MO CHUI LING v. SECRETARY FOR JUSTICE

HCPI 307/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 307 OF 2011

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D E C I S I O N

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THE APPLICATION

1. This is the plaintiff’s application for leave to adduce neurological and ophthalmological expert evidence at the trial.

THE PLAINTIFF’S CASE

2. On 16 September 2008, the plaintiff was hit on her head by a set of fluorescent tube falling from the ceiling.  Since the accident, she has been allegedly suffering from head injury resulting in:

(a)  Post-concussion syndrome;

(b)  Right eye visual impairment;

(c)  Psychiatric impairment.

3. The plaintiff made complaint of double vision and headache about 1 hour after the accident.  She vomited several times at the Accident & Emergency Department.  Afterwards, she persistently complained to her treating doctors that she suffered from double vision and headache.  The plaintiff was given sick leave from 16 September 2009 to 21 October 2009 (more than 13 months) and from 10 March 2010 to 5 October 2010 (more than 6 months).  She resumed the pre-accident employment as a Foreman of the Food & Environmental Hygiene Department on 6 October 2010.

4. The parties have obtained the leave of the court to prepare a medical joint report of the respective psychiatrists of the parties.  In the joint psychiatrists’ report, Dr Dong, psychiatrist for the plaintiff stated that as the plaintiff is still suffering from headache and diplopia, not fully explained by her psychiatric state, he suggested the plaintiff to be examined by neurologist and ophthalmologist.

THE DEFENDANT’S CASE

5. The defendant opposed the plaintiff’s application.  Its contention is that the plaintiff’s complaint of headache and diplopia is subjective and unexplained.  The defendant relied on the medical notes, records and reports prepared by the treating doctors in support of the opposition.

THE PRINCIPLE

6. It is accepted by both parties that the guiding principle is whether the expert evidence is necessary, relevant and of probative value: Ip Sau Lin v Hospital Authority [2009] 2 HKC 383, per Judge Marlene Ng at §38, 39 & 43.

7. At the pre-trial stage, the court would refuse to admit expert evidence if the proposed evidence is plainly irrelevant.  The court should however grant leave for expert evidence to be adduced at the trial, not only where the evidence is clearly relevant, but also where it cannot at the interlocutory stage form a clear view on its relevance: Chung Yuen Yee v Sam Woo Bore Pile Foundation Ltd. & Ors, unreported, HCPI 1053/2006, 17 October 2008, per DHCJ Lisa Wong SC, at §32 and the cases cited therein.

ANALYSIS

Neurological expert evidence

8. Both the computer tomography of brain done on the date of the accident and the magnetic resonance imaging of brain done on 17 March 2009 were unremarkable.  Also, clinical examinations as set out in the various medical reports have not revealed abnormalities.  Relying on the above, the defendant contended that the plaintiff’s complaint of headache is subjective and unexplained and thus opposed the application.

9. It is the plaintiff’s case that her head injury resulted in post-concussion syndrome and persistent headache.   The plaintiff’s treating doctors also diagnosed the plaintiff as suffering from post-concussion syndrome.  In this way, I accept that there is sufficient prima facie material to support the relevance and usefulness of the proposed neurological expert evidence, which is helpful to the court in arriving at its decision on issues such as the cause of the plaintiff’s post-concussion syndrome, the severity thereof suffered by the plaintiff, or how, if any, it would adversely affect the plaintiff’s work performance.

Ophthalmology expert evidence

10. According to the available medical notes, records and reports,

(a)  Upon ocular examination, extraocular movements were clinically full.  No obvious abnormalities have been detected by anterior segment, posterior segment and cranial nerves examination.  Her unaided vision was 20/30 (both eyes), with normal intraocular pressure.  CT brain has been arranged for her but revealed no obvious abnormality” (Medical Report of Dr. Fan Hoi Alex of the Department of Ophthalmology & Visual Sciences of Prince Wales Hospital (“PWH”) dated 23 December 2008)

(b)  “C/O unexplained persistent diplopia and headache for >1/12...  Unremarkable brain structure with no focal lesion or inflammatory plaque present.  Normal ventricles and sulci.  No infarct or haemorrhage or extra-axial fluid collection present.  Orbits and their contents are unremarkable.  Unremarkable MRI brain” (Examination Report of Department of Imaging and Interventional Radiology of PWH dated 17 March 2009)

(c)  “[c]omputer tomography of brain showed no haemorrhage” (Medical Report of the A & E Department of PWH dated 25 August 2010)

(d)  “On eye examination, her eyeballs were normal.  Eye movement was in normal range. Subjectively she complained of of persistent right eye monocular diplopia which could not be explained by ocular findings.  Magnetic resonance imaging of brain and orbits did not reveal any abnormality.” (Medical Report of Dr. Yip Kwok Foo, Nelson of the Department of Ophthalmology & Visual Sciences of PWH dated 27 January 2011)

(e)  “On eye examination, her eye movement was normal.  There was no remarkable ocular abnormality noted… Her eye condition was stable.” (Medical Report of Dr. Yip Kwok Foo, Nelson of the Department of Ophthalmology & Visual Sciences of PWH dated 11 April 2011)

(f)  “assessment at the time of board revealed that diplopia is persistent, although her eye condition is not related to her injury.  Currently her problems are mainly psychiatric (depression) and her eye condition” (Memo from the Chairman of the Medical Board, PWH to the Director of Food & Environmental Hygiene dated 9 June 2011 and 4 October 2011)

(g)  “Upon physical examination, she was fully alert with full range of neck movement.  There was no scalp wound or any neurological deficit.  No definite diplopia or other cerebellar signs were noted.  Computed tomography of her brain revealed no abnormality. Ophthalmology team was consulted for her double vision.  She remained neurologically stable and was discharged on 17/09/2008…  MRI was performed in March 2009 which revealed no abnormality” (Medical Report of the Department of Neurosurgery, Shatin dated 23 November 2011)

(h)  “physical examination showed subjective visual acuity 20/30 for both right and left eye and normal intraocular pressure.  fundi exam showed normal findings.  extraocular movement was full. CT brain done on 16.9.2008 and MRI brain done on 17.3.2009 showed normal finding” (Medical Report of Dr. Lo Chi Fung Ernie of the Department of Ophthalmology & Visual Sciences of PWH dated 9 December 2011)

11. Dr Yu, psychiatrist for the defendant, whilst accepting that he is not an expert in neurology or ophthalmology, from a psychiatric perspective, opined that the plaintiff’s complaint of double vision is likely to be an exaggeration.

12. In the present case, for her complaint of double vision, the plaintiff has been examined by ophthalmologists of PWH.  According to their medical notes, records and reports, there is no sufficient prima facie material to support the plaintiff’s complaint of double vision.

13. It follows that there is no sufficient prima facie medical evidence supporting the relevance and usefulness of the proposed ophthalmological expert evidence.  After having carefully considered the medical evidence, I agree with the defendant that further expert evidence on ophthalmology would not assist the trial judge.  If allowed, it will unnecessarily add time and costs to the detriment of the parties.

RULING

14. The parties shall have leave to adduce neurological expert evidence, limited to one neurological expert for each party.  The parties shall within 21 days of the date hereof jointly report to the PI Master:

(a)  The names of their respective neurological experts;

(b)  The date of a joint examination, if any;

(c)  When the joint report will be complied;

(d)  Whether the checklist hearing directions and timetable already laid down by the court can be maintained.  If not, the parties shall jointly make a proposal for variation.

15. The plaintiff’s application for leave to adduce ophthalmological expert evidence is dismissed.

16. Both parties succeed and fail part of their respective cases.  In the premises, it is ordered nisi that the costs of the application be in the cause.  The order becomes absolute within 14 days from the date hereof unless a party has applied for varying the order.

17. The plaintiff’s own costs shall be taxed in accordance with Legal Aid Regulations.