Abid Khan v. Queen Wan Ltd
Read the full judgment text of DCEC 71/2008 on BabelCite. This District Court judgment.
1. The Applicant was employed by the Respondent as a delivery man. He claimed that at/about 11:00am on 9 th October 2006, he was delivering 10 returned bags of rice by a hand trolley from the warehouse to the company truck parked outside a hotel (“Hotel”). The hand trolley overturned on the uneven road surface leading to the entrance, and the bags of rice fell on his shoulder and collarbone (“Accident”). The Applicant claimed he suffered injuries to his back and knee as a result of the Accident.
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DCEC71/2008 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO. 71 OF 2008 ------------------------ BETWEEN
---------------------- Coram: H H District Judge Marlene Ng in Chambers (open to the public) Date of Hearing: 15th May, 2009 Date of Handing Down Ruling: 11th June, 2009 ---------------------- RULING -------------------- I. Introduction 1.The Applicant was employed by the Respondent as a delivery man. He claimed that at/about 11:00am on 9th October 2006, he was delivering 10 returned bags of rice by a hand trolley from the warehouse to the company truck parked outside a hotel (“Hotel”). The hand trolley overturned on the uneven road surface leading to the entrance, and the bags of rice fell on his shoulder and collarbone (“Accident”). The Applicant claimed he suffered injuries to his back and knee as a result of the Accident. 2.On 15th January 2008, the Applicant commenced the present proceedings against the Respondent for recovery of employees’ compensation. The Respondent by its Answer dated 13th March 2008 denied liability and put the Applicant to strict proof of his claim. 3.According to the Certificate of Assessment issued on 24th December 2008 (“Form 7”), the Employees’ Compensation (Ordinary Assessment) Board (“Board”) assessed inter alia the loss of earning capacity permanently caused by “back and right knee injury resulting in prolapsed intervertebral disc at L4/5” to be 5%. 4.On 30th December 2008, the Applicant objected to the assessment of loss of earning capacity in the Form 7 and his reasons for objection were as follows :
5.By the Certificate of Review of Assessment issued on 13th May 2009 (“Form 9”), the Board assessed the loss of earning capacity permanently caused by “back and right knee injury resulting in prolapsed intervertebral disc at L4/5 with back pain and numbness” to be 5%. 6.On 14th May 2009, the Applicant filed Notice of Appeal against the assessments in the Form 9. 7.The parties have obtained and disclosed a joint orthopaedic expert report dated 28th March 2009 by Dr Patrick Wong (“Dr Wong”) for the Applicant and Dr David Cheng (“Dr Cheng”) for the Respondent (“Report”). 8.The Applicant now applies for leave to adduce psychiatric expert evidence, and the Respondent opposes such application. 9.To address such disputed issue, it is necessary to start with the medical condition and treatment of the Applicant since the Accident. II. Medical history 10.According to the Applicant’s witness statement dated 21st July 2008, the hand trolley together with the bags of rice fell on his shoulder, collarbone and chest, and he felt immediate pain. After being rescued by his colleague, he was taken to the Prince of Wales Hospital (“PWH”). 11.The following information on the Applicant’s medical condition/treatment is drawn from the averments in the Application, the Applicant’s witness statement, various reports from the public hospitals, various reports by Canadian Asian Back and Neck Institute (“CANBI”), and the Report. 12.The Applicant was treated at PWH’s accident and emergency department. There was pain over his right knee and back. Examination and x-rays of the right knee and back were normal. He was discharged on the same day and referred to the orthopaedics trauma clinic (“OT Clinic”). 13.The Applicant claimed he felt very painful in the evening, and it was so intolerable that he consulted PWH again. He was first seen at the OT Clinic on 13th October 2006. Clinically, the Applicant got low back pain with left lower limb tightness sensation and bilateral lower limb numbness. Walking tolerance was 15 minutes. But examination of the right knee was normal with full straight leg raising and normal neurology. 14.The Applicant received 22 sessions of physiotherapy treatment between 1st November and 18th December 2006 at Kowloon Hospital (“KH”). Upon initial assessment on 23rd October 2006,
15.The Applicant received magnetic therapy and electrical nerve stimulation therapy with graded back exercises. He claimed he did not receive any treatment for his right knee. Upon re-assessment on 18th December 2006, the Applicant reported similar back pain. All active ranges of trunk movements were restricted by pain. As “the condition was plateau off”, he was discharged from outpatient physiotherapy with home programme. 16.When he re-attended the OT Clinic on 9th November 2006, the Applicant complained of tenderness from L1 down to coccyx. There was paraspinal tenderness and spasm but no left leg weakness. For the left leg, power was full and reflexes normal. X-ray was normal. It was noted that physiotherapy yielded static progress with not much improvement. The Applicant claimed to have severe pain such that he could not resume any duty. 17.According to the Applicant’s witness statement, he could not sleep at night because of the pain, and he could not even turn his back to the other side. There was consistent pain in his low back with stretching pain and numbness sensation radiating down his entire left leg and the posterior aspect of his right leg down to the heel. The pain was worse when he sat down for about 15-20 minutes and when he walked for about 15 minutes. 18.The Applicant attended CANBI’s rehabilitation follow up programme arranged by the Respondent’s insurer. At the assessment on 30th November 2006, CANBI’s physiotherapist noted that the Applicant’s reported signs and symptoms about back injury were often inconsistent on examination and the severity of the claimed symptoms could not be validated. 19.CANBI’s physiotherapist stated in the Rehabilitation Assessment Report dated 12th December 2006 that the Applicant presented with both physical and behavourial barriers to recovery. In respect of physical barriers, it was said that he has no knowledge for pain control and there was muscle weakness and physical de-conditioning owing to being off work and inactive for almost 2 months. In respect of behavourial barriers, “[he] presented with inconsistencies and pain focused behaviour during the examination”, claimed to have received physiotherapy treatment for low back only, and “was worried about returning to his previous job, owing to his own perceived severity of injury and the job nature which requires repeated heavy manual lifting”. Consequently, CANBI’s physiotherapist recommended active rehabilitation programme for 4 weeks at a frequency of once per week to commence as soon as possible. 20.On 4th January 2007, the Applicant informed CANBI that his condition remained unchanged after physiotherapy treatment, and he still experienced severe pain in his back and lower limbs. It was worse with sitting, standing and walking for over 15 minutes. Physical examination by the physiotherapist at CANBI revealed marked inconsistencies and pain focused behaviour, and continued rehabilitation treatment was recommended. 21.The MRI scan taken on 10th January 2007 revealed “[central] posterior disc extrusion at L4/5 …… causing spinal stenosis with crowding of cauda equina” and “[mild] wide base posterior bulging disc at L5/S1 level” causing no significant spinal stenosis. There was loss of normal lumbar lordosis likely due to spasm of paraspinal muscles. 22.The Applicant was seen by the physiotherapist at CANBI on 25th January 2007 with no substantial change on physical examination. According to the Applicant’s witness statement, he took the MRI scan report to PWH for further treatment. 23.On 1st February 2007, the Applicant re-attended the OT Clinic for persistent back pain and tight sensation over lower limb. The doctor at PWH recommended surgical intervention. Consequently, CANBI discharged him from their rehabilitative programme on 24th February 2007. 24.On 4th May 2007, as a result of failure of conservative treatment, the Applicant received disectomy of L4/5 by minimal invasive surgical technique. The surgeon reported removal of all protruding disc material, and the nerve roots were completely decompressed. After the operation, the Application was transferred to Tai Po Hospital (“TPH”) for convalescence from 9th May to 2nd June 2007. According to the Report, the discharge summary noted “post-op pain relief minimal subjectively, walk with frame. Waddell 3/5 (3 +ve out of 5 test)”. But according to the medical report of TPH dated 28th September 2007, the Applicant could “walk with frame and no pain”. 25.The Applicant also received 8 sessions of physiotherapy treatment at KH from 12th June to 6th July 2007. Upon initial assessment on 13th June 2007,
26.Graded back exercises to improve trunk mobility were started on 27th June 2007. The Applicant refused any physiotherapy treatment except hot pack and gentle exercises. Upon re-assessment on 6th July 2007, the Applicant reported similar pain. All active ranges of trunk movements were restricted by pain. As his condition was static, the Applicant was discharged from outpatient physiotherapy with home programme. 27.During subsequent follow up by PWH’s orthopaedic unit, the Applicant complained of same symptoms of pain and that he could not resume duty, but physical examination was unremarkable. He was last followed up on 20th August 2007. There was residual back pain. Straight leg raising was 60º on both sides. The Applicant was not keen for further physiotherapy. 28.The Applicant was referred to the Pain Clinic of Queen Elizabeth Hospital (“QEH”). He was first seen at QEH’s Pain Clinic on 3rd April 2008. The results of physical examination were as follows :
29.On 30th July 2008, facet joint injection was done. Bilateral L3/4, L4/5, L5/S1 facet joints were identified and injected with local anaesthetics and steroid. But when the Applicant re-attended QEH’s Pain Clinic on 2nd October 2009 (ie 2 months after the facet joint injection), he complained there was no improvement. The option of repeat facet joint injection was offered, but was refused. The impression of the physician was “clinical facet pain with presence of Waddell’s signs. Negative diagnostic facet block. ? component for disc pathology”. 30.According to the Form 9, the Applicant was on sick leave for various intervals from 9th October 2006 to 29th April 2009. III. Present complaints 31.According to the Applicant’s witness statement, the back, right knee and both legs were still painful and stiff. It was difficult for him to bend his right knee, and if he did so there would be more pain when he straightened his leg. The pain also radiated to both legs. The Applicant claimed he could not return to his pre-Accident job because of back and knee pain. He was very worried about the future and about not being able to support his family. 32.According to the Report, the Applicant informed Dr Wong and Dr Cheng that he had constant back pain and a sense of tightness over the back. He claimed that his sitting and walking tolerance was about 20 minutes then he would need a change of position and stretching out. He rated his degree of “pain (scale of 1 to 11)”, and claimed there was little improvement after the surgery except that he could stand for a longer time. The Applicant further complained of pain over the right knee and numbness which radiated up to the hip region. There was similar numbness on the left side. IV. The Report 33.Dr Wong and Dr Cheng noted during physical examination that the Applicant could walk normally without the stick which he carried on his right hand. The Applicant claimed there was pain over the back on standing on one leg, and pain at the back and knees on squatting. But he could squat and rise normally. Examination of the back revealed no deformity or muscle spasm, but there was tenderness over the entire low back. X-ray of the lumbar spine showed normal alignment but slight reduction of lumbar lordosis and evidence of fenestration at the lamina of L4/5 (ie L4/5 disc space reduced). Straight leg raising test was 30º bilateral without pain, but 80º on sitting position without pain. Reflexes and sensation were normal with no muscle wasting. Waddell’s tests (axial compression, shoulder compression, hip rotation and pinch test) were all positive. As for the knees, there was full range of motion with no muscle wasting. 34.Dr Wong and Dr Cheng opined that if the Accident did happen, it probably caused a simple contusion of the back and right knee. But the clinical picture was that of persistent pain, and the result was fair after conservative physiotherapy treatment for about 3 months. The MRI findings were features of pre-existing degeneration with no actual compression of the nerve roots, but it was possible that the “extrusion with crowding of cauda equina” was aggravated by the Accident. Unfortunately, the results of physiotherapy, subsequent surgery and facet joint injection were mediocre. 35.The orthopaedic experts noted that even though it was almost 2½ years after the Accident, the Applicant still complained of severe pain, poor sitting/standing/walking tolerance, tightness of the back and paraesthesia of the lower limbs. Dr Wong and Dr Cheng detected little objective signs of any significant back pathology, but instead noted many inappropriate signs including positive Waddell’s signs, inconsistent straight leg raising tests etc. They went on to say as follows :
36.The orthopaedic experts opined that the Applicant had reached a stablised state and no further orthopaedic treatment would help. However, as the Applicant is a young man of 30, Dr Wong and Dr Cheng recommended that his treating doctors should explain his condition to him. “With time, resumption of activities and work, regular exercise, and settlement of the litigation, we expect improvement” (my emphasis). The orthopaedic experts agreed that it was not advisable for the Applicant to resume work requiring frequent lifting. However, he should be able to resume less heavy work, such as security guard, watchman, messenger etc. 37.Dr Wong and Dr Cheng noted the Applicant was granted sick leave from 9th October 2006 to 20th November 2008. “We agree that this is reasonable, as [the Applicant] is following his treatment plan.” The orthopaedic experts also agreed with the Board’s assessment of 5% loss of earning capacity. V. Subsequent developments 38.Dr Wong in his solo supplemental report dated 28th April 2009 reiterated the joint opinion that at least part of the Applicant’s current symptoms was non-organic in nature and that he and Dr Cheng suspected the Applicant had developed an abnormal response to his injury. Based on the Applicant’s solicitors further instructions on 1st April 2009 (“Instruction Letter”) giving information that “[the Applicant] feels anger and frustration for whole day and always shouting to his family members without reason”, Dr Wong believed it was reasonable for the Applicant to be assessed by a psychiatrist to see if he had developed any genuine psychiatric condition in relation to the Accident or not. “Actually, it is not uncommon for an injured worker to develop psychiatric condition such as depression after prolonged inability to return to work and put under psycho-social stress as a result.” 39.Mr Clement, solicitor for the Applicant, submitted that although the Applicant’s sick leave had expired, he would soon attend QEH’s Pain Clinic to see whether to have an injection into the muscles around the spinal nerves for pain relief or not. In addition, the Applicant was organising a psychiatric appointment at a public hospital, but due to “fierce demand and slow pace”, the Applicant was still awaiting confirmation of the date for his first appointment at the time of the hearing before me. In other words, the Applicant has not received any psychiatric treatment prior to such hearing. 40.Subsequent to the hearing, the Applicant’s solicitors wrote to the court on 27th May 2009 to advise that the Applicant’s first psychiatric appointment was scheduled on 16th June 2009 at East Kowloon Psychiatric Centre. 41.On the same day, the Respondent’s solicitors wrote to draw the court’s attention to the appointment slip which stated “HAA01 (26/05/09 12:41)”. The Respondent’s solicitors submitted that this meant the appointment was obtained on 26th May 2009, ie 11 days after the hearing before me. VI. Corresponding personal injuries action 42.According to the Appendix D information lodged by both parties, the Applicant commenced corresponding personal injuries action on 1st April 2009 (ie HCPI No.349/2009 (“PI Action”)) against the Respondent with the same legal representation as in the present proceedings. The Check List Review hearing was scheduled on 28th August 2009. On 28th April 2009, the Respondent/Defendant issued third party proceedings in the PI Action against the Hotel. 43.On 29th April 2009, the solicitors for the Respondent/ Defendant responded to the proposal by the Applicant/Plaintiff for obtaining psychiatric expert evidence for the PI Action by requesting (a) copies of any medical report/record relating to the Applicant’s/Plaintiff’s psychiatric problem (if any) and (b) failing such report/record, information as to when the Applicant started to have a psychiatric problem and whether/when he received psychiatric treatment. They also asked for a copy of the Instruction Letter. 44.On 5th May 2009, the solicitors for the Applicant/Plaintiff explained that due to fierce demand and slow pace in organising psychiatric service at public hospital, the Plaintiff was still awaiting the exact date for his first appointment. In the meantime, they proposed to appoint Dr Lo Chun Wai either as single joint expert or as the Applicant’s expert for joint examination of the Applicant/Plaintiff with the psychiatric expert for the Respondent/Defendant. 45.On the same day, the solicitors for the Respondent/ Defendant wrote to the Hotel as follows :
and asked whether the Hotel wished to appoint its own expert to conduct a joint examination with Drs Lo and Ho. 46.At the time of the hearing before me, the Applicant/Plaintiff and Respondent/Defendant were awaiting a reply from the Hotel in relation to participation in the joint psychiatric assessment. VII. Applicant’s case 47.Mr Clement applied for adjournment of the present proceedings to, say, 30th October 2009 pending the availability of the joint psychiatric expert report to be obtained in the PI Action for use in the present proceedings as well. Mr Clement submitted that psychiatric expert evidence was relevant given the Applicant’s severe pain and symptoms and the suggestion by the orthopaedic experts that part of such pain and symptoms were non-organic in nature. VIII. Respondent’s case 48.Mr Tang, solicitor for the Respondent, submitted that psychiatric expert evidence would be unnecessary and the case was ready to be set down for trial. It was argued that any psychiatric impairment suffered by the Applicant, if at all, was unrelated to the Accident because :
IX. Discussion 49.It is true there is no mention in the available medical reports or in the Forms 7 and 9 of any recognisable psychiatric illness. But such fact alone (though relevant and possibly even weighty) is not necessarily determinative as to whether psychiatric expert evidence is required or not. After all, the available medical reports are from the orthopaedic and physiotherapy disciplines, and assessment by the Board is necessarily based (at least partly) on review of such reports. I also bear in mind that in Form 9 the Board has included “back pain and numbness” as part of the description of the relevant injury, and the Applicant has appealed against the Form 9, so ultimately the court has to start afresh by considering all the relevant evidence in order to assess the relevant injury and repercussions, the appropriate sick leave period, and loss of earning capacity. 50.The question here is whether psychiatric expert evidence is relevant, necessary and of probative value for the purpose of fairly disposing of the cause or matter and/for saving of costs. 51.Mr Clement placed great weight on Dr Wong’s opinion that it would be reasonable for the Applicant to be assessed by a psychiatrist. I find such recommendation neutral. I am mindful of the observations of Fung J in Farman Khan v Lau Kai Hong and Lau Siu Yuk trading as Shun Sum Engineering Company (a firm) HCPI850/2008 (unreported, 29 April 2009) which concerns an appeal from the PI Master who refused leave for the plaintiff to adduce expert evidence from inter alia a psychiatrist where there was no prior psychiatric consultation at any public hospital or clinic but the orthopaedic expert regarded a psychiatric referral reasonable. 52.In that case, Fung J said as follows :
53.In the present case, Dr Wong’s recommendation is partly based on the Instruction Letter giving information that the Applicant felt anger and frustration for the whole day and was always shouting to his family members for no reason. But such assertion cannot be found in the Applicant’s witness statement and/or supplemental witness statement dated 21st July 2008 and 31st March 2009 respectively, and there is no evidence before me of the Applicant having made such complaint to his treating doctors and/or to the orthopaedic experts. Mr Tang submitted that such assertion is self-serving. There is no need to me to come to any particular on this as I find Dr Wong’s recommendation to be at best neutral rather than indicative of any real possibility of the Applicant suffering from a recognisable psychiatric illness. 54.Mr Clement also placed great weight on the letter dated 5th May 2009 from the Respondent’s/Defendant’s solicitors to the Hotel in respect of the PI Action. He submitted that by such letter the Respondent/Defendant unequivocally acknowledged that psychiatric expert evidence would be relevant, and that it even went so far as to identify Dr Peter Ho Pang Nin as its psychiatric expert. Since both the present proceedings and the PI Action are concerned with personal injuries suffered by the Applicant as a result of the same Accident, Mr Clement contended that psychiatric expert evidence would be relevant in the present proceedings as well. 55.Mr Tang argued that such letter was sent to the Hotel on the basis of the letter dated 29th April 2009 from the Applicant’s/Plaintiff’s solicitors proposing psychiatric expert evidence. In fact, the Respondent’s/ Defendant’s solicitors did by letter dated 29th April 2009 ask the Applicant/Plaintiff to disclose information as to any psychiatric condition/treatment (see paragraph 43 above). Mr Tang submitted that since the reply from the Applicant’s/Plaintiff’s solicitors on 5th May 2009 (ie the same day as the aforesaid letter from the Respondent’s/ Defendant’s solicitors to the Hotel) revealed there was no prior psychiatric treatment, the Respondent/Defendant was plainly entitled to revisit the issue. 56.Again, I consider the aforesaid preliminary developments in the PI Action neutral. The considerations going to a common law claim seeking fault-based compensation for injuries and disabilities suffered by a claimant (including claim for pain, suffering and loss of amenities) are somewhat different from a claim for employees’ compensation that focuses on work-related impairment/recovery and their impact on earning capacity. I am not persuaded it necessarily follows from the very preliminary developments in the PI Action as discussed above that psychiatric expert evidence is relevant and necessary in the present proceedings. 57.Nevertheless, there is no dispute that the Applicant has not received any psychiatric treatment and has not even been referred to psychiatric service by his treating doctors prior to the hearing before me. Further, irrespective of whether the Applicant’s first psychiatric appointment was delayed due to an overburdened public psychiatric service or not, there is no doubt that his first psychiatric appointment of 16th June 2009 was fixed on 26th May 2009. 58.I note that in Farman Khan Fung J ultimately dismissed the appeal and said as follows :
59.But each case has to be decided on its own facts, and likewise my ruling herein is also confined to its own facts. 60.Although Mr Clement in his oral submissions before me floated the possibility of somataform pain disorder, he did not place any supporting material before me indicative of any recognisable psychiatric illness. On the materials before me, I am not persuaded that psychiatric expert evidence is relevant or necessary. However, I am also not persuaded it is right, as Mr Tang sought to argue, to fix a trial date just yet. In my view, it is relevant and useful to await the availability of a report from the East Kowloon Psychiatric Centre on the assessment/ evaluation of the Applicant following the first psychiatric appointment on 16th June 2009 (“EKPC Report”). 61.Quite apart from any recognisable psychiatric illness, a main feature of the present case is the presence of allegedly severe and persistent pain/numbness, and consequent functional impairment. This raises a number of issues :
62.It is normal human experience to feel unhappy in face of adversity, but ordinary emotions of grief, anxiety, distress or any other normal reaction are not conditions for which the Employees’ Compensation Ordinance Cap.282 gives compensation. Some people do not develop psychiatric condition or “abnormal” reaction in response to even the most serious traumatic event or the most extreme stressor, but it is common knowledge that some unfortunately do. 63.According to the Report, it is common ground between Dr Wong and Dr Cheng that the severity and duration of the Applicant’s symptoms exceed what orthopaedists ordinarily expect from the objective physical findings, so they have concluded that some part of the symptoms are non-organic in nature as reflected by the “inappropriate” and Waddell’s signs they observed. 64.If the matter had stopped short there leaving a confined contest between subjective complaints by the Applicant and objective findings by the treating/expert doctors, I agree that no further investigation will be required, and the trial judge can sufficiently assess the reliability of the Applicant’s allegations on the basis of the existing reports and witness evidence to determine whether the claim is feigned/exaggerated or genuine. 65.But the present case goes further. I note that both orthopaedic experts :
66.This echoes the observations by CANBI’s physiotherapist as early as in December 2006 (ie 2 months after the Accident) that the Applicant had pain-focused behaviour and poor knowledge of pain control, and was worried about returning to his pre-Accident work which required heavy manual lifting. I further note that the Applicant’s treatment plan to date is not only for functional restoration (eg physiotherapy) but also for pain relief (eg facet joint injection). 67.Against such background, Mr Tang submitted that it was the Respondent’s intention to test and challenge the reliability of the Applicant’s “abnormal” response and apprehension to heavy manual labour at trial, and to suggest that the “inappropriate” signs are indicative of better recovery than alleged by the Applicant. 68.Such stance not only puts the reliability of the Applicant’s allegations in issue, but also cast doubt the genuineness of the causation and rehabilitation of the Applicant’s pain reaction. In such circumstances, behavioural evaluation of the Applicant’s “abnormal” reaction by the public hospital psychiatric service cannot be said to be irrelevant or unnecessary. Indeed, such evidence will be helpful to the trial judge in assessing the nature and extent of the repercussions of the Applicant’s physical injuries in the form of pain and suffering, and in determining the degree of improvement (whether by way of functional restoration or symptom reduction) and hence increase in work capacity that can be expected by pursuing the present or other treatment modality. Although Dr Wong and Dr Cheng both opined that no further orthopaedic treatment would help the Applicant, they still expected further improvement with time (see paragraph 36 above). 69.I remind myself that at the pre-trial stage and in the context described above, the court has to balance the need to safeguard against feigned or illegitimate claims and the need to ensure deserving claims for injuries that may or may not fall short of medically proved psychiatric impairment are not excluded. Whilst recognising the laudable underlying objectives of proceeding with litigation expeditiously and proportionately, I must not lose sight of the primary aim of case management which is to facilitate a just determination. 70.That said, it does not follow that psychiatric expert evidence is necessarily required or even of probative value. For the purposes outlined above, it is likely that well-documented evaluation/assessment by the public hospital psychiatric service may well be sufficient. In Ho Man Fong v Sime Darby Motor Services Limited HCPI196/2003 (unreported, 19th July 2005), Suffiad J wisely warned against alleging psychiatric impairment unnecessarily with a hope that it would increase the quantum that might be recovered at the end of the day. 71.In the circumstances, I direct that the Applicant do file and serve the EKPC Report on or before 14th August 2009. It is also sensible for the Applicant in the meantime to ascertain from QEH’s Pain Clinic whether injection into the muscles around the spinal nerves is or will be advised for pain relief, and if so, to file and serve an updated report from QEH’s Pain Clinic as to such treatment plan and prognosis also on or before 14th August 2009. I further direct the parties to attend a Direction Hearing before the EC Judge at 11:30am on 28th August 2009 for directions as to further progress the case or to set the case down for trial. 72.In this case, neither party got what they have applied for. I did not grant directions for psychiatric expert evidence as requested by the Applicant nor did I set the case down for trial as requested by the Respondent. I therefore grant a costs order nisi that costs of the Direction Hearing on 15th May 2009 be costs in the cause, and the Applicant’s own costs be taxed in accordance with Legal Aid Regulations.
Representation: Mr Richard Clement of Messrs Massie & Clement for the Applicant. Mr Tang Chi Keung of Messrs Paul C K Tang & Co for the Respondent. |
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