NG YUK PING v. CHAN KWOK CHUN

HCPI 136/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 136 OF 2007

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D E C I S I O N

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1.  The case has been referred to me in Pre-Trial Review to decide on whether the respective orthopaedic and psychiatric experts are to be called to give oral evidence at the trial.

2.  This is a traffic accident case.  The Defendant’s private car crossed double white lines and entered the opposite lane and collided with the off-side front of the bus driven by the Plaintiff.

3.  The Plaintiff complained of sprained neck and back and also a psychiatric condition.  She said either of those conditions was preventing her from going back to drive the bus. 

4.  The respective orthopaedic experts are Dr Johnson Lam, for the Plaintiff, and Dr Danny Tsoi, for the Defendant.  There is consensual opinion of pre-existing degeneration at the L2 to L5 and L5/S1 discs with moderate L5/S1 disc protrusion.

5.  Dr Lam agreed that there was no significant neurological compression.  However the Plaintiff complained that she could not sit for long hours, and as a bus-driver she had to sit for long hours, hence she could not return to work.  This dispute very much depends on the degree and extent of pain to be assessed by the judge. 

6.  The psychiatric evidence is more diverse.  Both doctors agreed to the diagnosis of adjustment disorder with mixed anxiety.  However, the Plaintiff claimed she had flashbacks and visions of being chased by shadows.  Dr Lai said if that were true, she would be suffering from post-traumatic stress disorder making her mentally incapable to drive.  Dr Law, however, suggested those were exaggerations. 

7.  The Defendant also had surveillance evidence of the Plaintiff.  It depicted her walking long distances.  Dr Law commented that the surveillance tape was inconsistent with the alleged psychiatric problem. 

8.  In Dr Law’s report dated 2 June 2007 (paragraphs 27 and 28), he disagreed with the diagnosis of post-traumatic stress disorder as the clinical presentation was not consistent with the typical symptoms of flashbacks, avoidance and hyperarousal symptoms, and said there were degree of exaggeration and theatrical demeanour in the interview.  Unfortunately, Dr Law had not listed out the factual basis of observations at the interview leading him to that opinion.  

9.  I do not think that the orthopaedic experts need to be called as the question of physical condition affecting the return to work will depend on the credibility of the Plaintiff as to the degree and extent of pain.

10.  On the other hand, before deciding on whether to call the psychiatrists, the court will be assisted by supplemental opinion from Dr Law listing out the factual bases for the opinion in paragraphs 27 and 28 of his report.  Hence, I shall grant leave for a supplemental report by Dr Law to that effect. 

11.  There is another matter.  Each party has prepared a PTR bundle.  They are identical, save as to the insertion of Dr Law’s supplemental report commenting on the surveillance tape. 

12.  The Plaintiff had carried the case and prepared the PTR bundle.  Miss Li, for the Defendant, prepared her own bundle for the insertion of Dr Law’s supplemental report.  She agreed that she failed to ask Mr Ng, for the Plaintiff, for the insertion of the supplemental report into his bundle.  She agreed that costs has been wasted. 

13.  Hence, I order that costs of the Defendant’s PTR bundle shall not be allowed in any event and she is not to charge the client for that by reason of duplication.

14.  I shall allow 4 weeks for the preparation of the supplemental report by Dr Law, and the Plaintiff has the right of reply within 14 days. Then I shall decide on whether another PTR is necessary, or whether the matter can be set down by paper directions. 

15.  Today’s costs be in the cause.