Farman Khan v. Lau Kai Hong and Another t/a Shun Sum Engineering Co (A Firm)

HCPI 850/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 850 OF 2008

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BETWEEN

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Before: Hon Fung J in Chambers

Date of Hearing: 29 April 2009

Date of Decision: 29 April 2009

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D E C I S I O N

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1.The Plaintiff is appealing against the order of the PI Master in refusing leave for the Plaintiff to adduce expert evidence from a neurologist, psychiatrist, ophthalmologist and urologist at the trial of the action on quantum.

2.In fact, no reports have been obtained, and the appeal is against the refusal of leave by the Master to obtain such reports.

3.The Defendants have appeared briefly at the related ECC proceedings and not taken any step further upon the ruling of the non-applicability of the relevant insurance policy.  They have not filed a Defence in this action and interlocutory judgment has been entered for damages to be assessed.

Background

4.The Plaintiff was a construction worker.  On 10 October 2006, he allegedly fell off a bamboo scaffold and down a slope.  He was sent to A&E Tseung Kwan O Hospital and was provisionally diagnosed with multiple soft tissues injuries from fall.  The A&E report stated X-ray of the C-spine, chest, T-spine, left shoulder, LS-spine, and pelvis were all normal without fracture.  At the follow-up on 6 November 2006, X-ray showed the collapse of the L5 disc.

5.At present, the complains are:

(1)  upper and lower back, hip, shoulder and neck pain;

(2)  visual impairment;

(3)  testicular pain with small hydroceles (accumulation of fluid in the coat around the testis);

(4)  Post concussion syndrome.

Relevant rules

6.O. 38, r. 36 RHC provides that:

“(1)   Except with the leave of the Court or where all parties agree, no expert evidence may be adduced at the trial or hearing to any cause or matter unless the party seeking to adduce the evidence-

(a)   has applied to the Court to determine whether a direction should be given under rule 37 or 41 (whichever is appropriate) and has complied with any direction given on the application.”

7.O. 38, r. 37 deals with the disclosure of the expert report, and  r. 41 deals with the power to call witness for cross-examination on hearsay where the applicant alleges that his expert cannot or should not be called.

Discussion

8.The foremost consideration in the present application is relevance, always bearing in mind the necessity of the exercise for fairly disposing of the cause of the matter and/or saving of costs.

9.Dr Danny Tsoi, the Plaintiff’s orthopaedics expert, mentioned the collapse of the L5-spine based on the X-ray taken on 6 November 2006.  However, he did not mention the X-rays taken on 10 October 2006 nor did he reconcile the seeming discrepancy of the X-rays taken on the two dates.

10.Be as it may, Dr Tsoi observed that not all the Plaintiff’s present complaints related to the L5 collapse and nerve root compression.  He suggested that the Plaintiff consult doctors of the other specialties included in this application.

11.The Plaintiff has consulted the neurologist at Tseung Kwan O Hospital.  The brief medical note stated he had penile pain and sexual and erectile dysfunction.  Elsewhere in the papers mentioned the problem of small hydroceles.  However, there is no mention of any possible relationship of the testicle pain with the accident. 

12.The ophthalmology consultant also gave a one liner of a blurring eye, but it has to be borne in mind that the neurologist noted that previous ocular examination was normal. 

13.The neurologist noted CT scan of brain was normal and his impression was post concussion syndrome.

14.Hence, it shifts to the specialty of the psychiatrist and/or psychologist which Dr Tsoi has considered a referral as reasonable.  But so far there has been no such consultation at the public hospital or clinic.

15.It must be borne in mind that the task of the court is not therapeutic but forensic, an application to adduce expert evidence must be supported by prima facie evidence of relevance.

16.Mr Clement, for the Plaintiff, suggested that Dr Tsoi’s referral provided such prima facie evidence of relevance.  On the contrary, I see Dr Tsoi’s opinion is at best neutral as he stated that not all complaints related to his expertise of orthopaedics.  Worse still, it could be regarded as not relating to the accident, as Dr Tsoi’s opinion also failed to deal with the discrepancy of the X-rays taken on 10 October and 6 November 2006.

17.It is not difficult to see that the neurologist has washed his hand and say there was nothing wrong with the brain scan and suggested the impression of post concussion syndrome.  Yet, there has been no consultation of the psychiatrist where one would have expected to be the first step if there were any such complain in a PI case.

18.As to ophthalmology, first the complaint is contrary to earlier observation on ocular examination, and also there is no explanation of the possible link to the accident.  The same can be said about urology as to what was the possible cause of the hydroceles.

19.In the circumstances, the Plaintiff should further consult his treatment doctors, not to the extent of getting a full expert opinion, but at least some explanation of possible link with the accident. 

20.I say this approach is particular helpful in this case because it is unlikely that the Defendants who have so far not appeared will likely be introducing any contrary expert evidence.  If there are well documented treatment records and possible link with the accident, one would expect that such records from the government hospitals might well be sufficient for the trial judge in assessing quantum.  Unfortunately, even any initial evidence is sadly lacking.

Conclusion

21.In the event, this application is dismissed.

22.There be Legal Aid taxation for the Plaintiff’s own costs.

Post script

23.Mr. Clement has indicated that the real object of the present action is the Employee Compensation Assistance Scheme (“ECAS”).  Hence, I direct that a copy of this decision be provided to ECAS for reference.

Mr R Clement of Messrs Massie & Clement, assigned by the Director of Legal Aid, for the Plaintiff

The Defendant, absent