Yeung Shui Ming v. Gong Kong Sang and Another

HCPI 290/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 290 OF 2005

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BETWEEN

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Before : Hon Sakhrani J in Chambers

Date of Hearing : 23 August 2006

Date of Judgment : 23 August 2006

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J U D G M E N T

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1.This is an appeal from the decision of Master B. Kwan given on 8 June 2006 ordering that no leave be given to the plaintiff to adduce the report of the neurological expert Dr Robert Ho dated 25 October 2005.

2.The plaintiff brings this action for personal injuries.  He was the driver of a medium goods vehicle travelling along a main service road inside the Modern Terminal at Kwai Chung.  At the junction with a side service road his vehicle was collided with by another medium goods vehicle driven by the 1^st defendant which emerged from the side service road and rammed into the offside of the plaintiff’s vehicle.  The plaintiff was trapped inside his vehicle and had a brief loss of consciousness before being rescued. 

3.He was taken to Princess Margaret Hospital for treatment.  He sustained multiple injuries to his head including abrasions over the forehead and left maxilla, haematoma over occiput and tenderness over the right shoulder.  He was treated and discharged.

4.On 31 March 2002 he attended Tuen Mun Hospital complaining of right shoulder and neck pain after the collision.  He was discharged after treatment.

5.From April 2002 onwards he sought treatment at the Yuen Long Jockey Club Clinic.  His main complaints can be summarized as shoulder and neck pain with persistent dizziness and the complaint of dizziness features in his subsequent visits to the hospital and the clinics.  This is in the chronology prepared for the plaintiff. 

6.In June 2002, he was referred to the Neurosurgery Unit of the Tuen Mun Hospital as it was suspected that he had post-concussion syndrome.  And at the first consultation at the Neurosurgery Department of the Tuen Mun Hospital on 9 July 2002 he was diagnosed with post-concussion syndrome.  Thereafter he was treated at the Neurosurgery Department of the Tuen Mun Hospital with complaints of dizziness and vertigo. 

7.The Master ordered that medical evidence be limited to one orthopaedic and one psychiatric expert for each party.  She refused leave to the plaintiff to adduce the report of Dr Robert Ho who is a neurologist. 

8.Dr Ho examined the plaintiff and his findings are contained in his report dated 25 October 2005.  At the time that Dr Ho saw the plaintiff the complaint of recurrent dizziness was still there.  

9.Mr Wright criticized the comments of Dr Ho as being based on the subjective complaints of the plaintiff.  Most medical reports are based on the subjective complaints of a plaintiff.  It is not right at this stage in my view to question the value of the report.  One must see what the expert has found after his examination.  On the Mini Mental Status Examination it is clear from the report of Dr Ho that he found a moderate degree of impairment of higher mental function.  As Ms Cheng has shown me, there was an earlier report by a clinical psychologist who had examined the plaintiff between April and June 2003 which showed that there was limited intelligence and the plaintiff’s mental control was mildly to moderately impaired. 

10.Dr Ho found on an examination of the cranial nerves that they were normal. 

11.His findings are contained in his report where he says that the plaintiff suffered a moderate closed head injury as a result of the road accident.  In spite of it being 3½ years from the time of the accident, the plaintiff still suffers from moderate to severe sequelae of a post-concussional syndrome.  He has recurrent dizziness which is most likely due to traumatic injury to the peripheral vestibular organ.  They are particularly troublesome because they are brought on by head and bodily movements and limits his mobility.  Test of higher mental function showed significant impairment.  He also suffers from depression as well as emotional instability. 

12.Dr Ho also said that his periodic loss of consciousness associated with sudden head movement has resulted in recurrent bodily injuries and he opined that the latter may be a sequelae of a vertebral artery dissection and he recommended an MRI scan of the brain and MR angiography of the cervical blood vessels.  I am told that the MRI scan of the brain and the MR angiography has not yet been conducted.  Ms Cheng informs me that the plaintiff is legally-aided and as the defendants have opposed the adducing of a neurological expert on behalf of the plaintiff they have not seen fit at this stage to approach the Director of Legal Aid for funds to obtain the further investigations. 

13.Be that as it may, Dr Ho goes on to assess permanent impairment as a result of dizziness as well as the impairment to the mental function and he gives his opinion as to loss of earning capacity and opines that the work prospect is limited by the significant impairment in his higher mental function as well as his emotional and behavioural impairment.  What is also important is that for future medical treatment he recommends that the plaintiff should be treated by a neurologist for his persistent dizziness.  This would be in addition to treatment by a psychiatrist for his depression and emotional problems.

14.Mr Wright has criticised the report of Dr Ho but it seems to me that this is a matter for trial.  If the defendants wish to challenge the findings of Dr Ho they can do so either by cross-examination or by seeking leave to adduce a report of a neurologist.  Ideally there should be a joint medical report but from the correspondence that approach was rejected by the defendants at an early stage. 

15.I am satisfied that the report of Dr Ho is necessary and of probative value and that leave should be given to the plaintiff to adduce the report.  It seems to me that Dr Ho does give an opinion as to the physical injury which led on to the psychiatric condition of post-concussion syndrome.  This, of course, is not accepted by the defendant’s psychiatrist but this is a matter that can be resolved at trial. 

16.I allow the appeal, set aside the order of the Master and give leave to the plaintiff to adduce the report of his neurological expert Dr Robert Ho dated 25 October 2005.

Ms Flora S Y Cheng, instructed by Messrs Au-Yeung, Cheng, Ho & Tin, for the plaintiff

Mr John Wright, instructed by Messrs Tang & So, for the defendants