NG KA HUNG v. CHINA OVERSEAS (HONG KONG) LTD AND ANOTHER

HCPI 1032/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1032 OF 2007

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REASONS FOR DECISION

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1.  The only issue at the Pre-trial Review is whether to call the respective orthopaedic experts.

2.  At the hearing, I ordered the joint orthopaedic report of Dr SH Wong (for the Plaintiff) and Dr KC Lam (for the Defendant) be admitted without oral evidence, and awarded costs against the Defendant.  I now give my reasons.

3.  The Plaintiff was a foreman at the construction site where the 1^st Defendant was the employer and the 2^nd Defendant the principal contractor.

4.  The Plaintiff was injured as his forklift overturned while going down slope.  The Plaintiff alleged that he had told the 1^st and/or 2^nd Defendant that he had no valid certificate for operating the forklift, but was nevertheless told to use it.

5.  The Plaintiff had a fractured left leg (tibia and fibula) and right thumb (1^st metacarpal).  He had multiple operations: open reduction and fixation of K wire to the left tibia and later fibula on separate occasions; drainage of harmatoma (tissue growth) in the left leg; retrograde fixation of intra-medullary nailing in the left leg. 

6.  The Plaintiff had a 2 cm length discrepancy between the legs.  He had extensive physiotherapy and occupational therapy sessions, and was fitted with prosthetic left sole.

7.  Dr Wong opined that the Plaintiff was not able to return to the pre-accident job, and Dr Lam suggested that he could return to the construction site in a supervisory role.

8.  At the Check List Review, the Defendant’s solicitors requested calling the doctors, where the Plaintiff’s solicitors indicated it was unnecessary.  The Master adjourned the matter to PTR before me, directing that counsel’s advice on the issues for cross-examination to be taken.

9.  The medical issues are:

(1) impact of the 2 cm leg length discrepancy;

(2) impact of thumb impairment on work performance;

(3) sick leave period.

10.  On issue (1), Dr Wong opined serious impact of leg shortening, such as jumping and running.  Dr Lam opined good compensation by heel raising.  Ankle fusion operation was also considered.  The experts listed out pros and cons for doing it.  Those points are obvious in the report.

11.  On issue (2), Dr Wong opined difficulty in grapping handyman’s tools.  That is also self evident.

12.  Mr Wong, for the Plaintiff, had served written submissions prior  to the PTR.  He suggested that issues (1) and (2) are factual and their relevance also fact sensitive to the choice of work deemed suitable.  Given that the experts have give their opinions on the pros and cons, it is ultimately a question of fact for the trial judge. 

13.  I agree with Mr Wong.  It is a balancing as opposed to mutually exclusive consideration in this case.

14.  As to sick leave, Dr Lam suggested 21 months based on the end of treatment last of which was occupational therapy.  Dr Wong suggested 27 months certified by the treating doctors as reasonable.

15.  Mr Hui, for the Defendant, submitted the experts ought to be called as there is a dispute on the sick leave period, citing Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd CACV 208/2007 (8 April 2008).

16.  I am afraid the matter is not as straight-jacketed as that.  Mr Wong accepted that Dr Lam’s opinion may be objectively supportable, but submitted that the Plaintiff shall explain why he wanted more rest, as he feared further injury at work.  Again, it depends on the type of work deemed suitable, and acceptance of the Plaintiff’s evidence.

17.  I ordered that the joint orthopaedic report be admitted without calling the doctors.

Costs

18.  Mr Wong asked for costs.  The issues were ventilated preliminarily before the Master.  Yet, it went ahead resulting in the Plaintiff availing.  I see no reason why costs should not follow the event.

19.  On the other hand, Mr Wong’s submissions were served well before the hearing.  A solicitor with reasonable confidence could be on his/her feet with those submissions.  Hence, I did not allow a full brief.

20.  I ordered that the Defendant do pay costs of the PTR to the Plaintiff, summarily assessed at $6,000.