Shrestha Kalyan v. Acciona Infraestructuras, S.A.

HCPI 710/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 710 OF 2007

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Before:  Hon Fung J in Chambers

Date of Hearing:  22 September 2008

Date of Ruling:  22 September 2008

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R U L I N G

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1.The parties have put before me at Pre-Trial Review a draft consent order  seeking, inter alia, to:

(1) vary the order of the Master at Check List Review as to the dispensation of calling of oral evidence of the experts;

(2) place the case in the Fixture List where the proper estimate of the length of trial ought to come within the Running List.

2.The plaintiff is a construction worker alleging injuries during a lifting operation, and complains of enduring back pain.  The experts (Dr. Christopher Tong for the plaintiff and Dr. Lee Po-chin for the defendant) have complied a joint report and their opinions are mostly in agreement:

(1) They both agree to pre-existing degenerative condition of the spine (L4/L5 disc);

(2) Their endorsement of the 11 months sick leave period is ± 2 months;

(3) Dr. Tong thinks the plaintiff is unable to return to a job involving lifting heavy objects;

(4) Dr. Lee thinks the objective findings at the examination are not consistent with complaint of sever pain, and hence the plaintiff should be able to return to his pre-accident job.

3.In Fung Suk Yin Florence v Yip Mun Chi HCPI 128/2007 (12 September 2008), I have made some observations on the practice of dispensation of oral evidence of the experts.  Essentially, the question is one of necessity of cross-examination or whether the disagreement can be resolved on the reports.

4.Solicitors for both parties submitted that the doctors should be called by reason of point (4).  I agree, especially when the expert’s observations at the examination is really evidence of facts on which the opinion is based.  Perhaps practitioners could inform the court the proper reasons for adducing oral evidence of the experts and the apprehension of the Court that experts are unnecessarily troubled be allayed.

5.The parties have jointly given an estimate of length of trial of 4 days.  Upon identification of the issues, they agree it should be at most 3 days.  Ms. Chu, for the defendant, nevertheless asked for a Fixture listing, as the defendant’s factual witness is not a direct employee, but an employee of the sub-contractor at the relevant time.  There is fear of reluctance of attendance without a fixed date.  This apprehension seems not unreasonable in the circumstances of this case.  Hence, I also allowed a Fixture listing.

Ms C Chung, of Messrs John M Pickavant & Co (DLA), for the Plaintiff

Ms K Chu, of Messrs Deacons, for the Defendant