Leung Wing Cheong v. Chit Shing Contracting Ltd

HCPI 637/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 637 OF 2014

__________________________

__________________________

______________

D E C I S I O N

______________

1.This is the defendant’s application for leave to the parties to obtain a supplemental report from the orthopedic experts in this case, Dr Peter Tio Man Kwun and Dr Chun Siu Yeung, on a number of issues, namely, the effect of the plaintiff’s subsequent neck injury on his working capacity; the effect of the plaintiff's preexisting degeneration on his working capacity; whether or not the experts had a full understanding of the nature of his work when they prepared their joint report, and whether their opinions would change in the light of the plaintiff's third witness statement dated 29 April 2015 in which he sets out, in great detail, the job demands of his pre-accident work.

2.I can deal, very briefly, with the first part of the application.

3.The present proceedings arise from an accident that occurred at a construction site where the plaintiff was injured when he fell from the rooftop of a glasshouse on which he was working to install glass.  He fell a distance of some 3 metres, landed on his back and suffered injuries.

4.The application for the further supplemental report arises from the fact that some two years later he suffered a neck injury from a road traffic accident as a result of which he made a claim for damages against the negligent driver who caused that accident.  There are a number of medical reports dealing with that injury and the treatments he received to his neck, and these reports, which appear at pages 80 to 104 of the bundle, were not available to the experts.  The first part of the application before me is for the experts to look at these reports and to comment on them.

5.The experts were aware of the fact that the plaintiff had suffered from this road traffic accident, some two years after the matters complained of in this action, and referred to that fact in their joint expert report, at §§84 and 85, in which they referred to an MRI of the cervical spine done after the traffic accident.

6.In relation to the neck injury, Dr Chun says in §91 of the joint report that his subsequent traffic accident should be the main cause of his present neck complaint; whereas Dr Tio’s opinion, which I think is somewhat more beneficial to the defendant, is to the effect that his neck and chest injuries should have been recovering well.

7.So both doctors were of the view that the impact of the traffic accident on his current condition was nil or negligible.  I do not consider it necessary for them to review these medical reports subsequently obtained, as I do not need their assistance on these medical reports.  The medical reports and records are clear to me.  The report from the Accident & Emergency Department of Pok Oi Hospital showed that he was attended there in the afternoon of 16 February 2012 after the traffic accident.  His chief complaint was neck pain.  The cervical spine x-ray taken showed no fracture.  More importantly, at page 104 of the bundle, appears the MRI scan of the thoracic spine taken on 31 August 2012.  This also records that there was no bone injury, thoracic spinal cord lesion or thoracic nerve impingement.

8.What the MRI report shows is that the plaintiff is suffering from degeneration of the cervical spine.  There was mild spondylosis with small marginal spurs gathered in some of the thoracic vertebral bodies, mild posterior prolapse of C6/7 and C7/T1, minimal posterior prolapse of T3/4 and T5/6 discs, minimal posterior bulging of T2/3 and T4/5 discs, degeneration of the lower cervical and upper thoracic discs and mild degeneration of the mid and lower thoracic discs detected.

9.The degeneration of the cervical spine is consistent with the MRI taken of the lumbar spine which the joint experts have already commented on.  In particular, Dr Chun, in §89 of the joint report, refers to the MRI lumbar spine done less than a month later on 10 September 2012 and states that:

“... save for the mild depression of the L4 inferior endplate with a thin layer of subcortical fluid and subcortical bone marrow edema of right side of L4 superior endplate which could be the residual of the initially crack fracture of the anterior cortex of the L4, all the other features reported were pre-existing degenerative changes not caused by the alleged injury.”

10.Both the experts commented on the existence of this preexisting degeneration.  At §90, Dr Chun states his view that:

“In the absence of the alleged injury, with the pre-existing degeneration, it is almost certain that Mr Leung will not go through his life unaffected by the pre-existing degeneration.”

11.Dr Tio also states at §94 that:

“These degenerations in his lumbar spine were compatible with his age and the pre-injury job nature”.

12.Clearly, the plaintiff suffers from degeneration of the cervical and lumbar spines as shown from these MRIs of the thoracic and lumbar regions and as confirmed by the joint experts.  There is little further assistance that I could derive from the experts being asked to look at these further medical reports that were disclosed after the joint report was prepared.

13.Ultimately, courts turn to experts when they need their assistance.  In this case, I do not need their assistance on the impact of the subsequent road traffic accident, nor do I need their assistance on the preexisting degeneration of the cervical spine shown up on the MRI of the cervical spine.

14.So what other assistance can I get from them on the matters that need to be resolved at trial?

15.The plaintiff solicitors failed to comply with my (often repeated) practice directions that where you have a situation where leave is granted to the parties to obtain a joint report on quantum from their experts, they lose their right of individual access to their nominated expert and all further communications with them must be done jointly.  However, on their own bat, the plaintiff’s solicitors wrote to Dr Tio after the joint report was prepared and asked this question.

16.In their letter dated 17 April 2015, they referred to the opinion of Dr Tio in §101 of the joint report, wherein Dr Tio had expressed the opinion that the plaintiff is independent in most of the activities of daily living except those that involve heavy manual exertion; that he should be able to resume his duty as a glass panel worker with reduced efficiency such as pain over his back when he has to carry or lift heavy glass panels, standing or walking for a long time, such as over 1 to 2 hours, bending his back when he is working, or prolonged working for over 2 to 3 hours.  They then asked him to advise (i) what is the maximum weight that Mr Leung can carry or lift in light of his injuries; and (ii) whether Mr Leung can engage in works involving climbing of scaffolds or working at height on gondolas or working platforms.  Dr Tio’s reply in his letter dated 27 April 2015, at page 142 of the bundle, was as follows:

“With reference to his back injury, it is estimated that he could carry a weight of up to 15 to 20 kg for a period of less than 15 minutes.

He would find it challenging to climb on scaffold or working in gondolas if he has to carry a weight of over 15 kg.”

That was his answer.

17.A complaint was made by the defendant’s solicitors about this unilateral obtaining of clarification from an expert, and they did so by their letter dated 20 April 2015, to which the plaintiff's solicitors replied the next day on 21 April 2015 as follows:

“Your expert Dr Chun Siu Yeung opined that our client is able to return to work as a glass panel installer worker with no difficulties. As such, no further clarification is required from Dr Chun”.

18.And, apparently, the matter was left there.  A few days after Dr Tio’s letter was obtained and served, the plaintiff filed his third witness statement dated 29 April 2015 on the nature of his work prior to the accident, and he gave a detailed breakdown of the work he did saying that 60 to 70 per cent of his work involved installing glass panels which were 3 to 4 metres in height and weighed over 500 pounds, and saying that the substantial portion of his work was done above ground level.

19.All that occurred in April of 2015.  There was some further exchange of correspondence, mostly related to the reports obtained after the road traffic accident case.  Much later, the present summons was issued for the experts to review their opinion on the working capacity of the plaintiff in the light of the new witness statement.

20.There are two matters that I wish to highlight, one being the timing of the application.  If this application had been made in April or May or June of last year, the court might have acceded to it with greater leniency, but the fact remains that we are very close to trial.  Today is 21 June 2016.  The pre-trial review of this case is scheduled to take place five weeks later, on 29 July 2016, and exactly a month after that on 29 August 2016 we kick-off for trial.

21.Given the lateness of the application, there is a risk that the grant of leave would impact on milestone dates and, particularly, the trial date.  There is no guarantee, or at least I have not received any guarantee, that the report would be ready by the time of the PTR.  The defendant’s solicitors assert strongly that it would surely be ready before trial.

22.The other aspect that affects this particular application is, I think, more pressing upon me, and it is this: to what extent, if any, did the experts misunderstand the nature of his work prior to the accident in question?  And, is there a risk, if I receive this joint expert report without further clarification from them, that I would be receiving opinion evidence which is not supported by a proper understanding on the part of the experts of the nature of the plaintiff's work?

23.I have considered closely the submissions made to me very eloquently by Ms Susanna Leong, and I come to the conclusion that any such risk is minimal to the extreme.  In their joint expert report, the nature of the plaintiff's work is summarised by the experts at §52:

“At the time of the injury, he had been working in installation of glass, window and panel (small to large) for more than 10 years. He had to climb ladder, scaffolding, hanging bridge ...”

And I understand that to mean gondolas,

“ ... and frame. He worked from 9 am to 6 pm with an hour for meal break and 20 minutes for afternoon tea break on a 6 or 7-day-week. He worked with many colleagues when [the] machine could not handle the weight. He did aluminum frame/board installation at construction site, office and house for a few years.”

24.Notwithstanding the nature of his pre-accident work, which I have quoted above, Dr Chun’s opinion at §99 of the joint report, with reference to the healed fracture L4, was that:

“... he is able to return to work as a glass panel installation [worker], he should have no problem with climbing, standing on hanging bridge and frame. For the rather advanced degenerative spine, he may have some [difficulty] [in] erection [or] raising heavy pieces of glass panel. He is able to continue with his sport activities which are in fact beneficial to his low back.”

25.Dr Tio in §101 of the joint report stated:

“... he is encouraged to keep swimming which can strength his back muscles. He should be able to resume his duty as a glass panel worker with reduced efficiency such as pain over his back when he has to carry or lift heavy glass panels, standing or walking for long time ...”

The whole passage has already been referred to in §16 above.  Dr Tio concluded that his strength and stamina may be mildly impaired.

26.The point made by Ms Leong is that it was only in the third witness statement of 29 April 2015 that the plaintiff gave evidence for the first time that a large portion of his pre-accident injury was very heavy in nature and was done on gondolas or scaffoldings or working platforms. Only 30 per cent of his jobs were done on ground level and only 10 per cent of his duty involved installation of glass panel of smaller size.  It was this change of pre-accident job description, she submitted, that necessitated clarification from the experts.

27.I beg to disagree.  The experts must have been well aware that installation of glass panels, etc, will take place more often at a height than on the ground floor given the nature of our multi-storey buildings. They must also have been aware of the fact that these glass panels are extremely heavy and they did mention the fact that the workers lifted them with the assistance of machines and that many colleagues worked together.  I have already referred to what they said at §52 of their joint report.

28.I think, to a large extent, the application stems from a certain grievance that the defendant’s solicitors feel, and rightly feel, that relevant evidence, in the form of medical experts’ reports arising from the subsequent road traffic accident case and the detailed witness statement on the nature of the plaintiff’s pre-accident work, was only produced after the joint report had already been obtained.

29.Of course, it would have been better if the plaintiff’s solicitors had obtained this further witness statement earlier and provided it to the experts; and also provided them with the medical records in relation to the neck injury suffered from the subsequent road traffic accident, before they prepared their joint report.  But there it is, and here we are, and I have to decide this application on its merits by applying the rules of procedure and exercising my discretion on the matter.

30.The two experts concerned are extremely experienced and I have no doubt in my mind that they fully understood the nature of the plaintiff’s work as a glass panel installer and the fact that it involved heavy lifting.

31.What purpose could be achieved by granting leave?  Dr Chun has already expressed the opinion that the plaintiff is able to return to work as a glass panel installation worker, and that he should have no problem with climbing, standing on hanging bridge or frame, and, in relation to the heavy pieces of glass panel that he will have to deal with, that he may have some difficulty with them, but only because of his rather advanced degenerative spine, and not because of the healed L4 fracture.

32.Is he going to change his mind?  I do not think so.  Dr Tio has said he should be able to resume his duty as a glass panel worker with reduced efficiency.  If I were to grant the leave sought by the defendant’s solicitors, I do not see Dr Chun changing his mind, but I see Dr Tio possibly latching on to this new witness statement to change his mind and say, “Oh, perhaps I was wrong in my first opinion”.  So how does this help the defendant, if, by my granting its application, the plaintiff can take advantage of the breaches of the procedural rules and get Dr Tio to resile from his original opinion?

33.Having regard to all the circumstances, I come strongly to the view that I must refuse this application.

[Submissions on costs]

34.I order that 75% of the plaintiff's costs of the application, and of today, to be paid by the defendant in any event with certificate for Counsel.  Although the plaintiff succeeded, I must reflect, in my costs order, the Court’s displeasure that the plaintiff unilaterally obtained a further report from his own expert and served his witness statement on the nature of his pre-accident work after the joint report had been obtained.  I also order legal aid taxation for the plaintiff’s own costs.

Ms Christina Lee, instructed by Szwina Pang, Edward Li & Co, assigned by Director of Legal Aid, for the plaintiff

Ms Susanna Leong, instructed by Gallant Y T Ho & Cofor the defendant