Soong Wing Chuen v. Fong Wai Shing t/a 茗典咖啡店

HCPI 690/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 690 OF 2008

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Before: Hon Fung J in Chambers

Dates of Hearing: 15 April 2010 and 19 July 2010

Date of Decision: 19 July 2010

Date of Reasons for Decision: 20 July 2010

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REASONS    FOR    DECISION

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1.The Plaintiff is appealing the decision of the Master dated 15 December 2009 refusing leave to adduce a joint psychiatrists report and a joint neurologists report.

2.The Defendant has since agreed to a joint psychiatrists report.  The issue is on the joint urologists report.

3.I dismissed the appeal at the hearing and here are my reasons.

4.The Plaintiff was a canteen chef employed by the Defendant.  The accident was on 24 October 2005.  The Plaintiff was standing on the top of an under-the-counter freezer (about 1 m height) in reaching a hanging cabinet.  He slipped and fell backward onto the floor, hitting his buttocks and the neck.  He alleged the causes of confined space and wet kitchen floor.

5.The plaintiff lost consciousness and was admitted to United Christian Hospital (UCH) with spinal cord injury.

6.Since about 2007, the Plaintiff complained of poor bladder control with frequent urgency and erectile dysfunction.

7.The Medical Report dated 3 July 2009 of Dr So Hing-shing of the Department of Surgery, UCH stated the complaint of Lower Urinary Tract Symptoms (LUTS) for more than 1 year, with symptoms mainly of urgency with urge incontinence and nocturia and also erectile dysfunction.  Urodynamic study was arranged to investigate for LUTS.

8.The Master refused leave to obtain joint expert report from the urologists as apparently it was premature pending the hospital’s report.

9.The result of the urodynamic study came out just before the hearing of the appeal on 15 April 2010 but without any write up by Dr So.

10.Mr Sakhrani further submitted that the urological symptoms did not relate to the index accident in 2005 as there could have been another accident in 2006.

11.Mr Sakhrani relied on the following materials:

(1)    Medical report dated 30 March 2006 of Dr Ng Ping-wing, Consultant in Medicine and Geriatrics, UCH, noting the complaint of neck and low back pain upon admission, but examination revealed no disturbance of sphincter function, no evidence of spinal cord compression, no abnormality in spinal cord function, and no significant neurological deficit, and the Plaintiff was discharged;

(2)    Functional Capacity Evaluation Report dated 22 March 2006 of Mr Pal Liu, Occupational Therapist, UCH stating the diagnosis of cervical myelopathy and cervical spondylosis at C3/4 and 5/6 and cord compression at C5/6, but queried the sensory complaint upon discrepancy between the Plaintiff’s presented sensitivity and fine motor performance as he was able to perform fine motor apprehension task, and the true occupational capacity of the Plaintiff could not be predicted.

12.In the joint orthopaedic report dated 30 July 2009, Dr Danny Tsoi, for the Defendant, said there was obvious pre-existing asymptomatic degenerative cervical spine, but suspected another injury in early 2006 due to initial improvement after the injury followed by delayed deterioration. 

13.On the other hand, Dr Brian Chan, for the Plaintiff, negated another injury because: (1) sign of myelopathy developed gradually after initial discharge; (2) no significant changes in MRI images on 30 August 2006 and previous ones; and (3) denial by the Plaintiff.

14.Mr Sakhrani submitted there was no urological complaint as at March 2006, and there could not be any in the absence nerve compression.  The present symptoms must have related to a subsequent accident.

15.Mr Hung, for the Defendant, submitted there were findings of nerve cord compression:

(1)    Medical Report dated 4 October 2007 of Kenneth Sun, Associate Consultant, Department of Orthopaedics and Traumatology, UCH noting the index accident with central cord syndrome and compression on the cord;

(2)    Functional Capacity Evaluation Report of the Occupational Therapist, UCH (supra) stating the diagnosis of cervical myelopathy and cervical spondylosis at C3/4 and 5/6and cord compression at C5/6;

(3)    Dr Ng corrected himself to add signs of mild myelopathy (not relating to cord compression per se) in the subsequent report of 2 October 2007;

(4)    Dr Tsoi retracting himself from a second accident and in definitive suspicion of a second accident.

16.The hearing on 14 April 2010 was adjourned to obtain the report by Dr So, with likely causes of the symptoms, if possible.

17.The Medical Report dated 12 May 2010 of Dr So stated:

(1)    The Plaintiff has an overactive bladder;

(2)    Between July 2009 and January 2010, the urinary symptoms improved upon medication (though with known side effect of some constipation);

(3)    Erectile dysfunction improved upon medication;

(4)    Both the overactive bladder and erectile dysfunction could be primary or due to neurogenic cause resulting from the index accident which would be difficult to exclude or confirm;

(5)    Long term control of the symptoms is required.

18.The Psychiatric Report dated 12 April 2010 of Dr Pang Pui-fai, Associate Consultant in Psychiatry, UCH stated the opinion of Depressive Episode, with incontinence and symptoms of the 4 limbs not typical of Depressive Episode, but erectile dysfunction may be so.  I consider such evidence is really sufficient for the purpose of the trial.

19.Upon seeing Dr So’s report and in the context of the issues of whether there was cord compression and/or 1 or 2 accidents, I am of the view that it is not necessary to obtain any further joint urologists report.

20.I asked whether discovery and/or further investigation on the diagnosis of cord compression before March 2006 is necessary.  Mr Hung said no and Mr Sakhrani did not disagree.

21.In the event, the appeal was dismissed.

Costs

22.Mr Sakhrani was right that Dr So’s report would do (so as Mr Hung predicted what Dr So would say was an overactive bladder).  Be that as it may, much time of the appeal was taken up in the investigation of the medical evidence on cord compression.  The submissions did not resolve the matter itself or the need for the urologist report, as the nature of the evidence requires trial of the matter.  Nevertheless, it was a useful exercise to survey the readiness of the evidence in preparation for trial.

23.Hence, I ordered that the Plaintiff do pay the costs of the appeal (which has taken up 1/10 of the hearings), and the remaining 9/10 of the costs of the hearings be in the cause as if it were a Pre-Trial Review.

24.I direct that parties do restore the matter before the Master within 21 days for Case Management Conference and/or setting down.

25.I thank counsel for their submissions.

Mr Andy Hung, instructed by Messrs Knight & Ho, assigned by the Director of Legal Aid, for the Plaintiff

Mr Ashok Sakhrani, instructed by Messrs Winnie Leung & Co, for the Defendant