MA KIM SING v. URBAN PROPERTY MANAGEMENT LTD AND ANOTHER

HCPI 270/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 270 OF 2007

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D E C I S I O N

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1.  The PI Master has referred this case to me for pre-trial review to resolve matters on the medical evidence. 

2.  There are two issues :

(1) the editing of the report of Dr Ko, orthopaedic expert of the plaintiff; and

(2) request by the plaintiff to call the respective orthopaedic experts on the issue of the sick leave period and resumption of pre-accident work by the plaintiff.

3.  The plaintiff was a security officer and he had a slip and fall during work in the carport area.  Both the orthopaedic experts agreed that he had a contusion and soft tissue injury to his back.  What remains in difference was the extent of lower back pain after the injury.

4.  The plaintiff had also obtained a psychiatric report from the Government hospital stating that the plaintiff was suffering generally from a psychiatric condition relating to his physical condition as well as other daily problem such as financial worries, etc.

5.  As to the issue of editing, Dr Ko gave the opinion that the plaintiff’s psychiatric condition was partially related to the injury.

6.  Mr Choi, for the plaintiff, sought to edit those references out on the basis that Dr Ko is not a psychiatric expert.  He sought only to rely on the opinion of Dr Wat, the Government psychiatrist.

7.  Mr Choi pointed out that the psychiatric condition is only related to the PSLA aspect of the claim and no more.

8.  Mr Kwong for the 1^st defendant and Mr Sham for the 2^nd defendant agreed to the editing.

9.  In view of the agreement of the parties and the limited relevance of the issue of the psychiatric condition, I agree to the editing out.

10.  On the calling of the respective orthopaedic experts, there were two aspects.  One was the length of the sick leave period.  Dr Ko gave the opinion that sick leave should be 19 months, and Dr Cheng 6 months.

11.  At one stage, Dr Ko agreed with the opinion of Dr Cheng, but later, he submitted a supplemental report stating that he had made a mistake and he retracted the agreement.

12.  The other related to the resumption of pre-accident work.  Dr Cheng submitted that the plaintiff could resume the pre-accident job and whatever pains he was still suffering from were just normal pains and aches one would encounter when one progressed in life, and would not affect returning to pre-accident job.

13.  Dr Ko gave the opinion that the plaintiff could not resume pre-accident work, but he could take up the job of a watchman, an office assistant or salesman.  Dr Ko did not say that the plaintiff would only be restricted to a sedatory job, but did say that the jobs stated were suitable as the plaintiff could change the position of standing and sitting.

14.  I query why one could not resume the pre-accident job of security officer which Mr Choi admitted was effectively a supervisor of watchmen, if one could resume the job of a watchman.  Mr Choi submitted that the supervisor of watchman has to patrol, but perhaps the requirement of a watchman would be less so.  Dr Ko has given his opinion which did not include the restriction of a sedatory job, and gave the examples of watchman and office assistant, which require the moving around.

15.  On such account, I see that the opinions of the doctors are quite clear, and there is really no need to call them on the matter to complicate the position.

16.  As to the difference in the period of sick leave, I was referred to the Court of Appeal decision in Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd CACV 208/2007 (dated 8 April 2008).  In that case, the trial judge faced the similar opposed opinions of doctors as to the length of the sick leave.  No doctor was called on the point and the Court of Appeal considered that the oral evidence from the doctors on the specific issue would be necessary.

17.  On this note, I allow that Dr Ko and Dr Cheng be called specifically on the issue of the length of the sick leave.  As I have already indicated that the position as to the resumption of the pre-accident job is already quite clear on the reports themselves, I do not give leave for the evidence to encompass that part, subject always to the discretion of the trial judge if he were persuaded otherwise since the doctors would be before him anyway.

18.  As to the length of trial, the three parties will be calling 5 factual witnesses that there will be argument as to the respective contribution between the 2 defendants, and they all agree that 4 days will be required.  I shall reserve 4 days for the trial.