Fung Suk Yin Florence v. Yip Mun Chi

HCPI 128/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 128 OF 2007

____________

BETWEEN

____________

Before: Hon Fung J in Chambers

Date of Hearing: 10 September 2008

Date of Decision: 10 September 2008

Date of Reasons for Decision: 12 September 2008

________________________________

R E A S O N S  F O R  D E C I S I O N

________________________________

1.The main issues at the Pre-trial Review are:

(1)     whether the plaintiff should give consent to the defendant to obtain from Wong Tai Sin Hospital (WTSH):

(a)    Details of infirmary medical care currently provided to the Plaintiff;

(b)   An opinion on whether such care be best provided in a hospital environment or specially adapted private residential dwellings;

(c)   Whether accommodation in Cheshire Home will provide the adequate level of medical care;

(2)     The calling of oral expert evidence.

2.The plaintiff was knocked down by the car driven by the defendant.  She sustained severe injuries and is now a tetraplegic.  Her mental faculties remain sufficiently intact.

3.Single joint expert opinions have respectively been obtained on urology, neurology and orthopaedics/traumatology.  The Master ordered that they be adduced as agreed evidence without calling the three doctors.

4.There were also occupational therapists for each party.  They spoke on the need and/or suitability of alternative accommodation and adaptation of private dwellings.  Both parties wish to call their experts to give oral evidence.

5.Mr. Kwok, for the plaintiff did not object to the obtaining of updated information of the plaintiff’s current needs, and will sign the letter of request to WTSH where the Plaintiff is currently infirmed.

6.Mr. Kowk, however, objected to the obtaining of an opinion from WTSH:

(1)     Both the neurologist (Dr Brian Choa) and the urologist (Dr George Koo) have identified recurrent complications of the plaintiff requiring medical care, but considered the possibility of discharge from hospital to suitably adapted accommodation;

(2)     Given there is already evidence of single joint experts, there is no reason to obtain a second opinion;

(3)     In any case, it is not the practice to get an opinion from the treating doctor of the Hospital Authority;

(4)     It is up to the Defendant to make enquiries with institution(s) offering alternative accommodation such as Cheshire Home and the Plaintiff is under no duty to assist the Defendant to obtain that evidence;

(5)     It is not up to the doctor of WTSH to comment on the provision of medical care at Chesire Home.

7.Mr. Reeves, for the Defendant, was content to withdraw items (2) and (3) from the request.  However, the real point is that before the Plaintiff could be admitted to Cheshire Home, there needs to be an intake assessment by the medical social worker.  He needs her consent.

8.Looking at the practical reality of the matter, Mr. Kwok accepted that there is a possibility of the trial judge deciding on the present evidence that Cheshire Home is a viable option, without the assurance of admission from the institution.  There is a possibility that adapted private dwellings accommodation is not provided for and the Plaintiff is stuck in WTSH.  He agreed that in the interest of the Plaintiff, consent should be given for her to undergo the intake assessment at Cheshire Home.

9.Parties have gone though the likely issues and the joint estimate is 5 days.

10.There remains the matter of calling of oral expert evidence.  Experience has shown that the trial judge may find oral evidence of the experts dispensable because the factual basis of an opinion was removed due to the view on the evidence taken by the judge, or internal inconsistencies in an expert report can be resolved without oral evidence.  It is very much a matter for the trial judge, and as the listing judge, I shall try to ensure such preparation of the case, as from my viewpoint, as most facilitative to the determination by the trial judge without undue delay, inconvenience or prolixity.

11.The plaintiff is now a tetraplegic.  She was previously a public housing tenant, and there is possibility of discharge from hospital (at least for part if not most of the time) in times to come.  Consideration of alternative accommodation is relevant, and there are disagreement on the respective expert evidence, as to the nature and quality of the care.  The size of the accommodation claim alone is about $3 million.  Request for cross-examination of the experts is not unreasonable considering all the factors including proportionality.  Hence, I make the order that the respective occupational therapist experts be called at trial.

12.There is also the request to call Dr Chao and Dr Koo, supposedly to augment the claim of alternative accommodation on the part of the Plaintiff, and likely query on the part of the Defendant.  I bear in mind they are single joint experts, and prima facie, the room for disagreement is less than partisan experts.  As a practical measure, I direct the doctors be made available during the trial, to be called if so ordered by the trial judge after due consideration of their reports in the light of other evidence.

Mr. Tim Kwok, instructed by Messrs Yeong & Co., for the Plaintiff

Mr. M Reeves. and Ms Y K Chan of Messrs Munros, for the Defendant