Tsang Siu Kui v. Gallantly Ltd

HCPI 308/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 308 OF 2009

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BETWEEN

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Before: Hon Fung J in Chambers

Date of Hearing:  9 February 2010

Date of Decision:  9 February 2010

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D E C I S I O N

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1.The Defendant is appealing against the Master’s refusal to obtain supplement neurological report on life expectancy.

2.The Plaintiff was hit by the collapsible side of the flat-track container truck. His spine, pelvis and lower limbs were crushed, with resulting Cauda Equina (paralysis of the lower spinal nerve roots). He has no cognitive deficit now, but has double incontinence and mobility problem: walking short distance indoor by aids, and wheelchair outdoor.

3.The expert evidence comprises of orthopaedic, urological, neurological and occupational therapist reports.

4.The respective neurological experts are Dr Gardian Fong, for the Plaintiff, and Dr Edmond Woo, for the Defendant.

5.Dr Woo gave a preliminary opinion of 20% reduction in life expectancy according to the Frankel Grade D for disability for lower spine injury by reason of lower limbs weakness, double incontinence, urinary tract dysfunction renal failure. Dr Fong agrees generally with the parameters and observations. However, both doctors need a joint examination before confirming their opinion.

6.Miss Yang, for the Plaintiff, changed from fundamental objection to urologists over neurologists. She said the Plaintiff is not suffering from any neurological deficit, and it is outside the neurologists’ scope to look at urinary tract infection. She said the urologists could better predict given the improvement with treatment. She pointed out that life expectancy evidence had been given by urologists in Ta Xuong v The Incorporated Owners Of Sun Hing Building HCPI 496/1995.

7.Miss Lee, for the Defendant, pointed out that both Dr Woo and Dr Fong have given a preliminary opinion, while the urologists have only considered ongoing treatment without life expectancy.

8.In considering life expectancy, one cannot shy from the fact that it is really guesswork based on the current medical condition and physical disabilities. Miss Yang criticized the reference to the Frankel Grade as academic, but at least they are the parameters the respective doctors agreed, and also what the urologists had used in Ta Xuong.

9.I am not saying that the neurologists will treat the Plaintiff’s urinary problems, but I can see that neurologists do have experience conventionally in looking at life expectancy based on the compendium of factors including spinal injuries. I do not see the Plaintiff’s urinary complications are of such that only urologists can be able to comment. Either the neurologists or urologists may be give an opinion in this case.

10.Here, Dr Woo and Dr Fong are in much agreement. I think it is reasonable and convenient that they be allowed to see the Plaintiff before finalizing their views.

11.Hence, I allow the appeal and order the joint supplemental report be obtained within 56 days.

12.The parties shall thereafter have 14 days in turn for revision of the Statement of damages and Answers, if necessary.

13.Parties have indicated no objection to mediation. I order the case to be set down in the Running List (3 days reserved) by 17 May 2010 not to be warned before 19 July 2010 (unless order sanction by striking out claim added). That will give sufficient time for mediation.

14.I order the Plaintiff to pay the Defendant’s costs, summarily assessed at $50,000 here and $20,000 below.

15.I thank counsel for their submissions.

Ms Elizabeth Yang, instructed by Messrs Au Yeung, Cheng, Ho & Tin, for the Plaintiff

Ms Christina Lee, instructed by Messrs JSM, for the Defendant