HCPI 574/2014
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES ACTION NO 574 OF 2014
____________
| BETWEEN |
| | PAK SIU HIN SIMON | Plaintiff |
| | and | |
| | J V FITNESS LIMITED | Defendant |
____________
Before: Deputy High Court Judge Marlene Ng in Chambers
Date of Hearing: 23 July 2015
Date of Handing Down Decision: 4 September 2015
___________________
D E C I S I O N
___________________
I. INTRODUCTION
1. The plaintiff (“P”) was employed by the defendant (“D”) as a fitness trainer. At/about 1:09pm on 2 June 2013, P (then 32 years old) suffered a fall accident and was injured in the course of his work at a gym (“Gym”) operated by D (“Accident”). At that time, P was conducting body fitness training with the aid of equipment commonly known as TRX Suspension Training Kit (“TRX”) with a guest member. The floor of the relevant training area was covered by safety mats. D claimed such mats were not slippery or otherwise unsafe, and its material would minimise the impact of a fall, but P alleged the air conditioner dripped water onto the mats which became wet and slippery, so he slipped on the water and fell.
2. In DCEC569/2014, D paid employees’ compensation in the sum of $795,766.96 to P. In February 2014, D made interim payment in the sum of $304,233.04 to P. So P received a total sum of $1,100,000 from D on account of damages.
3. On 17 June 2014, P commenced the present action against D to claim damages for personal injuries in respect of the Accident. On 13 January 2015, interlocutory judgment was entered in favour of P against D for damages to be assessed.
4. On 16 December 2014, P’s solicitors wrote to D’s solicitors claiming P was unable to resume his pre-Accident job and was in financial difficulty, and enquiring whether D would be willing to pay further interim payment of $1,000,000. On 22 December 2014, D’s solicitors asked for P’s supporting affirmation as to the reason(s) for such request.
5. On 17 December 2014, P’s expert Dr Tio Man Kwun Peter (“Dr Tio”) and D’s expert Dr Chun Siu Yeung (“Dr Chun”) compiled their joint orthopaedic expert report (“Report”) upon their examination of P on 11 September 2014 (“Examination”). Dr Tio and Dr Chun are collectively referred to below as the “Experts”.
6. On 14 January 2015, P filed a summons to seek interim payment in the sum of $1,000,000 or such amount as the court would think just on account of the damages claimed in the present action (“Summons”). On 14 January and 2 April 2015 respectively, P filed his 1st and 2nd affirmations in support of the Summons (“P 1st and 2nd Affs”). On 9 March 2015, D filed the affirmation in opposition (“Au Aff”) of their solicitor (on instructions of D’s insurer) Au Siu Yan (“Au”).
7. P made his witness statement on 23 February 2015. On 24 February 2015, P filed the Revised Statement of Damages (“RSOD”). On 29 May 2015, D filed its Answer thereto (“Answer”). Pursuant to the order of Bharwaney J dated 13 May 2015, the next Checklist Review hearing was scheduled to be heard on 18 September 2015.
II. PARTIES’ RESPECTIVE CASE ON QUANTUM
8. In the RSOD, P claimed damages in excess of $27,000,000, most of which were for pre- and post-trial loss of earnings. But in the Answer, D averred it was not liable for payment of any further damages to P. The pleas for various heads of damages claimed in the RSOD and the response thereto in the Answer were as follows:
| RSOD ($) | Answer ($) |
| Pain, suffering and loss of amenities (“PSLA”) | 500,000 | not more than 80,000 |
| Pre-trial loss of earnings (inclusive of loss of MPF) | 2,494,107.50 | not more than 97,217.31 |
| Post-trial loss of earnings (inclusive of loss of MPF) | 24,799,703.70 | 0 |
| Loss of earning capacity | 250,000 | 0 |
| Other special damages | 88,000 | not more than 3,000 |
| Future medical expenses | 300,000 | 0 |
Interest
(a) 2% pa for general damages from the date of the writ of summons to the date of judgment
(b) half prevailing judgment rate for special damages from the date of the Accident to the date of judgment | To be assessed | 0 |
| Sub-total: | 28,431,811.20
plus interest to be assessed | not more than
180,271.31 |
| Less employee’s compensation | (795,766.96) | (795,766.96) |
| Less voluntary interim payment made in February 2014 | (304,233.04) | (304,233.04) |
| Total: | 27,331,811.20
plus interest to be assessed | 0 |
III. ACCIDENT
9. P claimed he sustained a fall injury with contusion to his back and experienced sudden sharp pain over lower back.[1] According to the RSOD, P averred that immediately after the Accident he felt severe pain in his back and numbness in his right hip and back of thigh.[2] On P’s own case and on his complaints to his treatment doctors, he fell on his right side and his right back/buttock hit the mat-covered floor first, and his injuries were mainly on his low back and right lower limb:
(a) In the medical report by the Department of Orthopaedics and Traumatology (“OTD”) of Prince of Wales Hospital (“PWH”) dated 31 July 2014, P reported a fall injury landing on his back and right buttock. There was right buttock and groin pain as well as numbness and pain radiating down to his right sole.
(b) According to the medical report by Dr Lau Yip Kwong Francis (“Dr Lau”) of St Paul’s Hospital (“SPH”) dated 29 February 2014, P sprained his back and right hip in a flexed externally rotated position.
(c) In the P 1st Aff and P’s witness statement, P claimed he fell on his right side and suffered right back and right hip injuries. Paragraphs 6-7 of P’s witness statement stated as follows:
“6. …… 此尼龍繩吊在天花牆上, 而末端分叉出2條繩索, 我示範需要左右雙手各提起該分叉繩, 然後引體上升將個人身體不斷吊起來上落的動作。
7. 過程中雙腳會不斷升起懸空及踏回地面，如此我重覆以上動作吊上吊落時，在其中1次左腳底觸及地面時突然跣腳，隨即我手持上方的繩索因力度不平均下失卻平衡，我的上身‘chok’了一下，令我失去重心甩手脫離繩索向右側跌下，右腰及盆骨先著地，我用右手肘掙在地上支持身體後才跌坐在地上。跌坐在地上後，我即時感到腰部很痛及右大腿後方麻痺，褲子有濕，而該學員劉先生看見事發情形亦呆著不知如何是好。……” (my emphasis)
(d) According to the medical history given by P to the Experts, he slipped and fell backwards on level ground and landed on his right low back, and he was unable to get up. There was pain at the right low back and his right lower limb was “numb” down to the toes, but he refused to answer the Experts’ query as to what his “numbness” felt like or what he meant by “numb”.
10. But, as made clear in the Answer and the Au Aff, D disputed causation as to damage by challenging the mechanism of the alleged injury. In doing so, D made reference to a picture of the TRX taken from the internet, CCTV recording of the training area where the Accident occurred from 1:00pm to 1:47pm on 2 June 2013 (“Recording”), 13 sequential screenshots captured from the Recording between 13:09:31 and 13:09:33 (“Screenshots”), and the medical opinion by the Experts in the Report. D further reminded that P, who had been a fitness trainer for at least 6 years before the Accident, was at all material times familiar with the operation of the TRX.
11. It was D’s case that the Recording and Screenshots as well as the observations on the mechanism of the alleged injury from a medical/orthopaedic perspective by the Experts in the Report appeared inconsistent with P’s account of his fall injury. In the Au Aff, it was alleged that at the time of the Accident:
(a) P was using the TRX in a semi-reclined position with both hands on the handles (which had grooves to increase grip and to prevent slip) and both heels on the floor.[3]
(b) When P started to fall, his hands still held both handles of the TRX, and he bent his right knee so most if not the whole of his right foot was in contact with the mat.[4]
(c) P’s left hand let go of or slipped off the handle, but his right hand still held the other handle. The front part of his right foot was in contact with the mat-covered floor.
(d) With his right hand still holding the other handle, P lowered his left hand. His right foot appeared to be “firmly in place on the ground”.
(e) P’s right hand let go of or slipped off the other handle, and he further lowered his left hand towards the mat. At this point, the Screenshot was relatively blurry which suggested the left hand was moving. Then the picture of the left hand cleared, which suggested P stopped moving his left hand. But at this point, the picture of P’s body was blurry, which suggested his body was still moving. Au believed at this point P’s left palm was (but his body was not) in contact with the mat,[5] but P never complained his left hand/wrist suffered any injuries.
(f) P then fell backwards, and as he did so his left palm was no longer on the ground. The next Screenshots showed P lifting his left palm away from the mat with his left leg relatively static on the ground and his right leg in the air. According to Dr Chun, “[it] appeared that [P] first landed on the left side buttock / low back more than on right side at first”.[6] Dr Tio also observed P “landed on the floor with his buttocks, probably more over the left”.[7]
(g) After P landed on the floor, he rolled his body to the right,[8] which suggested that when P first landed on the floor he did not land on the right side of his body.
(h) As seen from the Recording, from 13:09:34 onwards P was motionless most of the time, and the right side of his body was touching the mat.
12. I also note the following observations by Dr Chun in the Report:
(a) The Recording did not show P slipped his feet, and his left foot remained stationary during the fall until he landed on the floor.
(b) When P’s left hand slipped off the handle, the normal reflex response would be to hold tight onto the right handle and try to avoid the fall by getting up with the feet “not being slipped but actually quite holding on the ground”. But “[there] did not appear to have any sign to suggest [P] put an effort/attempt of him trying to get his body up with the right hand holding onto the right handle. Also as he fell, after stepping 1-2 steps back with the right foot, there was no slip or further step back of his right foot when it was changing weight bearing to the whole right foot”.
(c) P’s right hip or right foot / lower limb was not externally rotated as reported by SPH’s Dr Lau.
(d) There was no hard object on the mat-covered floor.
(e) Since P first landed on his left palm then followed by buttock / low back more towards the left side rather than right side, and P then rolled his body towards the right side, his left palm should bear the force/impact of the fall. But there was no complaint of any left palm/wrist symptom, so the force or impact of the fall as well as the impact to the right hip/buttock and low back were probably not significant, and any injury from such slip and fall should be minor contusion of the right buttock or low back.
13. Even though Dr Tio in the Report said it might not be possible for P to tell the details of the fall (which fall Dr Tio said was violent and sudden but only lasted a few seconds), Dr Tio agreed (a) P fell onto the floor first with his left palm and then his buttock(s), and (b) it was likely P suffered contusion injury to his back as he fell on his buttocks and landed on his back, and he suffered back injury and soft tissue injury to his right hip.
14. Clearly, there was serious dispute over which part of P’s body first hit the mat-covered floor, which dispute would be pertinent to 2 questions, ie (a) the energy or force of P’s fall, and (b) the body area, nature and seriousness of the his injuries.
IV. TREAMTMENT FOR PHYSICAL INJURIES
15. P was sent by ambulance to the Accident and Emergency Department (“AED”) of the Queen Mary Hospital (“QMH”) for treatment. According to the ambulance record, the mechanism of injury was “slip & fell” whilst doing exercise, and lower back/waist central position was scratched by metal buckle of the waist belt. There was complaint of “[low] back pain +, right hip and back of thigh numbness +”. But there was no head injury, loss of consciousness, bleeding and/or limb weakness. Physical examination at QMH’s AED found tenderness at the back with right thigh numbness. X-ray did not detect any fracture. P was discharged on the same day with initial sick leave granted up to 6 June 2013. Medication (including painkillers and analgesic balm) was prescribed.
16. P claimed that the symptoms persisted, so he sought treatment from Dr Lai Chi Ming (“Dr Lai”) of Yan Kin Orthopaedic Pain Centre (“Yan Kin”) on 7 June 2013. According to Dr Lai’s report dated 21 July 2014, P complained of back pain at lumbar-sacral region with sciatica pain and numbness radiating down to right plantar region. The pain was allegedly so severe that P’s daily activities, walking, sitting and sleeping were limited. On physical examination, there was tenderness over the lumbar-sacral region. Normal lordosis was lost because of para-spinal muscle spasm. Straight leg-raising (“SLR”) of right leg was limited to 45º but full for the left leg. Power and reflex of lower limbs were normal. Medication was prescribed and injection was done to relax the muscles of the injured area. Lumbar support was applied. The diagnosis was back contusion with right sciatica.
17. P was referred for MRI lumbar spine, which was performed on 13 June 2013. The MRI results revealed inter alia loss of normal lordosis, prolapsed intervertebral discs (“PID”) at L4/5 and L5/S1, small annular tear at L5/S1 level, and abutment or slight impingement of various nerve roots at L4/5 and L5/S1 level with no sign of cord compression.
18. P attended follow-up with Dr Lai on 14 June, 21 June and 2 July 2013. Injection and pain-killing medication were prescribed on each occasion. According to Dr Lai’s medical report dated 21 July 2014, P complained of residual back pain and right sciatica with gradual improvement. SLR of right leg was improving. Sensation, power and reflex were normal although P experienced subjective right lower limb weakness.
19. Upon referral by Dr Lai, private physiotherapy treatment was provided at On Kin Physiotherapy Centre (“On Kin”) on 21 June 2013. According to On Kin’s physiotherapy report dated 4 October 2014, physical assessment revealed tenderness over lower lumbar spine and right buttock region. The treatment included interferential therapy, ultrasound, laser and intermittent lumbar traction. According to the physiotherapy notes, P “attended one session on 21/6/2013. The SLR was: R/L: 30 degrees with pain and 80”.
20. On 5 July 2013, P attended PWH’s AED due to pain at his back and right thigh. He was prescribed with painkiller medication, and was referred for physiotherapy treatment and orthopaedic consultation. The initial orthopaedic appointment at PWH was scheduled in June 2015. Pending physiotherapy appointment at PWH, P sought Chinese traditional medical treatment from “中國陳金波診所” on 8 and 10 July 2013.
21. P claimed that due to persistent pain/discomfort at the injured areas, he consulted SPH as from 16 July 2013 and was seen by Dr Lau. Physical examination showed sign of labral tear of right hip and MRI examination was referred. P felt better after conservative treatment (injection and analgesics) was given. MRI scan of the right hip was performed on 12 August 2013 at SPH, and “subtle PD hyperintense signal noted at the anterosuperior labrum suggestive of labral tear. But no other significant MRI right hip findings”.
22. P was referred to PWH for further management. Physiotherapy was provided at PWH as from August 2013 at an interval of about once a week. Up to 9 January 2015, P had attended 56 sessions of weekly physiotherapy treatment. According to the Report, P claimed his condition did not improve.
23. Upon referral by Dr Lau, P was able to commence orthopaedic consultation at PWH at an earlier date on 12 November 2013. Physical examination revealed back tenderness at L4/5 and L5/S1, right groin region tenderness point at anterior hip joint with decreased range of movement. The impression was right sciatica with right S1 radiculopathy. Medication and sick leave were prescribed. P was recommended to continue with physiotherapy treatment.
24. P was seen by Dr Lau on follow-up for 8 times from 22 July 2013 to 23 April 2014. According to the Report, P claimed that during treatment with Dr Lau his right lower limb was unable to move with or without “numbness” (could not remember clearly).
25. MRI right hip was performed in January 2014, and a non‑displaced labral tear was found. The examination report dated 27 January 2014 concluded “[labral] degeneration and tear at anterosuperior labrum”.
26. P was seen by PWH’s OTD on 4 February 2014. He complained “now mainly is R sciatica and occasional R anterior groin pain on stairs”, “hip pain improved after physio”, “walking ok with stick assistance”. Findings included “SLR R 40+ tension sign”, “decrease R S1 dermatonal sensation”, “FHL 4/5”, “R hip range good”, “active flexion 0-95, ER 45, IR 15 deg”, “pain on end range only, FABER and FADIR –ve”. The consultation summary noted the MRI findings were explained to P, and the pros and cons of conservative and operative treatment were discussed. P preferred to continue with conservative treatment first “in view of improvements in hip pain”. He was suggested to continue with physiotherapy and hydrotherapy.
27. At the follow-up on 10 February 2014 at PWH’s OTD, P was “referred from sport for right sciatica with residual right buttock pain localized at the right S1 joint region”. Physical examination revealed there was no tension sign and power was full for the lower limbs. The impression was post-contusion residual back pain, and there was no indication for surgical intervention at that time.
28. Dr Lau reported that at the follow-up on 23 April 2014, P had persistent right hip pain. Operative care was advised from PWH, but the residual back pain was treated conservatively.
29. According to PWH’s physiotherapy progress notes, on 28 May 2014 P complained of back pain. “Assessment showed 5 out of 10, lumbar ROM: flexion to the upper shin (stiff), hip ROM: flexion: 90 degrees, extension: 10 degrees, abduction: 20 degrees, external rotation: 10 degrees and internal rotation: 15 degrees.”
30. PWH’s OTD reported that when P was seen on 10 June 2014, there was persistent back pain and right hip pain, but he could walk unaided on level ground. P’s condition was static, and he was referred to medical assessment board.
31. On 2 July 2014, P consulted Dr Lai again. After detailed discussion for options of treatment including surgical treatment, P preferred to have further management at his preferred private physiotherapy centre. He was advised to have further follow-up 2 weeks later, but he defaulted.
32. On 10 September 2014, SPH’s Dr Lau issued a medical certificate for P that advised avoidance of heavy duty for 21 days from 9 October 2014. P further followed up at PWH’s OTD on 26 September 2014.
33. At the time of the RSOD, P was still receiving regular orthopaedic follow-up treatment at PWH and attending SPH for his physical injuries. Continuous sick leave had been granted from 2 June 2013 to 10 March 2015 for a total of 648 days and continuing.
V. TREATMENT FOR ALLEGED PSYCHIATRIC CONDITION
34. P claimed that persistent pain/stress resulting from the physical injuries led to insomnia, palpitation and abnormal sweating. In July 2013, he attended Union Hospital for heart check-up but found no abnormality. In the hope of easing the symptoms, P tried psychotherapy treatment once but without much improvement. Due to continuous sleeping problem, anxiety and panic attack, P sought treatment from his family doctor Dr Tai Chun Chung (“Dr Tai”) for about 7 times since 6 August 2013, and was diagnosed to suffer from panic disorder with medication prescribed. On 17 August 2013, Dr Tai gave P a referral letter stating P was recently diagnosed to have panic disorder and he had been taking medication for treatment of panic disorder since 6 August 2013.
35. Thereafter, P was referred to consult psychiatrist Dr Ng Fung Shing (“Dr Ng”) and was first seen on 4 December 2013. P informed Dr Ng that:
(a) P was given an injection at QMH’s AED and was told there was no fracture. He was unable to sleep that night because of persistent back pain.
(b) P consulted Dr Lai about 2 days later and following MRI lumbar spine was told there was PID pressing on his right side spinal nerve. He attended follow-up several times with medication and injection given, but the pain was not much improved.
(c) P then consulted SPH’s Dr Lau with follow-up a few times. He was then referred to PWH’s OTD where he followed-up since October 2013. Although he was prescribed analgesics and physiotherapy, he felt persistent pain especially over the right pelvis region.
(d) In early July 2013, P received a letter from D suggesting he should see D’s panel orthopaedic surgeon. Since then P had increased anxiety feelings and worries, and he feared he would not be paid during his sick leave. He ruminated on the possibility of no payment and further possible action by D. He had poor sleep, and developed sweaty palm and palpitation.
(e) By mid-July 2013, P suddenly developed panic attacks with feeling of chest tightness, shortness of breath, dry mouth, numbness of four limbs and fear of passing out. The attack lasted about half an hour followed by similar attacks which were not related to any particular environment. At most there were 3-4 attacks a day with prominent anticipatory anxiety for further attacks.
(f) P consulted Dr Tai in early August 2013, and was prescribed some hypnotics and antidepressant commonly used for treating panic disorder. P only took the hypnotics for a few days for fear of dependence.
(g) There was some improvement about a week later. P had less frequent panic attacks and less anticipatory anxiety, and his sleep also improved with increased appetite. He was then referred to Dr Ng for psychiatric treatment.
36. Dr Ng carried out mental examination of P who was cooperative. P spoke relevantly and coherently, and his mood was not overtly depressed. No suicidal idea or psychotic symptom was elicited. Physical examination showed sweaty palm and pulse rate of 93 per minute. Dr Ng’s diagnosis was panic disorder, and psychoeducation was given with antidepressant prescribed. Initial improvement was observed after treatment. P attended follow-up with his wife on 2 January 2014. He reported to have no panic attacks in past 4 weeks. P was referred to the clinical psychologist Ms Connie Wong (“Ms Wong”) on 3 March 2014 for more in-depth psychological treatment. P’s concern was addressed, and he was educated again about the pathophysiology of panic attacks. Stress coping strategies were given.
37. Since late March 2014 P began to develop on and off panic attacks with poor sleep and increased worries for his financial situation and upcoming meetings for settlement of compensation issues. Deterioration in his panic disorder was observed in follow-up sessions by Dr Ng in May/June 2014. P reported he tended to avoid crowded places as he felt uncomfortable; he had shallow sleep; and he complained of marked increase in appetite with weight gain of 22 lbs. The possible side effect of weight gain due to prescribed medication was explained. P was scheduled for further follow-up, and referral to public psychiatric out-patient clinic was also given.[9] P attended Dr Ng on 9 October 2014 for follow-up.
VI. FORM 7
38. According to Form 7 dated 24 November 2014, P was assessed on 8 October and 10 November 2014 for “[back] injury resulting in (i) [PID] at L4/5 and L5/S1 (ii) hip pain (iii) hypervigilance and pain disorder”, and the certified sick leave period was from 2 June 2013 to 10 November 2014 and the certified loss of earning capacity was 12% for the purpose of employees’ compensation.
VII. EXAMINATION BY THE EXPERTS
39. At the Examination (at which P declined to take x-ray), P walked in with a left-handed stick in normal gait. He could walk in normal gait at a slow pace without stick support, but was unable to walk on tiptoes, walk on heels, perform single leg standing without the stick or squat. Waddell’s simulation tests (ie shoulder pressure and pelvic rotation) were positive. Examination of the back revealed no swelling, deformity or spasm. There was decreased lumbar lordosis, and tenderness was reported at the whole midline lumbar spine and the right upper lumbar region. There was complaint of back pain and lower back pain respectively for left and right lumbar flexion (both 30°). As for the hip, there was no swelling, deformity, scar, gluteal muscle wasting or flexion contracture. Tenderness was reported at the anterior and lateral aspects, but range of motion was full. SLR was 90° for both sides, and sensation as well as tendon reflexes were normal bilaterally. Motor power was 5-/5- from hip to toe. Thigh and leg girths were similar on both sides. Active hip movements were reduced on the right side with complaints of pain on abduction, adduction and external rotation.
VIII. REPORT
(a) Labral tear
40. Dr Chun opined that labral tear in the right hip should be an incidental finding and not caused by the fall. He noted there was no mechanism to account for such incidental finding. Dr Tio accepted the labral tear could be an incidental finding and might not be due to the Accident as the MRI did not show any other sign to suggest recent injury.
(b) Diagnosis
41. Dr Chun opined the MRI lumbar spine done on 13 June 2013 (ie 11 days after the Accident) showed pre-existing degenerative changes (which still could not explain P’s lower limb “numb”) not caused by the Accident. Dr Chun’s diagnosis of P’s injury as a result of the Accident was minor contusion of the right buttock, hip and/or low back with no objective neurological deficit or fracture, and P should have recovered within days. Dr Chun pointed out that prolonged and continuous pain was not the sequelae for such minor trauma, and in fact spontaneous onset of back pain frequently occurred without identifiable cause and could pop up with or without minor trauma.
42. Dr Tio agreed the MRI lumbar spine showed some degenerative changes of P’s lower lumbar discs with some nerve root abutment “which could explain his right lower limb numbness”, and “the right side abutment was more than the left side in the L5/S1 region”. But since P previously worked as a personal trainer, it strongly suggested he was asymptomatic prior to the Accident.
(c) P’s condition
43. Dr Chun opined it was most likely P had exaggerated/expanded his symptoms out of proportion to the initial minor trauma, and his condition had long reached maximum medical improvement with no further active treatment required:
(a) P complained of intermittent hip and low back pain, and used a left hand stick to aid walking, but stick walking was totally unnecessary in the absence of any fracture, serious objective neurological deficit or serious local pathology of the lower limbs.
(b) P failed a number of simple preliminary tests at the Examination[10] which should be easily performed without any problem to the hip or low back.
(c) The positive Waddell’s simulation tests and widespread tenderness over the whole lumbar spine and right low back were inappropriate.
(d) Since there was no objective neurological deficit, the generalised global motor weakness of the lower limb could not be genuine and was not supported by the MRI findings.
(e) There was no muscle wasting of the right lower limb muscles despite P’s claim of pain and stick walking.
44. Dr Tio noted P still complained of residual right hip and lower back pain, but he refused to disclose whether he was still having numbness or not. Clinical examination showed there was still residual tenderness over his low back and right hip. Although there was reduced range of movement of his right hip, “[the] range of movement was satisfactory. There was no neurological deficit over his lower limbs and there was no muscle wasting of his lower limbs.” The Au Aff suggested Dr Tio did not answer/challenge Dr Chun’s opinion that P exaggerated his symptoms, and did not explain why P alleged back and soft tissue injury could cause prolonged pain 15 months after the Accident.
(d) Prognosis, disabilities and sick leave
45. Dr Chun opined the prognosis was excellent. P was independent in his activities of daily living, and could return to work as before without limitation or restriction. He would be able to do sports as before, and from objective perimeters there was no permanent impairment in relation to the alleged injury and no loss of earning capacity. Reasonable sick leave should not be more than 1 week.
46. Dr Tio accepted the prognosis to be satisfactory with residual on and off pain over the back and right hip with gradual reducing severity, but suggested recovery could be deferred in the presence of psychiatric illness. He opined that P should be able to carry on his usual activities of daily living and to resume his original duty with reduced capacity especially when he had to lift heavy weight or when he had to assume extreme range of movement such as squatting and bending. The pain could also be brought about by prolonged walking, standing or staircase walking, and P’s endurance/power were likely to be moderately reduced. He would need intermittent breaks for 15 minutes after each 2 hours’ work. Dr Tio said that “in view of the presence of psychiatric illness and his pre-injury job nature, those sick leaves given should be reasonable and appropriate”.
IX. PRESENT ORTHOPAEDIC COMPLAINTS
47. In the RSOD and P’s witness statement, P claimed he suffered/suffers from (a) low back and right hip pain extending to right toes, (b) right lower limb numbness aggravated by prolonged sitting, (c) pain exacerbated on rainy/humid days, change of weather and/or prolonged walking, (d) weakness of right lower limb, (e) walk with limping gait requiring stick for assistance, and (f) inability to carry heavy objects, squat and bend, walk on tiptoes, walk on heels and/or stand on single leg without stick. According to the Report, he ceased doing gymnastic exercise after the Accident.
48. During the Examination, P indicated he did not want to mention other discomfort to the Experts apart from the following conditions:
(a) right hip pain, soreness/ache, “intermittent, when using excessive force like walking for less than an hour, with intensity of grade 6 [out of 10]”, and he needed to sit for 15‑20 minutes when it would “decrease to grade 2-3; then he continue for less than 1 hour”;
(b) right low back soreness/ache, continuous and non-stop and fluctuating from grade 2-3 to grade 5, and pain would increase “with walking for less than 1 hour, the only factor”;
(c) need to use a stick, which was self-bought, since July/August 2013 even at home all the time.
49. By the Answer, D denied P’s condition and prognosis as alleged in the RSOD, and in particular D denied P suffered any sciatica, annular tear, loss of lumbar lordosis, labral tear of his right hip or any additional injury as a result of the Accident or at all. Insofar as P sought to establish he suffered any additional injuries beyond contusion injury to his back and buttocks, D contended those alleged injuries were not genuine and/or caused by the Accident.
X. PRESENT PSYCHIATRIC COMPLAINTS
50. The RSOD and P’s witness statement claimed P suffered and still suffers from reduced energy, sleep affected by back/leg pain/numbness with frequent insomnia, reduced sexual desire and ability, panic attacks and bad temper. In the P 1st Aff, P said that up till then he still had to attend regular follow-up treatment with Dr Ng. However, in the Answer, D put P to strict proof of the fact, cause and extent of his alleged mental illness. Although D admitted P received examination and/or treatment from Union Hospital, Dr Tai, Dr Ng and Ms Wong, D denied P’s alleged psychiatric condition. D suggested that any mental illness and any consequential loss and damages P allegedly suffered were not genuine and/or caused by the Accident.
XI. LEGAL PRINCIPLES
51. Order 29 rule 11(1)(b) of the Rules of the High Court (“RHC”) provides that:
“If, on the hearing of an application under rule 10 in an action for damages, the Court is satisfied-
……
(b) that the plaintiff has obtained judgment against the respondent for damages to be assessed; ……
the Court may, if it thinks fit ……, order the respondent to make an interim payment of such amount as it thinks just, not exceeding a reasonable proportion of the damages which in the opinion of the Court are likely to be recovered by the plaintiff ……” (my emphasis)
52. In Li Ying Yi & anor v Lo Hau On & ors,[11] DHCJ Muttrie held that:
“5. …… The plaintiff does not have to demonstrate any particular need, over and above the general need to be paid damages as soon as reasonably may be done; and an order will generally be appropriate when there will be some delay until the final disposal of the case. See Stringman v McArdle [1994] 1 WLR 1653 at 1657. However, the court must not risk overpaying the plaintiff since a final adjustment under rule 17 may not be effective. See the Hong Kong Civil Procedure, 2002 edition at paragraph 29/11/4.
……
7. At the same time, although the plaintiffs have in their most recent joint affirmation sought to demonstrate need, I do not think this can be taken into account either. It is unfortunate but true that the neediest plaintiff is the least likely to be able to repay, if an interim payment turns out at the end of the day to be an overpayment. So there is only one issue and that is as to the quantum of the interim payment.”
53. In Sun Jianqiang v Chan Tai Kau & anor,[12] Suffiad J adopted the same approach and added that even though the court was not concerned with what the plaintiff intended to do with the damages, then provided the other threshold conditions of Order 29 rule 11 of the RHC are met, there is nothing to stop a court from taking into account a plaintiff’s need, requirement or hardship in making an order for interim payment. In other words, these factors can be taken into consideration in an enabling way but not in a restrictive way in the exercise of the court’s discretion. In Tse Tsz Chongv Law Sze Man,[13] the Court of Appeal agreed with Suffiad J that though hardship on the part of the plaintiff can be relevant, it is not essential.
54. Recent guidance on the proper approach on an application for interim payment was given by the Court of Appeal in Top One International (China) Property Group Company Limited & anor v Top One Property Group Limited & ors.[14] The court must adopt a fairly broad approach, with minimum expense to the parties, and make an estimate of the damages that are likely to be awarded, which it must do by judiciously weighing the evidence presented to it, giving it such weight that it deserves, and remembering that it is not to conduct an assessment of damages to be awarded, which will be the function of a future court. Once the court has made that estimate, it must award a reasonable proportion of that estimate, taking into account the financial ability of the plaintiff to repay any overpayment should it transpire, after the assessment of damages has been concluded, that the estimate was wrong, and taking into account the hardship to the defendant from having to make an immediate payment and from being unable to recover any overpayment.[15] Indeed, the purpose of ordering only “a reasonable proportion” is to ensure that any interim payment order will have “sufficient margin” to guard against overpayment.[16]
55. The court will decline to award any interim payment if it is not satisfied that the plaintiff is likely to obtain an award of substantial damages.[17] Where there are considerable disputes as to the plaintiff’s continuing disabilities and his ability to work now and in the future, which can only be resolved on evidence at the assessment of damages, such that it is impossible to say at the stage of the application for interim payment what damages are likely to be recovered, “to order a further interim payment would be to risk overpayment. …… the plaintiffs’ best course would be to seek to have the assessment heard as soon as possible so that the disputes as to quantum can be resolved”.[18]
56. Mr Wong SC (and Mr Ho with him), counsel for D, referred to Sun Jianqiang and Poon Catherine (a minor by her next friend Tshi Miau Sian) & anor v Hospital Authority[19] as examples of the court making a “very conservative estimate” of total damages which a plaintiff was likely to recover and an interim payment order that represented about 50% of the likely amount of damages that the judge adopted.
57. But Mr Wong SC accepted there is no fixed rule as to what amounts to a reasonable proportion of the likely final damages award. After all, it is an exercise of discretion by the court to make an interim payment order if it thinks fit and to determine the amount thereof as it thinks just. In an appropriate case (although it may be rare), a reasonable proportion may well be a high proportion provided that the assessment of the likely level of the final damages award has been conservative. Where a plaintiff has obtained interlocutory judgment for damages to be assessed, he has a right to receive compensatory damages. The purpose of an interim payment is to put him into possession of damages that are due to him. On an application for an interim payment order, the objective is not to keep the plaintiff who has obtained judgment on liability out of his damages but to avoid any risk of overpayment.
XII. DISCUSSION
58. Since P had already received a total sum of $1,100,000 on account of damages, if further interim payment of $1,000,000 were to be ordered and made, P would have received $2,100,000 in advance of the assessment of damages. Ms Chhoa, counsel for P, accepted that in dealing with the Summons this court should consider all the evidence and materials (including evidence adduced by D) to ascertain the likely damages that might be awarded, and then go on to determine whether and if so how much (not exceeding a reasonable proportion thereof) further interim payment should ordered.
59. For the purpose of assessing the likely level of the final damages award on a conservative basis, Ms Chhoa’s submissions essentially focused on three heads of damages, ie PSLA ($400,000), portion of pre-trial loss of earnings ($1,450,000) and loss of earning capacity ($250,000). Ms Chhoa argued that on a conservative estimate P could confidently recover at least $2,100,000 in damages and more if other heads of claim were taken into account,[20] and “reasonable proportion” should be interpreted generously in the present context to result in a substantial further interim payment award of $1,000,000.
60. On the other hand, Mr Wong SC urged this court to make a “very conservative estimate” of the likely damages, and in line with Sun Jianqiang and Poon Catherine (a minor by her next friend Tshi Miau Sian) & anor to treat 50% of that estimate as a “reasonable proportion”, so for P to obtain further interim payment of $1,000,000 he had to demonstrate to the satisfaction of the court that the likely level of the final damages award on a conservative basis should be at least $4,200,000. Mr Wong SC submitted that by focusing on the three heads of damages referred to in the above paragraph P had not shown any sufficient basis for suggesting that the likely damages in P’s favour would be at least $4,200,000, but even taking Ms Chhoa’s submissions that P had shown the likely final damages award to be at least $2,100,000 (but D also argued P was unlikely to recover $2,100,000 in his final claim), P had not explained why a further interim payment order of $1,000,000 would have been appropriate given that P had already received $1,100,000 that exceeded 50% of the suggested estimate of likely damages in the sum of $2,100,000. But in any event, Mr Wong SC contended P was unlikely to recover $2,100,000 in his final claim.
61. I accept that a judge’s first task in considering an interim payment application is to assess the likely level of the final damages award on a conservative valuation based on whatever material there is available. Then, bearing in mind the risk of overpayment, a reasonable proportion thereof can be awarded as interim payment, but where interim payment has already been made previously, the interim judge needs to be satisfied there is room for further payment.
62. In approaching the first task of ascertaining the likely level of the final damages award, I remind myself it is not for me to usurp the function (or to fetter the discretion) of the judge/master hearing the assessment of damages. Since Ms Chhoa focused on the 3 heads of damage referred to in paragraph 59 above without canvassing in any detail the other claims in the RSOD, I now turn to those heads of damages.
(a) PSLA
63. In the RSOD, P averred he enjoyed good physical/mental health prior to the Accident, but his injuries from the Accident resulted in persistent pain and suffering causing psychiatric disturbances that developed into panic disorder, and P had to receive prolonged/continuous orthopaedic, physiotherapy and psychiatric treatments. P claimed his residual disabilities caused further difficulties/inconvenience to his daily activities, career and social life, and he claimed $500,000 as damages for PSLA. On the other hand, by the Answer, D put P to proof as to the extent of PSLA he suffered, and suggested a sum of not more than $80,000 should be allowed for P’s contusion injury to his back and buttocks under this head of damages.
64. Ms Chhoa argued that “[it] cannot be denied that psychiatric conditions, such as panic attacks suffered by [P], can be more debilitating than physical injuries”, and at the hearing before me she submitted P’s physical injuries/disabilities were not as bad as his psychiatric problems. Ms Chhoa urged this court to adopt a fairly broad approach as to P’s overall disabilities without making findings of fact by preferring one Expert to the other, which approach she submitted would lead to the conclusion that the likely award for PSLA for P (now 34 years old) with his work and family lives “ruined” would be “$300,000-$500,000”.
65. In this respect, Ms Chhoa drew my attention to Wong Man Kin v Golden Wheel (C&HK) Transportation Company Limited (In Liquidation).[21] The plaintiff in that case suffered a slip and fall resulting in a sprained back with persistent low back pain radiating down his left lower limb and significant posterior disc extrusion that was found to have been caused by the accident. There was onset of psychiatric symptoms about a year after the accident, but such symptoms decreased after he received psychiatric treatment. The parties’ psychiatric experts agreed that the plaintiff suffered from mixed anxiety and depressive disorder, and on the basis of psychiatric expert opinion the court accepted the plaintiff’s psychiatric condition was caused by persistent physical symptoms and stress from the litigation process, aggravated by the attitude of the wife of the plaintiff towards his disability and their subsequent divorce. On the basis of the plaintiff’s injuries and the minor residual symptoms of anxiety and depression, the judge awarded $510,000 as damages for PSLA.
66. Mr Wong SC’s answer is 2-fold. First, D disputed the mechanism of the injury and the genuineness and/or seriousness of P’s physical complaints. Mr Wong SC reminded that the Accident was not a fall from height, and D claimed that when P fell to the mat-covered floor, his feet were in contact with the ground and his left palm landed on the floor first (and yet P did not sustain any palm/wrist injury which logically demonstrated the force of the impact was probably insignificant) before his buttocks (more on the left side) made contact with the floor, and he then rolled over to his right. In my view, the Recording and the Screenshots bolstered by the orthopaedic observations by the Experts as to the mechanism of the injury P suffered suggested that D’s contentions (which raised questions over the nature and the seriousness of the injuries suffered as a result of the Accident) were plainly arguable. In the circumstances, it is important to have regard to what the position would be if the court were to conclude that D’s contentions were not wholly unsuccessful, and I come to the view that these considerable disputes over the mechanism of the alleged injury (and hence P’s reliability/credibility as witness) can only be resolved on evidence at the assessment of damages.
67. I also bear in mind there was no head injury or loss of consciousness. As regards the physical injuries caused by the Accident, the Experts agreed P suffered contusion and soft tissue injury to his low back and right hip, but no bone fracture, neurological deficit or structural damage to his body parts. P was found to have no limb weakness, no bleeding and full hip range of movement when he was admitted to QMH’s AED, and he was not hospitalised. Mr Wong SC submitted the physical injuries caused by the Accident were minor, and the Experts opined P would be able to carry on his usual activities of daily living. And yet P claimed he could not walk on tiptoes, walk on heels, do single leg standing without a stick, could not squat and had to use a stick to aid walking, and he also demonstrated positive Waddell’s signs, which Mr Wong SC said were attempts by P to exaggerate his complaints out of proportion to the initial minor trauma as found by the Experts. Mr Wong SC said there were little objective signs of P’s subjective complaints (eg there was no muscle wasting of P’s lower limbs). Further, the MRI spine performed on 13 June 2013 merely showed pre-existing degenerative changes not caused by injuries due to the Accident (but which, as Dr Tio opined, would explain P’s right lower limb numbness), and the anterior labral tear in the right hip was merely incidental and again not due to the Accident. On such basis, Mr Wong SC submitted the physical injuries were minor in nature and would not support significant damages on a conservative valuation. Mr Wong SC submitted the likely damages for PSLA for soft tissue / contusion injury were unlikely to exceed $100,000,[22] and there was no authority or basis for Ms Chhoa’s suggestion that the likely award of damages for PSLA in the present action should be around $400,000.
68. In my view, there is considerable dispute as to the mechanism of P’s injury as well as his continuing disabilities. There is simply not the opportunity for the interim judge to make a reasoned assessment of the strength or otherwise of the rival contentions nor is it generally appropriate to do so for it is the task for the judge/master hearing the assessment of damages. It is impossible to say at this present stage of an application for interim payment what damages are likely to be recovered even in relation to P’s physical injuries/complaints. Significant components of such complaints included continued pain, sciatica and “numbness” (which are subjective) which underlied P’s allegations of restricted range of movement and limited sitting, standing and walking tolerance, but P had been coy with the Experts about what he meant by “numb” and whether he still had such “numbness”.[23] Much would turn on P’s credibility as witness and on whether Dr Chun’s opinion would be accepted by the judge/master hearing the assessment of damages, and I am persuaded there is a real possibility that the likely damages for PSLA may be very modest if P’s account is not accepted and Dr Chun’s opinion is accepted at the end of the day, so to order further interim payment beyond the sum of $1,100,000 that P had already received would be to risk overpayment.
69. Secondly, Mr Wong SC cast doubt on Ms Chhoa’s heavy reliance on P’s alleged psychiatric injuries/disabilities. The starting point was the absence of psychiatric expert evidence in the present action. Despite Ms Chhoa’s suggestion that P’s psychiatric complaint was even greater than his physical injury, P never asked for leave or consent to adduce psychiatric expert evidence (even though Dr Tio recommended psychiatric expert assessment), and in P’s latest PI Questionnaire dated 1 December 2014 he still maintained that his sole medical expert was Dr Tio. Mr Wong SC submitted it was not open to P to say he should have recovered damages for his alleged psychiatric condition “as there is simply no admissible evidence that [P] suffered any psychiatric illness, let alone any evidence to show that the accident was the cause of any psychiatric illness allegedly suffered by [P]”. Although P did produce factual psychiatric/psychological treatment evidence that referred to a diagnosis of panic disorder, Mr Wong SC argued such factual evidence did not equate to expert opinion as to whether the Accident was the operating cause of P’s psychiatric complaints or whether such complaints would have prevented P from returning to his pre-Accident work.[24] Mr Wong SC further argued since P had no intention to adduce psychiatric expert evidence, there was no basis to translate the factual psychiatric treatment evidence into an award of damages for psychiatric sequelae arising from the Accident.
70. In my view, to sustain a claim for damages for psychiatric injury (including compensation for psychiatric distress and costs for psychiatric/psychological treatment), the burden is on the plaintiff to establish not only a diagnosable psychiatric condition[25] that is legally attributable to the tort complained of but also a need for clinically recognised treatment consequent upon such condition.[26] The fact that psychiatric treatment records/reports are available does not ipso facto mean psychiatric expert evidence becomes unnecessary.[27] Here, even though P presented with psychiatric symptoms, and received and continued to receive psychiatric/psychological treatment (including psychotherapy and pharmacological intervention) after the Accident, and Dr Tai and Dr Ng diagnosed that P suffered from panic disorder, it is quite plain D denied any psychiatric injury/disability were attributable to what D considered to be minor physical trauma as a result of the Accident (especially on D’s version of how the Accident happened), and a trial judge may need psychiatric expert evidence to determine the dispute over causation.[28] Where the treating doctor simply makes a bald assertion that the psychiatric condition was caused by the alleged tort or where (as here) the treating psychiatrist only gave the diagnosis and treatment history without critically evaluating the causative nexus between the psychiatric condition and the accident,[29] it is likely that the court will require forensic assessment by a psychiatric expert as to the attributable cause(s) in determining whether a causal link between the tort and the psychiatric illness has been established.[30]
71. This need for psychiatric expert evidence to address on the issue of causation stems from the difference between therapeutic psychiatric expert evidence (eg letters/report by Dr Tai and Dr Ng) and forensic psychiatric expert evidence as explained by Bharwaney J in Hung Sau Fung v Lai Ping Wai:[31]
“46. A report of a treating doctor is always admissible to prove the fact that the injured person was receiving treatment, the nature of that treatment, and the opinion and diagnosis of the treating doctor which was communicated to the injured person. These are all matters of fact. Whilst the diagnosis reached and the treatment plan recommended by the treating doctor is the product of his expertise, his diagnosis and treatment plan and their communication to the injured person is a matter of fact. However, the opinions expressed by the treating doctor in his report are not admissible as expert evidence unless leave to admit it for that purpose has been obtained from the court. ……”
Further, absent opinion from a psychiatric expert on the prognosis of any psychiatric consequence following the Accident, there would be difficulty for P to advance claims for costs of future psychiatric and/or clinical psychological treatment and/or damages for loss of earnings and/or loss of earning capacity that might be caused by the alleged psychiatric sequelae. The essential features of future psychiatric prognosis and treatment (which on P’s case were significant components of his claim for damages for PSLA) could not be resolved by just considering the historical or even updated psychiatric treatment reports/records.
72. This is an important consideration for the present purpose (and indeed for the case as a whole) since Ms Chhoa suggested P’s psychiatric injury was even greater than the physical damage. D put such assertion into question and cast doubt on the genuineness of P’s psychiatric complaints. This again highlights the importance of forensic evaluations by psychiatric experts in contra-distinction to clinical assessments by psychotherapy professionals.[32] I have summarised the distinction in Bai Siba Kumar as follows:[33]
“64. Such difference has been further explained in paragraphs 148-152 of my decision in Lau Mei Wa. Whilst it is correct to say that psychotherapists normally adopt a non-judgmental attitude within a doctor-patient relationship in respect of the patient’s account of his/her medical history, complaints and symptoms, the same cannot be said for the psycho-legal expert who is obliged to carry out an impartial evaluation in a forensic context for the purpose of litigation. Such expert is ultimately answerable to the court and not to the patient, and is therefore bound to make an objective and dispassionate assessment of the psycho-legal issues relevant to the litigation by testing rival diagnostic hypotheses to ascertain the psychiatric fallout as a result of the index incident and by subjecting the information from and/or about the claimant to critical scrutiny, eg by seeking verification or corroboration from (a) historical/updated treatment notes/records and reports, (b) forensically-focused mental state examinations conducted by the expert, (c) collateral interviews with family members and/or (d) witness statements. The object is to see whether the claimant’s assertions can be supported or should be refuted, and to consider whether the claimant is dissembling or not. Hence, as explained in Ngai Ping Kwan, it is not unusual for therapeutic and forensic decision-making to differ, and it is not a rarity to come across psychiatric expert reports that conclude that the claimant is a malingerer with no diagnosable psychiatric illness. For example, critical evaluation by the defendant’s psychiatric expert in Ho Man Fong v Sime Darby Motor Services Limited led her to the opinion that the plaintiff in that case had exaggerated her symptoms such that her complaints could not be relied upon for a useful diagnosis. In that case, the trial judge preferred the opinion of the defendant’s expert that there was no psychiatric disorder, especially post-traumatic stress disorder.
65. The aforesaid distinction between treatment and forensic psychiatric expert evidence should allay concerns that knowing claimants might “invent” subjective symptoms to fit in with the clinical presentation of recognisable psychiatric illnesses. Whilst I accept that cross-examination of a claimant on his professed complaints/symptoms might to some extent expose any such “inventions” or alternatively affirm the veracity of such complaints, it is still often necessary to have the benefit of critical evaluation from a medical perspective to assist the trial judge in forming a view as to whether the criteria for a recognisable psychiatric condition have been satisfied.
66. In the circumstances, I do not agree that there is not a lot more that a psychiatric expert can add to the psychiatric treatment records/reports. In a case where there is real possibility of psychiatric consequence, absent such evidence the claimant may be handicapped in advancing claims for cost of future psychiatry/psychology treatment that may be caused by such psychiatric sequelae. This is an important consideration in the present case because there is no suggestion that psychiatric treatment/medication have ceased. In my view, the essential features of future psychiatric prognosis/treatment in the present case cannot be resolved by just considering the WPC 1st and 2nd Reports or even updated psychiatry/ psychology records/notes/reports from WPC and QMH on current treatment/medication.
67. Ultimately, the relevant consideration is whether on the particular factual and medical matrix of the present action psychiatric expert evidence is required to assist the trial judge in his adjudication. In my view, there can be no doubt that psychiatric expert evidence is required. Given the challenge by the Ds as to (a) the existence of any psychiatric condition on the part of the plaintiff, and (b) if there is such psychiatric condition, its causation, chronicity and future prognosis, psychiatric expert evidence is relevant. If there is a recognisable psychiatric illness, there are further questions as to the scope and length of future treatment, the proper sick leave for psychiatric injury, and the impact of such condition on work capacity.”
73. Here, D put P to proof as to the genuineness of his subjective psychiatric complaints as well as the causal nexus between such complaints and the Accident. In the absence of any psychiatric expert evidence in support of P’s case, and bearing in mind the dispute over the mechanism of the injury as well as the controversy over whether or not P had exaggerated/magnified his injuries/disabilities/complaints (especially in light of the observations of the Experts in the Report), it cannot be said there is a clear case before me of significant psychiatric injury/disability operatively caused by the Accident that would necessarily lead to substantial final damages for PSLA. Rather, I find it is not possible for this court to make a reasoned assessment of the strength or otherwise of the rival contentions in advance of assessment of the evidence (especially in respect of the credibility/reliability of P’s assertions in relation to his subjective psychiatric complaints), and hence it is not possible to say what damages are likely to be recovered.
74. I agree with Mr Wong SC that Wong Man Kin (the sole legal authority cited by Ms Chhoa for comparable damages for PSLA) was distinguishable since the learned judge in that case accepted the joint opinion by the psychiatric experts (which was absent in the present action) that psychiatric illness was caused by the accident (which was disputed by D in the present action). In my view, there is clearly room for D to argue that the eventual award for PSLA might be in the modest range as suggested by Mr Wong SC in which case there might well be a real risk of overpayment should any further interim payment be ordered.
(b) Loss of earnings
75. According to the Report, P (left hand dominant) was educated up to Form 3, and at the time of the Accident he had been a bodybuilding trainer for 10 years with no fixed working hours. He was involved in one to one training, and frequently had to demonstrate weight-lifting of more than 100lbs. According to the witness statement of D’s regional director (human resources) Tam Wai Man Isabella dated 11 February 2015, P’s job was to provide personal training sessions and to sell personal training sessions to customers for commission. P in his witness statement claimed “通常公司用由我個人推銷得來的營業額總數來給予百分比來計算，每月少於$60,000.00x4%；$60,000.00-110,000.00x8%；超過$120,000.00x12%等，大多數我推銷入來的客人亦會由我親自教授，當每教授一堂我可收取公司堂費，敎導費用以該堂收入的37.5%來收取，其中可按不同程度(Level)來收費”.
76. There was no dispute that P’s averaged 12 months’ income from June 2012 to March 2013 was HK$111,432.13 plus monthly MPF contribution of $2,500 totalling $113,932.13, and P’s earnings for the month preceding the Accident was $122,300.25 (inclusive of basic salary, commission and bonus). Ms Chhoa and Mr Wong SC agreed that for the present purpose P’s pre-Accident monthly earnings net of tax[34] should be ($111,432.13 x 85%) + $2,500 (MPF) = $97,217.31.
77. Ms Chhoa submitted that apart from P’s claim for PSLA ($400,000) and loss of earning capacity ($250,000) discussed in paragraphs 83-84 below, P could confidently recover pre-trial total loss of earnings and MFP contribution of at least $1,450,000 being equivalent to about 15 months’ loss of earnings and MPF contribution (ie $97,217.31 x 1.05 x 15 months)[35] based on P’s sick leave of 648 days from 2 June 2013 to 10 March 2015. P claimed that during such period he was under medical care and unable to resume any gainful employment. However, D in the Answer averred P should have fully recovered from his alleged injuries within a month. Mr Wong SC referred to Dr Chun’s opinion in the Report in support of such contention.
78. I note that both Experts opined P would be able to return to work as before although Dr Tio said P might work with reduced capacity “when he has to lift heavy weight or when he has to assume extreme range of movement such as squatting and bending” as his endurance and power might be “moderately reduced”, requiring “breaks of 15 minutes after each 2 hours of work”. But Dr Chun opined that reasonable sick leave should not be more than a week. Although Dr Tio opined that the sick leave granted should be reasonable and appropriate, his opinion was coloured by his view of the nature of P’s pre-injury job and the “presence of psychiatric illness”. Being an orthopaedic and not psychiatric expert, Dr Tio was not in a position to give expert opinion on what reasonable sick leave would be appropriate for “psychiatric illness”, and he shied from expressing a clear view on appropriate sick leave confined to P’s orthopaedic/physical injuries and disabilities.
79. Ms Chhoa’s assessment of pre-trial total loss of earnings for at least 15 months was largely premised on P’s sick leave certificates. However, the mere production of sick leave certificates does not require either the interim judge or the judge/master hearing the assessment of damages to find that the plaintiff was justified in not working during the period covered by the certificates. The court is not bound by such sick leave certificates; instead it is necessary to base the assessment on the available factual and medical evidence.
80. In this respect, I refer to the guidance by Rogers VP in Choy Wai Chung v Chun Wo Construction and Engineering Co Ltd as follows:[36]
“On this appeal [counsel], who appeared on behalf of the plaintiff, placed great reliance upon the fact that the plaintiff had been given sick leave certificates. In my view the judge was perfectly entitled to reject these as an indication of the plaintiff’s inability to work for the reasons which she gave. It was for the judge to decide whether on the evidence of the plaintiff had been unable to work and, if he had been able to work, the extent to which he was able to work. Obviously in doing so the judge must have regard to the medical evidence. Nevertheless, the judge cannot be bound by the mere issue of sick leave certificates. As the judge pointed out the issuance of sick leave certificates would be primarily because of the subjective symptoms reported to the doctors by the plaintiff.”
and to the further guidance by Le Pichon JA in Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd as follows:[37]
“17. Mr Lam then submitted that the loss of earnings during the entire period covered by the sick leave certificates should be recoverable as expenses honestly and reasonably incurred by the plaintiff on the basis of expert advice. …… First, it is the patient who makes the request for a certificate from the doctor. Second, a doctor treating his patient may, consistently with the code of practice, issue the certificate without carrying out any detailed examination since such an examination is not always practicable or necessary. What is quite clear in the present case is that the plaintiff has been found to have grossly exaggerated his complaints. ……
18. …… Sick leave certificates are no more than a piece of evidence that has to be evaluated in the light of all the available evidence including medical evidence before the court. As Rogers V-P observed in: Choy Wai Chung v Chun Wo Construction & Engineering Company Ltd (unrep., CACV 172/2004, [2005] HKEC 1077) at para.9, the judge cannot be bound by the mere issue of sick leave certificates: the issuance of such certificates would be primarily because of the subjective symptoms reported to the doctors by the plaintiff.”
81. Since both the interim and assessment courts are entitled to base their view on the factual and medical evidence to form their own view on whether, and to what extent, the Accident had been the cause of P’s alleged inability to work, and given (a) Dr Chun’s opinion as to the propriety of very limited sick leave, (b) the reticence of Dr Tio in addressing the issue of reasonable sick leave for physical injuries, (c) the absence of psychiatric expert opinion, and (d) D’s challenge as to the genuineness and reliability of P’s complaints, it is not possible for this court to say with any confidence the judge/master hearing the assessment of damages will likely accept that P should be totally off work for 15 months after the Accident or to say what pre-trial loss of earnings are likely to be recovered at the end of the day.
82. The burden was on P to demonstrate the likely damages he will be able to recover and what amounts to a reasonable proportion thereof to persuade the court to make an interim payment order. In my view, it is not possible for the interim judge to make a reasoned assessment of the strength or otherwise of the rival contentions. It cannot be said that D’s contentions are untenable, and there is a real possibility that P might recover significantly less than 15 months’ pre‑trial loss of earnings if D’s case is accepted. To order further interim payment at this stage will be to risk overpayment.
(c) Loss of earning capacity
83. Ms Chhoa submitted it would be wrong to deny P’s residual disabilities caused him to lose competitiveness in the labour market and/or to deny P was likely to suffer disability in finding other work, and given P’s relatively young age it was not unreasonable to adopt $250,000 being about 2-3 months’ loss of earnings as likely damages under this head of claim. By the Answer, D denied any claim for loss of earning capacity.
84. In my view, there is no psychiatric expert evidence to address the question whether any psychiatric disability that P suffered/suffers would prevent him from returning to his pre-Accident work or any other work. In respect of his physical injuries, both Experts agreed P only suffered contusion / soft tissue injury, and he was able to carry on his daily living independently. Indeed, both Experts were of the view he could resume work, and Dr Tio only suggested there was some reduced capacity in the manner explained in paragraphs 46 and 78 above. Even if Dr Tio’s opinion was accepted, P had not adduced any evidence before me as to what alternative work (and at what pay) he could take up, and this court is unable to consider whether it is likely he will suffer any special disadvantage in the labour market by reason of taking up such work. Further, P’s alleged disabilities should be viewed in light of Dr Chun’s opinion that P had exaggerated/expanded his symptoms out of proportion to the initial minor trauma, and that P could return to his pre-injury work with no restriction. On the basis of Ms Chhoa’s acknowledgment that the interim judge should not prefer the opinion of one Expert to that of the other, it is questionable whether P will be entitled to substantial award for loss of earning capacity, and indeed much would turn on reasoned assessment of the strength or otherwise of rival contentions at the assessment of damages.
(d) Risk of overpayment
85. Since P’s credibility, the factual evidence and the seriousness of his alleged injury were heavily disputed,[38] there is a live question whether or not P will be able to establish at least $4,200,000 or even $2,100,000 of final damages on a conservative valuation. The interim court cannot order payment on the premise that P’s evidence would be accepted and that D’s evidence (especially Dr Chun’s opinion, the Recording and the Screenshots) would be ignored. In the event the judge/master hearing the assessment of damages preferred the opinion of Dr Chun over that of Dr Tio insofar as their opinion was different, there is a real possibility that the quantum of P’s claim will not exceed the payments of $1,100,000 already made/received. To grant any further interim payment is to risk overpayment. It was also clear from the P 1st and 2nd Affs that P would not be in a position to repay any overpayment. Since February 2014 to January 2015 (and probably until now), P had little income and had to draw loans from credit cards. He also owed outstanding taxes to the Inland Revenue Department, and had monthly financial obligations to meet, eg monthly hire purchase payment for his car bought after the Accident, monthly rent for his matrimonial home and his own personal expenses.
(e) Other heads of claim
86. In the RSOD, P claimed he could not resume his pre‑Accident work as a fitness trainer. By adopting a multiplier of 21.25 and assuming he would have been able to seek light duty employment for $20,000 per month with 5% MPF contribution, it was said P would still suffer partial loss of earnings of about $100,000 per month, ie ($117,003.74[39] + $1,250.00[40]) – ($20,000 + $1,000) = $97,253.74, so P’s claim for future loss of earnings with MPF contribution was $97,253.74 x 12 months x 21.25 = $24,799.703.70. However, D in the Answer denied any claim for post-trial loss of earnings and MPF contributions and further denied P’s notional income would have increased by at least 5% a year. D claimed that given the job nature of a fitness trainer, P would have to retire or switch to alternative employment at the age of around 50 years, so the appropriate multiplier (assuming P will be 35 at the notional date of trial on 12 January 2016) would be 13.84.[41]
87. In the RSOD, P also claimed medical expenses of $70,000, travelling expenses of $8,000 and tonic food expenses of $10,000. In the Answer, D averred P should have fully recovered from contusion injury to his back and buttocks in less than 1 month, and he should be awarded not more than $3,000 in special damages.
88. In the RSOD, P claimed he was still attending regular orthopaedic follow-up treatment at PWH and SPH at an estimated annual cost of about $10,000, and he also claimed psychiatric and psychological treatment expenses at about $10,000 annually. P contended that by adopting a multiplier of 15 his claim under this head of damages would be ($10,000 + $10,000) x 15 = $300,000. In the Answer, D denied P was entitled to any claim for future medical expenses or that the appropriate multiplier was 15.
89. None of these heads of claim were expressly referred to or addressed in Ms Chhoa’s submissions. There is also no evidence in support of 5% increase in notional earnings and/or as to what “light duty employment” (and the relevant earnings) may be. There is no psychiatric expert evidence as to future duration/cost for psychiatric treatment, and no explanation why a multiplier of 15 would be appropriate. Dr Chun opined that P’s orthopaedic condition had reached maximum medical improvement and no active treatment was required for his physical injuries. On a conservative evaluation, I am not persuaded these heads of claim affected the aforesaid analysis.
(f) P’s need
90. Ms Chhoa submitted that since D ceased to make periodical payments after February 2014, P needed monies to pay for his monthly outgoings[42] and outstanding taxes due to the Inland Revenue Department. But this court is not concerned with how any interim payment is to be spent. Since P is of full age and capacity, he may spend it as he wished. But that still begs the question in the first place as to whether he has demonstrated the threshold conditions of Order 29 rule 11 of the RHC are met.
(g) Summary
91. In my view, it is a rare case that the plaintiff will succeed in recovering ever dollar claimed, but absent exaggeration or deceit it is also rare that every argument deployed by a defendant will succeed. But here, D raised the spectre of exaggeration, and put P’s credibility in issue. D also disputed how the Accident happened, whether P’s physical and psychiatric complaints were caused by the Accident, and whether any physical/mental sequelae had genuine adverse impact on resumption of work. In my view, it is not possible at this stage to come to a reasoned assessment of the strength or otherwise of the rival contentions. After all, in the absence of psychiatric expert evidence, P’s case was largely built on subjective complaints and D’s challenge rested on Dr Chun’s opinion, the Recording and the Screenshots. There is a real possibility that if Dr Chun’s opinion is accepted, and the Recording/Screenshots are carefully scrutinised, D may have some success in its contentions. In my view, if further interim payment is to be awarded, it will risk overpayment. Rather, P’s best course will be to seek to have the assessment of damages heard as soon as possible so that the disputes as to quantum can be resolved.
XIII. CONCLUSION
92. The Summons is dismissed. There is no reason why costs should not follow event, and I grant a costs order nisi that P shall pay D costs of the Summons (including all costs reserved if any) to be taxed if not agreed. Mr Wong SC fairly conceded D would not seek certificate for two counsel.
93. Given the nature of the application, both Ms Chhoa and Mr Wong SC agreed that publication of this Decision should be deferred until final disposal of the present action by assessment of damages or otherwise, ie when the question or issue as to damages has been determined or concluded. I so order accordingly, and also direct P and D to jointly write to this court within 7 days of the final disposal of the present action to confirm this Decision can then be published.
94. At the hearing, this court drew the attention of Ms Chhoa and Mr Wong SC to the fact that both the RSOD and Answer made express reference to the interim payment of $304,233.04 made in February 2014 by D to P, and also to Order 29 rule 15 of the RHC which provides that “…… unless the defendant consents or the court so orders, no communication of …… the fact that an interim payment has been made, whether voluntarily or pursuant to an order, shall be made to the court at the …… hearing of any question or issue of …… damages until all questions of …… amount have been determined” (my emphasis).
The parties’ legal representatives should carefully consider whether application should be made for leave to amend the RSOD and Answer in such a way that the judge/master hearing the assessment of damages will not be apprised of any interim payment made by D to P.
| | (Marlene Ng)
Deputy High Court Judge
|
Ms Mona Chhoa, instructed by B Mak & Co, for the plaintiff
Mr Horace Wong, SC and Mr Leon Ho, instructed by Au & Associates, for the defendant
[1] see medical report dated 21 July 2014 by Dr Lai Chi Ming of Yan Kin Orthopaedic Pain Centre
[2] see also the medical report by Dr Ng Fung Shing dated 17 June 2014 which recorded that P fell with his back and buttocks hitting on the floor, but when P tried to get up he felt right leg numbness and was unable to do so
[3] Dr Tio noted P was “supporting his weight on the ground over his heels when he was reclining backwards” (para 64 of the Report)
[4] but Dr Tio suggested P’s “right foot slipped and moved back a step with his left foot still on ground. He fell back and his left foot was off from ground” (para 64 of the Report)
[5] Dr Chun noted P’s “left palm landed first slightly earlier instead of the low back / buttock” (para 63 of the Report), and Dr Tio noted “[as] the fall progress further, [P’s] left hand struck the floor” (para 64 of the Report)
[6] see para 62 of the Report
[7] see para 64 of the Report
[8] Dr Chun observed “[it] …… appeared that [P] landed more towards left side instead of right buttock / low back first” and “…… then [P] rolled towards right side with the lower limb ……” (paras 63 and 62 of the Report), and Dr Tio noted “[P] rolled back further with his back landing on the floor. He then rolled to his right over his trunk on the floor” (para 64 of the Report)
[9] see referral letter dated 26 March 2014
[10] eg unable to walk on tiptoes, walk on heels, stand on single leg without stick or squat
[11] HCPI809/2001, DHCJ Muttrie (unreported, 14 November 2003) (see also Chan Ha v Lee Hon Ming & anor HCPI414/2001, DHCJ Muttrie (unreported, 25 April 2005) para 5)
[12] [2001] 2 HKLRD 435, 441-442
[13] [2015] 1 HKLRD 1120, 1132
[14] CACV269/2011 (unreported, 20 July 2012)
[15] see Top One International (China) Property Group Company Limited & anor at paras 17-18 and Tse Tsz Chong at pp 1131-1132
[16] see Sun Jianqiang at p 444
[17] see Top One International (China) Property Group Company Limited & anor at para 18 and Tse Tsz Chong at pp 1131-1132
[18] see Li Ying Yi & anor at para 19 (see also Chan Ha at paras 13 and 14 in which DHCJ Muttrie said where there was dispute over causation, “it cannot be right simply to say the plaintiff must obtain the figures put forward by her counsel” and the learned judge noted “there must be a risk of overpayment, if the evidence of the defendants’ expert is ultimately accepted”)
[19] [2011] 6 HKC 114
[20] but Ms Chhoa did not specifically address on these other heads of claim – see Part XII(e) below
[21] HCPI913/2011, Bharwarney J (unreported, 17 July 2015)
[22] see Wong Chiu Wa v Ng Yuk Chun HCPI258/1999, Master de Souza (unreported, 16 November 2001) – mild bump of the back, PSLA at $30,000, Lai Ka Yin v Chan Yiu Kei DCPI453/2008, HHJ Mimmie Chan (as she then was) (unreported, 7 January 2009) – soft tissue injury of neck and back, PSLA at $50,000, and Subba Alvin also known as Gurung Yadap Chandra v Houng Kee (Asia) Limited & ors HCPI154/2010, Master Leong (unreported, 16 July 2014) – soft tissue injury of the neck, PSLA at $80,000 (see also cases cited in Subba Alvin at para 74 which granted modest awards for PSLA for soft tissue injury)
[23] see paragraphs 9(d), 44 and 48 above
[24] eg Dr Tai’s referral letter dated 18 August 2013, and Dr Ng’s referral letter dated 26 March 2014 and medical report dated 17 June 2014
[25] see Fung Chun Man v Hospital Authority & anor HCPI1113/2006, Bharwaney J (unreported, 24 June 2011) paras 23-24 cited in Lau Mei Wa v Li King Yin & anor HCPI527/2011, Master Marlene Ng (unreported, 13 July 2012) para 111 and in Bai Siba Kumar v Nishimatsu Construction Company Limited & anor HCPI883/2012, DHCJ Marlene Ng (unreported, 8 October 2013) paras 56-58
[26] see Lau Mei Wa at paras 145-146 and Bai Siba Kumar para 55
[27] see Lau Mei Wa at paras 140-142
[28] see Fung Chun Man at para 23, Bai Siba Kumar at paras 59-61 and Lai Yuk Shim v Hung Ling Kwok [2013] 1 HKLRD 580, 582-583
[29] see Dr Tai’s referral letter dated 17 August 2013 which merely gave the diagnosis of panic disorder and the medication prescribed, and Dr Ng’s referral letter dated 26 March 2014 and his medical report dated 17 June 2014 which gave P’s premorbid condition, diagnosis and treatment history
[30] see Tang Tak Ping v Kai Shing Construction Co [2012] 1 HKLRD 1093, 1103 cited in Lau Mei Wa at para 109
[31] [2012] 1 HKLRD 1, 28 cited in Lau Mei Wa at para 147 and Bai Siba Kumar at para 63
[32] see Lau Mei Wa at para 149 citing Wu Leung Kui Jacky v Leung Ming Yun & ors DCPI1154/2008, HHJ Mimmie Chan (as she then was) (unreported, 7 March 2011) para 62, Pun Kwong Cheung v Tang Shiu Wo trading as Luen Yick Decoration & Design Co & anor HCPI587/2008, Master Marlene Ng (unreported, 23 February 2010) paras 54-57, and Ngai Ping Kwan v Choi Yat Hung HCPI537/2010, Master Marlene Ng (unreported, 15 September 2011) paras 59-63
[33] see also Lau Mei Wa at paras 150-163 and Ngai Ping Kwan at paras 59-63
[34] see British Transport Commission v Gourley [1956] AC 185, 203, 208 and 212
[35] but in the RSOD P claimed that but for the Accident his income would have increased by 5% per year, so his notional monthly earnings with MPF contribution would have increased to $111,432.13 x 1.05 = $117,003.74, and his median monthly earnings for the pre-trial period would be ($111,432.13 + $117,003.74) ÷ 2 = $114,217.94
[36] CACV 172/2004 (unreported, 15 July 2005) followed in Ho Wan Yung v AS Watson & Company Limited HCPI264/2008, Fok J (as he then was) (unreported, 3 June 2010)
[37] [2008] 5 HKLRD 210, 214-216
[38] eg D claimed P’s account of how the Accident happened was incorrect, he exaggerated his injuries and symptoms, and he was tested positive on Waddell’s simulation tests
[39] according to P, this would be the amount of P’s monthly earnings at the time of the RSOD but for the Accident
[40] monthly MPF contribution
[41] under Table 3 of Chan’s “Personal Injury Tables Hong Kong 2013”
[42] ie $15,000 to support his mother, $14,000 to pay rent for his matrimonial home, $10,000 for personal expenses, and $9,896 for hire purchase instalment payment for his car