YEUNG SZE ON v. HO WAI LUN

HCPI 703/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 703 OF 2007

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D E C I S I O N

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1.  There are two matters at this Pre-trail Review (PTR):

(1) specific discovery of medical notes of the treatment doctors;

(2) whether the respective orthopaedic experts are to be called.

2.  The plaintiff was injured in a traffic accident.  The defendant was the other driver and he had pleaded guilty to careless driving.   Liability has been admitted.  The case is only one on assessment.

3.  The two orthopaedic surgeons, Dr Danny Tsoi for the Plaintiff, and Dr Patrick Wong for the Defendant, have prepared a joint report as ordered by the PI Master after they have rendered separated reports.  They agreed to the period of sick leave, that the plaintiff had reached maximum medical improvement, and he could resume the previous job with some reduction in efficiency.  There is an issue as to knee injury. 

4.  Knee injury was noted after the accident in November 2004, but that was not the main complaint until the Plaintiff had a fall when jogging in June 2005.

5.  The gist of Dr Tsoi’s evidence was that the weakness in the knee was caused by the original accident, whilst Dr Wong opined that the original accident could have caused only mild pain to the knee and the aggravation was the fall.  Both doctors referred to the opinions of the treatment doctors at the earlier stage, i.e. Dr Lau Hoi Kuen, and Dr Pang  the surgeon who operated on the plaintiff after the injury from jogging.

6.  Dr Lau noted there was muscle wastage before the operation, and his opinion was that it was improbable that the muscle wastage was caused by the jogging accident 3 days before his observation.  Dr Wong did not directly deal with this point. 

7.  At this juncture, Miss Li, for the defendant, wanted the medical notes of Dr Lau and Dr Pang because their reports contained no measurement of the muscle wastage.

8.  This point on medical notes is not new.  Dr Lau’s report was written in November 2005.  On 22 August 2007, solicitors for the Plaintiff wrote to the solicitors for the Defendant enquiring whether the medical notes of the treatment doctors, i.e. Dr Lau and Dr Pang, were necessary, and if so, the Defendant should be paying for the charges as the private practitioner’s charges would be more expensive than the public hospital.

9.  On 16 October 2007, solicitors for the Defendant wrote back and indicated that they had not requested the medical notes, and they did not ask for them at that stage.

10.  The medical notes are not necessary as Dr Lau has given his opinion.  Dr Lau’s opinion was apparent at the time where the issue of medical notes was raised, and the solicitors for the Defendant had indicated there was no necessity for that.

11.  Miss Li indicated that her firm had taken over the case from others at some stage.  It is noted that the letter of reply was written by the same firm for the defendant as present, and by that time it was almost 2 years after the report of Dr Lau had been written.  I see no excuse for any late change in the direction of trial preparation given that this case is otherwise ready to be set down now.

12.  In any case, given the summary of facts and issues in this case, those notes are not necessary for the fair disposal of the cause or matter, nor for saving of costs.  The same also applies to the calling of the doctors where Mr Tai, for the plaintiff, has indicated there was no need to do so.

13.  In the event, I order that the application for discovery be dismissed, and the separate and joint reports of the respective orthopaedic experts be admitted without oral evidence.

14.  The case requires 2 days, and it is listed before a Master for assessment.

Costs

15.  I shall deal with the cost of the application for specific discovery separately.  I order the Defendant to pay to the Plaintiff $2,000 as costs assessed as a gross sum for that part of proceedings, and for the rest of the PTR, there be costs in the cause.