Wong Tak Fai v. Orient Trucking Ltd

DCEC 1032 / 2007

 IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION NO. 1032 OF 2007

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BETWEEN

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Coram: His Honour Judge Thomas Au in Chambers (open to public) 

Date of Hearing:  30 May 2008

Date of Delivery of Decision:  30 May 2008

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DECISION

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I.       Introduction

1. The Applicant Mr Wong says he suffered a fall at work on 13 January 2006, as a result of which he is now suffering from effectively a form of lingering back pain with right sciatica.

2. By way of its Summons dated 29 February 2008, the Respondent Orient Trucking Ltd seeks (a) leave to appeal out of the time the subject matter Forms 7 and 5, and (b) leave to adduce orthopaedic expert evidence in the form of the medical report of Dr Lam Kwong Chin dated 25 October 2007 on the issues of both liability and quantum.

3. At the hearing of the Summons today, Mr Paul Leung, counsel for Orient, confirms that Orient is no longer pursuing leave to appeal out of the time the subject forms of assessment.  He also confirms that he is seeking leave to adduce Dr Lam’s report in relation only to the issue of whether the fall alleged to have been suffered by Mr Wong has caused the back pain he is now complaining of.

4. On this narrowed down application, Mr Victor Cheung for Mr Wong submits that, given Orient is not seeking leave to appeal the Forms 7 and 5 now, it is for Orient to satisfy the court that (a) it is still entitled to challenge the issue as to whether the fall has caused the back pain, and (b) the medical evidence sought to be adduced is relevant to this issue.

II.      Discussion

Whether the issue is still open to challenge

5. On the question of whether the issue is still open to challenge given Forms 7 and 5, Mr Leung for Orient submits that this issue is a question of liability, while the assessments by the board resulting in Forms 7 and 5 only relate to the question of quantum.  As such, Mr Leung says that Orient is clearly still entitled to dispute liability as to whether the fall (even if it did occurred as alleged) has in fact caused the back pain now complained by Mr Wong. 

6. In support of his submissions, he relies on the authority of Ng Ming Cheong v MTRC [1997] HKLRD 1231 (CA), where Le Pichon J (as she then was) said at 1235F-H and 1237B as follows:

“It is the clear intention of the legislation [the Employee Compensation Ordinance] that the District Court is the forum to contest liability where this is disputed.  It is also the forum to hear an appeal against the assessment of the Ordinary or Special Assessment Boards where either party is dissatisfied with it.  Where liability is disputed, an employee may lodge a claim for compensation under s. 18A of the Ordinance.  Where the assessment is in dispute, this can be challenged by way of an appeal under s. 18.  It can also be included in the s. 18A proceedings by adding and appeal or application to appeal out of time against the assessment in the application for compensation.  If it is the employer who is not satisfied with the assessment, he can do the same in his answer.  If separate proceedings have been instituted for the determination of liability and assessment respectively, they can be consolidated.  The District Judge hearing the application for compensation can then deal with the two issues together at the trial.

“… in circumstance where the respondent had chosen [not to appeal the relevant assessment by the board].  The only evidence before [the judge] as to quantum should have been the certificate and nothing more …”  (emphasis added)

7. Mr Leung further says that paragraph 1 of Orient’s Answer, by putting Mr Wong to strict proof of his plea that he has suffered personal injury by an accident arising of and in the course of employment, has disputed liability on the basis as to whether (a) the accident did in fact occur as alleged, (b) whether the accident arose out of and in the course of employment, and (c) whether the accident caused the personal injury as alleged.  Orient therefore has clearly raised the issue of whether the alleged fall has caused the back pain.

8. I accept Mr Leung’s above submissions.   I am satisfied that the issue is raised by way of the Answer, and that this is an issue concerning liability.  As such, in light of the authority of Ng Ming Cheong cited above, I am also satisfied that this issue is still open to challenge by Orient notwithstanding the unchallenged assessments under Forms 7 and 5, which only deal with the issue of quantum.

Whether Dr Lam’s evidence is relevant to the issue

9. Dr Lam in his report stated that, based on the various medical examination results he had looked at, he was of the opinion that the alleged fall suffered by Mr Wong was “unlikely” to have caused the prolapsed intervertebral disc at two levels as observed in Mr Wong’s case.

10. Mr Leung for Orient submits that this medical evidence is relevant to the determination by the Court at trial of the issue as to whether the alleged fall in fact caused the back pain, as the evidence could assist the court to determine this question of causation.   He relies on the authority Lee Kin-kai, a patient by his father and next friend Li Wah v Ocean Tramping Co Ltd [1991] 2 HKLR 232, where Hunter JA said at 235I-J as follows:

“…First causation is essentially a matter for the judge not for the doctors.  It is a matter upon which the judge will no doubt be assisted by the medical evidence but he is not dictated by it…”

11. Further, Mr Leung submits that in light of the principles laid down by Chu J in Wong Hoi Fung v American International Assurance Co (Bermuda) Ltd [2002] 3 HKLRD 507 at paras 11 and 12, Dr Lam’s evidence should be admitted at this pre-trial stage as (a) the evidence is helpful to the Court in arriving at its decision on this issue, and (b) it cannot be said at this stage that the evidence is plainly irrelevant.  On these principles, Chu J in Wong Hoi Fung, said as follows:

“11.     Modern judicial authorities recognize that the court has inherent power to rule on the admissibility of expert evidence at a pre-trial stage: Woodford and Ackfroyd v. Burgess [2000] CP report 79, Ko Chi Keung v. Lee Ping Yan Andrew [2001] 2 HKC 63 and Annabell Kin Yee Lee & Anor v Lee Wing Kim (May Lee) & Anor (unreported), HCA 9522/1997.  Where the proposed expert evidence is plainly inadmissible or irrelevant, the court ought to exercise its discretion to refuse the admission of such evidence.  But where the court cannot form a clear view on the relevance of the proposed expert evidence or where it considers that the proposed evidence is clearly relevant, then it should grant leave for the evidence to be adduced at the trial:  Ko Chi Keung v. Lee Ping Yan Andrew (supra), at p. 67 and Annabell Kin Yee Lee & Others v. Lee Wing Kim (May Lee) & Anor (supra), at p. 15.

12.      In deciding whether certain expert evidence should be received, the relevant test has been stated to be a two-stage one.  Firstly, the evidence has to be admissible ‘as expert evidence’ for the purpose of section 58 of the Evidence Ordinance, Cap. 8.  Secondly, the evidence must be relevant, in the sense that it is helpful to the court in arriving at its decision on one or more of the issues to be resolved:  Barings plc (in Liquidation) & Anor v. Coppers and Lybrand & Ors, Lexis Transcript, 9 February 2001, Evans-Lombe J at paras 44-45.”

12. I also accept Mr Leung’s above submissions.  Applying the principles laid down in Wong Hoi Fung and in light of the observation expressed by Hunter JA in Ocean Tramping Co Ltd, I am satisfied at this stage that Dr Lam’s evidence is at least prima facie relevant to the issue of whether the alleged fall has caused Mr Wong’s back pain. 

III.    Conclusion

13. For the above reasons, I allow Orient’s application and leave is granted to it to adduce expert evidence by way of the medical report of Dr Lam dated 25 October 2007, only on the issue as to whether the alleged accident suffered by the Applicant has caused his personal injury. 

14. I further grant leave to Mr Wong to file and serve, if any, an expert orthopaedic medical report in reply to above mentioned Dr Lam’s report within 60 days from the date of this Order.

[Submissions on costs]

Mr. Victor, Chi Fai CHEUNG, instructed by Messrs ONC Lawyers, for Applicant.

Mr. Paul, H.M LEUNG, instructed by Messrs Li, Kwok & Law, for Respondent.