Chan Kwok Biu v. Ming Chun Construction Co Ltd
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DCEC920/2008 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES' COMPENSATION CASE NO. 920 OF 2008 ----------------------
---------------------- Coram: H H District Judge Marlene Ng in Chambers (open to the public) Date of Paper Application: 18th May, 2009 Date of Paper Ruling: 26th May, 2009 ---------------------- RULING ---------------------- I. Introduction 1. This case has been set down in the running list for hearing of the assessment of compensation not to be warned before 2nd June 2009 with an estimated length of hearing of 1 day. 2. By a Joint Written Application dated 16th May 2009 (but filed on 18th May 2009) (“JWA”), both parties jointly wrote to inform the court that (a) the Respondent filed a Supplemental List of Documents on 13th May 2009, and (b) such Supplemental List of Documents disclosed a surveillance video recording in which most of the footage was of the Applicant jogging in the morning on divers dates (“Video”). 3. Both parties acknowledged the guidance in Khan Shiraz v Yee Lee Sea-Land Forwarding Co Ltd HCPI323/2004, Suffiad J (unreported, 10th August 2006) and Yu Tan Lee v Cheung Kwok Choi HCPI595/2007, Yam J (unreported, 7th August 2008) that prior leave should be obtained before commissioning supplemental expert medical report to comment on any surveillance footage. 4. The Applicant proposed to seek leave to disclose the Video to the parties’ respective plastic surgery experts for their comments by way of a further supplemental expert report (“Third Report”). The Respondent disagreed. 5. Paragraph 87(2) of Practice Direction 18.2 provides as follows :
6. By the JWA, both parties set out the grounds in support of their respective stance, and jointly applied to the court for consideration and “appropriate directions”. II. Background facts 7. On 30th January 2007, the Applicant in the course of his employment with the Respondent as a technician suffered burn injury whilst working at the fuel station inside Pok Fu Lam Fire Station. 8. On 13th November 2008, judgment on liability was admitted by the Respondent leaving compensation to be assessed. 9. On 20th January 2009, the Applicant filed his witness statement as to quantum. In his witness statement, he stated that he suffered burn injury at the face, front of the chest and abdominal wall, scrotum, left forearm and both thighs. As regards his current condition, the Applicant said that amongst other complaints he had unsightly scars at his chest, right thigh and left wrist. The scars were itchy especially during dry weather. He also complained of tightness at the site of his burn scars, and of reduced dexterity (靈活) as compared with before in respect of his right thigh and left wrist. 10. According to the joint plastic surgery expert report of Dr Chow Sik Kuen (“Dr Chow”) for the Applicant and Dr Otto Au (“Dr Au”) for the Respondent dated 20th December 2008 (“First Report”) and their joint supplemental expert report dated 23rd January 2009 (“Second Report”), the plastic surgery experts were largely in agreement over their medical opinion save that Dr Chow suggested further treatment to reduce hypopigmentation of the Applicant’s scars (other than those at the lower limbs) but Dr Au opined otherwise. 11. More importantly, Dr Chow and Dr Au were largely in agreement in respect of treatments to improve the hairless scar on the occiput (by excising the scar under sedation and local anaesthesia), the hypertrophic scars (by 10 sessions of intralesional steroid injections and continued pressure garment therapy for about 2 years), the traumatic tattoos and the scar at the peno-scrotal junction (by 5 sessions of laser treatment). They also agreed that the Applicant needed 2 years’ supply of skin care products to alleviate the itchiness of the skin, and further sick leave subject to the progress of the hypertrophic scars (which was not yet mature as at late January 2009) and the need to wear pressure garment. 12. Dr Chow and Dr Au further agreed that the Applicant could return to work when his symptoms were controlled, and that his symptoms could be controlled by (a) frequent attention by occupational therapist in respect of the fitness of the pressure garment, (b) intralesional injection of steroid to be started as soon as possible, and (c) skin care products. They expected the Applicant to need a further 6 months of sick leave from late January 2009, and thereafter further sick leave would not be necessary except for the suggested remedial treatment. 13. Dr Chow and Dr Au noted the hypertrophic scars were symptomatic especially during dry weather, and the pressure garment would be extremely uncomfortable in hot and humid weather (eg during the summer). They agreed that the Applicant’s working ability would be restricted by (a) whether the working environment would be air-conditioned (so that he could continue to wear his pressure garment) and/or free of gas pipies/equipment (due to his phobia) and (b) when the symptoms of his hypertrophic scars would be under control. They therefore opined the Applicant could work as telephone operator (in an air-conditioned room), office receptionist or cashier in a restaurant (“Alternative Work”). III. Applicant’s case 14. The Applicant’s solicitors argued that although the Applicant sustained burn injury to various parts of his body, jogging only related to the Applicant’s physical condition and unrelated to his burn injury. They were further instructed that the Applicant’s treating doctors encouraged him to do more sports to assist rehabilitation. 15. It was argued that the plastic surgery experts should view the Video and express their opinion on :
because the court would not be equipped to answer these highly relevant and material questions, and then to go on and decide whether the Applicant was exaggerating or malingering. IV. Respondent’s case 16. The Respondent’s solicitors submitted that the court in assessing the Applicant’s work capacity and hence employees’ compensation under the Employees’ Compensation Ordinance would not just rely on expert medical opinion. The court would also be bound to consider the factual evidence such as the oral evidence from the Applicant as to his injuries and disabilities (as reflected in his witness statement as to quantum), and the Video. 17. It was argued that the First and Second Reports had thoroughly set out the opinion of the plastic surgery experts on the Applicant’s injuries, treatment and lasting impairment, and the effect on his work capacity. The trial judge would be well equipped to assess and weigh the opinion expressed in the First and Second Reports in light of the surveillance footage in the Video to decide whether the Applicant had been exaggerating or malingering. The absence of any Third Report would not preclude the court from discharging its adjudicating function as final arbiter of fact to evaluate the evidence and come to its own assessment of the Applicant’s work capacity. 18. The Respondent’s solicitors also reminded that to obtain the Third Report now would only lead to delay (and postponement of the assessment hearing) and costs when such expert report was neither necessary nor helpful. V. Discussion 19. I respectively agree with Suffiad J and Yam J that leave should be obtained in the first place for further expert medical report to comment on any covert surveillance footage of the activities of the claimant. On such application for leave, the court will exercise its discretion on the basis of whether such further expert medical evidence is relevant, necessary and of probative value. This really depends on the circumstances of each case, and in particular the nature/extent of the claimant’s injuries and the nature of his pre-accident work, and the expert medical opinion already given by the experts. 20. First of all, it should be remembered that surveillance evidence often provides a “snapshot” in time of the claimant. If the surveillance footage shows the claimant performing tasks or carrying out activities which he says he cannot undertake and such video surveillance evidence arguably undermines the fundamental medical premise of the expert medical opinion, it is more likely that the court will grant leave for the medical experts to comment on the footage. 21. For example, where there is an arguable risk of misdiagnosis if the surveillance footage is not shown to the medical experts (as in the case where medical expert(s) opined that the limited range of limb movement displayed during physical examination and as disclosed by the claimant was suggestive of a certain medical diagnosis but the claimant is shown doing cartwheels in the surveillance footage), there can be no doubt that the medical experts should be asked to comment on the surveillance video recording to confirm or revise the diagnosis. 22. But where the surveillance evidence seeks to undermine the claimant’s credibility rather than the medical premise for the expert medical opinion, then it may not be inevitably necessary for the medical expert(s) to comment on the footage because “[that] is an exercise that a court will be well equipped to do and to compare what can be seen of a plaintiff with the opinions already expressed by their experts in their reports, and then to decide whether the plaintiff is exaggerating or malingering” (see Khan Shiraz at para.17). 23. For example, if medical expert(s) have already noted inappropriate signs and little objective evidence in relation to the claimant’s complaints, so that his/their medical opinion turns largely on assumptions of fact (ie the claimant’s assertions of subjective pain and suffering), then it may not be necessary for the medical expert(s) to review the surveillance evidence that shows the claimant’s ability to function in certain daily activities. The court as arbiter of fact will be in a position to consider and weigh the evidence before it, including the treatment medical notes/records/reports, expert medical opinion, oral evidence of the claimant and other witnesses, and the surveillance evidence, to determine whether there is material and significant discrepancy between the presentation by the claimant to the medical expert(s) and his conduct when observed going about his daily activities, and whether his ability to sustain productive employment (as distinct from activities of daily living) is impaired. It is the entirety of the evidence rather than expert medical opinion alone that will reveal whether the claimant has been exaggerating and (at least in part) consciously seeking to mislead the medical expert(s) and the court, or whether he is actually not free from pain and suffering but has been using coping strategies to deal with his condition in carrying out the relevant activity and/or he may have more intense or prolonged period of pain and suffering after such activity. 24. With the above approach in mind, I turn to the circumstances of the present case. 25. Here, the Applicant’s chief complaints are his burn scars (which he regarded as unsightly) at various parts of his body. He also complained of itchiness and tightness of the burn scars that caused reduced dexterity of his right thigh and left wrist as compared before the Accident. According to his witness statement, his pre-Accident work included mechanical installation and welding work, which included underground work, moving heavy machinery and pipes, climbing up and down, squatting and standing for extended periods. 26. There is no suggestion in the Applicant’s witness statement or in his complaints to the plastic surgery experts that he is not generally mobile. Indeed, in the single joint psychological expert report by Dr Anita Leung dated 26th February 2009, it was clear that the Applicant went about strolling in the park every day and that he would pay monthly visits to his parents and take his younger son out for cycling and table tennis weekly. Further, he was keen to resume work and was looking for work as security guard and restaurant worker, and was willing to seek vocational retraining for other skilled work. 27. More importantly, Dr Chow and Dr Au found that the Applicant’s work ability was limited by the factors in paragraph 13 above, and there was no suggestion of any scar contracture or any other cause related to his burn injury that would result in reduced mobility or contracture of joints that would limit mobility. On the materials before this court, there is also no compliant from the Applicant of any significant physical impairment in relation to mobility that is unrelated to the burn injury. At best, there is complaint of tightness at the site of the burn scars that reduced dexterity of the right thigh and left wrist. 28. In my view, it is a matter of factual evidence for assessment by the trial judge as to whether the Applicant has any difficulty in climbing, squatting and/or underground work in the context of his current physical and mental condition and of the nature of his pre-Accident work. In such circumstances, the Video does not challenge the medical diagnosis or the underlying premise for the medical opinions expressed by Dr Chow and Dr Au, which as pointed out above, are largely in agreement. 29. One needs to bear in mind that in employees’ compensation cases, the court is essentially concerned with compensation for loss of work ability and not with general loss and damages in respect of the injured employee’s disabilities and rehabilitation. In light of the aforesaid, I find that the trial judge will be sufficiently equipped to assess and weigh the surveillance, medical and lay evidence to come to a view as to the Applicant’s work impairment (if any) and the suitability of the Alternative Work (especially in an air-conditioned work environment over a sustained period) even without the Third Report, and that the Third Report is neither necessary or of probative value for the final adjudication. 30. I therefore decline leave for the Applicant to seek supplemental expert medical opinion to comment on the Video. The previous directions do stand, and the hearing of the assessment of compensation is not to be warned before 2nd June 2009. 31. I further grant a costs order nisi that the Applicant do pay to the Respondent costs of the application by the JWA to be taxed if not agreed.
Representation: Messrs Peter K H Wong & Co for the Applicant. Messrs Chong & Partners for the Respondent. |
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