Akhtar Mahmood v. Chun Wo - Henryvicy China Construction Corporation Joint Venture

HCPI 336/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 336 OF 2007

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BETWEEN

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Before: Hon Fung J in Chambers

Date of Hearing: 8 December 2008

Date of Decision: 8 December 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-trail Review to decide on two matters:

(1)  the getting of an updated joint orthopaedic report;

(2)  whether the experts should be called to give oral evidence.

2.The plaintiff was an employee of the defendant.  He was assigned to work on a railway in Taiwan.  He claimed to have injured his back when trying to move railroad sleepers.  The defendant disputed the happening of the accident alleging, inter alia, that the plaintiff’s job was one of surveying and it was no part of his duty to move any sleepers.

3.The two medical experts are Professor Kumta for the plaintiff and Dr Jack Wong for the defendant.  The matters they disagreed included (1) the state of the plaintiff’s L4-5 discs, (2) the range of the plaintiff’s leg movement, and (3) their comments on the surveillance tapes.

4.Professor Kumta gave the opinion of disc protrusion resulting from injury and not degeneration.  Dr Wong said there was no protrusion but only minimal spinal canal narrowing indicating degeneration.

5.The respective doctors measured different degrees of straight leg raising during separate examinations and both were of less than the normal range, but Dr Wong was of the opinion that the plaintiff was faking or exaggerating as he observed normal movement when the plaintiff was distracted by him.  He did not explain more on this point in his report.

6.The plaintiff was clandestinely taped by investigators.  He was seen to be running, bending and holding a baby.  After seeing the tape, Professor Kumta retracted his opinion on the need for further surgery and said the plaintiff could conduct normal daily activities, but still maintained the opinion that the plaintiff cannot return to a manual or lifting job, as to which Dr Wong disagreed.

7.I am not in any way trying to conduct a mini trial on the reports at this stage, but only to see whether time should be budgeted for calling the two doctors.  I can see from the medical evidence that the injury is not severe and it is a matter of whether the plaintiff is to be believed that he could not return to work at all due to back pain.  It is the judge’s task.  But in this case, I think that it would be helpful to the trial judge that the doctors are called as Dr Wong stated in his report that the plaintiff could achieve normal straight leg raising when distracted.  If that opinion of faking were to be acted upon (whether qua liability or quantum), it would be fairer if the plaintiff were given the opportunity to cross-examine Dr Wong.  As such, I shall grant leave that the respective experts be called.

8.The request for the further joint report is actually on the observation of Dr Wong that the plaintiff was exaggerating on leg raising.  I think that can be dispensed with where the doctors are to be called to be cross-examined on the point.

9.I have discussed with lawyers for parties the number of witnesses to be called and we all agree that this case requires 4 days.  Hence, I grant leave that the case be a set down in the Fixture List.

10.The costs should be in the cause with Legal Aid taxation. 

Mr. P Burke of Messrs Burke & Company, for the Plaintiff

Mr. C K Wong, instructed by Messrs Chau & Associates, for the Defendants