FUNG TAK WING BEN v. KENT LOGISTICS LTD

HCPI 260/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 260 OF 2008

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D E C I S I O N

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1.  The purpose of today’s Pre-Trial Review is to determine whether to call:

(1) the respective orthopaedic experts;

(2) the treating orthopaedic surgeons at Tuen Mun Hospital;

(3) the treating occupational therapist who did a work evaluation report.

2.  The Plaintiff was a driver/delivery worker.  At the time of the accident, he was reaching for the inventory on top of a shelf.  He complained that there was no equipment for stepping up, so he had to step on the lower shelves to reach the top.  He lost balance and fell.  He had back pain but continued to work in endurance of the pain.   Later, he went to A&E of Princess Margaret Hospital. He has been granted sick leave of about 19 months from April 2006 to January 2008. 

3.  The respective orthopaedic experts are Dr Peter Lung, for the plaintiff, and Dr SY Chun, for the defendant.

4.  The complaint is persistent right lower back pain radiating to buttock, and right sciatica to heel.  Dr Lung referred to an MRI report ordered by the private surgeon, Dr Cheung, stating that there was L5-S1 protrusion with S1 nerve root impingement.  Dr Lung said sick leave would be reasonable up to August 2007, but if the pain were powerful enough, it could be longer.  He said there should be no further treatment except physical training, which was also the opinion of the treating surgeons at Tuen Mun Hospital.

5.  Dr Chun stated that back pain is multi-factorial, and lashed his usual lecture on lower back pain with copious references to literatures, with factors such as smoking, etc.  He noted there was mild degeneration but there was no objective sign of impingement of S1.  He agreed with the treating orthopaedic surgeons that the MRI did not support compression.  On the other hand, he suggested exaggeration based on discrepancy between the first complaint of spraining at A&E and falling from various heights in different reports at later stages, and also on the lack of muscle wastage resulting from alleged limping for persisting pain.

6.  I noted that Dr Lung simply referred to the one-liner in the MRI report that there was nerve root impingement.  There is no other medical reports to that effect.  Dr Chun was also referring to the opinions of the orthopaedic surgeons of no nerve root compression. 

7.  Both experts agreed there should be no heavy lifting.  Dr Lung said the Plaintiff is fit for sedentary jobs, and Dr Chun said that could include driving. 

8.  At the Check List Review, the Master called for a joint supplemental report from the experts.  But then they simply referred to what they had said before.

9.  I think it is unfortunate that the doctors did not go any further.  Their opinions on nerve root compression are simply references to the opinions of others.  I agree with the Master that it is not satisfactory, but I think in this case, there is no need to take the matter any further.  The main issues are (1) whether the Plaintiff did have a fall as opposed to a sprain; (2) whether it is as painful as he said.

10.  Dr Lung himself said that in a normal case, sick leave should be up to August 2007, but if the pain were powerful enough, that is to say, if the Plaintiff were believed, then the case could go beyond that. 

11.  Discrepancies on medical reports are matters which the judge and counsel can deal with.  I do not think the doctors need to be cross-examined.  Maybe the reason to call the doctors was to give the opportunity to the Plaintiff to amplify on the one-liner in the MRI report.  I do not think that is desirable.  As he brings the case, he bears the burden of proof. 

12.  Of course, there is still the nerve root compression, but the treating surgeons have recommended against surgery.  If the compression is bad enough, they would have recommended surgery.  The Plaintiff’s own expert agreed that there should be no surgery.

13.  Ms Tam, for the Plaintiff, submitted that Dr Chun had queried the outdated treatment and long sick leave period by the treating doctors, and also the usefulness of the work evaluation by the occupation therapist.  The Plaintiff  wanted to call the team at Tuen Mun in retort.

14.  We are not treating the Plaintiff now.  We are assessing from a legal point of view what are the broad circumstances and what category the Plaintiff falls into and what sort of compensation he is to receive.  We cannot go into all sorts of possibilities of treatment because in medical science there are a lot of surmises and tests.  But in this case, it all turns on credibility because the issues are causation and pain.  

15.  Both experts agreed that the Plaintiff could not return to his pre-accident job, but he could be taking up sedentary jobs anyway.  Now the issue really is whether he can drive, as he used to drive before, and driving suits the description of a sedentary job.

16.  The calling of the treating doctors and the occupational therapist is not allowed.

17.  I will go for setting down without calling the experts.  Three days are reserved without calling the doctors.

18.  Costs be in the cause with Legal Aid taxation.