Tsang Wai Fun v. The Secretary for Justice and Another

HCPI 1112/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1112 OF 2006

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BETWEEN

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Before: Hon Fung J in Chambers

Date of Hearing: 1 June 2009

Date of Decision: 1 June 2009

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D E C I S I O N

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1.There are 3 applications at this Pre-trial Review:

(1)  To adduce a supplemental report from Dr Yeung, the Defendant’s orthopaedic expert;

(2)  To order a joint psychiatric report by Dr Singer and Dr Chau, the respective psychiatric experts;

(3)  To call the respective orthopaedic and psychiatric experts to give oral evidence at the trial.

2.The Plaintiff was a manual worker employed by the 1^st Defendant.  She was assigned to work with the 2^nd Defendant to move some tables and chairs.  The Plaintiff alleged there was uneven distribution of weight such that the table moved towards her, and she sprained her back.

3.The Plaintiff had a prolapsed disc as diagnosed on MRI by the treatment doctor, and she had discectomy (back operation), but complained of lingering pain.  Both orthopaedic experts are of the view that she cannot return to the pre-accident job, but can take up lighter duties.

4.Dr Yeung, the Defendant’s orthopaedic expert, said the Plaintiff’s condition, barring exaggeration, is consistent with a spinal injury with surgical operation.  The issue is the degree of the pain.

5.There seems to be complications in that the Plaintiff complained of a suicidal episode, and upon the advice of the husband, she stopped work altogether in order to contain her psychiatric problem.  But even in the opinion of her own psychiatric expert, Dr Singer, there were elements of exaggeration.  The Defendant’s psychiatric expert, Dr Chau, said the Plaintiff might have problems, but the criteria for major depressive episode were not met, and quitting job was disproportionate.

6.I first deal with the supplemental report of Dr Yeung.

7.Ms Leung, for the Plaintiff, submitted that the case had dragged on for 2 years, and the supplemental report came too late.  I also pointed out that there is no joint orthopaedic report, and queried why Ms Li, for the Defendant, had not seen fit to ask for a joint report if she thought further opinion is necessary.  Very often when the Court allowed a supplemental report, there is the question of who should have the last word.  Joint report deals neatly with that problem and avoids serial supplemental reports in reply.  That is the requirement in the new Practice Direction.  In any case, it is too simply late.

8.Be that as it may, the issue is one of lingering pain.  It is a matter where the judge can sufficiently deal with on the existing reports and evidence from the Plaintiff.

9.It has been pleaded in the Defence that the pre-existing condition of spondylosis (spinal degeneration).  None of the reports has dealt with the scenario that even without the accident, the Plaintiff would have reached the current condition by reason of the pre-existing condition.  But spondylosis is not the only problem, as there was a prolapsed disc and discectomy, and even the Defendant’s expert said the disc prolapse is consistent with a spinal injury.  I’m not going to invite any further opinion on that point.

10.Hence, I disallow the supplemental orthopaedic report from the Defendant.

11.As to joint psychiatric report, it is for the judge to decide on the severity of the psychiatric problem, to resolve it on oral evidence and cross-examination.  The experts, in coming to the views on exaggeration, are merely referring to inconsistencies (such as those of the treatment psychiatrist).  The lawyers are primarily the persons to deal with them.  There are ample materials for the judge to work on.

12.Ms Li requested calling of all the experts. Ms Leung submitted that the reports could be adduced without oral evidence.

13.As I said the issues are the severity of the pain and the psychiatric condition in terms of exaggeration.  They are matters which the judge could deal with on the evidence and cross-examination.

14.I order the expert reports be adduced without oral evidence.

15.The parties asked for 4 days as there are 6 witnesses.  In view of likely arguments relating to suicide, I reserve 4 days on the Fixture List.  I direct that the Plaintiff have the case set down for trial within 4 weeks.

16.I order costs in the cause with Legal Aid taxation.

Ms Leung Hung Ning of Messrs Wan and Leung, assigned by the Director of Legal Aid, for the Plaintiff

Miss Patty Li, Government Counsel, instructed by the Department of Justice, for the Defendants