Lee Ka Man v. Hong Kong Aircraft Engineering Co Ltd

HCPI 355/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 355 OF 2006

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Before: Hon Fung J in Chambers

Date of Hearing: 13 October 2008

Date of Decision: 13 October 2008

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D E C I S I O N

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1.The case has been referred to me on Pre-trial Review to decide on the calling of the two orthopaedic experts to give oral evidence. 

2.The plaintiff is an trainee aircraft engineer.  She sustained back pain while working in an aircraft.  There is a dispute as to how long she had been squatting and whether she was asked to undertake any manual exertion at the time of feeling the pain.

3.The medical evidence contained the MRI report which stated that the plaintiff had multiple lumbar-spine disc bulging.  The defendant’s expert, Dr Cheng, said that is generally indicative of pre-accident degeneration,  whereas the plaintiff’s expert, Dr Johnson Lam, said that should not be so given the plaintiff was only relatively young at 20 years old at the time of the accident.

4.There was a twist in the obtaining of the medical evidence, in that the case should have been set down pursuant to the Order of the Master by January 2007.  It was not done, because the plaintiff had obtained counsel’s opinion, and counsel advised the seeking of further medical evidence.

5.Instead of informing the defendant as such in order to see to it that a joint examination be arranged, the plaintiff’s lawyers went off on their own to obtain the supplemental report, and upon service on the defendant, the defendant also obtained their supplemental expert report.  Both did so without informing the court.  The supplemental reports did not really add much to the first two reports.  They did amplify the opinions, but there was nothing new.

6.Of course, the plaintiff is at fault in not complying with the direction to set down, but the defendant did not complain and see to it the case should proceed on the time-table laid down.

7.This case illustrated the parties driven approach which led to laxity, delay as well as obtaining of further evidence which might not be necessary or contrary to the spirit of the Personal Injuries List practice that a joint medical examination and report should be obtained when the doctors disagreed on the matters.  Hopefully with the implementation of the Civil Justice Reform, parties would have to adhere to a tight time-table and court would be pro-active in supervising the jurisdiction and not let parties go off their own ways, and have the case delayed 1½ years before setting it down as originally ordered.

8.Coming back to the case, there are two factual witnesses on the plaintiff’s side and three for the defendant.  They both wanted to call the doctors and they agreed that 3 days should be allowed for the trial.  I am not going to upset their joint estimate of time. 

9.As to the calling of the doctors, their opinions are relevant for both liability as well as quantum, and cross-examination of the experts is desirable in view of the plaintiff’s expert’s opinion effectively to take the plaintiff’s case out of the general situation by reason of young age.  I am going to allow the application to call them. 

10.The case should be put down in the running list, with 3 days reserved and leave to call the 2 doctors.

11.I wish to add that the issue of costs on the supplemental medical reports is specifically reserved to the trial judge. 

12.The costs of this application be in the cause with Legal Aid taxation.

Mr. Tse Lin Fai of Messrs Yip, Tse & Tang assigned by the Director of Legal Aid, for the Plaintiff

Ms Linda Lee of Messrs Deacons, for the Defendant