Ngan Kwong Shing v. Cheong Hing Construction Co. Ltd. and Another

DCEC686/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 686 OF 1999

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R U L I N G

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1. The applicant in this matter was injured on 6 November 1997. He was working at a building site at a shopping centre at Sheung Shui and on his account of the matter he was on the second floor of the building and he slipped, lost his balance and fell to the ground, spraining his back. His condition has been very well documented in a series of medical reports and the issue here is really this: whether the symptoms which he now claims, are properly attributable to the sort of injury that he sustained.

2. The medical assessment board has assessed the matter of permanent disability at 23 per cent and the applicant is content to go along with that percentage. The respondents intend, after I have given this ruling, to apply for leave to appeal against that assessment. They say - and there is no need to pull any punches about it - that this gentleman is a malinger. He has made up, or if has not made up, he is grossly exaggerating the situation in order to get as much compensation as he possibly can and that, of course, is a very familiar issue which the courts very frequently have to resolve.

3. There are a number of medical reports that have already been disclosed. The applicant himself has the evidence of Dr Danny Choi. His report, as I read it, is not a wholehearted or ringing endorsement of the applicant's case and he certainly leaves open the possibility that the applicant is rather making this up. The applicant also has Dr Mak, a psychiatrist, who again is not wholeheartedly behind him.

4. The respondents have a number of reports. Their orthopaedic specialist is Dr Chun and he has prepared four reports and there is an indication as to whether the injuries that were sustained by the applicant are the sort of injuries that one would get from a fall from the second floor, so there is a real issue as to the precise way in which this accident took place. Because there is orthopaedic evidence to suggest that one would have expected far more serious injuries if one had fallen from the second floor.

5. There is also Dr Chun's view that these symptoms may well be the product of malingering. The respondents also have a report from Dr Singer, a psychiatrist, and he also has the gravest doubts as to the genuineness of these symptoms.

6. What has happened is that when the respondents' then solicitors, Masons, were looking at the matter, they discovered that the applicant had disclosed a report from a government occupational therapist, a Miss Won, attached to Kwong Wah Hospital and her report indicated that the applicant should be provided with a wheelchair. Seeing that, the respondents then instructed Mrs Alice Tsang who is an occupational therapist of some experience and she then examined the applicant and her report is dated July 2000.

7. The examination falls into two parts. Firstly, the applicant and his wife went to see her at her offices and then she asked the applicant whether she might go and visit him at his home and he said she could. She went along and she brought with her a video camera and she was able to video the applicant carrying out a number of functions and it is quite clear that her brief from the respondents' solicitors was to see whether what the applicant was saying about his limitations of movement and so forth were really genuine. There is no doubt when one reads her report that she has come to the rather firm conclusion that he is putting a lot of this on, that these are not genuine symptoms and that what he was trying to do was to, in effect, pull the wool over her eyes. But she is so experienced in these matters that she was able to catch him out and one needs only to read her report to see that that is the view that she now holds.

8. What has happened is that I made orders for the exchange of witness statements and discovery and so forth as long ago as 11 October 2000, and I made an order that within 42 days of that date all expert evidence should be exchanged. There was delay, as I am afraid so often happens, but even so, now that the case is getting close to trial, the respondents' solicitors have looked at the papers again and it has been discovered that although Mrs Tsang's report was disclosed and is in the possession of the applicant's solicitors and has been for some time, that it was not made clear that the respondents intended to use Mrs Tsang as a witness and she has now prepared a witness statement. That witness statement is based on her examination of the applicant in July and August 2000. The witness statement is dated 16 January. So this is all extremely late.

9. Mr Lam, who appears for the applicant, quite understandably objects to that evidence now going in. First of all, he submits, and quite rightly, that it is very late to be trying to do this. Ms Lau, who appears for the respondents, and who has in fact been the solicitor who has been advising them throughout, even when they had been represented by Masons. Ms Lau has since moved to Simmons & Simmons taking this case with her. So she has been involved throughout and she very frankly accepts that she has overlooked the fact that Mrs Tsang was not asked to prepare a witness statement and so she accepts that this is late. But her response is where this is so clearly relevant to the issues that the court needs to decide that any issue of lateness can be more than amply compensated by an order for costs. Well, late it is and that is undoubtedly one of the matters that must sound in the exercise of my discretion.

10. I then turn to the question of relevance. The way the matter comes about on relevance is this: of course the applicant is content with the assessment of 23 per cent. There is going to be an appeal against that assessment and in my judgment this sort of evidence from Mrs Tsang is capable of being relevant to the sort of issue that the court has to decide. It clearly goes to the heart of the evidential dispute as to whether this person is feigning his present condition. And so, in my judgement, it is relevant.

11. But, notwithstanding that, Mr Lam says that even if it is relevant, it is an unnecessary addition to the evidence. He quite rightly draws attention to the fact that in the modern culture of litigation the courts are very alert to ensure that unnecessary evidence is not called, that there is not a duplication of evidence and everyone is anxious that costs should be kept down to a proper proportion of the worth of the claim and so forth. Quite clearly, Mr Lam is right in that submission.

12. What Mr Lam says is this: there are orthopaedic experts who have already been instructed in the case. They are well able to say whether the applicant's physical condition is such as to justify the need for him to get around in a wheelchair when he is out of his flat or indeed whether he really does need the use of crutches or two walking sticks when he is going about inside his flat and one does not need a paramedical expert like Mrs Tsang when there is more than enough expertise here provided by the orthopaedic consultants, both of whom are highly experienced in this field. There is also evidence from the two psychiatrists who will deal with the genuineness of these symptoms and Mr Lam also relies on that fact.

13. Then lastly, Mr Lam also says under a sort of broad third subheading to his objections, that it simply is not fair. These examinations took place 18 months ago and, although these reports were disclosed, Mr Lam was entitled to take a fairly relaxed view about them because once the witness statements were exchanged he was entitled to expect that the respondents were not going to be using Mrs Tsang's report. He has not been able to take early instructions from his client and so this would result in an unfairness against a witness who clearly took notes. But it also goes beyond that. Not only did she take notes, that she also video-taped much of the examination at the applicant's home and in this regard Mr Lam relies on a decision of Seagroatt J. in a case called Wong v Hung which is HCPI 960 of 1999.

14. On that occasion, a psychiatrist, Dr C K Wong, decided that he was going to video-tape an interview with the patient. He got the patient's consent but he certainly did not get the consent of the patient's solicitors and it is clear from Seagroatt J.'s ruling that the learned judge strongly deprecated that course of action, and Mr Lam says that I should be of the same view in this matter that it is quite wrong to go along and do this. It adds a further dimension to the examination of the applicant. All of this should have been made known to his solicitors who would have been in a position to advise him. They might have said no, and if the respondent's solicitors insisted on the examination being video-taped, then the matter would have had to be referred to a judge to decide. And that is an additional point which Mr Lam relies on and he also relies on the fact that Mrs Tsang, who has in fact produced still photographs of the video film, has not in fact released the movie film to her own solicitors and it follows therefore that Mr Lam himself has not seen the film.

15. So these are the matters which I think are relevant in the decision that I have to make as to whether I should now allow Mrs Alice Tsang's statement to be used in the application. As I say, I think the point that really favours the respondents is that clearly it is relevant to one of the central issues in the case. I have got to effectively conduct a balancing exercise here and I have come to the conclusion that I should not allow Mrs Tsang's statement to be used.

16. I have already drawn attention to the factors which bear against allowing the statement to be used. It is late, there is this question of fairness. I also deprecate the video-taping of these sort of examinations without the knowledge of the particular party's solicitors. I think that they should be informed so that they can give advice to their client as to whether he or she should consent to it or not. But ultimately the main factor which has persuaded me not to allow Mrs Tsang's report to be used is that there is already more than enough expertise before the court to enable it to do its job properly and I do not think I should allow yet another witness to come along to tell the trial judge what I think he can already work out for himself with the assistance of the other experts. So that is how I rule in respect of that.

17. There must be leave to appeal by the respondents against the assessment of the medical board. You can amend the answer and I think that the costs of the amendment really should be costs in the cause.