XCHRX HO YING WAI v. KELISTON MARINE (FAR EAST) LTD. AND ANOTHER

HCPI 852/1999 and
HCPI 853/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NOS. 852 AND 853 OF 1999

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R U L I N G

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1. The Plaintiff, a commercial deep sea diver, is claiming damages for negligence against his employers and against a registered medical practitioner.

2. His case against his employer is essentially that in August 1996 he suffered a pneumothorax caused by the growth and rupture of blebs, in the lungs, and that his condition deteriorated by continued exposure during diving operations. The alleged negligence consists of failure to have him properly examined medically. The allegations against the 2nd Defendant are essentially that he failed to carry out proper medical examinations which would have disclosed the existence of his medical problems, and/or should have referred him to a practitioner with expertise in medicine for such commercial divers.

3. The 1st Defendant does not admit it instructed the 2nd Defendant to examine the Plaintiff but admits that it has a practice of referring divers, including the Plaintiff, to the 2nd Defendant for "medical check-ups". I am not sure what the issue is here but the 1st Defendant will have to clarify the position shortly if it is to avoid specific discovery or interrogatories. It is contended that the Plaintiff had suffered a pneumothorax in 1990 and hid the fact, and that the 1st Defendant, relying on the 2nd Defendant and the certification by him of the Plaintiff's fitness to carry out such occupation, had discharged its duty of care.

4. The 2nd Defendant admits that he was instructed by the 1st Defendant to carry out employment related examinations and has 18 years of such experience. In 1992, when the Plaintiff was first seen by the 2nd Defendant it is averred that he gave a false medical history to the 2nd Defendant. Chest X-rays were carried out in examinations in 1992, 1994, 1995 and 1996 none of which disclosed anything untoward. He places particular reliance on the contention that the Plaintiff failed to disclose the pneumothorax in 1990.

5. In relation to X-rays generally and specifically the Plaintiff's case against the Defendants is that he should have been referred to a practitioner with specialised experience in medicine relating to commercial divers, and that the 2nd Defendant was not such a specialist; and that in any event the 2nd Defendant ought to have known this was a specialist area and should have referred him to such an expert practitioner, or have carried out appropriate tests and examinations.

6. The Plaintiff's expert consultant, Dr Li Chi Tang Ronson, with expertise in Diving and Hyperbaric Medicine, has set out the requisite laboratory investigations which included a chest X-ray with instructions to the radiologists to be particularly alert to exclude, amongst other adverse conditions, blebs, and pneumothorax. In his own examination he called for a special chest X-ray known as high resolution thoracic C.T. Scan. He is critical of the 2nd Defendant is not calling for this specialised form of chest X-ray.

7. At page 247(7) (page 5 of the report of May 31st 2000) he crystallises what he regards as "grossly inadequate", "the failure to give special instruction to the radiologist to be particularly alert to rule out the presence of bleb(s) in the lungs."

8. The 2nd Defendant has obtained reports from Professor Wong Tse Wai of the Department of Community and Family Medicine at the Chinese University of Hong Kong. In his first report (at page 11 - P.278 of the bundle) he says:

"A bleb is usually not detectable by a chest X-ray or physical examination of the chest and is considered to be a common cause of 'spontaneous' pneumothorax."

The next comment in relation to X-rays of the chest appears at page 12 (page 279) of his first report:

"My opinion is that a bleb/blebs is (are) usually too small to be detectable in a chest X-ray........ In the hospital record in 1990 (when chest X-rays were taken on more than one occasion), there was no mention of the presence of bleb/blebs. I believe blebs, if present in Mr Ho's lung, would not be detectable by conventional methods recommended for the medical examination of divers."

9. In my view the use of the word "usually" has some significance. It suggests at least, that there are circumstances in which blebs may be detected on a chest X-ray.

10. Finally in Professor Wong's second report at page 4 (page 283(5)) he seeks to answer Dr Li's allegation that the 2nd Defendant's failure specifically to instruct the radiologist to look for certain lung diseases was negligent. What follows in that paragraph is the Professor concluding that "the use of high resolution computerised tomography as a test in the routine medical examination of divers is not recommended." In my judgment this issue has clearly thrown up the need for expert radiologists' views. The question of what should be indicated to the radiologist as the potential problem, how a radiologist would go about his interpretation of the C.T. Scan, and to what extent high resolution thoracic computerised tomography is a useful diagnostic tool, all need to be resolved by such an expert.

11. I have therefore no doubt that Mr Kwok's application is a proper, indeed an essential one. I therefore give leave to the Plaintiff and the 2nd Defendant to serve their respective consultant radiologist's reports upon each other - and upon the 1st Defendant - within 60 days. There is no need for consequential reports. Their instructions and the material to be provided to them will enable them to cover the ground comprehensively. I anticipate that they will need to see all the existing X-rays.