YUEN HOK MO v. VSL HONG KONG LTD AND ANOTHER

   HCPI 275/2009

   IN THE HIGH COURT OF THE

   HONG KONG SPECIAL ADMINISTRATIVE REGION

   COURT OF FIRST INSTANCE

   PERSONAL INJURIES ACTION NO. 275 OF 2009

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BETWEEN

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J U D G M E N T

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1.  This is an appeal by the plaintiff against the order of Master Yu made on 4 December 2009 refusing leave to the plaintiff to adduce the expert report of Shelly M. Chow, an occupational therapist, dated 20 February 2009 for use by the plaintiff in this matter.

2.  After hearing the submission of the plaintiff I dismissed the appeal and indicated that I will give written reasons in due course which I now do.

Background

3.  The plaintiff was injured in an industrial accident on 13 June 2006 at Chek Lap Kok Hong Kong International Airport. The accident happened when the plaintiff was carrying out measurements of elongation of strands of tendons in the course of his employment with the 1^st defendant. While carrying out such measurements, the anchor blocks suddenly detached and broke into two pieces. Five strands of the elongated tendons shot towards the plaintiff and penetrated into the plaintiff’s right and left legs nailing him to the ground. Each strand of tendon had a diameter of one inch. The wires of the strands then loosened inside the plaintiff’s legs thereby enlarging his wounds.

4.  The plaintiff was taken by ambulance to the Accident and Emergency Unit of Princess Margaret Hospital. The plaintiff was admitted to hospital and there underwent five surgeries for internal fixation, wound debridement, removal of foreign bodies, temporary fasciotomy and repair of injured posterior tibial artery. He was discharged from hospital on 1 August 2006.

5.  The plaintiff was re-admitted to hospital from 17 May to 28 May 2007 for bone grafting and internal fixation.

6.  The plaintiff was also referred to the Pain Clinic and there noted to have had fractures of severe neropathy and early Complex Regional Pain Syndrome.

7.  Presently, the plaintiff complains of burning pain, electric shock or pricking pain sensation in both his legs.

8.  Because of his severe disabilities with both legs, the doctors have recommended the plaintiff to use a wheelchair but such recommendation have been refused by the plaintiff.

9.  The plaintiff has also developed psychiatric condition as a result of the injuries sustained by him and he was referred to the Psychiatry Department of Prince of Wales Hospital and Caritas Medical Centre for treatment.

10.  Liability for the accident is not in dispute as Judgment on liability has already been entered. The only outstanding issue is the assessment of damages.

11.  In this respect, both parties have already engaged orthopaedic as well as psychiatric experts. There is no difficulty as to admissibility of those reports as well as their expert evidence.

12.  Shortly before the hearing before Master Yu from which this appeal stems, (i.e. 4 December 2009) the plaintiff put before the Master the occupational therapist report of Shelly M. Chow although that report was dated 20 February 2009.

13.  I have not been told the exact date when that occupational therapist report of Shelly M. Chow was placed before the Master, but it is clear that when the Master made an earlier order on 24 August 2009, in particular paragraph 5 thereof, the occupational therapist report was not before the Master. No explanation has been given by the plaintiff’s legal adviser why that was so.

The report of Shelly M. Chow dated 20 February 2009

14.  Shelly M. Chow is an occupational therapist. The report proper (excluding the annexes) is a 24-page document, the last 10 pages of which comes under the heading “OPINION”.

15.  This section headed “OPINION” is made up of 9 numbered paragraphs each with a subheading. The 9 paragraphs and their subheadings read as follows :

(1) Mr Yuen’s present condition as a result of his injury;

(2) Whether Mr Yuen is suffering from any permanent disability as a result of the accident;

(3) Whether in any way, Mr Yuen will suffer any loss in regard to his future earnings capacity as a result of his accident;

(4) Whether Mr Yuen has achieved an optimal state of recovery;

(5) Whether the period of sick leave granted was reasonable in respect of the accident;

(6) Whether Mr Yuen could return to his pre-accident job as a general worker on a construction site;

(7) Modification to his accommodation if required;

(8) Care and attention which Mr Yuen may require; and

(9) Any other relevant issue.

16.  The last paragraph under the subheading “Any other relevant issue” is further sub-divided into four sub-paragraphs as follows :

(i) Technical aids and assistive devices;

(ii) Counselling;

(iii) Mr Yuen may benefit from further physiotherapy with fees the same as HA fees above; and

(iv) Mr Yuen’s pain level.

17.  The above sub-headings and sub-sub-headings are the matters which Shelly M. Chow expresses her opinion on in her report.

18.  In my view, paragraphs 1, 2, 4, 5, 8, 9 (iii) and (iv) are all matters which are within the expertise of the orthopaedic experts and outside the field of expertise of an occupational therapist. These are therefore not matters for her to express any opinion on.

19.  Paragraph 3 is a matter ultimately for the court and once again an occupational therapist is not qualified to express any opinion thereon. If any opinion evidence is required in that respect, it should only be from a medically qualified expert, and not from an occupational therapist.

20.  Paragraph 9(ii) is a matter which is within the expertise of the psychiatric experts and any opinion to be given should come only from the psychiatric experts, not from an occupational therapist who is not qualified to give such opinion evidence.

21.  That effectively leaves only paragraphs 7 and 9(i) which may properly be considered to come within the field of expertise of an occupational therapist.

22.  However, in the present case, it is common grounds that the plaintiff is not bedridden, not wheelchair bound and not a paraplegic or quadriplegic. Both orthopaedic experts are agreed that the plaintiff is able to walk with elbow crutches and/or walking stick.

23.  In so far as walking aids are concerned, the defendants do not dispute that the plaintiff requires elbow crutches and walking stick. The only dispute there is the cost of such aids and assistive devices. This is readily apparent from the letter of the defendants’ solicitors dated 12 June 2009 to the plaintiff’s solicitors.

24.  In the circumstances, the relevance of paragraph 9(i) must be highly questionable since there is very little dispute as to the aids and assistive device.

25.  In like manner the relevance as to paragraph 7 dealing with Modification of accommodation if required, is also highly questionable. Indeed the entirety of paragraph 7 of Shelly M. Chow’s opinion is predicated upon a potential need for a wheelchair if he is unable to walk with elbow crutches for any reason. It is not only speculative, but in my view quite irrelevant and unnecessary.

26.  For the above reasons, the Master cannot be faulted for refusing leave to the plaintiff to adduce the report of Shelly M. Chow dated 20 February 2009.

27.  For the above reasons, the plaintiff’s appeal was dismissed.

Costs

28.  The plaintiff is to pay the defendants’ costs of this appeal in any event. The plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.