed that on a number of occasions, her family member purchased medicine from the same shop on more than one occasion on the same day.  The Plaintiff explained that if her condition changed, she immediately called her family member who would go to see the doctor to get new medicine for her.

91.  It is not disputed that since sometime in April 2001, the Plaintiff did not have any further medical treatment in Hong Kong until 2003.  The Plaintiff said she returned to China in July 2001 and received treatment there.  There is no record of the treatment, other than the receipt produced on her expenses on medicine. 

92.  On tonic food, the Plaintiff consumed large quantity of Vital DNA (靈達 DNA生命劑).  The Plaintiff admitted that there is no medical certificate for its effect.  It was bought by her family member and it was good for her.

93.  As mentioned above, it was recorded in the report of Dr. Lau and Dr. Chung that the Plaintiff had stayed in Sweden before she came back for examination.  At cross-examination, she disagreed that she had told Dr. Lau or Dr. Chung that she came back from Sweden to be examined by the doctors.  The Plaintiff admitted that she had left for Sweden for a period of more than half a year between July 2001 and April 2003, but she could not recall the exact period. She only said she went there to take a rest but she refused to give any detail as to who arranged for the stay or paid for her stay.  She said she had not received any medical treatment in Sweden and said she brought with her some medicine and when the medicine was used up, she returned.

94.  After the Plaintiff returned to Hong Kong in April 2003, she had not received any medical treatment until September 2003.  When cross-examined on why she did not require treatment, she said she bought painkiller.  

95.  On cross-examination, the Plaintiff said she could not walk and was bed bound for the past 5 years.  She admitted that Dr. Kwok of Fung Yiu King Hospital orally asked her to leave, but she could not as she was weak and had to lie on bed.  She did not consider Dr. Kwok as her treating doctor.  She admitted that she could now sit on a wheelchair, an improved condition.  She could go downstairs to buy snacks and to bath in the sun.  She had been taken out of hospital by her relatives occasionally with the permission of the doctor.

96.  It is the Plaintiff’s case that in view of the development of her health condition, she could not return to work. On her family condition, the Plaintiff claimed that after the accident, her personality changed, resulting in the family breakdown.  The Plaintiff said she separated with her husband since August 2000.  The Defendant put to her that they were separated just 2 months from the accident.  The accident could not be the cause of her separation and divorce.  The Plaintiff disagreed.

The other witnesses for the Plaintiff

97.  The husband of the Plaintiff, Chan Kam Kee put in a statement confirming that the marriage breakdown was a result of the accident.  He said they had a happy family before the accident.  After the accident, he had to take care of his wife and could not work.  He had no income and had to take care of the family.  There were too many problems and he quarreled with the Plaintiff, leading to the divorce.

98.  Mr. Chan appeared in Court to be cross-examined.  He said initially he did not agree to the divorce.  But the Plaintiff requested him day after day, and finally he agreed.  He said he was not willing to have the divorce.

99.  On being cross-examined by counsel on a bundle of receipt on the lodging fees paid by Mr. Siu to him since March 2004, Mr. Chan first claim that he did receive such payment.  After cross-examination, he finally admitted that he had not received any payment from Mr. Siu. 

100.  The Plaintiff also called Mr. Siu for cross examination on some expenses, particularly the traveling and lodging expenses of Mr. Siu.  Mr. Siu claims that since end of 2003 and beginning of 2004, he assisted the Plaintiff to handle the case.   This included seeking for the appropriate law firms to assist the Plaintiff and to seek for medical advice.  He had to travel to Hong Kong on double entry permit, as he was a PRC resident.  He said he lived at the house of Mr. Chan.  He seeks to recover the traveling expenses and lodging expenses as part of the loss of the Plaintiff.  He also claimed his telephone expenses in Hong Kong.

101.  On the consumption of Chinese medicine, Mr. Siu said the medicine was bought by his father.  He also paid for some of the fees.  He also said in Court that, though the Plaintiff could not return to China, he asked the Plaintiff of her condition and had related the same to the Doctor in China.

My Finding on the Injury Resulting from the Accident

102.  It is the Plaintiff’s case that she could not walk, being prevented by the pain she suffered.  She could not work as a result and need special care.

103.  It is noted that her condition cannot be explained by most if not all of the medical experts who had given evidence in Court or produced a report. 

104.  Initially, the strongest evidence came from the report of Dr. Kong, which I have analysed above.  Ms. Loh, Counsel for the Defendant submitted that the opinion of Dr. Kong is not reliable. 

105.  In his 4^th Report, Dr. Kong said when the Plaintiff visited Dr. P.C. Lee on 10 July 2000, Dr. Lee made the clinical diagnosis of mild central cord syndrome based on (a) the lower limbs weakness was more severe than the upper limbs (b) reflexes of both lower limbs were brisk.  He recorded that when he examined the Plaintiff on 16 July 2005, the lower limbs of the Plaintiff were affected more than the upper limbs and brisk reflexes were present on both limbs.  He then opined that these clinical features were compatible with central cord syndrome.

106.  But as recorded above, Dr. Lee only said in his report that there are clinical features compatible with central cord syndrome.   He did not conclude central cord syndrome and the letter of referral has no mention on what features he was referring to. 

107.  When cross-examined by Ms. Loh, Dr. Kong said he had the information from Dr. Lee on 2 occasions.  This is a material piece of evidence which is not stated in the report of Dr. Lee.  If that is some evidence to be supplemented by Dr. Lee, a supplemental report should be filed.  

108.  Anyway, as an expert, Dr. Kong has the duty to explain how he arrives at a finding.  He has to provide sources of the basis of his finding.  If he has read reports, the reports should be listed.  And if there is some addition information from discussion with another medical expert, it must be clearly stated and recorded in his report.  To say the least, Dr. Kong should record his conversation with Dr. Lee and the Defendant could have a chance to decide if they would call Dr. Lee for cross-examination. 

109.  What is also alarming is that Dr. Kong had not even recorded this important conversation with Dr. Lee in his notes.  He gave no explanation on the failure.  He only said that he has good memory.  It must be his duty as an expert to record and disclose such an important piece of material upon which he use to make his finding.

110.  Dr. Kong opined that the Plaintiff suffered from SCIWORA in his 3^rd Report.  The diagnosis of SCIWORA has one marked feature, it would affect the upper limbs of the patient more severely than the lower limbs.  This was agreed by both Dr. Kong himself, and Dr. Lau.  And it was found by all medical experts that the lower limb of the Plaintiff is affected more severely and her upper limb is relatively spared.  In Court, the Plaintiff could use her fingers to turn open and close a medical bottle to apply medicinal oil to her nose.  She could turn the papers on the hearing bundle.  But her lower limbs are in constant jerky movement and she said she could walk.  These are inconsistent with the marked feature of SCIWORA.

111.  When cross-examined by Ms. Loh on this point, Dr. Kong could not give a good explanation.  This cast doubt on the finding of Dr. Kong.  But what is more important, on cross-examination, Dr. Kong agreed that the MRI taken, including the one on 10 July 2000 did not reveal anything abnormality.  If there is any central cord syndrome or injury to the central cord that healed or subsided within 16 days, the prognosis should be good.  There should be a quick recovery.  It would take 1-2 years for full recovery.  Then it would be bad on the opinion of Dr. Kong to suggest the severe symptoms of pain and disability to walk in September 2003 is a result of the traffic accident in June 2000, some more than 3 years ago.   When cross-examined on this point by Ms. Loh, again, Dr. Kong could not explain.

112.  When cross-examined, Dr. Kong accepted that he did not discover any muscle wasting.  He agreed that for patient being bed bound for 1 or 2 years, there would be muscle wasting.  He could not explain how that could happen to the Plaintiff as she was bed bound for more than a year when he first examined her.  

113.  And when confronted by Ms. Loh on the various matters that could not be explained in his report, Dr. Kong finally accepted that he also had suspicion on the injury sustained by the Plaintiff.  He even explained that he diagnosed the Plaintiff as having 5% disability which is a lower percentage for the alleged injury.  But if that is the case, he should have expressed his reservation in his report.  Otherwise, any one reading the report would not be aware of his hidden observation.

114.  The duty of an expert witness is set out by Cresswell J in The Ikarian Reefer [1993] FSR 563 and applied by Laddie J in copyright context in Cala Homes v Alfred McAlpine Homes East [1995] FSR 818.  Laddie J deprecated expert acting as a partisan hired gun at p.843,

“Of course the court will be aware that a party is likely to choose as its expert someone whose view is most sympathetic to its position.  Subject to that caveat, the court is likely to assume that the expert witness is more interested in being honest and right than in ensuring that one side or another wins.  An expert should not consider that it is his job to stand shoulder to shoulder through thick and thin with the side which is paying his bill.  “Pragmatic flexibility” as used by Mr Goodall is a euphemism for “misleading selectivity”.  According to this approach the flexibility will give place to something closer to the true and balanced view of the expert only when he is being cross-examined and is faced with the possibility of being “found out”.  The reality, of course, will be somewhat different.  An expert who has committed himself in writing to a report which is selectively misleading may feel obliged to stick to the views he expressed there when he is cross-examined.  Most witnesses would not be prepared to admit at the beginning of cross-examination … that he was approaching the drafting of his report as a partisan hired gun.  The result is that the expert’s report and then his oral evidence will be contaminated by this attempted sleight of mind.  This deprives the evidence of much of its value.”

115.  I would not say that Dr. Kong is a hired gun.  But the way he has missed out important information in his report cast great doubt on the medical evidence given by him.  I would not rely on his evidence, and even if I have to, it appears that the only conclusion from his evidence is that the Plaintiff should have recovered in 2 years’ time after the accident, sometime in 2002.   His evidence turns out to be against the case of the Plaintiff.

116.  As I recorded above, Dr. Lau is of the view that if there is such injury to the central cord, and it disappeared or subsided in 16 days, it would not be a serious injury.  Dr. Lau had great doubt on the claim by the Plaintiff of her pain, and that she had to be bed bounded.  She suffered no muscle spasms or wastage, which is not possible. This is now confirmed by Dr. Kong in Court.

117.  Dr. Lau has also given evidence in Court.  His evidence is not really challenged, understandably as the Plaintiff is not legal represented.  But I do consider his evidence with care. 

118.  In fact, Dr. Lau was first commissioned to examine the Plaintiff by her legal advisor.  As an expert, he is of course expected to give a fair comment on the condition of the Plaintiff and his first is to the Court.  He has careful carried out Waddell’s simulation test to assess if the Plaintiff exaggerated her pain and injury, and he did find exaggeration.  In coming to such conclusion, he does not rule out psychiatric problems and made no finding in this area as he is not the expert.  I must say that he has been very fair to the Plaintiff.

119.  I found that Dr. Lau’s evidence is intact and well support by medical research.  I fully adopt his opinion, both in writing, and in Court.  And Dr. Lau opined that the Plaintiff should only have contusion injury to the neck and back.

120.  I do not have to conclude that the Plaintiff is malingering.  All that I have to decide is whether the Plaintiff proves that she suffers from the injury she claims and that such injury is a result of the accident.  It is clear from the 2 experts that orthopaedic wise, it cannot be established that the Plaintiff is suffering from the pain and injury she now claim.

121.  Turning to the report from the psychiatrist, Dr. Chung is of the view that the Plaintiff suffered from adjustment disorder, aggravated by her marital problem.  But the problem would not affect her earning capacity and she could return to pre-accident work in 6 months’ time.  She should have recover long ago.  And Dr. Law, who examined the Plaintiff in 2005, commented that there is exaggeration in the Plaintiff’s complaint (as hereinbefore mentioned.)  It is clear that from the evidence of the psychiatrists, there is no support for the claim by the Plaintiff that she cannot walk or has to be bed bound.

122.  And the neurologist Dr. Fong who inspected the Plaintiff in 2005, concluded that there is no evidence of head injury.  And if there is one, it is mild.  The degree of impairment identified on the mental state examination is unusual comparing to a mental complexity and a performance at the rest of interview.  Again, the evidence from the neurologist does not support the injury claim by the Plaintiff.

123.  I note the evidence and report of Ms. Ada Yu that the Plaintiff needed life-long nursing care and intensive physiotherapy and rehabilitation programme.  It is noted that she only visited the Plaintiff once for examination in Fung Yiu King Hospital.  Her recommendation is based on her observation in that visit and some self-administered questionnaire by the Plaintiff.  I have doubt on her evidence.  In any event, she is not a doctor and her opinion would be helpful to consider the treatment required by the Plaintiff if the injuries are proved.  I pay little weight to her evidence to assess the injury of the Plaintiff.

124.  So in summing up, Orthopaedic-wise, there is no objective proof for the alleged pain and disability suffered by the Plaintiff in 2003.  Any possible psychiatric and/or neurological illness has ruled out by the other experts.  So medically, there is no support for the Plaintiff’s injury. 

125.  And I adopt the evidence of Dr. Kwok that Fung Yiu King Hospital is not giving any treatment for the Plaintiff.  The situation remains that the Hospital has orally requested the Plaintiff to be discharged and the Plaintiff took no action and the Hospital for some reason allow the Plaintiff to stay.

126.  When the Plaintiff gave evidence in Court, and I observed that she had no difficulty in understanding the questions put to her.  She repeated her injury and pain, in particular that she had such pain that she could not walk.  But from the medical evidence, it is not possible that she suffered no muscle wasting if she was bed bound for such a long period of time.  This is an objective assessment of her condition, and the only conclusion is that she is not telling the truth on her pain.

127.  Ms. Loh commented that the Plaintiff has fully recovered.  The Plaintiff denied.  The Plaintiff was subject to a lengthy cross-examination and I note the various submissions by Ms. Loh that the Plaintiff’s evidence is not to be believed.  I fully adopt her submission in her closing submission and I do not intend to repeat.  I would refer just to a few points which are important. 

128.  The Plaintiff’s explanation that she received some form of treatment from a Chinese doctor before she returned to China in July 2001 is, to say the least, strange.  The doctor had not seen her and they only communication through telephone.  It is difficult to believe one would be prepared to take medicine without seeing the doctor.  And the treatment is not all that successful.  She had not recovered.  And strangely, as shown in the bundle that for the period between September 2000 and June 2001, there had been about 8 occasions when medicine was purchased on the same day.  The Plaintiff explained that when the medicine could not assist her condition, she called up her family members in China and they immediately went to the shop to get some new medicine.   The explanation is more an after thought when being challenged by counsel on her spending of over $68,000 between September 2000 to June 2001 for buying medicine in China but she did not return to China for treatment at this period of time.

129.  On tonic food, which I shall come to later, the Plaintiff has been questioned that her family members purchased more than she could consume.  Faced with the receipt she produced, she explained that her family member bought more for fear that it would be out of stock.  It is too convenient an explanation.  I have to agree with Ms. Loh that this explanation is unreasonable.

130.  And on her visit to Sweden, the Plaintiff is very evasive, or practically refused to give any details.  If she has not recovered, one would expert her to have treatment in Sweden.  No treatment was received.  She said that she had bought with her medicine from China.  If one is still under treatment, I cannot understand why she stayed in Sweden, where there was no treatment.  And I was not told any reason that would be good for her recovery to stay in Sweden.

131.  Overall, I found the Plaintiff evasive in her evidence and I do not believe her evidence.

132.  The evidence of Mr. Siu is not direct on the injury of the Plaintiff and would not assist the Plaintiff’s case. 

133.  Even if the Plaintiff suffered the injury as alleged, she had to prove that her physical condition since September 2003 is caused by the accident.  There is no record of treatment since her last visit to Eastern Hospital in January 2001.  There is no record of the treatment she received in China since July 2001.   She said she has no treatment in Sweden.  And as said above, none of the medical experts could safely conclude that her condition is a result of the accident in 2000.  There are a lot for the Plaintiff to prove that the injury is caused by the accident, and the evidence is just not satisfactory. 

134.  On the balance of probability, on the basis of medical evidence and the evidence of the Plaintiff, I am not convinced that she suffered the injury she now claims, particularly that she had to be bed bound since September 2003.  Further and in the alternative, I am not convinced that such injuries, if they do exist, are related to the accident.

135.  On the balance, I found that the Plaintiff only suffered knee injury, contusion to neck and back in the accident.  She also suffered mild adjustment disorder that does not affect her working ability.

The Marital Problem

136.  On the family problem, the Plaintiff said it was caused by the accident as she had personality change after the injury.

137.  It is the case of the Plaintiff that she was separated from her husband in August 2000.  If one takes into account the period when the Plaintiff was hospitalized, that is, from 10 July to 24 July 2000, the period of they staying together at home is very short.  It is questionable how there is a sudden change in their family life. 

138.  Mr. Chan explained that she had to consult Chinese doctor and had to prepare Chinese medicine.  When put that this is a short period of time and it is unreasonable for him, who love his wife before the accident to have left her, Mr. Chan said if a wife is nagging day and night, a month is too long a period.  That is inconsistent with his assertion that he did not wish to divorce his wife.  

139.  On being cross examined by counsel on a bundle of receipt on the lodging fees paid by Mr. Siu, Mr. Chan changed his evidence in Court after cross-examination by Ms. Loh.  He is put in evidence a document that is false.  Counsel has shown that Mr. Chan is not a reliable witness.  I disregard his evidence in total.

140.  As I have analysed the evidence of the Plaintiff, she is not a reliable witness.  I found the Plaintiff failed to prove on balance of probability that  her divorce was caused by the injury.

141.  I now turn to consider quantum on the basis of my findings.

PSLA

142.  At the accident, the Plaintiff suffered whiplash injury to her waist and back.  Her knees were injured.  She has no or mild head injury and she was conscious after the accident.  She was discharged the same day by Eastern Hospital.

143.  She received bonesetters’ treatment.

144.  The MRI report from St. Paul Hospital show pre-existing degeneration.  She was hospitalized in Eastern Hospital for 14 days.  She has to receive physiotherapy treatment, and psychologist treatment in Eastern Hospital.

145.  There is no proof of her treatment since April 2001.  Her sick leave was given by Eastern Hospital up to July 2001.  The sick leave recommended by the various experts ranged from 3 to 9 months.

146.  She has mild adjustment disorder.

147.  I found against the Plaintiff that the relapse of her injury in September 2003 is cause or occasioned by the accident.

148.  The Plaintiff claims $600,000 as her PSLA.  On the award of PSLA, counsel for the Defendant submitted that a sum of $100,000 to $150,000 would be appropriate.

149.  Ms. Loh has kindly prepared a list of authority on the award by Court on PSLA for mild whiplash and back injury.  I have considered all the case and would refer in particular to a few cases that I would rely on.  In Chiu Wing Sze Karby v. Chan Ying Wai and Another HCPI 616/1999, the Plaintiff suffered from whiplash injury to her neck and some involvement of her lower back.  The Plaintiff said she had lower back pain.  Deputy Judge Muttrie awarded $100,000 for the whiplash and $50,000 for the lumbar injury.   In Lam Chiu  v. Poon Tat Hing and Another DCPI 203/2001, the Plaintiff sustained injury to his neck and head.  He was hospitalized for 14 days and had to attend follow up treatment.  $120,000 was award for PSLA.

150.  Take all the factors into account, I would allow $150,000 for PSLA.

Pre-Trial Loss of Earnings

151.  The sick leave certificate given by Eastern Hospital ended on 3 July 2001, which is about 1 year from the date of accident.

152.  Ms. Loh submitted that her sick leave should be for a period of no more than 15 months.

153.  According to the medical evidence, the sick leave recommended was less than one year.  The evidence of Dr. Kong in Court suggests that the Plaintiff should recover in 1 to 2 years times.  I found that the sick leave of 12 months is reasonable. 

154.  And I adopt the medical evidence of Dr. Lau and Dr. Chung that the Plaintiff could return to her pre-accident job.  Dr. Law also confirmed that the Plaintiff’s work capacity would not be limited or impaired significantly by her psychiatric condition.  I would allow 4 months after the sick leave for her to locate a new employment.

155.  Pre-accident income has been agreed at $6,432.20 per month.  Taking into account MPF, the award under this heard is –

   ($6,432.20 x 16) x 105% = $108,060.96

Future Loss of Earnings

156.  In view of my earlier finding that the Plaintiff should be able to work in her pre-accident job within 16 months from the date of accident, there is no further loss of earnings.

Future Medical Expenses

157.  The Plaintiff claimed $15,000 for as future medical expenses as recommended by Dr. Law, which is a 10 sessions of psychiatric treatment.  Dr. Chung recommended a shorter course of 5 sessions.  I adopt their view that such treatment would improve her condition.  While these reports were given some time ago, there is no reason to doubt the correctness of these recommendations.

158.  According to both experts, the treatment may be provided in the public section.  There is no reason why the Plaintiff must engage service from the public section.  I would rely on the recommendation of Dr. Chung and award a sum of $6,000.

Medicine Expenses and Tonic Food

159.  The Plaintiff claims the medical expenses from bonesetter and Chinese medicine.

160.  For the 10 sessions of bonesetters’ treatment in Hong Kong, receipts to the total sum of $3,180 are produced.  But the Plaintiff has been compensated the sum by her insurance company which is not disputed.  I make no award.

161.  The Plaintiff claims the payment of Chinese medicine.  In her Revised Statement of Claim, she claimed a sum of $300,000 (together with the bonesetters’ fees).  Large amount of receipt from drug store and Chinese medicine shop were produced.  These receipt date from 2000 to 2006.

162.  As I found above, the Plaintiff should have recovered in 12 months time.  There is no reason to allow any medical expense after June 2001.  And the Plaintiff has to prove that such expenses are necessary or reasonable.

163.  In any event, there is no evidence that the medicine is necessary.  I only have the evidence of the Plaintiff herself that she found herself better after taking the medicine.  She is no expert and I have not even one report from the doctor who suggested the medicine.  And in this period, she had treatment from Eastern Hospital.  I have no evidence to show this additional treatment is necessary or reasonable.  I make no award.

164.  Again, the medical expenses for Eastern Hospital and St. Paul Hospital had been covered by Insurance Policy.  I therefore made no award.  It is conceded by Defendant that the treatment by Dr. Johnson Lam should be reimbursed and I made an award for $4,990.

165.  On tonic food, the main item claimed is for Vital DNA.  There is no evidence on the suitability or necessity for such consumption.  There is no evidence on the use of other tonic food claimed.  Following Yu Ki v. Chin Kit Lam and Another [1981] HKLR 419, a nominal sum should be awarded.  I would allow $5,000.

166.  The claim for traveling expenses relates to the costs of Mr. Siu to travel to Hong Kong to assist his sister in the litigation.  This would be cost of the action which I do not have to deal with in this assessment.  As for the traveling expenses of the Plaintiff to visit doctor and for inspection, this should again be limited to visit before June 2001.  There is no evidence or record for the traveling expenses of the Plaintiff for this period.  There are visit to bonesetters, Dr. Johnson Lam and to Eastern Hospital for treatment including physiotherapy treatment.  I would allow a sum of $6,000.

167.  The cost of the crutches at $88 is agreed and allowed.

Summary of Award

168.  The total award –

a.	PSLA	$ 150,000.00
b.	Pre-trial loss of earnings and MPF	$ 108,060.96
c.	Future loss of earnings	nil
d.	Future medical expenses	$ 6,000.00
e.	Medical expenses and tonic food	$ 9,990.00
f.	Travelling expenses	$ 6,000.00
g.	Crotches	$ 88.00
	Total	$ 280,138.96

169.  Award on PSLA shall carry interest at 2% p.a. from the date of writ to date of judgment and interest on pre-trial special damages at half of judgment rate from date of accident until the date of judgment.

170.  And on costs, the usual order is for the Plaintiff to have costs.  Since the judgment sum in below $1,000,000, the costs should be taxed in accordance with District Court scale.  I therefore give an order nisi that the Plaintiff to have costs of the action to be taxed on District Court scale if not agreed.