Rai Padamlal v. Dashing (Holi) Co Ltd and Another

HCPI 100/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 100 OF 2008

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BETWEEN

Before: Hon Fung J in Chambers

Date of Hearing: 23 February 2009

Date of Decision: 23 February 2009

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D E C I S I O N

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1.The issue at the 2^nd Pre-Trial Review is whether the medical experts should be called to give oral evidence.

2.The Plaintiff was formwork carpenter.  The 1^st Defendant was the employer and sub-contractor, and the 2^nd Defendant was the principal contractor.

3.The Plaintiff was using an electric saw at the accident in 2005.  He switched off to put it down to attend to other matters.  The saw did not stop and cut his right thigh.  Particulars of negligence alleged defective tool as well as failure to provide 2 workers for the requirement of the job assigned.  The Defence denied any defect and alleged improper use of the equipment.

4.The respective orthopaedic experts are Prof. Kumta, for the Plaintiff, and Dr. Patrick Wong, for the Defendant.  They have rendered separate reports.

5.The Plaintiff’s right quadriceps tendon was 80% cut, and treated with surgical operation.  He has recovered with 20% muscle wastage.

6.The main issue as to quantum is the Plaintiff’s capability to return to the pre-accident job.

7.The Plaintiff complained the difficulties, inter alia, of pain in standing, walking and squatting.  Prof. Kumta opined a sedentary job, and Dr. Wong said that with further muscle strengthening, the Plaintiff is fit to return to his previous job doing majority of the duties with reduced efficiency.

8.Dr. Wong also referred to the physiotherapy report stating the ability to climb two fights of stairs without handrail support, and could squat but with pain, and marginally matched to return to previous job with modification.

9.In his Supplemental Report, Prof. Kumta’s commented on Dr. Wong’s report, and accepted that there was no anatomical explanation for pain in standing and/or the need to use handrails.

10.Looking at the matter without coming to any probable view, it is reasonably open for the trial judge to resolve the issue of quantum with evidence of the Plaintiff and the medical reports without calling the doctors.  Mr. Littlewood, for the Plaintiff agreed, while Ms Liu, for the Defendant did not express any view to the contrary.

11.Hence, I direct that the respective doctors’ reports be admitted without oral evidence, and the estimate for trial be 3 days instead of 4 as suggested.

12.Mr. Littlewood asked for the Fixture List in any case, since a Nepalese interpreter is required.  I acceded to his request.  I have since made enquiries with the Court Interpreter’s Office, and understand that Nepalese interpreter could be arranged with short notice for the Running List.  In future, request for Nepalese interpreter will not be sufficient ground for listing in the Fixture List.

13.Costs in the cause with legal aid taxation for the Plaintiff.

Mr Brian Littlewood, of Messrs Littlewoods, assigned by the Legal Aid Department, for the Plaintiff

Ms Liu Kit Sum Margaret, of Messrs Chong & Partners, for the Defendants