KONG KAT CHEUNG v. YIP KAM TONG AND OTHERS

HCPI 696/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 696 OF 2006

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REASONS  FOR  DECISION

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1.  The issue at Pre-trial Review is whether to call the respective orthopaedic experts to give oral evidence at the assessment of damages.

2.  The Plaintiff was a scaffolding worker.  He fell 2 metres while cutting trees in early 2003.  He was taken to a bone-setter on the very day, and X-ray showed a fractured L-3 vertebra.  The first hospital record on the L-3 fracture was in late 2004.

3.  The 1^st Defendant (sub-sub-contractor) has so far been absent and default judgment has been entered against him.

4.  Split trial on liability against the 2^nd Defendant (sub-contractor) and the 3^rd Defendant (top contractor) took place before Waung J in 2008, with judgment delivered on 14 April 2008. 

5.  His Lordship found the Plaintiff’s version of evidence was totally possible and most probable and credible, and made findings of fact as described by him.  His Lordship found no contributory negligence.  There was no specific finding on the causation of the L-3 vertebra.

6.  The 2^nd and 3^rd Defendants were unrepresented at the trial on liability, and are now represented by Mr Lam, of counsel, for assessment of damages.

7.  The 2^nd and 3^rd Defendants have taken out HCA 772/2009 purportedly to set aside the judgement on the ground of fraud.  The statement of claim was struck out by the Master, and there has been no appeal therefrom.

8.  The Plaintiff’s present complaint is severe lower back pain affecting daily activities like walking and sitting etc.

9.  Mr Lam framed the issue at the assessment as whether the L-3 fracture was caused by the accident.

10.  Dr James Kong (expert for the Plaintiff) and Dr Patrick Wong (expert for the 2^nd and 3^rd Defendants) rendered a joint orthopaedic report dated 2 May 2009.

11.  Both doctors agreed that if the Plaintiff did sustain a fall down 2 metres landing on his back or buttock, he could have sustained a L-3 vertebra fracture.  They also agreed that it is unlikely for the Plaintiff to have continuous back pain all day long whilst he may suffer from mild to moderate back pain upon certain activities.

12.  Mr Lam pointed out that Dr Wong queried the happening of the accident as alleged in that a L-3 facture would have caused severe pain normally occasioning immobility and admission to A&E by ambulance as opposed to being taken to a bone-setter by the colleagues.

13.  Mr Lam intimated that Waung J had indicated that the doctors should be called at the assessment of damages.  It appeared nowhere in the judgment, nor was shown by any transcript.  Mr Lam submitted that was the instruction of his clients who acted in person at the trial.

14.  Mr Hung, for the Plaintiff, did not see the need to cross-examine Dr Wong.  He submitted that with the findings of fact by Waung J, it is not difficult for the Court to resolve the issue on causation without calling the doctors.  He pointed out that Waung J’s comments at the trial was in relation to confining the issues to liability, and at any rate, at a stage before the joint orthopaedic report was rendered.

15.  Mr Lam, on the other hand, wished to cross-examine Dr Kong as he had not specifically dealt with Dr Wong’s queries in the joint report.  He submitted that the credibility of the doctors are crucial.

16.  I fail to see how credibility of the doctors enter into issue as they have merely suggested possibilities based on versions of facts presented to them.  It must be borne in mind that the defence of fabrication of the accident has been rejected by Waung J.

17.  I agree that there is no need to call the doctors.  A fortiori, there is much room for alternative resolution (with or without mediation) as the dispute as to earnings do not seem to be widespread.

18.  Hence, I made the order at the hearing that:

(a) subject to the discretion of the trial judge, the report(s) of the respective orthopaedic experts be admitted without calling the authors;

(b) unless the case is set down in the Running List with 3 days reserved within 28 days, the Plaintiff be debarred from seeking assessment of damages.

19.  As an afterthought, 2 days should be sufficient.  Hence, 2 days shall be reserved for the assessment instead.

20.  I ordered costs in the cause.