HUI BING BING v. AIRPORT AUTHORITY

HCPI 916/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.916 OF 2003

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REASONS for DECISION

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1. This is the 6^th Interim Application by the plaintiff. To date a total sum of $613,300.12 have been paid over by the defendant.  

2. The plaintiff was a 32 year old Information Officer employed by the defendant when she was injured in an accident on 13.2.01. She says that as she was walking to the Control Tower of the Airport, the temporary platform she stepped on gave way, and she fell into a hole about 1 or 2 feet deep.

3. The Writ was issued on 26.8.03 and Liability was formally conceded 3 days later by a Consent Summons dated 29.8.03.

4. Hitherto the defendant has always been agreeable to the Interim Payment applications but this time the defendant has objected on the ground of risk of overpayment. It was submitted that the orthopaedic injuries were minor, and that if the action proceeded to trial it was “uncertain” whether the plaintiff would obtain substantial damages over and above the sum of $613,300.12. which had already been paid out.

5. The report of the psychiatric expert for the plaintiff Professor Chen Char Nie states that the plaintiff suffers from (1) Chronic Pain Disorder Associated with both Psychological and a General Medical Condition (DSM-IV Code: 307.89); and (2) Dysthymic Disorder of Late Onset (DSM-IV Code: 300.4).

6. The defendant’s psychiatric report is not yet available. It had been decided to schedule the examination by Professor Felice Mak after the plaintiff had completed the intensive course of psychotherapeutic treatment recommended by Professor Chen. The treatment is not yet completed. In fact the plaintiff’s argument is that she needs the interim payment of $100,000 to continue with the treatment recommended by Professor Chen.

7. The respective orthopaedic experts do not agree whether the back pain complained of was caused by the accident. At page 7 of his report Dr David Cheng for the defendant quoted from the report of Dr SF Wu of the accident and emergency department of Kwong Wah Hospital, and concluded that on the day following the accident there was no evidence the plaintiff suffered any injury to her back. Dr Cheng also relied on the fact that the first episode of back pain occurred one month after the accident. He doubted that a fall could be the cause of the bulge at L5/S1. In his view acute traumatic injuries such as a fall do not cause bulging. He said that bulging discs are usually due to desiccation and degeneration. He found the opinion of Dr Danny Tsoi at page 6 of the latter’s report “unacceptable”.

8. At page 6 of his report dated 6.1.02 Dr Tsoi opined that the appearance of the bulge “suggested it was caused by trauma”, and that “the captioned fall with buttock landing on ground was the cause of the disc bulge”. He explained that the force of the fall could have caused the weakness of the Annulus Fibrosis, which “might not be symptomatic immediately which could then explain the delayed onset of back symptoms”.

9. It was Dr Tsoi who advised examination by a psychiatrist because the severity of the pain complained of by the plaintiff was more than the objective signs.

10. Dr Stephen Ng is the treating psychiatrist. In a report dated 6.4.05 the treating psychiatrist he said that it would be in the plaintiff’s interest if her employer the Airport Authority would allow her to return to work. Dr Ng’s recommendation was : “I would suggest her to start working four hours a day initially for the first two months. I would like to continuously assess her condition in the mean time. I would recommend her employer to avoid giving her too heavy workload or the type of work requiring her to have too much contact with the other people.” The Airport Authority has replied that it was unable to find a job fitting this description in its organization.

11. The issue of causation is disputed. Causation is of course a matter for the trial judge, see paragraph 54 of the judgment of the Court of Appeal in Li Sau Keung v Maxcredit Engineering Ltd and Orthers, CACV 16 of 2003. It is not appropriate for me at this stage to assess the chance of an overpayment. As the application is contested I am duty bound to consider whether, in the circumstances, a risk as to overpayment exists.     

12. There will be no such danger if the plaintiff’s orthopaedic and psychiatric evidence is accepted by the trial judge. However if there is a possibility that the trial judge will accept the view that the plaintiff’s back problem was not caused by the accident, then there must be a risk of overpayment because in those circumstances the damages will be awarded for rather minor injuries. 

13. Since this application is made on the ground that it is to pay for the treatment recommended by Professor Chen, I considered carefully the treatment received to date.

14. I noted that the plaintiff has received all the medical and quasi-medical care and therapy recommended, but with less than satisfactory results. The plaintiff has been treated by a psychologist (Ms Bianca Tong) and a physiotherapist (Ms Rowena Chance).

15. The plaintiff had received 23 sessions of psychological counseling from Bianca Tong. That treatment has ended in February 2005 (with the consent of Dr Ng) due to “unproductive counter-transference”, which apparently refers to “the emotional reactions and projections of the therapist toward the client”. In reading the reports of Ms Tong dated 29.10.04 and 18.3.05 it can be seen that Ms Tong had a difficult time treating the plaintiff. She complained that the plaintiff did not co-operate by recording down her own thoughts and emotions; that the plaintiff was “not open” when discussing “interpersonal aspect”; that it was difficult to obtain the attendance of the plaintiff’s husband; and remarked that “if there is no progress in the coming three months (i.e. by January 2005), I think the psychological treatment should cease.” The treatment did cease at the end of February 2005.

16. The plaintiff had also been receiving physiotherapy treatment from Ms Rowena Chance at Byrne, Hickman & Partners from about February 2004. In her report dated 17.9.04 Ms Chance remarked that after treating the plaintiff for over a year “I do feel somewhat at a loss as to how to treat Ms Hui” as “there seems to be no physical reason for her severe state…” 

17. I noted that the plaintiff has been treated by psychiatrist Dr Stephen Ng for about 18 months, since around January 2004. The plaintiff’s solicitor submitted that unless the defendant provides her with the part-time job tailor-made in accordance with Dr Ng’s suggestions, such failure will “delay and hinder full recovery”, laying the blame for the slow recovery at the door of the defendant.

18. In summary the situation is as follows :

·	There have already been 5 payments made by way of Interim Applications. The sum paid out so far amounts to over $610,000.
·	The defendant resists this application on the ground of risk of overpayment, citing the part of Order 29 r11(1)(c) which stipulates that the sum paid out be “not exceeding a reasonable proportion of the damages which in the opinion of the court are likely to be recovered…”.
·	The ostensible reason for this application is to enable the plaintiff to continue the course of intensive treatment recommended by Dr Chung See Yuen, but Dr Chung recommended a course of intensive psychological intervention, and that treatment had already ceased in February this year, with the knowledge and agreement of the treating psychiatrist Dr Ng. The stated objective and raison d’être of the application is no longer valid.

19. In the circumstances it is appropriate to decline the exercise of the court’s jurisdiction. This application for further Interim Payment is refused.

20. The order nisi for costs shall be “costs of the application to the defendant in any event”. The order nisi shall be made absolute unless the court receives an application to vary the same within 7 days of the date of handing down.

21. It would be best if this claim could proceed to assessment of damages as soon as possible. The plaintiff’s solicitors should ensure that the Bundle for assessment of damages is ready for approval on the next hearing of the Check List Review on 14.10.05. at 9:30am. Arrangements can be made for an earlier Check List Review date if necessary.