Cheung Fan v. Huawei Tech. Investment Co., Ltd

HCPI 987/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 987 OF 2007

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BETWEEN

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Before: Hon Fung J in Chambers

Date of Hearing: 25 May 2010

Date of Decision: 25 May 2010

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D E C I S I O N

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1.This 4^th Pre-Trial Review was called notwithstanding the case had been set down as the Plaintiff had requested the case be not warned pending various considerations including change of solicitors and challenging the evidence of the single joint expert (“SJE”).

2.The plaintiff alleged that his neck was injured by a box falling from a pile of about 7 feet.

3.This case came before me on 9 July 2009 after the order by the Master to set it down by January 2009 when preparation was apparently complete, but then to re-open it to call for orthopaedic expert evidence. On that day I ordered the SJE report from Dr Lau Hoi-kuen.

4.On 29 October 2009, I held a 2^nd PTR upon an occasion to change the SJE because Dr Lau was mentioned as the Defendant’s proposed expert in the Checklist Review questionnaire, and I ordered Dr Arthur Chiang be substituted for Dr Lau.

5.On 23 December 2009, I held a 3^rd PTR when the SJE report was available. At that stage it was decided that there was no need to call any doctors to give oral evidence.

6.On that day, psychiatric evidence was also considered. That application was refused because the treating doctor, Dr Wat, did not see any occasion or indication for psychiatric issues to be explored.

7.The case then went to mediation.

8.On 24 March 2010, the Plaintiff’s solicitors reported that settlement was not reached. The Defendant’s solicitors then indicated the case should be set down in the Running List with 3 days reserved, not to be warned before 1 June 2010. The Plaintiff disagreed and indicated that he was considering a change of solicitor.

9.I ordered that unless the case was set down for trial in the Running List with 3 days reserved within 14 days, the action would be dismissed.

10.Then came this letter of 14 May 2010 from the Plaintiff’s solicitors asking for the case not to be warned as that the Plaintiff was not satisfied with the report of Dr Chiang and wanted to challenge the SJE evidence. The Plaintiff’s solicitors also noted there was still a lot of problems as the Plaintiff wanted to change the solicitors and he was considering obtaining counsel’s advice.

11.In the SJE report, Dr Chiang observed that the previous medical reports noted tenderness on the neck and both the MRI and X-ray did not indicate any serious problem. Dr Chiang observed degenerative changes at C4/5 and C5/6 but they were mild anterior marginal osteophytes with absence of more significant degenerative changes, and they should not be relating or arising from the injury. Dr Chiang considered that the type of injuries in the circumstances described should have a good chance of resolving within a reasonable time. As there was no motor or sensory neurological deficit, the mild objective findings in the neck should have accounted for only mild current symptoms like stiffness and mild tightness. Dr Chiang considered that it had been 4 years since the injury, and as there was no permanently prolapsed disc there should have been a good chance of responding to physiotherapy. He considered that the Plaintiff would have been able to return to his pre-injury job, and whatever degree of reduction in efficiency should have allowed him to stay in the job.

12.Mr Ng, for the Plaintiff, was asked what were the grounds of challenging the opinion of Dr Chiang. He said according to the latest instructions of the Plaintiff, he does not wish to change his solicitor now, and there should be no application for the change of orthopaedic expert and they have already obtained the counsel advice on 17 May. The only outstanding issue is to file a Revised Statement of Damages to incorporate the relevant materials in the orthopaedic expert reports and 3 weeks are needed to prepare the document.

13.As the Plaintiff already had enough time, I allow 14 days and 7 days for the Revised Statement of Damages and the Revised Answer.

14.Ms Fung, for the Defendant, indicated their key witness will not be in Hong Kong in June. Hence, the case be not warned before 1 July.

15.Ms Fung asked for costs of this hearing because of the belated application by the plaintiff.

16.I allow summarily assessed costs of $2,500 for the Defendant in any event, with legal aid taxation of the plaintiff own costs.

Mr K W Ng of Messrs W K To & Co., for the Plaintiff

Ms M Fung of Messrs Mayer Brown JSM, for the Defendant