Ng Yiu Wing v. Chun Wo Contractors Ltd

HCPI 273/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 273 OF 2007

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Before: Hon Fung J in Chambers

Date of Hearing: 7 July 2008

Date of Decision: 7 July 2008

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D E C I S I O N

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1.The P.I. Master has referred this case to me for directions on the psychiatric evidence, namely whether the respective psychiatrist should give oral evidence on (a) different psychiatric diagnosis; (b) extent of sick leave period; (c) treatment recommended and (d) ability of the Plaintiff to resume his pre-accident job.

2.The Plaintiff had an accident on the construction site.  He claimed there was a falling I-beam during the lifting operation and he tripped and had a fall when escaping from the hit by the I-beam.   The physical injury was a fractured right leg (tibia and fibula).  There was a complication of the non-union of the fracture and he had to receive post-operation follow up and physiotherapy treatment.

3.The Defendant challenged the falling of any beam, and even the presence of the Plaintiff on site as he was supposed to be the proprietor of the sub-contractor as opposed to be a worker.

4.The Plaintiff’s orthopaedic expert, Dr Lee Po-chin, endorsed a sick leave period of 2½ years while the Defendant’s orthopaedic expert, Dr Lam Kwong-chin, endorsed a sick leave period of 4 to 8 weeks.  Both agreed on the return to pre-accident barring psychiatric considerations. 

5.The Plaintiff is also complaining of a psychiatric condition. Dr Singer, the Plaintiff’s psychiatric expert, diagnosed the Plaintiff with post traumatic stress disorder (“PTSD”) with major depressive mood, while Dr Law Wun-tong, the Defendant’s psychiatric expert, diagnosed the Plaintiff with only an adjustment disorder with mixed anxiety and mild depressive mood, and that the depression was induced by stress related to the litigation.  He also gave the opinion that the Plaintiff was exaggerating.

6.Both psychiatric experts endorsed a sick leave period of about 10 months (qua psychiatric condition), but Dr Singer also gave the opinion that the Plaintiff required psychiatric treatment and counselling before returning to the pre-accident job as opposed to the job of a watchman and the like.

7.While the case was referred to me on the calling of the two psychiatrists, I raised with the solicitors for the parties the question of whether the diagnosis of the PTSD really depended on the life threatening experience of the close miss of a hit by a heavy falling beam.

8.In such circumstances, the opinion of Dr Singer as based on this alleged life threatening experience will depend on the resolution of the factual dispute of whether there was this falling beam at all.  If so, it is more likely that one would have PTSD, if not, it is more likely that the Plaintiff would be exaggerating his mental condition if not also fabricating the course of the accident.

9.Hence, I am of the opinion that the real dispute is the length of the sick leave period as indicated by the two orthopaedic experts (even upon the opinion of Dr Lam of 4 to 8 weeks being modified upon Dr Law’s opinion in the event that the accident is proved).

10.On this account, solicitors for the parties agreed that Dr Lee and Dr Lam should be called instead on the issue of the length of the sick leave period on the complication of physical injuries by a non-union fracture.  Hence, I make the order that the two orthopaedic surgeons be called on this issue.

Ms Annie Cheng Mung Shuen of Messrs Szwina Pang, Edward Li & Co.  assigned by (D.L.A), for the Plaintiff

Ms V Cheung of Messrs W.K. To & Co., for the Defendant