LAI KING YIU v. ACCIONA INFRAESTRUCTUREAS, S.A. AND OTHERS

HCPI 444/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 444 OF 2008

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D E C I S I O N

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1.  The case is referred to me at Pre-Trial Review for leave:

(1)  to adduce the further separate report from one of the experts after a joint medical report has been obtained;

(2)  to administer interrogatories on the plaintiff.

2.  This is an occupational deafness case.  The plaintiff claimed that he had suffered hearing loss by reason of undertaking metal cutting operations during the employment.  The defence is that the plaintiff failed to wear hearing protection. 

3.  Prior to change of solicitors by the plaintiff, a joint medical report was obtained on 14 February 2007 from the plaintiff’s ENT expert Dr S S Lo and the defendants’ expert Dr S F Au.

4.  The joint report gave the opinion that the plaintiff was suffering from noise induced deafness but is not prevented from taking up the pre-accident job provided that he wears suitable hearing protection.

5.  In the beginning of this year, the plaintiff had a change of solicitor.  In April, the plaintiff filed the Revised Statement of Damages adding the claim that he could no longer resume the pre-accident job and made a substantial claim of loss of future earnings which was not included in the original Statement of Damages.

6.  The plaintiff has since gone off to obtain a separate report from Dr Lo.  The Master has refused leave for the admission of this separate report and the report is not placed before me.  I heard submissions from Ms Cheng, for plaintiff, that Dr Lo’s further report was to clarify his earlier opinion that when he said the plaintiff could resume pre-accident job, he meant the plaintiff was physically able to do so.  When asked whether the doctor said the plaintiff could in his opinion no longer go back to the pre-accident job, Ms Cheng said it is not so stated in the report.

7.  In view of the agreed opinion of the joint report, I do not see this further report will in any way add to the resolution of the issue of the resumption of pre-accident job.  Hence, admissibility is refused. And I do not see the need for the respective ENT expert to give oral evidence.

8.  The application is to serve interrogatories on the plaintiff relating to the plaintiff’s employment for a short period in the construction field after the complaint of hearing loss.

9.  Ms Cheng objected because of the order made by Master that all interlocutory applications should be made by 4 September 2008.

10.  Mr Kwong, for the 1^st to 6^th defendants conceded that the interrogatories arose out of matters before September and not from the Supplemental Witness Statement to be served by the plaintiff now by consent.  He explained the delay was because they had to translate plaintiff’s pay records  into English for advice by counsel who does not read Chinese.

11.  The relevance of the enquiry into the periods and identities of the subsequent construction site employment is marginal by reason of the opinion as to resumption of pre-accident job in the joint expert.  Hence, I do not see the interrogatories are either necessary for the fair disposal of the cause or for saving costs.  Hence, they are disallowed.

12.  Other matters as to filing of Amended Answers to the Revised Statement of Damages as well as further Supplemental Witness Statements are met with consent and they are allowed.

13.  Mr Kwong asked for setting down in the Running List for 4 days.  I have considered the number of witnesses and I suggested 3 days would be sufficient.  Mr Kwong did not seriously argued otherwise.  Hence, I order the case to set down in the Running List for 3 days and not to be warned before 15 February 2009.

14.  Although the hearing today which is prolonged by arguments, since each party has scored some and lost some, I simply make the costs in the cause.

15.  The plaintiff’s costs be subjected to the Legal Aid taxation.