HCPI307/2011 MO CHUI LING v. SECRETARY FOR JUSTICE - LawHero
HCPI307/2011
高等法院（人身傷害）Before Master K K Pang16/5/2012
HCPI307/2011
A A
HCPI 307/2011
B B
C
IN THE HIGH COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D D
COURT OF FIRST INSTANCE
E
PERSONAL INJURIES ACTION NO. 307 OF 2011 E
_________________________
F F
G BETWEEN G
MO CHUI LING Plaintiff
H H
and
I SECRETARY FOR JUSTICE Defendant I
J
_________________________ J
K K
Coram : Before Master K K Pang in Chambers (Open to the public)
L L
Date of Hearing : 9 May 2012
M Date of Handing Down : 17 May 2012 M
N N
O _______________ O
DECISION
P _______________ P
Q Q
THE APPLICATION
R R
S
1. This is the plaintiff’s application for leave to adduce S
neurological and ophthalmological expert evidence at the trial.
T T
U U
V V
- 2 -
A A
THE PLAINTIFF’S CASE
B B
2. On 16 September 2008, the plaintiff was hit on her head by a set
C C
of fluorescent tube falling from the ceiling. Since the accident, she has been
D allegedly suffering from head injury resulting in: D
(a) Post-concussion syndrome;
E E
(b) Right eye visual impairment;
F (c) Psychiatric impairment. F
G G
3. The plaintiff made complaint of double vision and headache
H about 1 hour after the accident. She vomited several times at the Accident & H
Emergency Department. Afterwards, she persistently complained to her
I I
treating doctors that she suffered from double vision and headache. The
J plaintiff was given sick leave from 16 September 2009 to 21 October 2009 J
(more than 13 months) and from 10 March 2010 to 5 October 2010 (more
K K
than 6 months). She resumed the pre-accident employment as a Foreman of
L the Food & Environmental Hygiene Department on 6 October 2010. L
M M
4. The parties have obtained the leave of the court to prepare a
N medical joint report of the respective psychiatrists of the parties. In the joint N
psychiatrists’ report, Dr Dong, psychiatrist for the plaintiff stated that as the
O O
plaintiff is still suffering from headache and diplopia, not fully explained by
P her psychiatric state, he suggested the plaintiff to be examined by P
neurologist and ophthalmologist.
Q Q
R THE DEFENDANT’S CASE R
S S
5. The defendant opposed the plaintiff’s application. Its
T T
contention is that the plaintiff’s complaint of headache and diplopia is
U U
V V
- 3 -
A A
subjective and unexplained. The defendant relied on the medical notes,
B
records and reports prepared by the treating doctors in support of the B
opposition.
C C
D THE PRINCIPLE D
E E
6. It is accepted by both parties that the guiding principle is
F whether the expert evidence is necessary, relevant and of probative value: Ip F
Sau Lin v Hospital Authority [2009] 2 HKC 383, per Judge Marlene Ng at
G G
§38, 39 & 43.
H H
7. At the pre-trial stage, the court would refuse to admit expert
I I
evidence if the proposed evidence is plainly irrelevant. The court should
J however grant leave for expert evidence to be adduced at the trial, not only J
where the evidence is clearly relevant, but also where it cannot at the
K K
interlocutory stage form a clear view on its relevance: Chung Yuen Yee v
L Sam Woo Bore Pile Foundation Ltd. & Ors, unreported, HCPI 1053/2006, L
17 October 2008, per DHCJ Lisa Wong SC, at §32 and the cases cited
M M
therein.
N N
ANALYSIS
O O
Neurological expert evidence
P P
8. Both the computer tomography of brain done on the date of the
Q Q
accident and the magnetic resonance imaging of brain done on 17 March
R 2009 were unremarkable. Also, clinical examinations as set out in the R
various medical reports have not revealed abnormalities. Relying on the
S S
above, the defendant contended that the plaintiff’s complaint of headache is
T T
subjective and unexplained and thus opposed the application.
U U
V V
- 4 -
A A
B
9. It is the plaintiff’s case that her head injury resulted in B
post-concussion syndrome and persistent headache. The plaintiff’s treating
C C
doctors also diagnosed the plaintiff as suffering from post-concussion
D syndrome. In this way, I accept that there is sufficient prima facie material to D
support the relevance and usefulness of the proposed neurological expert
E E
evidence, which is helpful to the court in arriving at its decision on issues
F such as the cause of the plaintiff’s post-concussion syndrome, the severity F
thereof suffered by the plaintiff, or how, if any, it would adversely affect the
G G
plaintiff’s work performance.
H H
Ophthalmology expert evidence
I I
J 10. According to the available medical notes, records and reports, J
K K
(a) Upon ocular examination, extraocular movements were
L clinically full. No obvious abnormalities have been detected by L
anterior segment, posterior segment and cranial nerves
M M
examination. Her unaided vision was 20/30 (both eyes), with
N normal intraocular pressure. CT brain has been arranged for her N
but revealed no obvious abnormality” (Medical Report of Dr.
O O
Fan Hoi Alex of the Department of Ophthalmology & Visual
P Sciences of Prince Wales Hospital (“PWH”) dated 23 P
December 2008)
Q Q
R (b) “C/O unexplained persistent diplopia and headache for >1/12... R
Unremarkable brain structure with no focal lesion or
S S
inflammatory plaque present. Normal ventricles and sulci. No
T T
infarct or haemorrhage or extra-axial fluid collection present.
U U
V V
- 5 -
A A
Orbits and their contents are unremarkable. Unremarkable MRI
B
brain” (Examination Report of Department of Imaging and B
Interventional Radiology of PWH dated 17 March 2009)
C C
D (c) “[c]omputer tomography of brain showed no haemorrhage” D
(Medical Report of the A & E Department of PWH dated 25
E E
August 2010)
F F
(d) “On eye examination, her eyeballs were normal. Eye
G G
movement was in normal range. Subjectively she complained of
H of persistent right eye monocular diplopia which could not be H
explained by ocular findings. Magnetic resonance imaging of
I I
brain and orbits did not reveal any abnormality.” (Medical
J Report of Dr. Yip Kwok Foo, Nelson of the Department of J
Ophthalmology & Visual Sciences of PWH dated 27 January
K K
2011)
L L
(e) “On eye examination, her eye movement was normal. There
M M
was no remarkable ocular abnormality noted… Her eye
N condition was stable.” (Medical Report of Dr. Yip Kwok Foo, N
Nelson of the Department of Ophthalmology & Visual Sciences
O O
of PWH dated 11 April 2011)
P P
(f) “assessment at the time of board revealed that diplopia is
Q Q
persistent, although her eye condition is not related to her
R injury. Currently her problems are mainly psychiatric R
(depression) and her eye condition” (Memo from the Chairman
S S
of the Medical Board, PWH to the Director of Food &
T T
Environmental Hygiene dated 9 June 2011 and 4 October 2011)
U U
V V
- 6 -
A A
B
(g) “Upon physical examination, she was fully alert with full range B
of neck movement. There was no scalp wound or any
C C
neurological deficit. No definite diplopia or other cerebellar
D signs were noted. Computed tomography of her brain revealed D
no abnormality. Ophthalmology team was consulted for her
E E
double vision. She remained neurologically stable and was
F discharged on 17/09/2008… MRI was performed in March F
2009 which revealed no abnormality” (Medical Report of the
G G
Department of Neurosurgery, Shatin dated 23 November 2011)
H H
(h) “physical examination showed subjective visual acuity 20/30
I I
for both right and left eye and normal intraocular pressure.
J fundi exam showed normal findings. extraocular movement J
was full. CT brain done on 16.9.2008 and MRI brain done on
K K
17.3.2009 showed normal finding” (Medical Report of Dr. Lo
L Chi Fung Ernie of the Department of Ophthalmology & Visual L
Sciences of PWH dated 9 December 2011)
M M
N 11. Dr Yu, psychiatrist for the defendant, whilst accepting that he is N
not an expert in neurology or ophthalmology, from a psychiatric perspective,
O O
opined that the plaintiff’s complaint of double vision is likely to be an
P exaggeration. P
Q Q
12. In the present case, for her complaint of double vision, the
R plaintiff has been examined by ophthalmologists of PWH. According to R
their medical notes, records and reports, there is no sufficient prima facie
S S
material to support the plaintiff’s complaint of double vision.
T T
U U
V V
- 7 -
A A
13. It follows that there is no sufficient prima facie medical
B
evidence supporting the relevance and usefulness of the proposed B
ophthalmological expert evidence. After having carefully considered the
C C
medical evidence, I agree with the defendant that further expert evidence on
D ophthalmology would not assist the trial judge. If allowed, it will D
unnecessarily add time and costs to the detriment of the parties.
E E
F RULING F
G G
14. The parties shall have leave to adduce neurological expert
H evidence, limited to one neurological expert for each party. The parties shall H
within 21 days of the date hereof jointly report to the PI Master:
I I
J (a) The names of their respective neurological experts; J
K K
(b) The date of a joint examination, if any;
L L
(c) When the joint report will be complied;
M M
N (d) Whether the checklist hearing directions and timetable already N
laid down by the court can be maintained. If not, the parties
O O
shall jointly make a proposal for variation.
P P
15. The plaintiff’s application for leave to adduce ophthalmological
Q Q
expert evidence is dismissed.
R R
16. Both parties succeed and fail part of their respective cases. In
S S
the premises, it is ordered nisi that the costs of the application be in the
T T
U U
V V
- 8 -
A A
cause. The order becomes absolute within 14 days from the date hereof
B
unless a party has applied for varying the order. B
C C
17. The plaintiff’s own costs shall be taxed in accordance with
D Legal Aid Regulations. D
E E
F F
G G
H (K K Pang) H
Master of the High Court
I I
J J
Mr Lawrence Ng instructed by Messrs Mike So, Joseph Lau & Co for the
K K
plaintiff.
L Ms Vienne Luk, Government Counsel for the defendant. L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
HCPI 307/2011
B B
C
IN THE HIGH COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D D
COURT OF FIRST INSTANCE
E
PERSONAL INJURIES ACTION NO. 307 OF 2011 E
_________________________
F F
G BETWEEN G
MO CHUI LING Plaintiff
H H
and
I SECRETARY FOR JUSTICE Defendant I
J
_________________________ J
K K
Coram : Before Master K K Pang in Chambers (Open to the public)
L L
Date of Hearing : 9 May 2012
M Date of Handing Down : 17 May 2012 M
N N
O _______________ O
DECISION
P _______________ P
Q Q
THE APPLICATION
R R
S
1. This is the plaintiff’s application for leave to adduce S
neurological and ophthalmological expert evidence at the trial.
T T
U U
V V
- 2 -
A A
THE PLAINTIFF’S CASE
B B
2. On 16 September 2008, the plaintiff was hit on her head by a set
C C
of fluorescent tube falling from the ceiling. Since the accident, she has been
D allegedly suffering from head injury resulting in: D
(a) Post-concussion syndrome;
E E
(b) Right eye visual impairment;
F (c) Psychiatric impairment. F
G G
3. The plaintiff made complaint of double vision and headache
H about 1 hour after the accident. She vomited several times at the Accident & H
Emergency Department. Afterwards, she persistently complained to her
I I
treating doctors that she suffered from double vision and headache. The
J plaintiff was given sick leave from 16 September 2009 to 21 October 2009 J
(more than 13 months) and from 10 March 2010 to 5 October 2010 (more
K K
than 6 months). She resumed the pre-accident employment as a Foreman of
L the Food & Environmental Hygiene Department on 6 October 2010. L
M M
4. The parties have obtained the leave of the court to prepare a
N medical joint report of the respective psychiatrists of the parties. In the joint N
psychiatrists’ report, Dr Dong, psychiatrist for the plaintiff stated that as the
O O
plaintiff is still suffering from headache and diplopia, not fully explained by
P her psychiatric state, he suggested the plaintiff to be examined by P
neurologist and ophthalmologist.
Q Q
R THE DEFENDANT’S CASE R
S S
5. The defendant opposed the plaintiff’s application. Its
T T
contention is that the plaintiff’s complaint of headache and diplopia is
U U
V V
- 3 -
A A
subjective and unexplained. The defendant relied on the medical notes,
B
records and reports prepared by the treating doctors in support of the B
opposition.
C C
D THE PRINCIPLE D
E E
6. It is accepted by both parties that the guiding principle is
F whether the expert evidence is necessary, relevant and of probative value: Ip F
Sau Lin v Hospital Authority [2009] 2 HKC 383, per Judge Marlene Ng at
G G
§38, 39 & 43.
H H
7. At the pre-trial stage, the court would refuse to admit expert
I I
evidence if the proposed evidence is plainly irrelevant. The court should
J however grant leave for expert evidence to be adduced at the trial, not only J
where the evidence is clearly relevant, but also where it cannot at the
K K
interlocutory stage form a clear view on its relevance: Chung Yuen Yee v
L Sam Woo Bore Pile Foundation Ltd. & Ors, unreported, HCPI 1053/2006, L
17 October 2008, per DHCJ Lisa Wong SC, at §32 and the cases cited
M M
therein.
N N
ANALYSIS
O O
Neurological expert evidence
P P
8. Both the computer tomography of brain done on the date of the
Q Q
accident and the magnetic resonance imaging of brain done on 17 March
R 2009 were unremarkable. Also, clinical examinations as set out in the R
various medical reports have not revealed abnormalities. Relying on the
S S
above, the defendant contended that the plaintiff’s complaint of headache is
T T
subjective and unexplained and thus opposed the application.
U U
V V
- 4 -
A A
B
9. It is the plaintiff’s case that her head injury resulted in B
post-concussion syndrome and persistent headache. The plaintiff’s treating
C C
doctors also diagnosed the plaintiff as suffering from post-concussion
D syndrome. In this way, I accept that there is sufficient prima facie material to D
support the relevance and usefulness of the proposed neurological expert
E E
evidence, which is helpful to the court in arriving at its decision on issues
F such as the cause of the plaintiff’s post-concussion syndrome, the severity F
thereof suffered by the plaintiff, or how, if any, it would adversely affect the
G G
plaintiff’s work performance.
H H
Ophthalmology expert evidence
I I
J 10. According to the available medical notes, records and reports, J
K K
(a) Upon ocular examination, extraocular movements were
L clinically full. No obvious abnormalities have been detected by L
anterior segment, posterior segment and cranial nerves
M M
examination. Her unaided vision was 20/30 (both eyes), with
N normal intraocular pressure. CT brain has been arranged for her N
but revealed no obvious abnormality” (Medical Report of Dr.
O O
Fan Hoi Alex of the Department of Ophthalmology & Visual
P Sciences of Prince Wales Hospital (“PWH”) dated 23 P
December 2008)
Q Q
R (b) “C/O unexplained persistent diplopia and headache for >1/12... R
Unremarkable brain structure with no focal lesion or
S S
inflammatory plaque present. Normal ventricles and sulci. No
T T
infarct or haemorrhage or extra-axial fluid collection present.
U U
V V
- 5 -
A A
Orbits and their contents are unremarkable. Unremarkable MRI
B
brain” (Examination Report of Department of Imaging and B
Interventional Radiology of PWH dated 17 March 2009)
C C
D (c) “[c]omputer tomography of brain showed no haemorrhage” D
(Medical Report of the A & E Department of PWH dated 25
E E
August 2010)
F F
(d) “On eye examination, her eyeballs were normal. Eye
G G
movement was in normal range. Subjectively she complained of
H of persistent right eye monocular diplopia which could not be H
explained by ocular findings. Magnetic resonance imaging of
I I
brain and orbits did not reveal any abnormality.” (Medical
J Report of Dr. Yip Kwok Foo, Nelson of the Department of J
Ophthalmology & Visual Sciences of PWH dated 27 January
K K
2011)
L L
(e) “On eye examination, her eye movement was normal. There
M M
was no remarkable ocular abnormality noted… Her eye
N condition was stable.” (Medical Report of Dr. Yip Kwok Foo, N
Nelson of the Department of Ophthalmology & Visual Sciences
O O
of PWH dated 11 April 2011)
P P
(f) “assessment at the time of board revealed that diplopia is
Q Q
persistent, although her eye condition is not related to her
R injury. Currently her problems are mainly psychiatric R
(depression) and her eye condition” (Memo from the Chairman
S S
of the Medical Board, PWH to the Director of Food &
T T
Environmental Hygiene dated 9 June 2011 and 4 October 2011)
U U
V V
- 6 -
A A
B
(g) “Upon physical examination, she was fully alert with full range B
of neck movement. There was no scalp wound or any
C C
neurological deficit. No definite diplopia or other cerebellar
D signs were noted. Computed tomography of her brain revealed D
no abnormality. Ophthalmology team was consulted for her
E E
double vision. She remained neurologically stable and was
F discharged on 17/09/2008… MRI was performed in March F
2009 which revealed no abnormality” (Medical Report of the
G G
Department of Neurosurgery, Shatin dated 23 November 2011)
H H
(h) “physical examination showed subjective visual acuity 20/30
I I
for both right and left eye and normal intraocular pressure.
J fundi exam showed normal findings. extraocular movement J
was full. CT brain done on 16.9.2008 and MRI brain done on
K K
17.3.2009 showed normal finding” (Medical Report of Dr. Lo
L Chi Fung Ernie of the Department of Ophthalmology & Visual L
Sciences of PWH dated 9 December 2011)
M M
N 11. Dr Yu, psychiatrist for the defendant, whilst accepting that he is N
not an expert in neurology or ophthalmology, from a psychiatric perspective,
O O
opined that the plaintiff’s complaint of double vision is likely to be an
P exaggeration. P
Q Q
12. In the present case, for her complaint of double vision, the
R plaintiff has been examined by ophthalmologists of PWH. According to R
their medical notes, records and reports, there is no sufficient prima facie
S S
material to support the plaintiff’s complaint of double vision.
T T
U U
V V
- 7 -
A A
13. It follows that there is no sufficient prima facie medical
B
evidence supporting the relevance and usefulness of the proposed B
ophthalmological expert evidence. After having carefully considered the
C C
medical evidence, I agree with the defendant that further expert evidence on
D ophthalmology would not assist the trial judge. If allowed, it will D
unnecessarily add time and costs to the detriment of the parties.
E E
F RULING F
G G
14. The parties shall have leave to adduce neurological expert
H evidence, limited to one neurological expert for each party. The parties shall H
within 21 days of the date hereof jointly report to the PI Master:
I I
J (a) The names of their respective neurological experts; J
K K
(b) The date of a joint examination, if any;
L L
(c) When the joint report will be complied;
M M
N (d) Whether the checklist hearing directions and timetable already N
laid down by the court can be maintained. If not, the parties
O O
shall jointly make a proposal for variation.
P P
15. The plaintiff’s application for leave to adduce ophthalmological
Q Q
expert evidence is dismissed.
R R
16. Both parties succeed and fail part of their respective cases. In
S S
the premises, it is ordered nisi that the costs of the application be in the
T T
U U
V V
- 8 -
A A
cause. The order becomes absolute within 14 days from the date hereof
B
unless a party has applied for varying the order. B
C C
17. The plaintiff’s own costs shall be taxed in accordance with
D Legal Aid Regulations. D
E E
F F
G G
H (K K Pang) H
Master of the High Court
I I
J J
Mr Lawrence Ng instructed by Messrs Mike So, Joseph Lau & Co for the
K K
plaintiff.
L Ms Vienne Luk, Government Counsel for the defendant. L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V