CHEUNG FAN v. HUA WEI TECH. INVESTMENT CO LTD

HCPI 987/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 987 OF 2007

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D E C I S I O N

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1.  The issue at this pre-trial review is whether to re-open the case and to call for orthopaedic expert evidence notwithstanding the order to have the case set down for trial by January this year.

2.  The Plaintiff was a warehouse worker employed by the Defendant.  He was hit by a box falling from height of about 7 ft when bending down to collect lower items.  His head and neck were hit by the falling box.  The dispute is whether he was picking up things and a box fell on him, or whether he has admitted to the employer that he was pulling a box from the bottom of the pile and the box on top fell upon disrupted.

3.  He went to A&E of Princess Margaret after the accident and was found to have tenderness in neck.  He complained of persistent headache and neck pain at follow ups.  X-ray in late 2006 and MRI in early 2007 found no fractures of the cervical spine.  He continued to have headache and dizziness.

4.  No orthopaedic evidence was called for so far.  The joint neurological report by Dr YL Yu and Dr Edmund Woo agreed on mild head and mild neck injuries.  They gave different opinions on Post Concussion Syndrome (PCS).  Dr Woo thought there was exaggeration.  Dr Yu gave an opinion on what the Plaintiff complained about, but on weakness in the limbs, he agreed there was no corroborative evidence.  Both doctors agreed the Plaintiff could resume work and they agreed on the sick leave periods to be 6 months, with no further treatment needed except on the headache and dizziness on a need basis.

5.  The Plaintiff also complained of floaters (black dots in eyes) and visual impairment.  The joint report by Dr Paul Cheung and Dr C W Tsui found that floaters and retina tear was probably caused by the head injuries, but there was no visual impairment from the retinal tear and the floaters were only occasional nuisance.

6.  Now the Plaintiff asked for orthopaedic evidence because in late 2008, he went to Baptist Hospital on complaint of para-nasal sinuses and the hospital took X-ray for him, and incidentally found there to be cervical spondylosis from C4/5 to C6/7.

7.  Mr Ng, for the Plaintiff, now wanted the orthopaedic expert to find out whether the lingering neck pain was non-symptomatic spondylosis triggered by the hit in the accident.

8.  Mr Ng pointed out the complaints of neck pain in hospital reports at various stages as well as in the joint neurological report, but it seems that probably due to the “normal finding” on the X-ray earlier, the neurological experts seems to have attributed such pain to PCS rather than with physical cause.

9.  Ms Fung, for the Defendant, did not object in principle to such further evidence.  In fact they have agreed on the joint examination in August this year by Dr Johnson Lam and Dr Tsui Siu Yeung respectively.

10.  I suggest to the parties that as the case should have been set down long ago, to allow the further orthopaedic evidence after Mr Ng’s firm took over early this year is in fact to re-open the case upon change of representation, and we should streamline and expertise the matter by appointing a single joint expert.

11.   In the event, the parties agreed to the appointment of Dr Lau Hoi-Kuen, subject to the approval by the Director of Legal Aid on fees.

12.  I direct a SJE report be obtained from Dr Lau Hoi-Kuen to give an opinion as to whether the neck pain was triggering of the non-traumatic spondylosis by the hit, or whether it was effect of pre-exiting degeneration which would have taken place regardless of the accident.

13.  The report should be ready within 3 months.

14.  I tentatively fix a 2^nd PTR on 12 October 2009 at 9:30 am.  I ask the parties to submit to me the SJE report with further agreed directions.  If the matter could be disposed of on paper, then the PTR would be vacated.

15.  I order costs in the cause with Legal Aid taxation.