WAN CHEE LEUNG v. LAM KI MAU AND ANOTHER t/a TOMSON CONSTRUCTION ENGINEERING CO

HCPI95/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 95 OF 2006

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D E C I S I O N

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1. This is an application to vacate the personal injuries action from the running list. 

2. The facts of the case are not complicated.  The plaintiff had a fall from height while using the acetylene welder, standing on a platform. 

3. The Employee’s compensation action had been tried and the judge found that the plaintiff had sustained such an accident during the employment of the defendant.  The case had gone on appeal and the judgment of the learned judge was upheld.

4. What remains of issue, as far as liability is concerned, is the degree of contributory negligence, and parties suggested that that would not take more than half the day. 

5. The more controversial aspect of this case is the quantum.  The plaintiff sustained serious head injury from which he had been in coma, and after recovery of consciousness, a psychiatric condition developed. 

6. On the plaintiff's side, medical evidence back in 2004 certified the plaintiff suffered from such mental state that it was not possible for him to re-enter the workforce and that he would need future care in the form of alternative accommodation, a full-time nurse at home, the helper, and the wife to care for him and that made up the bulk of the damages claim now standing at $23 million. 

7. Back in 2004/2005, the plaintiff was examined by the medical expert of the defendant, Dr Law, a psychiatrist.  Dr Law was of the opinion that the plaintiff was clearly exaggerating and he said there was no need to examine the plaintiff any further. 

8. The defendant also adopted the medical opinion of Dr Woo, a neurologist, who was retained by the plaintiff previously in the ECC proceedings, which suggested that the plaintiff was also exaggerating. 

9. The defendant's medical report failed basically to address the future accommodation and care need of the plaintiff by the undoubted opinion that the plaintiff was exaggerating and lying. 

10. The forensic medical evidence stopped in 2005, but the medical evidence did not really stop because the report of Dr Nguyen, the doctor treating the plaintiff in Kowloon Hospital, i.e., the psychiatric hospital, kept coming in as updated medical report of the plaintiff's treatment.  I think there were more than half a dozen of such reports from the year 2005 until now, the most recent being one dated 7 May 2008. 

11. Dr Nguyen previously stated that the plaintiff was unfit mentally and he had to have long-term hospitalized treatment.  In the recent report, Dr Nguyen said he was sympathetic with home release for the plaintiff from hospital provided that continuous supervision was available in a suitable living environment. 

12. The case was listed before the master in February this year and, as a result, it was put in the running list.  None of that which has been ventilated before me was put before the master.  Mr Kwok, for the defendant, reluctantly admitted that was because no counsel's opinion was ever obtained in relation to the PI aspect of the action until quite recently when all these points were picked up.  He asked for further medical opinion from the defendant’s experts to address the future accommodation and care needs of the plaintiff. 

13. The significant point which I noted in this case is that the medical evidence of the plaintiff did not stop while that for the defendant had stopped because no further order was made.  The reason why the medical evidence of the plaintiff did not stop is because it came from the treating doctor who now, in a way, is acting for the plaintiff's claim for need, and it came in because it was from a Government hospital which was admitted under our present system of PI of a long-standing practice. 

14. The defendant might have been less than careful and vigilant in looking at this aspect,but in fairness, I think that the defendant should have the opportunity to address the PI master for the call to have further medical evidence.  I also noted that no joint report had been ordered in this case. 

15. In this case, there is diabolically opposed medical evidence concerning aspects of confabulation and exaggeration by the plaintiff.  I anticipated that the doctors themselves will have to be called on the hotly-disputed issues of confabulation.  If the master, in her wisdom, considers that further medical evidence is allowed, she would be asked to consider whether a joint report should also be called for. 

16. In the premises, I take this case out from the running list and put it before the PI master to see whether the case if ready to be re-listed for trial. 

(Discussion on costs)

17. As to costs, Mr Kwok has kindly conceded that costs be to the plaintiff with Legal Aid taxation, and I so order.

Representations: