Wong Hung Ka v. Hong Kong Aircraft Engineering Co Ltd

HCPI 213/2018

[2021] HKCFI 1892

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 213 OF 2018

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BETWEEN

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Before: Hon B Chu J in Chambers (Open to Public)

Date of Hearing: 24 May 2021

Date of Judgment: 12 July 2021

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JUDGMENT

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INTRODUCTION

1.This is an appeal by the plaintiff (“P”) against the decision of Master Roy Yu (“Master”) of 18 June 2020.  The Master dismissed P’s application for leave to adduce plastic surgery evidence at the trial.

2.The accident took place on 7 March 2015 when P was at work (“Accident”).  P’s left hand was trapped and crushed by a safety lock of the tail of a down swinging aircraft during an aircraft maintenance operation.  P suffered from nasty crush injuries to his left middle finger and left ring finger resulting in amputations, impairments and disabilities, with long oblique multiple lacerations over hand dorsum and palm with extensor tendons and veins exposed.

3.The writ herein was issued on 28 February 2018. On 5 November 2018, the defendant (“D”) admitted liability with damages to be assessed.

4.P was jointly examined by his orthopaedic expert Dr Wong See Hon (“Dr Wong”) and D’s orthopaedic expert Dr Lee Po Chin (“Dr Lee”) on 12 February 2019.  The joint report was dated 3 April 2019 (“Joint Orthopaedic Report”).  P filed his witness statement on 2 April 2019, one day before the Joint Orthopaedic Report and later filed a supplemental witness statement on 28 May 2019.  He filed a revised statement of damages (“RSOD”) on 28 May 2019.

5.D filed its answer to P’s RSOD on 3 July 2019 (“Answer”).

6.Thereafter, P consulted a specialist in plastic surgery Dr Walter King (“Dr King”) on 23 July 2019.  On 26 August 2019, P’s solicitors wrote to D’s solicitors inviting D to jointly appoint Dr King as an expert and to give a report.  This was refused by D.  Dr King later submitted a “Medical Legal Report” dated 4 December 2019 for P.  As there was no consent for P to produce plastic surgery evidence, P issued a summons on 18 December 2019 (“Summons”), under Order 32 Rule 1 of the Rules of the High Court, Cap 4A and paragraph 71 of the Personal Injuries List Practice Direction 18.1 (“PD 18.1”).  In the Summons, P sought leave for the parties to adduce plastic surgery evidence at the trial and that there be one plastic surgery expert for each party or a single joint plastic surgery expert as the case may be.

THE JOINT ORTHOPAEDIC REPORT

7.P’s particulars have been set out in the Joint Orthopaedic Report.  Briefly, he was born in Mainland China in August 1992 and will be 29 in August this year.  He came to settle in Hong Kong at the age of 4 and is now living with his parents and grandparents.  He is single and was keen on sports before the Accident.  He worked as an aircraft maintenance worker since September 2014.  After the Accident, he received regular sick leave from 7 March 2015.  Both doctors agreed that the period of sick leave to be from the date of the Accident until 31 January 2016.  P has resumed duty (initially light duty) since February 2016 with the same job as aircraft maintenance worker.  Although he works with same working hours and nature as before, he needs assistance in lifting and carrying duties, and he also finds inconvenience while climbing up and down ladders.

8.It was noted in the Joint Orthopaedic Report that P consulted a private orthopaedic specialist Dr Kenric Lau (“Dr Lau”) who had recommended a toe-hand transplant.  Dr Wong however opined that such operation is complicated and is usually recommended for complete loss of thumb and that such operation should not be able to improve P’s current hand function as he has adapted well with loss of 2 fingers.  Dr Lee also opined that the toe-hand transplant is not indicated in P’s case.

9.P decided not to undergo the toe-hand transplant.

10.The prognosis of Dr Wong in the Joint Orthopaedic Report was that P had reached the stage of maximal medical improvement and he was suitable for assessment.  Dr Lee opined that P’s left hand should have reached the stage of maximal medical recovery and further treatment was not necessary, and that further deterioration of function in the left hand was not expected.

DR KING’S REPORT

11.As mentioned earlier, Dr King is a specialist in plastic surgery whom P consulted on 23 July 2019.  Dr King had stated in a letter titled “reply letter” dated 23 July 2019, that his clinical diagnosis on that occasion was “accident/trauma related left hand injury” and that he and P discussed treatment/recommendation[1] (“King Letter”).  Dr King’s handwritten attendant notes of 23 July 2019 were also produced[2] (“King Attendance Notes”).

12.As mentioned earlier, Dr King then submitted a “Medical Legal Report” on 4 December 2019 (“King Report”), and he set out therein the following 4 “Further treatments and estimated costs”:

(1) Steroid injection with the scars, usually for 3 sessions at 4 to 6 weeks apart.  The estimated costs for one session was HKD 1,500, and the estimated cost for 3 sessions was HKD 4,500.

(2) Micro-needle of hyaluronic acids to complex left dorsum of hand scar for 2 sessions at 4 months apart: Cost estimated for one session of hyaluronic acid injection was HKD 10,000.  Cost estimated for 2 sessions of hyaluronic acid injection was HKD 20,000.

(3) Fat transplant to complex left dorsum of hand scar to improve scar quality, softness and to increase tissue volume:

(a) operating time: 3 hours

(b) anaesthesia: local anaesthesia (day surgery in operating room)

(c) surgeon fee: HKD 50,000

(d) operating room/equipment fee including consumables: HKD 32,000

(e) miscellaneous fee including specialist follow up fee: HKD 9,000

(f) scar therapy with silicone gel and silicone sheet: HKD 3,000

(4) Laser therapy to improve the scar colour and texture for 8 sessions at 4 weeks apart:

(a) cost of one laser session was HKD 5,000

(b) cost of 8 sessions of laser therapy was HKD 40,000

Total costs of all treatments: HKD158,500

GENERAL LEGAL PRINCIPLES

13.P’s Counsel Mr Tim Kwok had referred this Court to the judgment of Master Marlene Ng, as she then was in Wan Yeung Sheung and Wan Yiu Kan HCPI 288/2009 (unrep) 21.03.11 where the following criteria were set out:

“32. It is unnecessary to repeat in fullness the relevant legal principles. Suffice to say that the guiding criteria is whether the expert evidence sought is necessary, relevant and of probative value. In considering the issue of relevance, the expert evidence must be relevant in the sense that it is helpful to the court in arriving its decision on one or more issues to be resolved. If the court can make an informed decision on (and/or resolve) any issue in the case justly without the aid of such expert evidence, then the court may regard such expert evidence as not useful and should not be adduced. This calls for an exercise of judicial discretion, and pertinent considerations will include (a) how cogent the proposed expert evidence will be, (b) how helpful it will be in resolving any of the issues in the case, and (c) how much it will cost and the relationship of that cost to the sums at stake.”[3]

(emphasis added)

14.Mr Kwok also referred to Bharwaney J’s decision in Fung Chun Man v Hospital Authority and Anor HCPI 1113/2006, (unrep) 24.06.11, in relation to the plaintiff’s application made after the case was set down to adduce expert evidence of a clinical psychologist at the trial.

15.As pointed out by Bharwaney J, the substantive rights of the parties to a personal injury action do not include a legal right to call experts of their choice, notwithstanding that the primary aim of the court’s case management powers is to secure the just resolution of the dispute in accordance with the substantive rights of the parties.[4]  As said by the Judge:

“The expert evidence can only be adduced with leave of the court, and in deciding whether or not to grant leave, the court must ensure that such evidence is admitted only if it is likely to be of real assistance to the determination of the issues, and that it is adduced in the most effective and economic way consistent with the objectives of the CJR.”[5]

(emphasis added)

16.Bharwaney J had referred to the UK Court of Appeal decision in Mann v Messrs Chetty & Patel (a firm) [2000] EWCA CIV 267 in which it was proposed that 3 questions ought to be asked before deciding to allow expert evidence:

“(a) how cogent the proposed expert evidence will be;

(b)  how helpful it will be in resolving any of the issues in the case;

(c)  how much it will cost and the relationship of that cost to the sums at stake.”

17.Bhawaney J then summarised that the expert evidence must be in a recognised discipline, reasonably required to enable the court to resolve the issues in dispute, and proportionate[6] (emphasis added). He went on to say that:

“However, even if a prima facie case is made out for the admission of expert evidence, in every case, the court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant in cases where a late application is made for expert evidence to be adduced. These matters have to be considered and weighed in the light of and against the underlying objectives of the CJR: to ensure cost effectiveness and economy, expedition, proportionality, and fairness between the parties. Ultimately, the court strives to do justice between the parties and, in cases where the court permits the parties to call expert evidence, the court strives to ensure a level playing field with fair access to proper experts for all parties.”[7]

18.As pointed out by the Judge, the objectives and the joint approach are reflected in the protocol for commissioning expert reports set out in section I of the PD 18.1.

19.Paragraphs 69-71 of PD 18.1 state as follows:

“69. As a general rule, leave of the court or consent of the parties is required before any expert evidence can be adduced at trial.

70. A party who obtains expert evidence before obtaining leave, other than from a single joint expert or pursuant to joint examination and joint expert report with the expert(s) of the other party or parties, does so at his own risk as to costs and/or eventual refusal of leave to adduce such expert evidence.

71. As soon as it is realized there exists a need or an anticipated need for adducing expert evidence at trial or if parties failed to reach agreement on arranging joint examination and/or compiling joint expert report by the parties’ respective experts before or after the commencement of proceedings or if no agreement can be reached as to directions on obtaining expert evidence and/or for permission to adduce expert evidence, a party shall apply (by inter partes summons or by restoring the case for Check List Review Hearing) or the parties shall jointly apply (by Consent Summons to expedite or restore the hearing of the Check List Review) to the PI Master as soon as possible upon the commencement of or in the course of proceedings, as the case may be, for directions on obtaining expert evidence and/or for permission to adduce expert evidence.”

20.There was no dispute to the above general legal principles.  As further seen in the Fung Chun Man case, to support an application for leave, the applicant producing a written note from the intended expert setting out brief reasons will suffice, and a full report is not necessary.[8] What is also clear is that each case depends on its own facts.[9]

P’S REASONS FOR WHY HE NEEDS EXPERT EVIDENCE IN PLASTIC SURGERY

21.In paragraph 8 of P’s 1^st affirmation filed in support of the Summons, he has said that expert evidence on plastic surgery is necessary, relevant and of probative value for (i) determining the need for treatments as suggested by Dr King; and (ii) assessing his PSLA, costs of care and attention, reasonableness of the special damages[10].

22.Mr Kwok further submitted on behalf of P amongst other things that:

(1) The Joint Orthopaedic Report is no bar to P’s case on future treatment for the serious scar impairments and disabilities and to preclude P’s claim on future treatment is to do injustice to the then 20 year old P[11];

(2) Impairments and disabilities and their treatments are clearly matters within the realm of PSLA[12];

(3) Prior to the RSOD filed on 28 May 2019, P sensibly decided not to pursue the toe-hand transplant operation.  At that time, there was no medical expert evidence to support a claim for the costs and the type of the treatments which were only later recommended by Dr King.  It was only upon the availability of Dr King’s evidence P seeks to adduce further medical evidence from a plastic surgeon to support a claim[13];

(4) Leaving the Plaintiff’s serious scar symptoms, disfigurement and impairments caused by the Accident unattended would be to do unfairness and injustice to the Plaintiff without regard to his substantive rights inconsistent with the Underlying Objectives[14];

(5) This is a case that “cries out” for plastic surgery evidence from a plastic surgeon for assessment and treatment of the lasting scar symptoms, disfigurement, impairments and disabilities[15].

WHETHER NECESSARY, RELEVANT AND OF PROBATIVE VALUE

For determining the need for the treatments in the King Report

23.The records of P’s operation, discharge, and consultation at the Orthopaedics & Traumatology Department of Princess Margaret Hospital (“PMH”) have been summarised by the experts and set out in a tabular form in the Joint Orthopaedic Report[16] (“PMH Table”).

24.On 7 December 2015, it was recorded in the PMH Table amongst other things that there was “some degree of tightness over dorsal scar of MCPJ PROM with little and index finger tips touching palm” and that the “Plan of Management” was to “continue physio and occ therapy”. On 18 January 2016, it was recorded amongst other things that “Patient doesn’t want further surgical intervention including toe hand transfer” (emphasis added) and the P had resumed light duty after 31 January 2016 and he had stopped physiotherapy and occupation therapy and stopped Hand Clinic follow up.[17] It was further recorded amongst other things that P was discharged from the Hand Clinic on 17 February 2016 as “static progress from tx and rehab”, and that “Resumed light duty granted till March 2016, coped well, performing previous job tasks just avoiding confident (sic) to resume previous duty in March, decline longer duration of light duty, no pain, good ROM of L/F and I/F, awaiting MAB apt”[18].  (emphasis added)

25.Finally, the last entry in the PMH Table was on 8 June 2016 when it was again recorded amongst other things, “Resumed duty, coped well, performing previous job tasks, no pain of L/F and I/F …”[19].

26.P then consulted Dr Lau privately on 30 October 2018 due to scar pain and limited grip over left hand and P was suggested to have toe-hand transplant and tenolysis to release the scar of left hand[20].

27.In fact as seen in the record of 18 January 2016 of the PMH Table, the toe-hand transplant was mentioned then, which would mean that it had been suggested to P by PMH as early as January 2016 although there was no mention of tenolysis.  It was recorded that P did not want further surgical intervention.

28.According to Dr Lau’s medical record of P’s consultation, P had “Hypersensitive scar over dorsum and may need toe-hand transplant”[21]. As seen in Dr Lau’s medical report dated 15 December 2018[22] (“Lau Report”), Dr Lau had suggested the toe-hand transplant to P in order to improve P’s left hand function, and stated that “Otherwise, there would be significant residual pain and stiffness of left hand in the future.  Working endurance would be significantly affected ”.[23] No other treatment was suggested by Dr Lau apart from the toe-hand transplant.

29.P was then examined by the two experts Dr Wong and Dr Lee on 12 February 2019 (some 3 years and 10 months after the Accident).  As seen in the Joint Orthopaedic Report of 3 April 2019, it was noted that P had at least 5 complaints (excluding (v) below) as follows[24]:

“(i) Hypersensitive over dorsum of left hand, pain and numbness feeling, particularly on pressure over left hand

(ii) Hypersensitive amputated stump over middle and ring finger

(iii) Stiffness and reduced agility chiefly over left index finger. The movement of left thumb and little finger was normal

(iv) Left index finger pain, chiefly in holding object with index finger

(v) No intake of analgesics

(vi) activities of daily living are lightly affected. Self-care is manageable.  He can hold cup and bowl using his left hand.  He has difficulty in holding hammer, buttoning/unbuttoning using left hand and tightening shoelace.  He has less firm left hand grip but not painful.  He also finds inconvenience in using keyboards.”

30.To summarise, P’s above complaints were mainly of 3 categories: (i) hypersensitivity over dorsum of left hand and amputated stump; (ii) pain over dorsum of left hand and left index finger (chiefly when holding object); (iii) stiffness and reduced agility over left index finger and reduced left hand grip (“Complaints”).

31.As for “Prognosis”, both experts opined that P had reached the stage of maximal medical improvement.  Dr Lee opined that further treatment was not necessary and further deterioration of function in the left hand was not expected.

32.In P’s witness statement of 2 April 2019 (“1^st Witness Statement”), he had stated that he was advised by the treating doctors from PMH that further surgery including but not limited to transplantation may improve the aesthetic outlook of his deformed left hand[25].  He then stated as he had more confidence in the private sector, he consulted Dr Lau regarding the costs of operation and treatments.

33.In his 1^st affirmation, P had said that ever since he started receiving treatments at PMH and from Dr Lau, he had been looking for medical intervention to improve his situation.  He had said for example that Dr Lau once suggested the toe-hand transplant to him but he did not have the necessary financial means to undergo such operation and that although he did mention to his treating doctors at PMH about his said problems, they did not refer him to a plastic surgeon, and that had they done so, he certainly would have sought plastic surgery treatment without any doubt.

34.What can be seen from the PMH Table was that on 7 December 2015, P did complain of some degree of tightness (stiffness) over the dorsal scar.  Further, when P went to see Dr Lau on 30 October 2018, P had complained of scar pain and limited grip over left hand.  As seen in the Lau Report, on that occasion, P had clearly been suggested/recommended the toe-hand transplant to improve his left hand function otherwise there would be significant residual pain and stiffness of left hand in the future and his working endurance would be significantly affected.  There was supporting evidence that there would be significant symptoms in future had P decided not to undergo the toe-hand transplant.

35.Even though D’s expert Dr Lee opined in the Joint Othopaedic Report that the residual hypersensitivity and pain should be mild, there was no evidence that P’s expert Dr Wong was of the same opinion. There was no comment from Dr Wong who only recorded and noted the Complaints.

36.Mr Kwok submitted that the joint orthopaedic experts did not assess residual scar symptoms, impairments and disabilities in the context of future treatment for improvement and that their opinion of no additional assessment by other specialists was required was given in the context of orthopaedic outlook.  I accept this, and it is not really disputed that the joint assessment by the two experts arranged at that time for P was for a “functional assessment”[26], namely a functional assessment of P’s ability to work.

37.As to what led P to consult Dr King in July 2019, some 4 years and 4 months after the Accident and about 3 weeks after D filed the Answer to the RSOD, P explained in his 1^st affirmation that it was in order to improve the multiple scar problem and its itchiness and hypersensitivity[27].

38.Mr Ho had referred this Court to Chang Man Sze v Chan Siu Wai and Anor HCPI 290/2007 (unrep) 14.07.09.  In that case, the plaintiff suffered injuries as a result of a road traffic accident and she was a passenger in the rear of a taxi when it was involved in a collision with a car driven by the 1^st defendant and owned by the 2^nd defendant. The plaintiff sought leave to adduce the report of a psychiatric expert and the report of a plastic surgeon.  It was argued on behalf of the plaintiff that the psychiatric report would advance the plaintiff’s claim for future medical expenses and the PSLA.  Master B Kwan found those arguments untenable and that it was wrong in principle simply to obtain a report in order to advance the claim[28]. She ruled that the psychiatric report was not necessary as it did not add much more to the available information contained in the report of the government psychiatrist.

39.As for the cosmetic surgeon’s report, Master Kwan found that the plaintiff did not need the report to show that the new scars were caused by the road traffic accident and that all a cosmetic surgeon could to was to improve the appearance of the scar, and he would not be able to remove the scars.  As said by the cosmetic surgeon and found by Master Kwan, the treatment suggested was optional and it could not be argued that the report was necessary to the plaintiff’s claim, or that it could be proportional under CJR to allow the costs of cosmetic surgeons’ reports simply to provide grounds for a debate on the viability of operations “to try and improve the appearance” of the new scars.  As for the new issue raised in the report of itchiness, the plaintiff did not complain of itchy scars when she was seen in government hospitals on many occasions, nor did she complain of itchy scars prior to the parties’ respective orthopaedic experts.

40.Mr Ho also referred this Court to Chak Chun On v Tai Chung Wah & Anor DCPI 871/2010 (unrep) 04.04.11.  In this case, the plaintiff was a pedestrian and was knocked down by a tram driven by the 1^st defendant and sustained rupture of right Achilles tendon and after operations, scars were left on various places of her body. The parties had agreed to adduce a joint orthopaedic report and both experts opined the plaintiff had reached maximal medical improvement and she was not required to be further examined by other experts.  The plaintiff applied for leave to adduce a plastic surgery expert report from a plastic surgeon who agreed that the plaintiff could opt for active cosmetic intervention to reduce the appearance of the scars.  The defendant opposed the application saying that the plastic surgery report was unnecessary.

41.Master J Chow found that the plaintiff’s argument on the necessity to substantiate the claim on future plastic surgical treatments was unsound and that the surgeon had said the treatment was optional, not a must.  Master Chow adopted the test laid down in Chan Man Sze and found that the report filed to satisfy the test of necessity, relevance and of probative value.

42.Mr Ho submitted that firstly, Dr King did not state that it was his recommendation that P should undergo those 4 treatments in the King Report, and secondly, the 4 treatments were only optional treatments, as those in the Chang Man Sze case and the Chak Chun On case.

43.As pointed out by Mr Ho, the King Report merely stated the 4 treatments, the duration and the estimated costs of each treatment and that there was no information on the expected effect and risk of each of the treatments.

44.However, in the King Letter, Dr King stated that P complained of deformity of left hand with multiple scar problem and that his clinical diagnosis was accident/trauma related left hand injury and that they discussed treatment/recommendation.  Although the King Attendance Notes were not all discernible, it could be made out that there were 3 items written, which appeared to be (1) tight scar on R dorsum of hand; (2) palm also tight; (3) 2^nd (illegible) hand swollen/tight.  Then there were diagrams of the hand with some written words including fat transplant which indicated what was discussed on 23 July 2019.  The King Report should be read together with the King Letter and the King Attendant Notes, and I agree with Mr Kwok’s submission that the evidence from Dr King was an indication that plastic surgery treatments were recommended to be administered in this case.

45.Mr Kwok submitted that in the Chang Sze Man case, all the cosmetic surgeon could do was only to improve the appearance of the scar and that the treatment was optional, but in the present case, P’s complaint was pain, stiffness, hypersensitivity, discomfort, and that P felt embarrassed by the deformity.  Mr Kwok submitted that P is not saying that the treatments are to improve the appearance but that his symptoms may be mitigated by the technology suggested.

46.Similarly, Mr Kwok submitted that in the Chak Chun On case, the plastic surgeon agreed that the plaintiff could opt for active cosmetic intervention to reduce the appearance of the scars, which is not the case here.

47.As stated in the King Report, the fat transplant is to improve scar quality, softness and to increase tissue volume, and the laser therapy is to improve the scar colour and texture.  Thus those treatments are not merely to improve appearance.  In my view, expert evidence will assist this Court in deciding whether there is any further treatment necessary which will reduce P’s symptoms and/or Complaints.

48.Having considered the King Letter, the King Attendance Notes and the King Report, I am satisfied that prima facie, they would justify expert plastic surgery evidence.

For assessing PSLA, costs of care and attention, reasonableness of the special damages

49.The second reason put forward by P in his 1^st affirmation to support his application was that expert evidence on plastic surgery was necessary for assessing PSLA, costs of care and attention, and reasonableness of the special damages.

50.Mr Kwok submitted that it is when all reasonable treatments having been done and the injuries, impairments and disabilities having settled that the court will be in a proper position to assess the award for PSLA.  Plastic surgery evidence in this case and in this spectrum is relevant to the question of PSLA, not as proof , but as “an aid to assessment.”[29] Mr Kwok further submitted that impairments and disabilities and their treatments are clearly matters within the realm of PSLA.

51.On the other hand, Mr Ho submitted that there are various information available before the Court, such as (i) photographs to illustrate P’s left hand after the Accident; (ii) medical records and reports for the court to consider P’s physical conditions when he was under active treatment; (iii) P has filed two witness statements, with one section in his 1^st supplemental witness statement dedicated to PSLA and for P to talk about how the Accident has affected his life; (iv) P had had a chance to tell the orthopaedic experts his present complaints.  Further, P’s evidence can also be tested in oral evidence.

52.However, the above information would not be able to assist the Court in determining whether any further non orthopaedic treatment may be required by P in light of the Complaints.  As said earlier, the Complaints are not new complaints, apart from perhaps “itchiness”.

53.As for costs of care and attention, although this was not pleaded in the RSOD, Mr Kwok had submitted that in P’s 1^st Witness Statement, he did make a claim for future treatment of HKD 1.3m - 1.4m based on the toe-hand transplant recommended to him at that time which was not supported by the two experts in their Joint Orthopaedic Report and that was why no other claim was pleaded in the RSOD dated 18 May 2019 as there was no evidence to support any other claim at that stage.

54.As submitted by Mr Kwok, it is only upon the availability of Dr King’s evidence, P seeks to adduce further plastic surgery evidence to support a further claim for costs for care and attention.

55.Further, Mr Kwok pointed out the toe-hand transplant recommended by Dr Lau previously, if done privately, would have cost some HKD 1.3m - 1.4m and P had in his 1^st witness statement made a claim for this amount.  By comparison, the treatments in the King Report are only about HKD158,500.

56.D had alleged that P had no real intention to have any plastic surgery treatment and that he suddenly sought the same out of the blue.  P in his 2^nd affirmation had denied D’s allegation. P had explained that ever since he started receiving treatments at PMH and from Dr Lau he had been looking for medical interventions to improve his situation and that although he did mention to his treating doctors at PMH about his problems, they did not refer him to plastic surgery for further treatment and that had they done so, he certainly would have sought plastic surgery treatment without any doubt.

57.Mr Ho pointed out that there was nothing to stop P from undergoing those treatments in the King Report had he wished to and that in particular he could have undergone the steroid injections of HKD 1,500 each.  I accept that there was no evidence that all 4 treatments had to be carried out simultaneously and the main treatment is the “fat transplant” of HKD 94,000, followed by the hyaluronic acid injection of HKD 20,000 (at HKD 10,000 per session) and laser therapy of HKD 40,000 (at HKD 5,000 per session).  Even so, there was no sufficient evidence to contradict P’s evidence, or that he would not undergo any of those 4 treatments recommended by Dr King.

Other considerations

58.Mr Ho pointed out that, as Dr King has already seen P and advised P as a treating doctor, Dr King cannot be the one providing the expert report.  Mr Ho further submitted that, the costs in obtaining expert evidence, including the litigation costs to be incurred by the parties in this respect will be disproportionate, as the full costs of acquiring the expert report in plastic surgery may exceed the costs of the treatment.  Mr Ho had submitted that the litigation costs would include (i) costs paid to the plastic surgery experts to prepare the expert report; (ii) costs incurred by the parties in providing joint instruction letter and information to the experts; costs in amending the RSOD and the Answer and to file a 2^nd supplemental witness statement, and costs in preparing further advice in quantum, and there would be additional time and costs spent in the assessment of damages in dealing with the plastic surgery expert report.

59.Mr Kwok said that the Master had made a comment during the hearing before him that a report from a joint plastic surgery expert would cost HKD 30,000 and it was submitted by Mr Kwok on behalf of P that such costs as against the HKD 158,500 for the treatments could not be regarded as disproportional.  Mr Kwok also submitted that D was wrong to build into the costs of plastic surgery evidence the costs of litigation.

60.Liability has been agreed in the present case and the background has been set out in the Joint Orthopaedic Report, which is not disputed, and costs incurred by the parties in providing joint instruction letter and information to the plastic surgery expert/s should not be high. There can be little or no dispute to a single joint expert’s report or any joint report and such costs should not be high, as with any consequential amendments to pleadings. I agree with Mr Kwok that the costs of allowing P to adduce further expert plastic surgery evidence would not be disproportionate.

61.The parties had previously consented to expert medical evidence be limited to one orthopaedic expert for each party.  The deadline for issuing any outstanding interlocutory applications if so advised by counsel was 31 October 2019.  Before the issue of the Summons, the Checklist Review was fixed on 18 December 2019 when the parties should have filed their respective Certificates as to Time Estimates for the matter to be set down for assessment of damages.

62.As seen in correspondence between the parties’ respective solicitors, D’s solicitors were informed that P had consulted Dr King and that D was invited as early as 26 August 2019 to jointly appoint Dr King as the expert in plastic surgery subject to the approval of the Director of Legal Aid, P being legally aided.  D’s solicitors did not respond until 23 October 2019 indicating that the then available medical evidence was sufficient to determine P’s claim and that it was not necessary to adduce expert evidence in plastic surgery.  It was under those circumstances that P then had to issue the Summons on 18 December 2019.  Upon the Summons being dismissed by the Master, the adjourned Checklist Review hearing was refixed on 29 June 2020, but due to the appeal, the Checklist Review hearing has since been adjourned.  The matter of assessment of damages has thus not yet been set down for trial.  As said earlier, P first raised this issue in August 2019 before the matter was set down.  He was given until end of October 2019 to issue any interlocutory applications.  Having considered that P is under legal aid, and that he needed to obtain approval from the Director for issuing the Summons, there has not been undue delay in issuing the Summons on his part.

63.I agree with Mr Kwok that the Joint Orthopaedic Report is no bar to P’s case on future treatment for the serious scar impairments and disabilities suffered by him.  The scar symptoms, impairments and disabilities are not disputed and I do not think that it is to do justice for P to be precluded from claiming future treatment.

64.Mr Ho had submitted during the hearing that as a fallback position, a more cost effective step is for the parties to write a joint letter to the Dr Wong and Dr Lee and informed them of P’s recent complaints and to seek an updated report.

65.Mr Kwok on the other hand submitted that putting forward a plastic surgeon’s comments to orthopaedic experts would be inappropriate.  I agree.

CONCLUSION

66.An appeal against a master’s decision is by way of a re-hearing.  Having considered the evidence and the parties’ respective submissions, P has satisfied this Court that prima facie, expert evidence on plastic surgery is necessary, relevant and of probative value in assisting the court in determining P’s need for treatments as suggested by Dr King and for assessing P’s PSLA, costs of care and attention, and reasonableness of the special damages.  There was no undue delay in P issuing the Summons.

67.Having weighed up the prejudice of costs and delay to D and the injustice of precluding P of further treatment, I am prepared to allow P’s appeal and grant leave be to the parties to adduce plastic surgery evidence at the trial and that an independent single joint plastic surgery expert be appointed by agreement of the parties.  As for costs of the Summons, I order such costs be paid by D for the hearing before the Master and for the appeal.  P’s own costs are to be taxed under Legal Aid Regulations.

Mr Tim Kwok, instructed by Mike So, Joseph Lau & Co, for the Plaintiff

Mr Leon Ho, instructed by Winnie Mak, Chan & Yeung, for the Defendant