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Is sick leave granted by treating doctors and opinion given by medical experts binding on the Court in assessing damages?

2021-12-30

Is sick leave granted by treating doctors and opinion given by medical experts binding on the Court in assessing damages?

Introduction

In the case of Hu Wan v Sanwo International Company Limited [2021] HKDC 237, the District Court (the “Court”) considered, inter alia, the questions of whether the sick leave granted by treating doctors and the opinion given by the medical experts is binding on the Court in assessing damages. The then 27-year-old Plaintiff was working for the Defendant as a saleslady in the Defendant’s shoes shop when she suffered an accident at work which led to ankle injury. She had a fracture which required open reduction and internal fixation. She was hospitalised for 5 days and was given sick leave of around 36.5 months. The Plaintiff complained that as a result of the accident she cannot stand or walk for more than 2-3 hours which makes it extremely difficult if not impossible for her to return to her pre-accident job as a saleslady in a busy shoe shop.

 

Determination of sick leave period

In respect of the sick leave periods granted by doctors at public hospitals or clinics, the Court cited the case of Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210 and held that medical certificates were no more than a piece of evidence to be evaluated in the light of all available evidence, and the judge could not be bound by the mere issue of medical certificates since the issuance of such certificates would be primarily because of subjective symptoms reported to the doctors by the Plaintiff. It is not necessarily the case that the patient has made full recovery or can immediately return to pre-accident work or other gainful employment at the end of such sick leave period.

Therefore, the sick leave period granted by treating doctors is not conclusive evidence as to the Plaintiff’s recovery and health conditions. The Court will consider all the available evidence and assess the reasonable sick leave period required by the Plaintiff.

 

The Plaintiff’s suitability to return to a particular job

After the Accident, the Plaintiff had tried to look for a sales job for some time in less demanding trades but could not find one. The Plaintiff had tried to return to work as a saleslady after the accident but quit the job 5 days later as she could not cope with the demands of this job which caused further pain in her ankle. The Plaintiff eventually landed a new job as an office assistant which does not require her to stand for long hours or outdoor work.

The medical experts’ evidence is that it was only appropriate for the Plaintiff to take 21 months of sick leave and that she should be able to return to her pre-injury occupation with mild reduced efficiency and capacity.

The Court ruled that when deciding the issue of suitability to return to a particular job, the Court will take into account of all the evidence available in the case, including both factual and expert evidence. In this case, in addition to the medical experts’ opinions as stated in a joint expert report prepared by the Plaintiff’s orthopaedic expert and the Defendant’s orthopaedic expert, the Court has taken into account the following relevant evidence:-

  1. nature of the Plaintiff’s injuries;
  2. objective medical evidence;
  3. the Plaintiff’s treatment records and history;
  4. the Plaintiff’s explanations as to why she was unable to cope with the job as a saleslady;
  5. the Plaintiff’s attempts to find and work in other sales jobs;
  6. the demand of the Plaintiff’s pre-accident job; and
  7. the Plaintiff’s present complaints. 

The Court noted that there is no suggestion by the Plaintiff’s and Defendant’s experts in their joint expert report that the Plaintiff has exaggerated her complaints. The Court accepted that the Plaintiff would not be able to cope with and return to her pre-accident job. The Court also found that it was reasonable for the Plaintiff not to return to the retail industry which requires long hours of standing and walking and that she had taken reasonable steps in mitigating her loss.

 

Conclusion

The Court affirmed that both sick leave certificates issued by treating doctors and opinion of the experts are not binding on the Court when assessing the damages. The Court will take a holistic approach in making an assessment as to the sick leave period and suitability for a Plaintiff to return to his/her pre-accident job and is not bound by any expert opinion in making the assessment regardless of whether such opinion is favourable to the Plaintiff or not.



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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.

Published by ONC Lawyers © 2021



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