THAPA KRISHNA v. RAJ WO HING CONSTRUCTION CO LTD AND ANOTHER

HCPI 309/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 309 OF 2007

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D E C I S I O N

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1.  The matters at this Pre-trial Review are:

(1) adducing 4 additional and supplemental witness statements for the Plaintiff;

(2) adducing a further medical report for the Plaintiff;

(3) calling the respective orthopaedic experts.

2.  The Plaintiff was a construction worker.  The 1^st Defendant was the contractor and the 2^nd Defendant the sub-contractor and employer.

3.  The Plaintiff sprained his back while chipping concrete on a slope by a big hammer.  He complained of persistent severe lower back pain, and claimed inability to return to the pre-accident employment.

4.  The defence has conducted surveillance.  The Plaintiff was observed for 3 days between 12 February and 23 April 2007, and 4 days between 11 March and 2 May 2008. 

5.  On Day 2 of the 1^st period, the Plaintiff was seen sitting at the counter for an hour at a provisions store (A1 Store), and on Day 3 he was seen lifting beers and taking them by trolley from another store to A1 Store.

6.  On Day 1 of the 2^nd period, the Plaintiff was seen inside A1 Store for 2 hours, and on Day 4 he was seen at the counter of A1 Store for 2 hours and dealing with customers.

7.  The respective orthopaedic experts, Dr. Lam Kwong-chin (for the Plaintiff) and Dr. Lee Po-chin (for the Defendant), prepared a joint report on 25 July 2008.  They agreed there was pre-existing degeneration of L4/5 and L5/S1 discs.

8.   The PI Master has directed (with reference to Chan Kam-hon v Dregages et Travaux Publics CACV 58/1997) the doctors do state whether, and if so the risk, of the Plaintiff’s pre-existing condition would lead to disability in any event.  The joint report was silent as to that.  The parties agree that the opinion should be taken as negative on the point. 

9.  Dr. Lam suggested inability to return to the pre-accident work based on severe pain.  Dr. Lee suggested that physiologically, any pain should have been mild, and the symptoms were exaggerated. 

10.  Without proceeding to set the case down for trial, the Plaintiff went on to obtain a further solo report from Dr. Lam dated 22 August 2008.  They now also seeks leave to adduce 4 additional/supplemental witness statements.  The PI Master referred the case to me for case management.

11.  Mr. Sit, for the Defendant, indicated:

(1) objection to the further witness statements due to lateness;

(2) non-objection to the solo medical report provided that the respective doctors be called to give oral evidence.

12.  The Plaintiff’s supplemental witness statements seek to adduce photographs of the scene, and he denied employment with A1 Store.  The Plaintiff’s witness (Bahadur) seeks to give his current income as reference as the Defendant had not produced comparable incomes.  The additional witness (Rajendra), proprietor of A1 Store, seeks to explain the Plaintiff’s presence at his store.  These matters are relevant, and there is no further delay as the Defendant had nothing to reply.  Hence, they are allowed.

13.  As to the solo report by Dr. Lam, it was given pursuant to an enquiry by the lawyer without any further examination.  It related to Plaintiff’s working life given the pre-existing condition, and also some augmentation to his opinion in the previous joint report.

14.  I wish to sound a note of serious caution that the Plaintiff’s conduct in obtaining a further solo report subsequent to a joint report and without leave is in fact sabotaging the entire system of case management.  In any case, the issue of pre-existing degeneration is sufficiently dealt with in the joint report given the common understanding now indicated by the parties.  Be that as it may, the Plaintiff should not have gone off to obtain any solo report after a joint report without first discussing with the other side and seeking the leave of the Court.

15.  In the event, leave is not granted to adduce the solo report of Dr. Lam.

16.  As to calling the doctors, the main issue is the severity of the back pain as affecting work, and it is obvious that the ultimate conclusion will depend on the evidence of the Plaintiff.  In this case, there is copious materials for the trial judge to decide on and further explanations from the doctors are unlikely to be required.  Hence, the joint report is to be adduced without oral evidence of the doctors.

17.  I set the case down in the Running List with 3 days reserved.

18.  As each party has won some lost some, costs of today’s hearing shall be in the cause, with Legal Aid taxation for the Plaintiff.