B K Amrit v. G-cladds Ltd and Another
Read the full judgment text of HCPI 1183/2016 on BabelCite. This High Court CFI judgment was delivered on 3 March 2022.
1. The plaintiff (“ P ”) was a scaffolder employed by the 1 st defendant (“ D1 ”) to work at a construction site at MTRC Express Rail Link Contract No 811B (West Kowloon Terminus Approach Tunnel (South)) (“ Site ”). D1 was a sub-contractor of the 2 nd defendant (“ D2 ”) for scaffolding works (“ Works ”) at the Site, and D2 was the principal contractor of the Site.
Cited by 6 cases · Cites 4 cases
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HCPI 1183/2016 [2022] HKCFI 585 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 1183 OF 2016 ________________________ BETWEEN
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________________________ DECISION ________________________ I. INTRODUCTION 1.The plaintiff (“P”) was a scaffolder employed by the 1st defendant (“D1”) to work at a construction site at MTRC Express Rail Link Contract No 811B (West Kowloon Terminus Approach Tunnel (South)) (“Site”). D1 was a sub-contractor of the 2nd defendant (“D2”) for scaffolding works (“Works”) at the Site, and D2 was the principal contractor of the Site. 2.P claimed that on 9 April 2014 in the course of his employment, he suffered personal injuries as a result of an accident that occurred in the following manner (“Accident”):
3.P claimed the Accident was caused by (a) negligence of his co-worker(s) for whom D1 and/or D2 were vicariously liable, (b) breach of implied terms of the contract of employment by D1, and/or (c) negligence and breach of statutory duty by D1 and D2 (collectively, “Ds”). 4.On 26 October 2016, P commenced the present action against Ds for personal injuries, loss and damages as a result of the Accident. At that time, P was legally aided. 5.On the same day, P filed (a) his Statement of Claim (“SoC”) that pleaded the matters in paragraphs 2-3 above, (b) his Statement of Damages (“SoD”) that pleaded a claim for damages in the sum of $5,079,627.88 plus interest, and (c) his Medical Reports that included the joint orthopaedic expert report dated 21 June 2016 (“1st Jt Report”) by P’s orthopaedic expert Dr Lee Po Chin (“Dr Lee”) and Ds’ orthopaedic expert Dr Ho Ching Lun Henry (“Dr Ho”) (collectively, “Experts”). 6.In fact, prior to the 1st Jt Report, Dr Ho had examined P on 13 February 2015 and compiled a solo report dated 24 February 2015 (“Ho Report”). At the Hearing referred to in paragraph 30 below, Mr Sakhrani, counsel for Ds, confirmed Ds would only rely on the factual matters (eg Dr Ho’s medical findings) and not the medical opinion in the Ho Report for the purpose of the Appeal referred to in paragraph 30 below. 7.On 21 December 2016, Ds filed their Defence denying liability. Although Ds admitted that at the material time P was working with AR, they denied the Accident happened and/or P suffered injuries in the manner alleged, but if P did meet the alleged Accident, it was caused and/or contributed to by his own negligence. 8.On 12 April 2017, Master Leong by consent granted inter alia the following directions:
9.On 31 May 2017, P filed his own witness statement (“P’s 1st WS”). On 3 July 2017, Ds filed the witness statement of Gurung Jagat Bahadur (“GJB”) (who stated in paragraphs 8 and 17 therein inter alia that when he attended P at the Accident scene and when he brought P to D2’s safety officer, P merely complained of finger pain and not any shoulder pain). 10.Meanwhile on 30 June 2017, P filed his 1st Revised Statement of Damages (“1st RSOD”) pleading a claim for damages in the sum of $7,274,413.27 plus interest. On 28 July 2017, Ds filed their Answer to the 1st RSOD pleading that even if P were able to establish full liability against Ds, he would not be entitled to any damages after taking into account the employees’ compensation (“EC”) he received in the sum of $260,943.49 (“1st Answer”). 11.On 21 September 2017, Master Roy Yu by consent granted inter alia the following directions:
12.On 19 October 2017, the Director of Legal Aid (“DLA”) filed a Notice of Discharge to give notice that the legal aid certificate issued to P for the present action had been discharged on 18 October 2017. At the checklist review (“CLR”) hearing on 20 December 2017, Burke & Company (“PSols”) appeared on behalf of P. At such CLR hearing, Master Roy Yu directed PSols to file Notice to Act within 7 days, and extended time until 3 April 2018 for P to set the present action down for trial in the running list not to be warned before 20 April 2018. On the same day, PSols filed their Notice to Act. 13.On 16 March 2018, the DLA filed a Memorandum of Notification of an Application for Legal Aid (“Application Memo”) to give notice that P had applied for legal aid. On 12 June 2018, the DLA filed a Memorandum of Notification that a Party has been Refused Legal Aid (“Refusal Memo”) to give notice that the DLA had refused P legal aid. 14.At the CLR hearing on 19 February 2019, Master Roy Yu granted inter alia the following directions:
15.To date, P had not made any application by summons or otherwise to change his nominated orthopaedic expert (ie Dr Lee) for another orthoapedic expert. Thus, at the time of the Appeal referred to in paragraph 30 below and indeed to date, Dr Lee was still P’s orthopaedic expert. 16.At the CLR hearing on 28 May 2019, Master Roy Yu granted inter alia the following directions:
17.As confirmed by PSols’ letter to the court dated 30 April 2021 (see paragraph 37 below), at the CLR hearing on 28 May 2019, PSols applied to have the Experts carry out updated joint examination of P, but this was refused by Master Roy Yu who instead granted the directions in paragraph 16(a) above. 18.Upon hearing Mr Burke, solicitor for P, and Mr Sakhrani, counsel for Ds, at the hearing on 24 July 2019 pursuant to paragraph 16(b) above, Master Roy Yu inter alia (a) refused P’s application for leave to adduce psychiatric expert evidence with costs to Ds together with certificate for counsel, which costs were summarily assessed at $55,000 to be paid forthwith by P, and (b) ordered costs of the CLR on 28 May 2019 be costs in the cause. 19.At the CLR hearing on 16 October 2019, Master Roy Yu granted inter alia the following directions:
20.On 30 October 2019, Ps wrote to the court to lodge a copy of the Experts’ supplemental joint orthopaedic expert report dated 15 October 2019 (“2nd Jt Report”), and to say Dr Lee maintained that the Accident could have caused the Shoulder Injury “and it does cause disability – BUT to assess this he now requires a up dated examination (para. 4 on page 9 and para. 7 on page 10)”. 21.On 11 December 2019, P filed his 2nd Revised Statement of Damages (“2nd RSOD”) pleading a claim for damages in the sum of $10,019,936[1] plus interest, and filed his own supplemental witness statement dated 10 December 2019 (“P’s 2nd WS”). 22.On 24 January 2020, Ds filed their Answer to the 2nd RSOD (“2nd Answer”) pleading that even if P were able to establish full liability against Ds, P would not be entitled to damages after taking into account the EC he received in the sum of $260,943.49. 23.On 18 December 2019, the DLA filed an Application Memo to give notice P had applied for legal aid in respect of the present action. On 14 October 2020, the DLA filed a Refusal Memo to give notice P was refused legal aid. 24.Meanwhile, there was a series of correspondence between PSols and Ds’ solicitors Mayer Brown (“DSols”):
25.At the CLR hearing on 16 July 2020, Master Roy Yu granted inter alia the following directions:
26.At the CLR hearing on 16 July 2020, Master Roy Yu dismissed P’s application for (a) updated joint physical examination and (b) further supplemental joint expert report by the Experts (as confirmed by PSols’ letter dated 30 April 2021 – see paragraph 37 below). 27.On 5 November 2020, PSols wrote to Master Roy Yu inter alia as follows:
28.At the CLR hearing on 16 November 2020, Master Roy Yu granted inter alia the following directions:
29.On 8 December 2020, P lodged PSols’ written submissions dated 7 December 2020 to support the Application. On 23 December 2020, Ds lodged Mr Sakhrani’s written submissions to oppose the Application. On 6 January 2021, P lodged PSols’ written submissions in reply. On 3 February 2021, Master Yu handed down his reasoned decision (“Master Reasons”) to dismiss the Application and to order (on nisi basis) P to pay costs of the Application to be taxed if not agreed (“Master Order”). I note that to date the Master Order had not been drawn up, perfected, sealed and/or filed. This was not understood. The Master Order, like any other order, should be drawn up once it was granted by the court. The fact and existence of the Master Order could/would not be altered even if it was subject of an appeal; indeed, any notice of appeal should be made against the Master Order (which should be drawn up, perfected and sealed) and not against the decision in the Master Reasons. I hereby direct that (a) P shall within 7 days from the date hereof lodge draft order in respect of the Master Order for approval, failing which Ds shall do so within 7 days thereafter, and (b) P or Ds, whoever is/are appropriate, shall file/serve sealed copy of the Master Order forthwith upon approval of the draft order by the court. 30.On 17 February 2021, P filed his Notice of Appeal against the Master Order (“Notice of Appeal”). By the Notice of Appeal, P asked for (a) the Master Order be set aside and the Application be allowed, and (b) costs of the Appeal and costs below be paid by Ds to P to be taxed if not agreed. Interestingly, the Notice of Appeal went further to state as follows:
It could be readily seen on the face of the Notice of Appeal itself that (i) the dismissals of P’s applications for “[updated] physical examination and report by the [Experts]” and/or “[psychiatric] expert examination” were not the subject matters of the Master Order which only concerned the Application, and such dismissals actually pre-dated the Master Order by more than 6 months and 18 months respectively, and (ii) the purported applications in relation to these previous dismissal orders were said to be made under Order 38 rule 34 (should be rule 44) of the Rules of the High Court (“RHC”) and not under Order 58 rule 1 of the RHC, but somehow they were included in the Notice of Appeal that was filed pursuant to Order 58 rule 1 of the RHC. Any appeal against such dismissals under Order 58 rule 1 of the RHC (which appeal P did not to lodge) would have been grossly out of time (see Order 58 rule 1(3) of the RHC), and P did not even attempt to seek leave to appeal out of time. In the absence of such appeal or application for leave to appeal out of time, there was also no other summons/application, CLR hearing and/or directions hearing filed or returnable before this court at the same time as the scheduled hearing of the appeal against the Master Order that merely concerned the Application (“Appeal”) before this court on 3 May 2021 (“Hearing”). Indeed, up to the time of the Hearing, case management of the present action was all along in the hands of the PI Masters rather than the Personal Injuries Judge. 31.For the purpose of the Hearing, (a) PSols lodged their written submissions dated 26 April 2021 (“P’s 1st Submissions”), and (b) Mr Sahkrani lodged his written submissions dated 28 April 2021 (“Ds’ 1st Submissions”). Even more strangely, P’s 1st Submissions raised further case management matters that were extraneous to the Notice of Appeal (including the purported applications referred to in paragraph 30 above) let alone the Appeal against the Master Order (see paragraph 35(a)(ii)-(iii) below and paragraph 16(b)-(c) in the 2nd Schedule referred to in paragraph 36 below). 32.Meanwhile (ie after the Master Reasons/Order), PSols obtained medical notes, records and/or documents of P’s consultations after the Accident at Ds’ panel clinics Elitecare Medical Centre (“Elitecare”) and TY Medical Practice (“TY Medical”), and on 26 March 2021 obtained from Elitecare a computer-generated “Medical Record” as follows (“Elitecare MR”):
33.On 23 April 2021, PSols wrote to DSols about the Elitecare MR (a) explaining it was “not dated 26th March 2021 – but is dated the date of the [Accident] ie – 9th April 2014. What is dated the 26th March 2021, is their letter sending [Psols] a copy of that record”,[2] and (b) indicating PSols’ willingness to let DSols have copies of their correspondence with Elitecare / TY Medical in exchange for copies of all correspondence/communications between Ds/DSols with Elitecare / TY Medical. 34.On 29 April 2021, PSols wrote to Elitecare referring to Elitecare’s letter of 26 March 2021 to them and asking for their written confirmation as to whether it was “the record of Dr Leung [referred to in paragraph 45 below] made on the 9th April 2014” “because at the top right hand side of the 1 page – is the date 26th March 2021”. 35.As for the Appeal, this court by written directions dated 30 April 2021 directed inter alia as follows:
36.For proper understanding of the limited scope of the matters canvassed at the Hearing, I set out in the 2nd Schedule to this judgment my written reasons for the above directions (“2nd Schedule”). The cavalier lack of discipline in making the purported applications referred to in paragraph 30 above by riding on the Notice of Appeal and the further expansion to other matters in P’s 1st Submissions (without grounding by way of proper applications) were, at best, unfortunate. Not only were the purported applications in the Notice of Appeal not viable, the matters extraneous to the Appeal against the Master Order only served to hijack the Hearing, to catch Ds unawares and to require Ds to scramble up a response (if they could) at the last minute prior to the Hearing. Regrettably, these procedural manoeuvres must sound in costs, which I will deal with below. 37.On 30 April 2021, PSols wrote to inform the court that for the purpose of the Hearing of the Appeal against the Master Order, P would not rely on paragraphs 18-22 and 25-39 of P’s 1st Submissions and items 17-18, 24-29, 34, 44 and 46-55 of the hearing bundle. In other words, P would only rely on the pleadings, the Notice of Appeal, the court orders, the documents pertaining to the Application, the medical records/reports, the 1st/2nd Jt Reports and P’s 2nd WS. Although DSols at the Hearing claimed they had not received copy of such letter by PSols, they subsequently clarified by letter dated 7 May 2021 (ie after the Hearing) that such letter was in fact received but did not reach their handling solicitor due to some delay in internal mail transfer. 38.There was included in the hearing bundle an expert report dated 3 March 2018 (“Li Report”) by Dr Li Wing Kin (“Dr Li”). I note the order of Master Leong dated 12 April 2017 limited P’s orthoapedic expert evidence to the opinion of 1 nominated expert ie Dr Lee (see paragraph 8 above). PSols’ wrote to the court on 20 December 2017 to say they acted on private basis for P and had obtained “a 2nd solo expert report for the purpose of his legal aid application – from [Dr Li]”. On 18 February 2019, PSols wrote to place a copy of the Li Report before the Master Roy Yu (with observations on various parts of such report) “for his information”. At the CLR hearing on the following day (19 February 2019), Master Roy Yu, quite rightly, directed P (if he considered appropriate) to take out application by summons to change his nominated orthoapedic expert within 14 days (see paragraph 14(a) above). To date, P had not taken out any such application, which meant Dr Lee remained as P’s nominated orthoapedic expert for the present action. By reason of the above matters, no leave had been granted for P to rely on the Li Report, and the orthopaedic opinion in such report was plainly inadmissible for the present action. At the Hearing, Mr Burke confirmed P would not rely on the Li Report for the purpose of the Appeal. 39.At the Hearing on 3 May 2021, after hearing submissions on the Appeal against the Master Order by Mr Burke and Mr Sakhrani, I granted inter alia the following directions (“3/5/21 Order”):
40.On 15 June 2021, the DLA filed an Application Memo to give notice that P had applied for legal aid. On 8 July 2021, the DLA filed a Notice of Issue of Legal Aid Certificate and a Legal Aid Certificate to give notice that P was granted legal aid and that PSols were assigned to act for P in the present action. 41.On 14 July and 16 August 2021, PSols unilaterally wrote to the court (albeit copied to DSols) as follows:
42.By written directions dated 18 August 2021, this court directed as follows:
43.On 17 September 2021, a copy of the Experts’ 2nd supplemental joint orthopaedic expert report dated 31 August 2021 (“3rd Jt Report”) was lodged with the court. On 20 and 21 September 2021, PSols and Mr Sakhrani lodged their respective supplemental written submissions (“P’s 2nd Submissions” and “Ds’ 2nd Submissions”). 44.On 29 November 2021, the DLA filed a Notice of Assignment of Counsel for P. II. ELITECARE 45.The WIR dated 9 April 2014 by Elitecare’s Dr Leung Wai Man (“Dr Leung”) only recorded the Finger Injury:
46.Among the medical records kept by TY Medical, there was a report dated 9 April 2014 by Alpha Medical Diagnostic & Laboratory Center’s Dr Ho Wing To Iris addressed to Elitecare’s Dr Leung in relation to x-rays taken of P’s left index finger (lateral view) that showed no fracture:
47.In paragraph 54 of P’s 2nd WS, P claimed that at Elitecare (a) he was seen by a Chinese male doctor (presumably Dr Leung although P did not know his name) and the nurse told the doctor what happened, (b) he reported to the doctor in English (and he showed the doctor) that he injured his left index finger and left shoulder, (c) he could not have full communication with the doctor as there was no interpreter, (d) the doctor briefly examined his left index finger and left shoulder, and then sent him for x-ray of his left index finger at another clinic, (e) upon his return to Elitecare the doctor looked at the x-ray films and spoke with the site nurse in Cantonese but did not talk to him except to tell him there was no fracture, (f) he asked why there was no x-ray for his left shoulder and was told by the doctor there was no need, (g) he was given medication but not sick leave, and (h) the site nurse took him back to the Site. 48.On 26 March 2021, Elitecare’s Dr Chan Hung Tak replied in writing to PSols’ letter dated 17 March 2021 to enclose the Elitecare MR (see footnote 2 above). The record in the Elitecare MR was of 9 April 2014, but it printout date was 26 March 2021. Such record set out inter alia P’s complaint of “left index finger trapped by object this morning”, Dr Leung’s finding that P’s left index finger was “[tender] no wound”, and Dr Leung’s diagnosis of “[left] index finger injury”. Such record noted “[also] left shoulder pain mech [mechanical]”,[5] but this was not described as “injury” and not included as part of the diagnosis in the record. There was no record of the cause of the left shoulder pain, but Dr Leung noted there was “[diffuse] pain over left shoulder” but “no redness” (see paragraph 32 above). III. TY MEDICAL AND ADVANZ PHYSIOTHERAPY CENTRE (“ADVANZ”) 49.P claimed he was subsequently taken to TY Medical (see paragraph 55 of P’s 2nd WS). P’s consultation records at TY Medical had the following entries:
50.15 April 2014 P first consulted TY Medical on 15 April 2014 and appeared to have signed a Medical Treatment Authorisation to authorise “the panel doctors have rights to release medical reports regarding [P’s] medical condition to [P’s] employer/insurance company”, which form appeared to have been countersigned by D2’s safety officer and company representative with D2’s chop affixed thereon. 51.According to the WIR dated 15 April 2014 by TY Medical’s Dr Michael Lung (“Dr Lung”),
52.TY Medical’s medical notes for P’s consultation on 15 April 2014 recorded as follows:
53.23 April 2014 On 23 April 2014, P appeared to have signed (a) a Chinese authorisation letter “在此授權任何醫生、醫院、診所、保險公司或機構及熟悉本人此次病症之資料、過往之病狀、病歷等向皇家太陽聯合保險有限公司 (Royal & Sun Alliance Insurance plc) 或其他代表說明。此外, 本人明白及同意將所收集得之資料及文件，包括其副本等, 如有需要, 此等文件可披露予有關者，如僱主、勞工處等 ……”, and (b) a Medical Treatment Authorisation to authorise “the panel doctors …… to release medical reports regarding [P’s] medical condition to [P’s] employer/insurance company”, which form appeared to have been countersigned by D2’s company representative with D2’s company chop affixed thereon. 54.According to the WIR dated 23 April 2014 by TY Medical’s Dr Lung,
55.TY Medical’s medical notes for P’s consultation on 23 April 2014 recorded the same “past medical history” as those in the notes for P’s consultation on 15 April 2014, and further recorded as follows:
56.Dr Lung also gave a referral letter dated 23 April 2014 addressed to “Physiotherapist” to request offer of physiotherapy “for [P] with left index finger injury”. 57.29 April 2014 According to the WIR dated 29 April 2014 by TY Medical’s Dr Lung,
58.TY Medical’s medical notes for P’s consultation on 29 April 2014 recorded the same “past medical history” as those in the notes for 15 and 23 April 2014, and further recorded as follows:
59.Dr Lung also gave a referral letter dated 29 April 2014 addressed to “Physiotherapist” to request management of P “with left index finger injury on 9 April 2014 and left shoulder pain”. 60.2 May 2014 On 2 May 2014, case management specialist of Ds’ insurers Mr Bill Lam sent fax to Advanz to advise that P was referred to Advanz from 3 May to 2 June 2014 for a maximum amount of $2,560 (8 sessions of physiotherapy), and to ask Advanz to send to Ds’ insurers “the bills, reports and relevant information of [P] as per request”. P subsequently attended Advanz and completed a Patient Registration Form that indicated left shoulder and left index finger discomfort. 61.3 May 2014 Physiotherapy for P at Advanz started on 3 May 2014. Advanz had the following attendance record for 3 May 2014:
62.According to the physiotherapy report dated 3 May 2014 by Advanz’s manipulative physiotherapist Mr Samson Kwong (“Mr Kwong”) to TY Medical’s Dr Leung:[6]
63.5 May 2014 According to the WIR dated 5 May 2014 by TY Medical’s Dr Lung,
64.TY Medical’s medical notes for P’s consultation on 5 May 2014 recorded the same “past medical history” as those in the notes for 15, 23 and 29 April 2014, and further recorded as follows:
65.Advanz also had the following attendance record for 5 May 2014:
66.8 May 2014 Advanz had the following attendance record for 8 May 2014:
67.9 May 2014 According to the WIR dated 9 May 2014 by TY Medical’s Dr Lung,
68.TY Medical’s medical notes for P’s consultation on 9 May 2014 recorded the same “past medical history” as those in the notes for 15, 23 and 29 April and 5 May 2014, and further recorded as follows:
69.13, 15, 19 and 21 May 2014 Advanz had the following attendance records for 13, 15, 19 and 21 May 2014:
70.21 May 2014 According to the physiotherapy report dated 21 May 2014 by Advanz’s Mr Kwong addressed to TY Medical’s Dr Lung, it was recorded as follows:
71.23 May 2014 According to the WIR dated 23 May 2014 by TY Medical’s Dr Tan Shu Kwan,
72.TY Medical’s medical notes for P’s consultation on 23 May 2014 recorded the same “past medical history” as those in the notes for 15, 23 and 29 April and 5 and 9 May 2014, and further recorded as follows:
73.29 May 2014 According to the WIR dated 29 May 2014 by TY Medical’s Dr Lung,
74.TY Medical’s medical notes for P’s consultation on 29 May 2014 recorded the same “past medical history” as those in the notes for 15, 23 and 29 April and 5, 9 and 23 May 2014, and further recorded as follows:
75.Dr Lung also gave a referral letter dated 29 May 2014 addressed to “Orthopaedic surgeon” to request management of P “with left index finger and left shoulder. The pain lasted for more than 6 weeks, with medications and physiotherapy showing slow progress”. 76.7 June 2014 Advanz had the following record for 7 June 2014:
IV. FURTHER TREATMENT 77.According to the 1st Jt Report, P said he was told by the doctor at TY Medical (presumably Dr Lung) that he should consult an orthopaedist, but Ds could not help him further with the treatment, so he attended the Accident and Emergency Department (“AED”) of Queen Elizabeth Hospital (“QEH”). 78.Before P went to QEH’s AED, he was interviewed by the loss adjuster of Ds’ insurers, and page 3 of his statement report dated 11 June 2014 stated “…… [P’s] left index finger was trapped into the hole by the bolt at the lower level. [P] felt [his] left index finger and [his] left shoulder painful ……” (see annexure to MG’s supplemental witness statement dated 5 March 2020). No interpreter was identified on such statement report. But page 3 of the statement report by AR on 28 June 2014 to the same loss adjuster of Ds’ insurers stated “[AR] came to know that [P’s] finger was trapped at the gap above the hole. [P] could not pull his finger out. [AR] had to take out the frame in order that his finger could be released …… [AR] did not see any injury, though [AR was] not sure what happened inside of [P’s] finger. [P] did not complain of any shoulder pain at that time ……” (see annexure to MG’s supplemental witness statement dated 5 March 2020). 79.QEH’s AED recorded that on 20 June 2014 P complained of left shoulder and left index finger pain for 6 weeks. Unless otherwise stated, the information given below as to the medical treatment P received was elicited from the 1st, 2nd and 3rd Jt Reports (collectively, “Jt Reports”). 80.On 7 August 2014, P was examined by Dr Wally Law (“Dr Law”) whom Ds nominated to assess P’s permanent disability and fitness to resume work. Dr Law’s report dated 22 August 2014 (“Law Report”) recorded that P gave “a history of injury of his left index finger and shoulder on 9 Apr 2014. His left finger was caught by scaffolding and he sprained his left shoulder …… At the time of assessment [P] still has pain on his shoulder and index finger. He also has appointment at the QEH for physiotherapy in Sept 2014 and occupational therapy in Aug 2014”. P was still on sick leave at the time of Dr Law’s assessment. Dr Law noted the following clinical features, and considered P’s condition to be stable and fit for assessment:
81.Dr Law considered P had soft tissue injury to his left index finger without injury to the bony structure, and 2 months’ sick leave (ie up to early June 2014) would be appropriate. Given that P’s left index finger had minimal disability, Dr Law considered P could resume light duty with attention to avoid heavy lifting and/or climbing platform/scaffolding for 6 months. But Dr Law considered P’s left shoulder symptoms were “not compatible with the mechanism of injury” and hence not related to or caused by the alleged injury. According to paragraph 63 of P’s 2nd WS, P claimed (a) there was no interpreter when he was interviewed by Dr Law (whom he did not recall), so they would have communicated in English, and (b) he was not told by his employer or Ds’ insurers that he could resume light duty with attention to avoid heavy lifting and/or climbing platform/scaffolding for 6 months. 82.The first record of P’s attendance at the Yau Ma Tei Jockey Club GOPC (“YMTJC GOPC”) was on 24 July 2014 when P complained that his left shoulder and left index finger were hit by heavy object on 9 April 2014. He was referred to physiotherapy and QEH’s Department of Orthopaedics and Traumatology (“DOT”). 83.According to the Form 2 dated 15 October 2014, Ds described the Accident as follows:
84.On 10 February 2015, Ds’ insurers arranged for P to be medically examined by Dr Ho. According to the Ho Report dated 24 February 2015, P gave the following account:
85.As recorded in the Ho Report, P made the following complaints to Dr Ho:
86.According to the Ho Report, Dr Ho’s findings from his examination of P’s left index finger were:
87.According to the Ho Report, Dr Ho’s findings from his examination of P’s left shoulder were:
88.According to the medical report dated 29 January 2016 by Dr Yip Wai Chuen Norman (“Dr Yip”) of QEH’s DOT, P was first seen on 3 November 2015 upon referral by TY Medical’s Dr Lung on 29 May 2014, by QEH’s AED on 6 September 2014 and by the YMTJC GOPC on 10 April 2015 for management of left shoulder and left index finger pain. P informed Dr Yip (a) he had an accident at work in April 2014, and (b) his left shoulder and left index finger were hit by a metal bar. Update x-ray left shoulder and left index finger revealed no fracture or dislocation, so P was managed conservatively with referral to physiotherapy for rehabilitation. Progress was fair, and P was on home exercise after completion of physiotherapy training. At the consultation on 3 November 2015, P complained of pain and stiffness over his left shoulder and left index finger, and examination revealed (i) P’s left shoulder had stiffness with some limitation in range of movement but power of the shoulder was normal, and (ii) P’s left index finger had satisfactory range of movement with no swelling/instability. P was managed conservatively with analgesics, and was referred for assessment by the Medical Assessment Board (“MAB”). 89.According to the physiotherapy report dated 20 February 2016 by QEH’s Mr Tony Hsu, P received 2 courses of physiotherapy:
90.According to the undated medical report by Dr David Ip, P was first seen on 3 July 2015 with history of intractable intolerable pain of his left shoulder and left index finger for more than 1 year that was unabated despite treatment at other medical units. P received pain treatment including ultrasound, TENS (transcutaneous electrical nerve stimulation) and low-level laser therapy with some response. When P attended follow-up on 18 September 2015, there was residual tenderness and stiffness of the left shoulder and left index finger. 91.MRI left shoulder performed on 5 January 2016 by iRad Medical Diagnostic Centre showed degenerative changes in the AC (acromioclavicular) joint, significant oedema and swelling in the posterior part of the supraspinatus tendon suggestive of tendinosis or strain of the tendon. There was increased fluid in the subacrominal/subdeltoid bursa possibly due to mild bursitis. There was no full thickness rotator cuff tear and no labral tear, but the radiologist noted “[small] partial thickness tear may be difficult to exclude by MR”. 92.MRI left index finger also performed on 5 January 2016 showed no bony lesion, fracture or contusion of the phalanges of the index finger, and no flexor or extensor tendon or collateral ligament tear. 93.According to paragraphs 73 and 75 of P’s 2nd WS, P continued with conservative treatment, ie physiotherapy and medications. V. JT REPORTS 94.Essentially, it was the common opinion of both Experts that there was good recovery from the Finger Injury with function achieved, but P still complained of continuing pain. (a) 1st Jt Report dated 27 June 2016 95.Personal background The 1st Jt Report recorded P used to be a scaffolder,[8] but he was not working when the Experts jointly examined him on 17 May 2016. He was a non-smoker and non-drinker, and was right hand dominant. He used to play soccer, play occasional basketball and jog before his injury, but after the Accident he only did light walking as he could not run due to pain in the left shoulder. P claimed he had no previous injury to his left index finger and left shoulder, no chronic illness, and no previous surgery. 96.History P told the Experts on 9 April 2014 he was wearing cotton gloves and holding the Metal Frame with both hands. He pushed the Metal Frame down onto another frame when his left index finger was caught between the Metal Frame and the Locking Slot below. He quickly pulled back his left hand and his left shoulder hit a metal frame at the side. He felt immediate pain in his left shoulder, and his left index finger was painful and swollen without open wound. He could not continue to work, and reported the incident to his supervisor. He was then taken by company car to a doctor in Mongkok (presumably Elitecare’s Dr Leung). X-rays left index finger were taken, and he was discharged with medication. P told the Experts he reported left shoulder pain to the doctor who ignored his complaint. No sick leave was given and follow-up was arranged 1 week later. 97.P said he returned to the Site even though the pain did not subside, but he was exempted from work and just sat around. A week later, Ds took him to TY Medical, and private physiotherapy was arranged twice/ week for about a month. He still returned to the Site but no work was assigned for him. Upon follow-up, the doctor at TY Medical advised him to consult a specialist, but Ds told him they could not help him further with the treatment, so he went to QEH’s AED. 98.P told the Experts that at QEH he was given medication and had 2 courses of physiotherapy, the 1st one lasted 5 months and the 2nd one lasted 3 months (completed a few days before the Experts’ joint examination on 17 May 2016). On 3 November 2015, P consulted QEH’s DOT, and was told surgery would not be helpful, so MAB assessment was to be arranged. P attended occupational therapy sessions for about 1 month and also follow-ups at YMTJC GOPC, and he received on-and-off sick leave. But pending his next appointment with QEH’s DOT in January 2017, P was not yet referred for MAB assessment. Meanwhile, P was seeing the YMTJC GOPC for sick leave and medicine. 99.Complaints P complained of constant left shoulder pain associated with numbness, pain radiating down left arm and burning sensation in left shoulder / back with pain increase during shoulder movements and upon lifting weight. P claimed he could only lift light weight for a few minutes. Further, pain would also occur spontaneously at least once a day lasting 40-60 minutes requiring relief by medicine. P said he had to take regular medicine 3 times/day for left shoulder and left index finger pain. He also complained of constant pain in the left index finger, which pain would be worse with movements and when carrying object. But P’s activities of daily living remained unaffected, and he could use public transport without difficulty. His wife did the cooking. 100.Physical examination The Experts noted P removed his jacket by right hand only. Physical examination of the left shoulder showed no deformity, muscle wasting or increased warmth, but there was diffuse tenderness, reduced range of movement (flexion, abduction and internal rotation),[9] “shoulder impingement sign +/-”, and limited muscle power.[10] The Experts noted “[neck] movements full, c/o [complained of] pain left ACJ [acromioclavicular joint]”, “[left] wrist power at Grade 5-/5 complained of left shoulder pain”, “[left] elbow and hand power Grade 4/5 because of left shoulder pain”, and “[reflexes] symmetrical”. For the left hand / index finger, the Experts noted comparable movements for left/right index fingers for MCPJ, PIPJ and DIPJ (see footnote 7 above),[11] but thumb and other finger movements were full. There was reduced grip strength for the left hand,[12] but the upper limb sensation was normal. X-rays left index finger and left shoulder taken on the day of the Experts’ joint examination showed no abnormality. 101.Medical notes/reports The Experts referred to available medical reports/notes (see Part IV above), and also Elitecare’s and TY Medical’s WIRs dated 9, 23 and 29 April and 5 May 2014 (see Parts II and III above). 102.Surveillance DVD There were recordings for 8,[13] 11[14] and 13[15] October 2014. Dr Lee noted it seemed from the recordings that (a) P seldom raised his left shoulder above 80º (as P demonstrated at the Experts’ joint examination) but seemed to have no hesitation when he moved his left shoulder, (b) the magnitude of P’ left arm swing seemed to be slightly less as compared to the right side when he walked but the frequency was almost the same, and (c) P used his left hand transiently for, say, getting money from the pocket and sorting foodstuff at grocery store but was not seen to perform strenuous activity with his left hand. On the other hand, Dr Ho opined the recordings clearly demonstrated P used his left hand normally, and (contrary to his complaints to the Experts) was not suffering from serious symptom/disability from his left shoulder or left hand. Dr Ho found no evidence to suggest that P avoided movement in his left hand or left shoulder, which he considered as consistent with absence of muscle wasting in P’s left upper limb and left shoulder during the Experts’ joint examination. 103.Diagnosis and causation According to information available to the Experts, P received treatment after the alleged injury on 9 April 2014 for (a) contusion injury to the left index finger and (b) left shoulder pain. The Experts noted P described “his left index finger was crushed by 2 metal frames at work”, and as he pulled his left index finger out of harm’s way he noticed sudden pain in the left shoulder that also hit against the metal frame on the side. 104.Dr Lee opined the mechanism of injury P described could be consistent with contusion injury to left index finger, and was also compatible with sprain injury or contusion injury to the left shoulder. But Dr Ho’s diagnosis was soft tissue injury of left index finger. Dr Ho opined there was no evidence to suggest P sustained the Shoulder Injury, so P’s subsequent persistent left shoulder pain should not be related to the Accident. Dr Ho explained that if the left shoulder pain was so persistent, the magnitude/ symptoms of the Shoulder Injury should have been quite significant, and so should have been apparent on first presentation to the doctor at Elitecare and TY Medical on 9 and 23 April 2014, but Elitecare’s WIR of 9 April 2014 only recorded the Finger Injury and Dr Lung’s medical record dated 23 April 2014 also only documented the Finger Injury, which clearly indicated to Dr Ho absence of the Shoulder Injury from the Accident. 105.The Experts noted there was some delay in reporting the left shoulder symptoms. P claimed left shoulder pain was present at the time of the Accident and when he first consulted the doctor on 9 April 2014, but according to information available to the Experts, the consultation on 9 April 2014 only documented the Finger Injury, the 2nd consultation on 23 April 2014[16] only recorded left index finger pain, and it was only on 29 April 2014 that left shoulder pain was recorded. The Experts agreed that for contusion or sprain injury to the left shoulder, normally the symptoms should be significant within 24-48 hours even if initial pain was not apparent immediately after injury. P said he informed the doctor on 9 April 2014 but the doctor ignored his complaint, but the Experts considered “[it] is not our duty to judge whether [P] or the doctor is portraying the true picture”. Dr Lee opined that if the left shoulder pain occurred as P said, then it should be related to the injury. But Dr Ho opined that P’s left shoulder complaints were not related to the Accident, and P should not have sustained the Shoulder Injury based on the injury mechanism he described (ie he was only pulling back his left hand after his left index finger became caught between 2 metal frames). Review of the medical notes showed no record of left shoulder pain on his initial visits to the doctor on 9 and 23 April 2014, so Dr Ho considered there was “no evidence to suggest a causal relationship between the Accident and the subsequent and current left shoulder symptoms”. 106.Treatment received P received treatment with medication and physiotherapy, but his improvement was slow. X-rays did not reveal significant abnormality. MRI done in January 2016 showed no abnormality in the left index finger, but there was supraspinatus tendinosis and subdeltoid bursitis in the left shoulder. The Experts agreed the treatment P received was appropriate and adequate. 107.Findings P complained of constant pain in the left shoulder and left index finger associated with movements. The Experts’ joint examination of (a) the left shoulder showed diffuse tenderness and limited range of movement in terms of elevation, abduction and internal rotation, and (b) the left index finger showed diffuse tenderness with slight limitation of movement of PIPJ and DIPJ (see footnote 7 above). But measurements showed equal arm girth on both sides with right forearm girth 0.4cm larger than the left forearm. There was no muscle wasting of the left shoulder girdle and left hand. X-rays showed no bony abnormality in both areas. 108.Disability Dr Lee opined the objective findings at the Experts’ joint examination could be consistent with some residual pain in the left shoulder and the left index finger with the former probably having more significant symptoms given the “presence of supraspinatuus tendinosis and subdeltoid bursitis that support the pain”. Further, the surveillance recordings seemed to show less use of the left hand and decrease in magnitude of left arm swing during walking. So Dr Lee opined there was reason to believe there should be genuine pain in the left shoulder and left index finger, but the equal arm girths and very slight discrepancy in the forearm girths suggested the left upper limb function should be reasonably preserved. 109.On the other hand, Dr Ho opined that the joint examination showed no swelling, discoloration or increased temperature over the left index finger, no signs of complex regional pain syndrome, and no significant muscle wasting in the left arm/forearm due to disuse (despite allegation of persistent disabling left shoulder and left index finger pain). Further, the scapulo-humeral rhythm of the left shoulder during active movement was normal, which indicated absence of post-traumatic shoulder stiffness. So Dr Ho opined that P did not have significant disability involving his left shoulder or left upper limb, which was confirmed by the surveillance recordings that showed uninhibited/normal movement of the left upper limb and absence of facial grimacing. Dr Ho considered that P, contrary to his then complaints, had recovered well from the Accident. 110.Prognosis and need for further treatment The Experts agreed that P’s condition had reached the stage of maximal medical recovery, and further treatment was not necessary. They also opined surgery was not indicated in view of his symptoms. 111.Employability Dr Lee opined that even though P’s right arm was unaffected and his left upper limb recovered to a reasonable functional level, there should be some genuine residual pain in the left shoulder and to a lesser extent in the left index finger. As a scaffolder’s job was one of the toughest in the construction industry, Dr Lee was of the view that P might have difficulty in “returning to work unrestricted”. P’s work efficiency would be slower, which in practice might prevent him from working as a construction site scaffolder, but he might be able to return to work as construction site light general worker, roadside worker, warehouse worker or some form of machine operator upon further training. On the other hand, Dr Ho opined that P was fit to resume normal duty in his pre-accident job as a scaffolder/general worker, and there was no objective clinical evidence to suggest he could not cope with the physical demands of his job. The impact of the Accident on P’s work capacity/efficiency should be minimal. 112.Disability evaluation Based on findings at the Experts’ joint examination, Dr Lee opined P suffered from 1% impairment of the whole person due to residual pain in the index finger and 3% impairment of the whole person due to residual pain and limitation in movement of the left shoulder, so the total impairment was 4%. On the other hand, Dr Ho opined the whole person impairment due to possible minor left index finger discomfort was at most 0.5%, and he did not rate the alleged left shoulder pain and subsequent MRI findings which he opined were not related to Accident. 113.Sick leave Dr Lee opined that normal sick leave for contusion injury to shoulder and the index finger should be about 9 months, but some injured persons might have slower response to treatment and might improve less readily than others, and P might be one of them. On the other hand, Dr Ho opined that a sick leave period of up to 2 months should have been adequate, so P’s sick leave was excessive. (b) 2nd Jt Report dated 5 October 2019 114.The Experts were provided with further medical documents since their joint examination on 17 May 2016. According to the medical report dated 10 August 2018 by Dr Yip, P was first seen at QEH’s DOT on 6 February 2017. Physical examination revealed tenderness and stiffness in the left shoulder with weakness of rotator cuff muscle. P had a private MRI (plain) left shoulder done on 5 January 2016 which showed no rotator cuff tear, but the radiologist noted that small partial tear might be difficult to exclude by MRI. Steroid injection to the left shoulder subacromial space was done on the same day. P was suggested to continue physiotherapy and to repeat a MRI arthrogram for better delineation of the status of the rotator cuff. MRI arthrogram done on 11 September 2017 (ie 20 months after the MRI done in January 2016) revealed “short supraspinatus tendonosis with a small partial thickness articular side tear and tendinosis at subscapularis and infraspinatus”.[17] P’s shoulder pain and stiffness were not responsive to steroid and physiotherapy. Operative treatment was offered on 25 September 2017, and P finally agreed surgery on 20 November 2017. The Operation was performed on 5 December 2017,[18] and summarised below:
115.According to the physiotherapy report dated 23 July 2018 by QEH’s Mr Kwon Chun Fai, P received a course of physiotherapy from 22 February to 17 November 2017 for left shoulder and left index finger pain. Initial examination revealed pain over left shoulder of 7-8/10 on NPRS (numeric pain rating scale), AROM (active range of movement) of left shoulder was 70° flexion and 60° abduction, and P could reach L5 level on HBB (hand behind back) test. When P finished physiotherapy on 17 November 2017, he reported pain of 9/10 NPRS (numeric pain rating scale) at the left shoulder, AROM (active range of movement) of left shoulder was 90° in both flexion and abduction, P could reach L2 in HBB (hand behind back) test, and P could lift load of 25.5lbs. P was then discharged from physiotherapy for home exercises. Subsequently on 6 December 2017, P was again referred for physiotherapy with diagnosis of left rotator cuff injury with rotator cuff repair. Treatment started on 8 December 2017 and finished on 16 July 2018. On 16 July 2018, P reported pain at left shoulder of 8/10 NPRS (numeric pain rating scale), AROM (active range of movement) of left shoulder improved to 160° flexion/abduction and 45° external rotation, and left shoulder muscle strength was Grade 4. In view of this condition, progressive physical training was incorporated into P’s treatment regime for further enhancement. 116.Available consultation summaries of QEH’s DOT summarised as follows recorded improvement in pain and good movements by May 2018, but the pain was reported to have increased in July 2018 with the range still satisfactory albeit less than what the physiotherapist reported, and in subsequent consultations there was further deterioration of range of movement and fluctuating pain:
117.MRI right shoulder repeated in February 2019 showed no evidence of re-tear. But there was residual cuff tendinosis, and P required repeated steroid injection. A memo dated 3 June 2019 by Dr Yip of QEH’s DOT showed a mixture of 1ml depo-medrol+lignocaine [local anaesthetic] was injected to P’s left shoulder on 3 June 2019. P’s left shoulder pain persisted despite physiotherapy and steroid injection. Physiotherapy progress note dated 21 August 2019 showed AROM (active range of movement) of left shoulder was flexion 120°and abduction 90° with muscle power at Grade 3+. According to Dr Yip’s referral letter dated 26 August 2019, P complained of persistent left shoulder pain despite the Operation in December 2017. As seen above, P required repeated steroid injection.[20] 118.Diagnosis and causation The Experts noted the newly available documents showed MRI arthrogram was done on 11 September 2017. It showed supraspinatus tendonosis with a small partial thickness articular side tear and tendinosis at subscapularis and infraspinatus, but the partial thickness tear was not shown on the MRI done in January 2016. The Experts agreed that (a) tendinosis was degenerative change, which probably pre-existed the injury, (b) partial thickness tear could be secondary to tendinosis as a result of chronic attrition injuries, but (c) an episode of injury, such as a hit on the shoulder, could also produce a partial tear. The Experts further agreed that given the time difference of 20 months between the 2 MRIs, 2 possibilities had to be considered: (i) the partial thickness tear was present when the 1st MRI was done in January 2016 but such MRI failed to pick up the tear until it was detected by the more sensitive MRI arthrogram 20 months later, or (iii) the partial thickness tear could be due to gradual progression of degeneration and oft-repeated trauma during the 20 months between the 2 MRIs or there had been an additional injury. 119.Dr Lee opined that if P was acutely painful immediately after the injury as he claimed at the Experts’ joint examination and in the absence of documented additional injury, the possibility that the injury on 9 April 2014 produced a partial tear could not be excluded as the MRI arthrogram should be a more sensitive study for supraspinatus partial tear as compared to a plain MRI. On the other hand, Dr Ho opined that if the Accident caused the tear of the rotator cuff tendon by a direct hit to the left shoulder, it should have caused a significant amount of pain and there should have been external signs of trauma such as bruising, abrasion, swelling and redness. P would have complained to the doctors at Elitecare and TY Medical on 9 and 23 April 2014, and physical signs of trauma to the left shoulder would have been recorded. It would also have been recorded in Elitecare’s WIR of 9 April 2014 and Dr Lung’s medical record of 23 April 2014. The fact there was no mention of any left shoulder complaints or left shoulder injury was to Dr Ho clear evidence that P’s left shoulder condition was not related to the Accident on 9 April 2014. Dr Ho considered the partial articular-side tear of the rotator cuff tendon found on the MRI scan on 11 September 2017 was either due to natural progression of degeneration (tendinosis) of the supraspinatus tendon or a later unrelated injury, and was not related to the Accident on 9 April 2014, but even if the tear was already present at the time of the plain MRI scan of 5 January 2016, it should be unrelated to the Accident in the absence of any documented left shoulder complaint or physical sign during his visits to the doctors on 9 and 23 April 2014. 120.Treatment received The Experts noted operative treatment was offered and performed on 5 December 2017 and was followed by a course of physiotherapy, and agreed the treatment P received was appropriate and adequate. 121.Progress Dr Lee noted there was no evidence of re-tear of the supraspinatus tendon in the MRI done in February 2019 to support the deterioration of pain and range of movement of the left shoulder in/about July 2018. Dr Ho considered P’s clinical progress was not normal following repair of a rather small tear of the rotator cuff tendon, which was only a partial thickness tear. P should have recovered well after surgery, and the range of motion and strength of the left shoulder should have improved progressively. Dr Ho opined the prognosis should have been very good, and indeed the latest MRI scan did not show any evidence of any new tear of the rotator cuff tendon, so there was no organic explanation for the deterioration of P’s left shoulder motion and pain. 122.Disability As there was no updated joint examination, the Experts’ knowledge of P’s then condition was drawn from perusal of the available documents. Dr Lee opined that the range of movement of P’s left shoulder should have been better. There was still Grade 4 muscle weakness similar to that at the joint examination, but there was no updated measurement of arm girth to reflect usage of the left upper limb. Dr Lee considered re-examination of P necessary for assessing his eventual disability as he had undergone a surgery that should have changed the physical status of P’s left shoulder. On the other hand, Dr Ho opined re-examination was not necessary as it was clear from the available documented evidence P’s left shoulder condition was not related to the Accident. 123.Prognosis and need for further treatment The Experts agreed P’s condition had reached the stage of maximal medical recovery, and further treatment was not necessary. Further surgery was not indicated with MRI finding of absence of re-tear of the supraspinatus. With the range of movement as reported by the physiotherapist, there was no indication for a MUA (manipulation under anaesthesia). But Dr Lee opined there could still be pain and difficulty with overhead exertion using the left hand. On the other hand, Dr Ho opined P should have regained good use of his left shoulder a long time ago. In fact, the absence of muscle wasting in the assessment by QEH’s physiotherapist on 21 August 2019 indicated P was already using his left upper limb normally in his daily activities despite his alleged pain and apparent lack of shoulder movement. Dr Ho opined P actually recovered well from his left shoulder Operation, so there was no indication for him to undergo further investigation or treatment. 124.Employability Dr Lee maintained his views on P’s employability in the 1st Jt Report. On the other hand, Dr Ho opined that P was fit to resume normal duty in his pre-accident job as scaffolder/ general worker. Based on the latest physiotherapist’s assessment dated 21 August 2019, there was no muscle wasting around P’s left shoulder despite his alleged pain and apparent shoulder weakness (Grade 3+ out of 5), which indicated his muscle strength was normal and he did not have significant pain. Dr Ho considered that P should have been using his left shoulder and upper limb in his daily activities rather normally, and that his alleged disability/complaints were subjective and unsupported by objective clinical and radiological findings. 125.Disability evaluation Dr Lee opined that an updated physical examination would be necessary to assess P’s then permanent impairment, but in the absence of such updated examination, Dr Lee maintained the impairment evaluation in the 1st Jt Report. On the other hand, Dr Ho opined that the whole person impairment due to possible minor left index finger discomfort was at most 0.5%, and the alleged left shoulder pain and subsequent MRI findings were not related to the Accident and should not be rated. 126.Sick leave Dr Lee opined that normal sick leave for contusion injury to shoulder and index finger should be about 9 months, but some injured persons might have slower response to treatment and would improve less readily than others, and P might be one of them. For the left shoulder surgery, normal sick leave would be about 9 months, so further sick leave from the time of surgery in December 2017 to September 2018 was required for rehabilitation. Dr Lee noted P suffered from psychiatric illness which might affect his pain perception, so he might require longer sick leave. On the other hand, Dr Ho opined that sick leave period of up to 2 months should have been adequate for the Finger Injury, so P’s sick leave was excessive. 127.Other issues The Experts maintained their respective views on the other issues in the 1st Jt Report. (c) P’s further account 128.P maintained he all along complained of the Shoulder Injury, so PSols took steps to obtain Elitecare’s and TY Medical’s medical notes, records and/or documents (see Parts II and III above). P claimed he was still under active medical treatment with steriod injection on 29 April 2020[21] and nerve block injection on 21 October 2020,[22] and also referral for further physiotherapy. (d) 3rd Jt Report dated 31 August 2021 129.Information from newly obtained medical records The new medical documents made available to the Experts included the following:
130.The Experts noted P did have left shoulder pain in addition to the left index finger pain on 9 April 2014, but there was no record on the cause of the left shoulder pain. It was specifically stated there was no redness, and there was no record of any external signs of injury such as abrasion, bleeding or bruising. X-rays only of the left index finger (and not the left shoulder) were taken on that day. P consulted TY Medical on 15 April 2014, and follow-up showed he complained of left index finger and left shoulder pain. It was recorded that (a) P was explicitly asked if his shoulder was injured as a work related injury, and P denied any work related injury to the left shoulder, and (b) it was explained to P that as the left shoulder pain was not a result of work injury, management of it would not be part of his work injury rehabilitation programme. P was referred to physiotherapy only for the Finger Injury on 23 April 2014 with no mention of any Shoulder Injury in the medical notes for that day. On 29 April 2014, Ds’ staff who accompanied P agreed to include the left shoulder pain into the treatment programme, but it was stressed the left shoulder pain was not from work related injury. Another referral was written to that effect. On 5 and 9 May 2014 there seemed to be some improvement in symptoms, and follow-up on 23 May 2014 recorded mild limitation of movement of the left index finger and full range of movement of the left shoulder. But on 29 May 2014 it was recorded that the pain was similar for the left index finger and the left shoulder, and there was left shoulder tenderness with restricted range of movement, so P was referred to orthopaedic surgeon and the case was closed. 131.Thus, the Experts agreed there was documented left shoulder pain upon P’s first consultation on 9 April 2014, but the cause of the left shoulder pain was not documented on 9 and 15 April 2014. However, it was recorded on 15 April 2014 that it was not a work related injury based on question asked by the doctor and the answer provided by P. The joint letter of instructions to the Experts stated P denied he was asked such question and P claimed he had not given such answer. 132.Comments After perusing the newly available documents, Dr Lee opined that on the issue of whether or not the left shoulder pain arose from the alleged injury at work on 9 April 2014, P’s version was still different from that in the medical notes, but “[it] is not an issue that can be resolved by a retrospective orthopaedic examination, as interpretation of which version is true is not part of the expertise of Orthopaedic Surgeon. It has to be decided by the court”. So Dr Lee maintained his views in the 1st and 2nd Jt Reports. 133.On the other hand, Dr Ho maintained his view that the newly obtained medical notes (which recorded only left shoulder pain and not injury) confirmed P’s left shoulder pain was not related to the alleged Accident. There were no supporting objective clinical signs such as redness, wound, bruising or swelling to suggest any Shoulder Injury even though P claimed he hit his left shoulder against a metal frame in the Accident. Also, P’s left index finger was not firmly trapped between the two frames since there was no wound on examination on 9 April 2014, so he did not have to pull hard to release his left index finger, and if he managed to free his left index finger easily without much force, it would have been impossible for P to have injured the left shoulder tendon that should have been rather robust considering he was only 28 years old at the time.Dr Ho therefore maintained his views in the 1st and 2nd Jt Reports. VI. MASTER REASONS 134.For P’s Application which Ds opposed, Master Roy Yu noted the relevant legal principles were not in dispute, so he only referred to Chau Chin To Chadow v Wing Fung Financial Group Ltd,[23] which I will refer to in more detail in paragraph 139 below. Although the Court of Appeal reminded legal practitioners of the need for oral evidence by experts in appropriate cases, Mr Roy Yu said it should not be misunderstood to mean that experts should be subjected to cross-examination whenever they held different opinion. This should be considered before trial, and the parties should put forward reasons why the experts should or should not give oral evidence. After all, Practice Direction 18.1 required the experts to set out the reasons for their opinion and to respond to opposing views. Master Yu held that in most cases “sufficient reasons have been provided and as to whether the court should adopt the opinion, it would be a matter of submission by counsel”. When experts had divergent views, the question of whether or not to obtain supplemental expert report should be considered in the context of the parties’ pleaded cases. Further, the importance of resolving divergent expert views for the court’s rulings on the parties’ pleaded cases was a core consideration as to whether or not oral evidence would be needed from the experts, bearing in mind that the purpose of calling them to give oral evidence would be to clarify their opinion to assist the trial judge in coming to his findings rather than to give the experts further opportunity to supplement their opinion. Master Roy Yu cited with approval the observations in Ting Siu Ki v Wun Che Ming & anor,[24] which I will refer to in more detail in paragraphs 143-144 below. 135.Master Roy Yu did not consider the issue of whether or not the Experts should be called to give oral evidence had to be determined by the trial judge when P had provided the Draft List of Issues. The learned master’s views on the items of the Draft List of Issues were as follows:
136.In conclusion, Master Roy Yu agreed with Mr Sakhrani that this was not a case in which the Experts were required to give oral evidence, so he dismissed P’s Application and granted a costs order nisi that P shall bear costs of the Application. VII. LEGAL PRINCIPLES 137.Appeal against master’s decision I have set out the relevant principles in paragraph 51 of my judgment in Ng Ting Kwok v Ng On Kwok & anor,[26] which I adopt but do not repeat here. 138.Appeal against case management decision Whilst there was no disagreement that the Appeal was in principle a de novo hearing of the Application pursuant to Order 58 rule 1 of the RHC, the Master Order that dismissed the Application (ie the Experts would not be required to give oral evidence at trial) was plainly a case management decision on expert matters[27] which this court would not lightly interfere unless there were good reasons.[28] 139.Calling experts to give oral evidence In Chau Chin To Chadow, the orthopaedic experts differed over the plaintiff’s prognosis and working capacity (paragraphs 14-16). Kwan JA (as she then was) made the following observations:
140.Mr Burke drew my attention to similar observations by the Court of Appeal in 2 other authorities. First, in Cheung Oi Yan Ruby v Wong Hoi Sum,[29] Kwan JA (as she then was) (a) noted that notwithstanding an order made by the Personal Injuries Judge that the joint report by the parties’ respective orthopaedic experts be adduced without oral evidence, the master hearing the assessment of damages did not find it easy to resolve the disagreements between the experts on the likely cause of the MRI findings on the basis of the joint report alone (paragraph 42), and (b) reminded that “[parties] should give serious thought whether the experts of a joint report should be called to testify on any particular issue so that the dispute on such issue may be fairly and properly determined. Any difficulty they may encounter in conducting their case without calling the experts should be bought to the attention of the court” (paragraph 44). Secondly, in Lam Kam Fai v Yau Shing Scaffolding Company, Limited & anor,[30] an orthopaedist was jointly appointed by the plaintiff and the defendants as single joint expert on quantum. Kwan JA (as she then was) reminded that despite the engagement of a single joint expert, “it is incumbent on practitioners involved in personal injuries litigation to assess whether there is any need to call the joint expert at the trial to deal with any aspect or issue that is diametrically opposite to their client’s case, and the court should have been alerted to this before the case is listed for hearing” (paragraph 18). 141.The above guidance that fell from the Court of Appeal was reiterated by DHCJ Raymond Leung SC in his decision on costs in Rai Siva Raj v Norman Liang trading as J Liang & Son & anor[31] (paragraphs 19-20). In that case, there was serious disagreements between the parties’ orthopaedic experts, without oral evidence, on various issues pertinent to liability, causation and quantum, ie the competing diagnoses of the nerve palsy suffered by the plaintiff and the aetiology thereof were called into question to challenge the veracity of the plaintiff’s case as to the occurrence of the accident and the degree of impairment (paragraph 18). The learned judge said it was incumbent on the parties, particularly the plaintiff who bore the burden of proof, to properly consider the need for oral expert evidence and how best to assist the court in resolving the disputes, but in that case the plaintiff’s representatives had not addressed their mind to such matters, and the trial had to be adjourned part-heard for the experts to be called to give oral evidence (paragraph 21). 142.In Homebase Limited v ATS Rengasamy,[32] Knowles J held that the first instance judge was wrong in not allowing oral liability expert evidence (ie expert engineering evidence) in a low value multi-track personal injury claim when (a) the experts in their joint statement continued to disagree about how the accident happened, ie the expert evidence would contribute to a key issue in the case “which involves, by looking at the state of ladder, determining whether the ladder was in a deficient state before the accident or whether it came to be a deficient state as a result of the accident”, and (b) the scope of the oral evidence could be marshalled within a carefully drawn case management timetable (paragraphs 4 and 10-12). 143.Ting Siu Ki concerned assessment of damages in respect of injuries to the plaintiff’s right hand as a result of a work-related accident (paragraphs 1 and 4-10). The question was whether his trigger finger was caused by such accident. In that case, unlike the above authorities, the District Court PI Master granted leave for the parties’ respective orthoapedic experts to give oral evidence limited to the issues of diagnosis and causation, present condition, returning to work, and sick leave at the hearing of the assessment of damages. HHJ Andrew Li had the following to say in relation to expert medical evidence in personal injury cases:
Applying the above principles, the learned judge found the evidence of the defendant’s orthopaedic expert wanting (paragraphs 28-35). 144.Turning to the matter of causation, HHJ Andrew Li reminded himself that “causation is a matter to be determined by the judge using a common sense approach, and of applying the standard of the balance of probabilities to the medical expert evidence. It is not to be determined by the medical experts who may apply some other standard: see Lee Kin-kai, a patient by his father and next friend Li Wah v Ocean Tramping Co Ltd t/a Ocean Tramping Workshop [1991] 2 HKLR 232” (paragraph 36). He also referred to and followed the sage observations of Hunter JA at pages 235-236 as follows: (paragraph 37):
By adopting a common sense approach and by analysing the lay and expert evidence, the learned judge came to the inevitable conclusion that the trigger finger resulted from the accident (paragraphs 39-44). The same approach was adopted for assessing the heads of damages for pain, suffering and loss of amenities (paragraphs 46-48) and for loss of earning capacity (paragraphs 56-60). 145.I also held similar views on causation in Chan Shek Ho v Shiu Ho-chi & ors:[33]
146.In my view, the above authorities suggest 2 essential matters. First, it is not normally necessary to leave it to the PTR to determine whether the medical experts should or should not be called to give oral evidence at trial. Although in an appropriate case this can be left to the PTR, in the post-CJR era when parties should adopt a cards-on-the-table approach to civil litigation, especially in relation to expert opinion evidence which necessarily has to be reduced in written report(s), it is possible and in most cases it is beneficial for the parties and, where there is dispute, for the court to form a view on whether or not oral expert evidence is required prior to the PTR. After all, at the setting down stage which is usually long before the PTR, the parties will have to propose and the court will have to frame the case management directions/timetable for the eventual trial. If oral expert evidence is required, expert diaries’ will have to be consulted and the length of trial hearing will have to properly estimated at the time of setting down for trial. 147.Interlocutory case management directions on whether or not to call the experts to give oral evidence does not bind the trial judge, who normally will only seize of the trial issues in dispute that require his determination at the PTR, and who upon viewing the case from the perspective of the trier of fact may revisit whether it is necessary or not to have oral expert evidence to educate/assist him or her in making relevant rulings/findings at trial. This is the prerogative of the trial judge. After all, as I have explained in Lau Lai Shan v Hospital Authority,[37] the true function of an expert in civil litigation is to carry out objective fact-finding and provide impartial opinion, and the purpose of expert evidence is to educate and inform the court on issues arising within the expert’s specific area of expertise. 148.But that said, the parties cannot, however, assume interlocutory case management directions granted by the court on whether or not to call the experts to give oral evidence at trial can be revisited by the party(ies) at will at the PTR. “Sufficient cause” is required to invoke Order 38 rule 44 of the RHC which provides that “[any] direction given under this Part of this Order may on sufficient cause being shown be revoked or varied by a subsequent direction given at or before the trial of the cause or matter”.[38] In my view, where the issue of need or otherwise for oral expert evidence has been the subject of court determination, especially after argument between the parties and/or after appeal, it is unlikely that the court (including the trial judge) will smile kindly on any repeated application (whether at PTR or otherwise) to revisit such case management determination unless the applicant can make out an exceptional or strong case, eg significant change in circumstances directly pertinent to the expert opinion that in the interests of justice requires or does not require (as the case may be) oral expert evidence. The fact that this has been subject to prior adversarial debate and judicial determination must be weighty consideration for the trial judge to take into account. 149.Secondly, the authorities make clear that whether or not oral expert evidence at trial is required is a pre-eminently case management matter that is context-sensitive. In the circumstances, limited reliance can therefore be placed on case authorities for determining whether the court should or should not allow the experts to give oral evidence in a given case. In my view, the guiding principle (bearing in mind the function of expert evidence explained in paragraph 147 above) is whether oral expert evidence at trial is necessary in the interests of justice for the proper and just resolution of the disputed trial issues. Where both parties engage their own respective experts, such question usually arises when there are disagreement(s) between the experts as shown in their solo/joint reports. But the fact the experts are in disagreement does not ipso facto mean they must be called to give viva voce evidence at trial. The key consideration is whether their oral testimony (essentially their evidence under cross-examination) is necessary to assist the trial judge to discharge his/her function of resolving the disputed trial issues. I refer to the following as illustrations:
150.Apart from the above matters, the parties and the court will also have to consider whether adducing oral expert evidence is the appropriate technique to assist the trial judge. In situations requiring consideration of new materials or alternative factual assumptions, clarification of opinion given in the compiled report and/or filling of lacuna on a topic that ought to have been addressed in the compiled report, a supplemental report may well be the answer and may obviate the effort and costs of calling the experts to give oral evidence at trial. I also agree with HHJ Andrew Li in Ting Siu Ki that oral expert evidence is not a platform to bolster a party’s case by hoping to elicit further or additional expert opinion at trial from the experts beyond that set out in the written report. Cross-examination of the parties’ experts at trial is aimed to test the basis and weight of their expert opinion given in the compiled report(s), especially in the skilled areas on which they differ. 151.Mr Sakhrani also drew my attention to HHJ Andrew Li’s observation in Ting Siu Ki that in the post-CJR era it was only “on those rare occasions” that the court would allow experts to give oral evidence at trial or at assessment hearing, and suggested there was a clear case management practice to limit the calling of experts to give oral evidence, and if called, to limit the scope of their oral testimony. In my view, since any case management direction on whether or not oral expert evidence is required at trial must be a case-specific decision in the unique context of the particular case, there is no need to consider whether such case management directions are “rare” or otherwise. The guidance from the Court of Appeal in the above authorities clearly shows there is no overall case management practice that aims to cull oral expert evidence from personal injury litigation, which concept flies against the primary aim of securing the just resolution of disputes in accordance with the substantive rights of the parties (see Order 1A rule 2(2) of the RHC). But that said, oral expert evidence has to be properly justified in the manner as I have explained lest unnecessary time, costs and effort be incurred to no useful purpose, which needless endeavour also flies against the underlying objectives of efficiency, economy and proportionality (see Order 1A rule 1 of the RHC). 152.I should say, however, that empirical experience post-CJR does suggest there is less call for oral expert evidence, which is probably the result of the detailed guidance in Part I of Practice Direction 18.1, the comprehensive standard form for joint letter of instructions to medical experts on quantum matters adopted by legal practitioners, and the reminders by Personal Injuries Judges/Masters in case authorities that encouraged the experts to fully engage with each other, to fully set out their opinion in their expert reports, and to identify their disagreements and reasons therefor, which help to bring clarity to the schools of thought on the relevant issues and to expose those cases that do not truly require or will not benefit from oral expert evidence. VIII. DISCUSSION 153.Mr Sakhrani complained of the delay caused by the Application and the Appeal. He reminded that the Operation was done on 5 December 2017, so by 20 December 2017 when Master Roy Yu ordered P to file application on/before 3 April 2018 to set the present action down for trial, P already knew about the rotator cuff tear/repair. Yet P did not offer any proper explanation why there was almost no progress since and/or any clarification as to when he intended to set the present action down for trial. Bearing in mind that the alleged Accident happened in 2014, Mr Sakhrani complained of delay caused by P’s Application (which Ds regarded as unmeritorious and which Master Roy Yu dismissed) that purported to resurface by the Appeal. 154.It is true that Master Roy Yu had twice ordered the present action to be set down for trial, but I cannot say the delay had been entirely meaningless. The delay was initially caused by the discharge of legal aid for P and change of P’s former solicitors to PSols. But subsequently, even though some time was taken up by P having made several applications that did not find favour with Master Roy Yu (eg applications for further joint examination of P by the Experts, application for leave to adduce psychiatric evidence and the Application), P was able to use the time to gather further evidence, eg filing/serving P’s 2nd/3rd WSs (which in turn elicited Ds’ various supplemental and/or additional witness statements in reply), obtaining Elitecare’s and TY Medical’s WIRs and medical notes, records and documents as well as the 2nd Jt Report (and now also the 3rd Jt Report). These new factual/documentary/expert evidence were, at the very least, arguably pertinent to the disputed issues at trial. But, more importantly, I am not persuaded the complaint of delay had any significance to the debate raised by the Application/Appeal. After all, whether oral expert evidence is permitted or disallowed concerns question of fairness and justice in the conduct of the eventual trial for resolving the disputed trial issues. 155.P’s 1st Submissions started with setting out in detail what PSols perceived to be the issues in dispute on liability, but such issues did not concern othopaedic expert evidence. 156.Turning to the disputed issues on causation and quantum, the Experts in the 2nd Jt Report agreed (a) P was diagnosed with rotator cuff tear by the MRI arthrogram done on 11 September 2017, and (b) P underwent the Operation for rotator cuff repair on 5 December 2017 (see paragraph 114 below), so the main issues in dispute were (i) whether P did or did not suffer the Shoulder Injury, and (ii) if he did, whether it did or did not cause the rotator cuff tear. Mr Burke contended that the questions for the Experts in the Draft List of Issues, which essentially focused on inter alia the Shoulder Injury, P’s Operation on 5 December 2017, P’s sick leave and P’s treatment after the Operation, were important given the significant difference in value in respect of the claim at $10,019,936 plus interest in the 2nd RSOD (on the basis that the Shoulder Injury prevented P from resuming his pre-Accident job) (see paragraph 21 above), and at nil in the 2nd Answer (on the basis of Ds’ challenge on matters of liability, causation and quantum) (see paragraph 22 above). On such basis, Mr Burke submitted there were proper areas (as set out in the Draft List of Issues) on which the Experts should give oral evidence to assist trial judge in reaching informed factual determination of the disputed issues in (i)-(ii) above. 157.Nevertheless, Mr Burke fairly accepted the crux of contention between the Experts that underlied the 1st, 2nd and 3rd Jt Reports was essentially whether or not the Accident caused any Shoulder Injury with the Experts adopting diametrically opposite views on causation, ie Dr Lee opined the rotator cuff tear was caused by the Accident or a combination of the Accident and pre-existing weakness due to degeneration, but Dr Ho opined it was not caused by the Accident. But Mr Burke accepted that “[flowing] from a decision on causation of the [rotator cuff tear], the [trial judge] would then be able to determine the other issues in dispute …… including (1) Period of sick leave, (2) Need for further / on going medical treatment and physical therapy, (3) Long term work disability”. 158.Thus analysed, the question for the Appeal boiled down to the core matter of whether oral expert evidence (beyond expert opinion already expressed in the Jt Reports) would help the trial judge decide the factual issue in dispute of whether or not the Accident caused the Shoulder Injury, and if so, whether the Shoulder Injury caused the rotator cuff tear (which D denied). 159.In this respect, P perceived Ds’ denial of the Shoulder Injury to be based on the following:
160.For the matter in paragraph 159(a) above, P’s factual case was set out in paragraph 54 of P’s 2nd WS (see paragraph 47 above) which asserted inter alia that after the Accident a safety officer took him to Ds’ office where a site nurse treated him by putting an ice pack on his hand, and after waiting for about an hour “the female Chinese nurse took [him] by taxi to [Elitecare] in Mongkok ……” Mr Burke complained that Ds failed to disclose the first aid report / book entry, safety report(s) and/or other record(s), but Ds claimed they were not in possession of such document(s) (see footnote 3 above). 161.P’s 1st Submissions also “…… contended that [paragraph 159(a) above was] not accurate – and sought disclosure and production of the original of [the WIRs] – and any other medical records”, and further complained that “Ds had not disclosed the actual medical records of Elitecare and TY Medical. So [PSols] do not know if these were ever provided to [Ds] – BUT the Site nurse attended these consultations so would have heard what P said” although “Ds had not produced “any statement of the site nurse”. Mr Burke also submitted that since Ds refused to produce the original medical notes, records and documents of Elitecare / TY Medical, P was unable to assess their evidentiary status until trial when there might be further factual evidence from the doctors / staff who prepared the disputed medical notes, records and documents, so the trial judge would benefit from the oral evidence of the Experts on “such new evidence”, which increase in costs would be offset by the benefit of their oral clarification to assist the trial judge in resolving the disputed issues. 162.In his oral submissions at the Hearing, Mr Burke submitted that PSols had sent letters to DSols to put on record P would object to the contents and/or the production of (i) the WIRs on the basis of “[different] handwriting”[39] and (despite P’s repeated requests to Ds) “[originals] (held by Insurer) not produced” (even though they had been sent to Ds’ insurers),[40] and (ii) TY Medical’s medical notes/records on the basis that “just the Site / Insurer nurse attended with [P] to the Company doctor” and that no Nepalese interpreter was provided. 163.I am unable to see how P’s stance in paragraphs 160-162 above had any materiality to the Application/Appeal which concerned oral expert opinion rather than disputes on factual matters over factual witness/ documentary evidence. The Experts’ written or oral opinion could not resolve the alleged non-disclosure of the safety reports and/or first aid reports. It would be a matter for P to decide whether to seek specific discovery of such documents, and P had to carefully consider whether it would be and/or appropriate to make such application given Ds’ claim that they were not in possession of such documents. It would also be a matter for P to decide whether or not to invite the trial judge (if he could) to draw adverse inference against Ds in respect of the alleged non-disclosure of such documents. But I cannot see how the Experts could make any useful contribution on P’s complaint in this respect. 164.As regards P’s complaint about Ds’ non-disclosure of the originals of the WIRs, again I do not see how the Experts’ opinion (written or oral) could be of any assistance. I note that in Schedule 1 Part 1 of Ds’ List of Documents filed on 25 July 2017 (“Ds’ LoD”), Ds made discovery of inter alia the following documents:
165.If the essence of P’s complaint was that Ds failed to produce the “originals” of the WIRs, it is not understood. The printed standard form for Elitecare’s and TY Medical’s WIRs stated that “Please complete this Report clearly, and fax to [Ds’ insurers] within 24 hours (Fax no, 2xxxxxx3)”. Mr Burke had not drawn this court’s attention (at least for the purpose of the Appeal) to the factual basis for believing Ds had in their possession the “originals” of the WIRs. But this court notes Elitecare’s letter dated 17 May 2021 in reply to the joint letter dated 13 May 2021 by PSols and DSols stated that the original WIR dated 9 April 2014 had been taken by staff of Ds’ insurers. But this was neither here nor there for the purpose of the Application/Appeal since P and Ds had opportunity to inspect the medical notes, records and documents kept by Elitecare who authored/sent the WIR. 166.More importantly, I cannot see how expert opinion could help resolve the veracity or otherwise of contents of the WIRs. If P’s queries concerned why the WIRs did not accurately reflect his complaints to the doctors about (a) the Shoulder Injury as a result of the Accident (which P claimed did occur) and/or (b) left shoulder pain (eg Elitecare’s WIR dated 9 April 2014 did not mention left shoulder pain but such complaint was recorded on the same date in the Elitecare MR), I note Ds disputed any Shoulder Injury in relation to (a) above, and it would be a factual matter for trial as to whether the WIRs were inaccurate/incomplete or (as Mr Sakhrani submitted) whether the nature of the WIRs being reports on work-related injury meant they were not intended to be comprehensive medical notes/records and/or treatment- oriented medical reports. In my view, these factual disputes were outside expert medical evidence, and it would be for the parties (if they wish) to call/subpoena relevant factual witnesses (be they P, his co-workers, Ds’ staff, Elitecare’s medical/nursing/clerical staff or TY Medical’s medical/nursing/clerical staff) at trial to resolve the matter. 167.As for Elitecare’s and TY Medical’s medical notes, records and documents, P’s complaint about Ds’ non-disclosure of such documents was not understood given P’s contention in paragraph 161 above that Ds failed to disclose the “actual” or “original” medical records of Elitecare and TY Medical” so P/PSols “do not know if these were ever provided to [Ds]” and/or P/PSols were unable to “assess the evidentiary status of such records”. If P did not know whether the “actual” or “original” medical records of Elitecare and TY Medical “were ever provided to [Ds]”, query is necessarily raised over the complaint as to Ds’ non-disclosure. After all, Ds did disclose the documents in items 4-5 of Ds’ LoD in paragraph 164 above, which they or their insurers received. As Mr Sakhrani submitted, Ds were construction companies and Elitecare / TY Medical were medical practices, and little if any basis had been shown that apart from items 3-5 of Ds’ LoD Ds had asked for and received Elitecare’s / TY Medical’s medical notes, records and/or documents which were primarily not Ds’ documents. Indeed, Ms Kitty Fok of TY Medical informed PSols that the WIRs (without suggestion of other clinical records) were sent to Ds’ insurers (see paragraph 41(a)(iv) above). As Mr Sakhrani further pointed out, there was also no suggestion that Ds ever stopped P from seeking his own medical notes, records and documents from Elitecare / TY Medical. Indeed, PSols did eventually obtain copies of such medical notes, records and documents from Elitecare / TY Medical (and Advanz). 168.PSols indicated P would object to the contents and/or production of TY Medical’s medical notes, records and documents on the basis that there was no Nepalese interpreter (see paragraph 162(ii) above). But I cannot see how such factual concern could be resolved by written and/or oral orthopaedic expert evidence. As regards P’s wish to have sight of the “actual” or “original” medical notes, records and documents of Elitecare and TY Medical, inspection of Elitecare’s medical notes, records and documents had been done. Although TY Medical was not responsive, it would be a matter for P to consider upon legal advice as to whether or not he should to seek third party inspection of TY Medical’s medical notes, records and documents pursuant to section 42 of the High Court Ordinance Cap 4 and Order 24 rule 7A of the RHC. I am unable to see what benefit would be gained to now order oral expert evidence without any idea what “new evidence” P might or might not be able to adduce at trial in due course with real risk to have the Experts only tap dancing in the wings at trial. 169.On 6 November 2020, DSols filed a hearsay notice for inter alia the documents in items 3-5 of D’s LoD and AR’s statement report to the loss adjuster of Ds’ insurers (“Hearsay Notice”). On 12 November 2020, PSols filed a “counter notice” in respect of the aforesaid documents. If Ds would not call the persons who made such hearsay documents to give evidence at trial, P could apply to the court for leave to call and cross-examine the persons who made such hearsay documents, and to call additional evidence to attack the reliability of such hearsay documents (see Order 38 rule 21(1) of the RHC). Ultimately, it would be for the trial judge to determine whether or not to exclude such hearsay documents upon being satisfied, having regard to the circumstances of the case, the exclusion of such hearsay evidence would not be prejudicial to the interests of justice (see section 47(1)(b) of the Evidence Ordinance Cap 8). But if such hearsay documents were admissible, then it would be up to the trial judge to assess the weight of such evidence in light of the factors in section 49 of the Evidence Ordinance Cap 8. In my view, none of these matters would be aided by expert orthopaedic opinion. 170.Further, whilst it appeared P was taken to Elitecare on 9 April 2014 (see Form 2 in paragraph 83 above) and “staff” accompanied P for the consultation at TY Medical on 29 April 2014 (see TY Medical’s medical notes on 29 April 2014 in paragraph 58 above), Ds did not agree the site nurse accompanied P to consultations at TY Medical (see footnote 4 above). Again, this would be a factual matter for trial judge for which the orthopaedic experts would not have any contribution. As for PSols’ complaint that Ds had not produced “any statement of the site nurse”, (a) if PSols were referring to any statement report of the site nurse taken by the loss adjuster of Ds’ insurers, little if any basis had been shown that such statement report had been taken and was in existence, but (b) if PSols were referring to a witness statement of the site nurse, then neither P nor the court would be in a position to dictate what witness Ds should call in defence of P’s claim herein. In relation to (b) above, I also add that P could (i) (if he wished) call the site nurse to give evidence at trial as there was no property in witnesses, and (ii) (if he could) invite the court to draw adverse inference against Ds’ case on the basis that Ds failed to call the site nurse as witness. But in my view, the resolution of these matters, which would turn on factual evidence, would not be aided by written or oral orthopaedic expert opinion at all. 171.For the matter in paragraph 159(b) above, Mr Burke submitted that P’s instructions to him were that during the consultation at TY Medical on 15 April 2014 (a) P was not so asked by the doctor at TY Medical, and (b) P did not so respond to the doctor. Such factual allegations were not found in P’s 1st, 2nd and 3rd WSs. Mr Burke’s explanation for this lacuna was that Ds failed to make discovery of TY Medical’s medical notes, records and documents, which were not then available to P. Instead, Mr Burke relied on the Elitecare MR to show P made immediate complaint of left shoulder pain at the initial consultation at Elitecare on 9 April 2014. 172.I reiterate the analysis in paragraph 167 above and say there was little if any basis to support PSols’ complaint that Ds failed to make discovery of TY Medical’s medical notes, records and documents. 173.Mr Sakhrani submitted that Mr Burke’s explanation in paragraph 171 above was hollow and, more importantly, irrelevant to expert orthoapedic evidence. Mr Sakhrani reiterated that Ds never prevented P from obtaining medical notes, records and documents directly from Elitecare and TY Medical, and that in any event P/PSols obtained such medical notes, records and documents from Elitecare and TY Medical (including the Elitecare MR) latest by March 2021, so if P wished to rely on any of such documents and on any factual allegations that addressed the contents of those documents, it still behoved P to properly adduce fresh evidence for the purpose of Appeal by way of affirmation setting out the relevant factual evidence and exhibiting the relevant documentary evidence that he intended to rely on and (where necessary) to seek leave to do so pursuant to Order 58 rule 1(5) of the RHC instead of just having Mr Burke put forth causal submissions from the bar table. 174.I can see the force of Mr Sakhrani’s submissions in the above paragraph. After all, fairness requires Ds to be properly apprised well in advance of the Hearing the exact ambit of P’s factual evidence for the Appeal and to have adequate time and/or opportunity to properly adduce evidence in opposition/response (if required) and to accordingly formulate their submissions. This, again, reflected the cavalier approach to the Hearing/Appeal on which I have expressed concern above. 175.Be that as it may, as a result of the 3/5/21 Order and the developments since then, Mr Burke’s explanation in paragraph 171 above no longer (if at all) had any relevance for expert orthopaedic evidence. Insofar as the Elitecare MR was concerned, the parties had inspected Elitecare’s computer records, and the Elitecare MR had been provided to the Experts who had considered the same in the 3rd Jt Report. In the 3rd Jt Report, both Experts agreed there was documented left shoulder pain upon P’s first consultation on 9 April 2014 (see paragraph 131 above) (which Mr Sakhrani submitted belied P’s claim that the doctors did not write down his complaint of left shoulder pain). As for TY Medical’s medical note/record for 15 April 2014, P already had access to copy of such medical note/record obtained from TY Medical. Even though TY Medical was not responsive to the joint request for inspection pursuant to the 3/5/21 Order, I am unable to see how oral orthopaedic expert evidence would have any contribution to this issue. The perceived conflict between P’s alleged version as to what happened at the consultation on 15 April 2014 (see Mr Burke’s submissions in paragraph 171(a)-(b) above) and the denial of work-related injury for the left shoulder pain upon explicit question and answer at such consultation as recorded in TY Medical’s medical note/record (see paragraph 159(b) above) was plainly a factual dispute that could not be resolved and/or aided by orthopaedic expert opinion. It was well put by Dr Lee, P’s own orthopaedic expert, in the 3rd Jt Report that (a) the difference between P’s version and the medical notes was not an issue that could be resolved by retrospective orthopaedic examination by the Experts, and (b) the finding as to which contention was true does not come within the expertise of the orthopaedic Experts (see paragraph 132 above). As Dr Lee said, this matter had to be decided by the court (see paragraph 132 above) as a finding of fact. Actually, this point was already made in the 1st Jt Report that stated the Experts considered “[it] is not our duty to judge whether [P] or the doctor is portraying the true picture” (see paragraph 105 above). 176.I pause to note that Mr Sakrani in D’s 1st Submissions spent much effort to question the source and reliability of what he then described as the “curious” Elitecare MR in light of TY Medical’s medical notes, records and documents that noted the left shoulder pain but ignored it as any work-related Shoulder Injury (see eg the record in TY Medical’s medical notes/records of 15 April 2014 in paragraph 156(b) above and the record in TY Medical’s medical notes/records of 29 April 2014 in paragraph 58 above that the left shoulder pain was not from work-related injury and hence inclusion of left shoulder pain into the treatment programme required agreement by Ds / Ds’ insurers). With inspection of Elitecare’s computer records after the Hearing, the Experts accepted Elitecare did document complaint of left shoulder pain. But, in my view, Mr Sakhrani was right in saying it remained a fact-finding exercise for the trial judge to determine the circumstances of the Accident, the injury sustained as a result (ie whether or not P suffered the Shoulder Injury), and what passed between doctors and P at the consultations at Elitecare and TY Medical upon assessment of (i) the evidence of relevant witness(es) including P and his co-workers, and (ii) the medical notes, records and documents, examples of which were highlighted by Mr Sakhrani as follows:
177.On this, Dr Lee made clear the orthopaedic expertise of the Experts would have little contribution, and any further joint orthoapedic examination would not clarify the retrospective question of whether or not P sustained the Shoulder Injury. Looking at the matter from hindsight, which must be the Experts’ perspective, all they could give opinion on to aid the trial judge would have been the clinical signs of a shoulder injury. The Experts are in fact agreed that if there was sprain/contusion injury to the shoulder, normally the symptoms should be significant within 24-48 hours even if initial pain was not apparent immediately after the injury (see paragraph 105 above). Thus, Dr Lee opined in the 1st Jt Report that if the left shoulder pain occurred as P said, then it should be related to injury during the Accident (see paragraph 105 above), and in the 2nd Jt Report that if P was acutely painful immediately after the injury as he claimed and in the absence of documented additional injury, it was possible that P suffered the Shoulder Injury in the Accident and such injury produced the partial rotator cuff tear that could not be excluded in the earlier MRI (see paragraph 119 above). Dr Lee maintained such view in the 3rd Jt Report (see paragraph 132 above). Likewise, Dr Ho in the 1st Jt Report opined that if there was persistent shoulder pain upon significant Shoulder Injury, it would have been apparent upon first medical consultation (see paragraph 104 above), and in the 2nd and 3rd Jt Reports opined that if the rotator cuff tear was due to the Shoulder Injury in the Accident, it would have caused significant pain and external signs, eg redness, wound, bruising or swelling (see paragraphs 119 and 133 above). Orthopeadic expert evidence (whether written or oral) could not assist in the factual determination as to whether right after the Accident and/or at the time of the initial medical consultations there was (a) acute/significant shoulder pain and/or (b) external clinical signs, which matters are plainly factual findings for the trial judge to make. Then depending on such factual findings, the Experts’ respective factual assumptions for their opinion would be either proven or unproven, in which case the trial judge would be able to see what weight if at all should be placed on their respective opinion. 178.Dr Ho also opined in the 1st and 3rd Jt Reports that the mechanism P described (ie pulling back his left hand after his left index finger was caught between the metal frames, but not having to pull hard as the left index finger was released without much force) would not have caused the alleged Shoulder Injury to the left shoulder tendon in a 28 year- old man (see paragraphs 105 and 133 above). But Dr Lee opined that the mechanism of the injury P described was compatible with sprain/contusion injury to the left shoulder. In my view, this would be as far as the Experts could take the matter since their orthoapaedic expertise would not allow them to be triers of fact. Rather, whether the outcome (ie documented left shoulder pain and undisputed rotator cuff tear) was caused or contributed to by the act complained of (ie the Accident) would turn on the trial judge’s findings as to the factual circumstances and mechanism of the Accident on the balance of probabilities upon assessment of the veracity, reliability and weight of (a) witnesses’ evidence, (b) documentary evidence, and (c) the actual rotator cuff tear / partial thickness tear, and (as acknowledged by Dr Lee) would not turn on retrospective orthopaedic examination and the expertise of the orthopaedic Experts. 179.In the 2nd Jt Report, the Experts agreed that (a) P’s tendinosis was degenerative change and probably pre-existed the injury, and (b) as for causation of partial thickness tear, it could be secondary to tendinosis as a result of chronic attrition injuries, but an episodic injury could also produce a partial tear (see paragraph 118 above). As explained in paragraphs 118-119 above, once the factual issue of whether or not P suffered the Shoulder Injury in the Accident was resolved by the trial judge, it would also go a long way to resolving the question whether the rotator cuff tear was due to (a) natural progression of degeneration / later unrelated injury or (b) episodic injury as a result of the Accident. The Experts were clear this issue depended on factual matters, eg clinical signs in the aftermath of the Accident including inter alia presentation of pain and/or external signs (see paragraph 177 above), and the mechanism of the injury (see paragraph 178 above). PSols accepted that “[flowing] from a decision on causation of the [rotator cuff tear], the [trial judge] would then be able to determine the other issues in dispute …… including (1) Period of sick leave, (2) Need for further / on going medical treatment and physical therapy, (3) Long term work disability” (see paragraph 157 above). In the circumstances, it was apparent that the differences of opinion between the Experts that rested on differing factual assumptions were dependent on fact-finding by the trial judge as to whether or not P suffered the alleged Shoulder Injury in the Accident, and thus the trial judge would not require the Experts to “clarify” their opinion by oral testimony to assist him to reach his factual findings. 180.Mr Sakhrani in Ds’ 1st Submissions also highlighted a number of medical findings that might go to the question of what damage was caused to P’s left shoulder even if P were able to prove he suffered the Shoulder Injury and rotator cuff tear (or partial thickness tear) in the Accident. P complained of persistent left shoulder pain and limited range of shoulder movement. But in the 1st Jt Report, the Experts were agreed on the objective findings, ie the clinical signs of absence of muscle wasting of the left shoulder girdle and left hand, equal arm girths and only slight discrepancy in forearm girths (according to the Experts’ joint examination – see paragraph 107 above) and the existence of degenerative tendonisis with possible mild bursitis (according to the MRI performed on 5 January 2016 – see paragraph 106 above). Further, the surveillance recordings were there for the trial judge to view. The 2nd Jt Report set out the objective findings evident from the MRI arthrogram done on 11 September 2017 (showing supraspinatus tendinosis with a small partial-thickness articular side tear, and also tendinosis at subscapularis and infraspinatus), the Operation in December 2017 (that repaired the partial rotator cuff tear), the 2 courses post-operation physiotherapy treatment in 2017-2018 (showing achievement of reasonable range of movement) and the further MRI done in February 2019 (showing residual cuff tendinosis but no evidence of re-tear) over which the Experts had no disagreement (see paragraphs 114-115, 117 and 121 above). Indeed, they accepted the treatment received by P was appropriate and adequate (see paragraph 120 above). P’s post-surgery complaints of persistent left shoulder pain, especially increase in such pain in July 2018, deterioration of range of movement, reduction in work capacity and muscle weakness despite the Operation, physiotherapy and steroid injections, would have to be viewed against the aforesaid objective medical findings (see paragraphs 116-117 and 122-125 above), bearing in mind that the Experts were in agreement that P’s condition had reach the stage of maximum medical recovery with no further treatment required (see paragraph 123 above), and that there was no evidence of re-tear of the supraspinatus tendon (as seen from the MRI done in February 2019) to give organic support for the deterioration of pain and range of movement of the left shoulder in/about July 2018 (see paragraph 121 above). In my view, the veracity, credibility and reliability of P’s allegations must be weighed by the trial judge by assessing the factual evidence, say, from lay witnesses, factual medical evidence and surveillance recordings, from the objective findings at the Experts’ joint examination on which they did not really differ (and hence did not require further oral “clarification” at trial) and/or from the medical notes/records. Indeed, as regards P’s alleged disability, Dr Lee, quite properly, merely opined that the objective findings at the Experts’ joint examination of P could be consistent with some residual pain in the left shoulder and the left index finger, and it was not for him to trespass onto the trial judge’s fact-finding function to decide whether P’s subjective complaints were reliable and/or credible. In my view, the Experts’ differences in opinion on the alleged residual shoulder disability were essentially due to the underlying differing factual assumptions, ie whether P did or did not suffer the Shoulder Injury in the Accident, which clearly suggested that the trial judge’s resolution of this question of fact would go a long way to inform him or her as to the usefulness of Dr Lee’s opinion or Dr Ho’s opinion in deciding P’s sick leave, work capacity and/or need for future treatment (eg further injections for nerve block and/or pain relief) (see paragraphs 132-133 and 157 above). 181.For completeness, I turn briefly to the Draft List of Issues, which Master Roy Yu had considered and analysed in the Master Reasons. I rely on all my discussions and analysis above which would serve as umbrella answer to the Draft List of Issues, but I will not repeat the same here. 182.As for the 1st, 2nd, 5th and 6th issues that concerned the diagnosis of the rotator cuff tear, I do not see the Experts to be in any disagreement over the partial thickness tear seen in the MRI arthrogram done in September 2017 or the operation findings in QEH’s operation record in December 2017 (see paragraph 114 above). Even the Experts could not undo the historical fact that there were no other investigations/tests save for (a) physical examination of left shoulder on 9 April 2014 showing no redness, (b) Advanz and QEH physiotherapist’s functional (rather than medical) examination of the left shoulder by manual muscle testing and range of movement assessment, (c) physical examination and rotator cuff strength assessment by Dr Ho (see paragraph 87 above), and (d) the MRI done in January 2016 that showed degenerative changes. The Experts did not suggest that retrospective orthoapedic enlightenment could be achieved by further joint examination of P. 183.As for the 3rd issue, which essentially concerned the matter of causation of the rotator cuff tear, I have already dealt with this, and even Dr Lee (for reasons given) accepted this would be a factual finding for which retrospective examination or othopaedic expert opinion could not take further. 184.As for the 4th, 5th and 6th issues that concerned the degeneration in the left shoulder, the Experts in the 1st and 2nd Jt Reports set out quite clearly their respective views on the functional disability (if at all) of the left shoulder, and as explained above, their disagreements would turn on the factual findings as to the existence or otherwise of the Shoulder Injury and as a corollary thereto the causation of the rotator cuff tear. Such factual findings would inform the vitality or otherwise of the factual assumptions on which the Experts gave their opinion on P’s shoulder disability. A similar exercise/approach would be appropriate for the matters of work capacity, sick leave and further treatment in the 8th, 9th and 10th issues as fairly recognised by Mr Burke who submitted that but “[flowing] from a decision on causation of the [rotator cuff tear], the [trial judge] would then be able to determine the other issues in dispute …… including (1) Period of sick leave, (2) Need for further / on going medical treatment and physical therapy, (3) Long term work disability”. As for the 7th issue that concerned whether there was early complaint of left shoulder pain, this was overtaken by the Elitecare MR obtained after the Master Order and the inspection of Elitecare’s computer records after the Hearing. 185.Bearing in mind (a) the Experts had 3 occasions by way of the Jt Reports to give their respective opinion on the orthopaedic expert issues and, more importantly, to discuss and engage with each other and to set out their reasons for disagreeing with the other Expert’s opinion on such expert issues, (b) the limited relevance of othopaedic expert evidence to the core issues in dispute which were essentially factual matters as explained above, and (c) it was not the purpose/function of oral expert evidence for the Experts to change or add to their opinion beyond those already expressed in the Jt Reports or to trespass upon the trial judge’s role as trier of fact in the course of trial, I am not persuaded oral orthoapedic expert opinion could make further material contribution for the trial issues in dispute. 186.Mr Burke submitted that one of the driving factors for calling the Experts to give oral evidence at trial was the underlying objective of fairness between the parties (especially P on whom the burden of proof lied) under Order 1A rule 1 of the RHC, and he feared the trial judge would have grave difficulty in fairly and properly determining the issues in dispute without oral expert evidence given the disagreements in the Jt Reports with risk that the trial might have to be adjourned. I am not persuaded that Mr Burke’s concern was soundly based, and fairness would come into play only if oral expert evidence would reasonably aid the trial judge in his fact-finding function, otherwise calling the Experts to give oral evidence would add unnecessary time and costs that would fly against the underlying objectives. But in any event, the trial judge himself or herself would have opportunity at the PTR to cast his/her eye over such matter. 187.For all of the above matters, Master Roy Yu was correct to refuse leave for the Experts to give oral evidence at trial. IX. CONCLUSION 188.In the premises, the Appeal against the Master Order is dismissed. There is no reason why costs should not follow event. I therefore grant a costs order nisi that costs of and occasioned by the Appeal against the Master Order as well as P’s other purported applications raised in the Notice of Appeal and in P’s 1st Submissions (including all costs reserved, if any) be paid by P to Ds to be taxed if not agreed, and P’s own costs on and after 8 July 2021 shall be taxed according to Legal Aid Regulations.
Mr Patrick Burke, of Burke & Comapny, solicitors for the plaintiff Mr Ashok Sakhrani, instructed by Mayer Brown, solicitors for the 1st and 2nd defendants 1st Schedule “DRAFT ISSUES – FOR ORTHOPAEDIC EXPERTS 4
2nd Schedule 1. The hearing before this court on 3/5/21 in respect of the “Notice of Appeal to Judge in chambers (Order 58) – Appeal Against Master’s Decision” (“Notice of Appeal”) filed on 17/2/21 refers. 2. 2 matters are of note:
3. The order of Master Roy Yu dated 3/2/21 (as stated in the Notice of Appeal) dismissed “the plaintiff’s application for leave to call the orthopaedic experts as witnesses at trial” with costs against [P]. The Notice of Appeal went on to seek an order on appeal that the application for calling the orthopaedic experts at trial be allowed with costs of the appeal and costs below to be paid by [Ds] to [P] to be taxed if not agreed. 4. No other summons has been filed and no checklist review or directions hearing has been scheduled to be returnable before this court on 3/5/21. 5. This court does not understand how a purported application under Order 38 rule 44 (not rule 34) of the RHC on “past directions for expert evidence in this action” can be made by the Notice of Appeal under Order 58 rule 1 of the RHC. This is especially so when any appeal under Order 58 rule 1 of the RHC lies from a specific judgment, order or decision of a Master within 14 days after such judgement, decision or order was given or made. 6. In respect of the purported application for the court to “review” the dismissal of “[updated] physical examination and report by the joint orthopaedic experts” by the order of Master Roy Yu dated 16/7/20, the court notes that section I1 of [P’s] PI questionnaire dated 12/5/20 claimed there was need for updated orthopaedic expert examination and report, and that [Ds] lodged counsel’s submissions on 16/7/20 to oppose such request. But according to paragraphs 19 and 21 of the written submissions by the [PSols] dated 26/4/21, it was said [P] applied for updated orthoapedic expert examination twice, which applications were dismissed by the PI Master on 28/5/19 and 16/11/20. Be that as it may, [P] did not dispute he did apply for updated orthopaedic examination and report which the PI Master dismissed. No appeal was filed against such order of dismissal pursuant to Order 58 rule 1 of the RHC, and no application had been made to seek leave to appeal out of time. 7. In respect of the purported application for the court to review the dismissal of “[psychiatric] expert examination” by the order of Master Roy Yu dated 24/7/19, the court notes that such order was granted after substantive argument by [PSols] and the [Ds’] counsel. No appeal was lodged against such order of dismissal pursuant to Order 58 rule 1 of the RHC, and no application had been made to seek leave to appeal out of time. 8. Apart from the purported applications under the Notice of Appeal, no application by summons has been filed to date, whether under Order 38 rule 44 of the RHC or otherwise, in relation to the orders in paras.6-7 above. 9. Since [P’s] applications for updated orthopaedic expert examination/report and psychiatric expert examination have been dismissed after arguments without any appeal therefrom to date, any attempt to “review” those orders (if permissible whether under Order 38 rule 44 of the RHC or otherwise) will have to be made by formal inter partes application by summons with evidence of “sufficient cause” and opportunity for the other parties to object by evidence if they wish, and not merely by way of submissions. It has been said in Wong Man Kin v Secretary for Justice [2017] 4 HKLRD 412, 419-420 that “sufficient cause” is clearly fact sensitive. 10. Attention is also drawn to Yip Kwok Sun v Poly-Style Limited DCMP2891/2011, HHJ Andrew Li (unreported, 31/10/13) para 63-68 (based on application made by summons), and Ng Kwok Pui Philip & ors v To Pui Kui & ors HCA51/2007, HCA1040/2009, HCA1041/009 and HCA188/2010, Mimmie Chan J (unreported, 6 March 2014) paras 14-22 (based on a specific application made returnable at a directions hearing). 11. The plaintiff referred to my early CJR decision in Wong Ka Yee v Gay Giano International Limited DCEC4362/2007 (unreported, 4/8/09) in which psychiatric expert evidence was allowed despite existing expert directions limiting expert evidence to the cardiothoracic surgery discipline when (a) the application for psychiatric expert evidence was a first application in that case, and (b) the parties had not previously engaged in debate on need of psychiatric expert evidence before the court. In any event, the application was made on the basis of formal joint written application by both parties for paper disposal by the court. 12. Likewise, in the early CJR decision in Chu Sin Yung v Lee Hon Kwong HCPI191/2008, Master Roy Yu (unreported, 18/11/09) dealt with an application made by way of formal summons for introduction of further pain specialist report that had been previously refused. 13. Further, the current approach to expert evidence has to be viewed through the prism of more recent post-CJR guidance by the Court of Appeal as explained in Sun Ming Lok, a minor suing by his mother and next friend, Hui Man Chong v Choy Wing Ho & anor HCPI200/2017 (unreported, 31/3/21) paras 67-71. 14. The Notice of Appeal is an appeal under Order 58 rule 1 of RHC directed specifically against the order of Master Roy Yu dated 3/2/21, and is not the proper application or occasion to have a general “review” of past expert directions. 15. Further, no checklist review, directions hearing or summons has been scheduled to be heard on 3/5/21 to deal with general case management matters, which general case management matters are still currently seized by the PI Master. 16. Thus, at the hearing on 3/5/21, this court will ONLY hear the plaintiff’s appeal against the order by Master Roy Yu dated 3/2/21, and will NOT hear any other matter including, without limitation, the following matters:
17. In view of the above, both parties should be ready to inform this court at the commencement of the hearing on 3/5/21 what documents in the hearing bundle, what parts of the written submissions and which authorities would no longer be relied on for the hearing of the Notice of Appeal against the order of Master Roy Yu dated 3/2/21 ONLY.” [1] $500,000 for pain, suffering and loss of amenities, $2,681,428 for past loss of earnings, $6,555,773 for future loss of earnings, $80,000 for loss of earning capacity, $81,735 for past expenses, and $21,000 for future expenses (although the 2nd RSOD pleaded P’s total claim as $7,428,028) [2] Elitecare’s Dr Chan Hung Tak wrote to PSols on 26 March 2021 (a) referring to PSols’ letter dated 17 March 2021 to Elitecare and (b) enclosing the Elitecare MR [3] P claimed Ds failed to disclose any safety reports or first aid reports, but Ds claimed they were not in possession of such documents [4] Ds claimed TY Medical had not confirmed that any site nurse or insurance officer accompanied P for the consultation on 15 April 2014 [5] ie pain caused by stress or strain [6] P’s 1st Submissions alleged this “appears to be the first occasion on which proper examination of the left shoulder was done” [7] metacarpo-phalangeal joint (MCPJ), proximal interphalangeal joint (PIPJ) and distal interphalangeal joint (DIPJ) [8] it was noted that after P came to Hong Kong in 2011 he worked as a security guard, then he became a construction site general worker in 2012 and a metal scaffolder in 2013 [9] flexion (160° right and 80° left), extension (40° right and 40° left), abduction (160° right and 80° left), external rotation (90° right and 90° left) and internal rotation (70° right and 20° left) [10] abduction, adduction, flexion, external rotation and internal rotation were all 5 for right and 4 for left (grade 0-5), arm girth (5cm above olecranon) was 30.5cm for both sides, and forearm girth (8cm below olecranon) was 26.2cm for right and 25.8cm left for left [11] MCPJ: flexion (right 90° and left 90°) and extension (right 0° and left 0°), PIPJ: flexion (right 100° and left 90°) and extension (right 0° and left 0°), and DIPJ: flexion (right 65° and left 50°) and extension (right 0° and left 0°) [12] Level I (right 32 and left 10), Level II (right 38 and left 10), Level III (right 40 and left 14), Level IV (right 36 and left 13) and Level V (right 32 and left 11) [13] P was seen sitting by the side of the road holding a portable phone in his right hand; he was swinging his left arm when he walked; he then sat for a while and continued to walk again; he put his left hand into the pocket of his jeans as he walked; he then bought some items and carried them with his right hand; his left arm was swinging as he walked but the magnitude appeared to be slightly less than the right side; after emerging from the supermarket he was still carrying a plastic bag in his right hand [14] P walked with similar arm swing on both sides; he was seen holding a portable phone in his right hand, and resting with his left elbow over the back of chair in the garden, his left shoulder raised to around 70°-80° comfortably; he stayed in that posture for a considerable period of time and was seen raising his left hand once to mop off sweat on his forehead and talking on his portable phone for a very long time; he manipulated the portable phone with his left hand, but only used the thumb and middle and ring fingers; he was seen walking again, and putting his left hand into the pocket of his jeans; he then sat in a garden for a very long time until dark; he bought a bottle of water and used his left hand to remove the cap; he then walked home at night holding the portable phone in his right hand; his left hand held a plastic bottle of water that was about ⅓ full [15] P was seen walking; he went to a restaurant and seemed to buy some lunch; he then held a small plastic bag in his right hand and went to the market to buy foodstuff; he was seen using his left hand together with the right hand; he was seen getting money out from the pocket using his left hand; he then carried two small plastic bags in his right hand and walked with his left arm swinging [16] TY Medical’s WIR and medical records dated 15 April 2014 were not available to the Experts when they compiled the 1st Jt Report [17] P claimed QEH’s Dr Yip told him the tear in his left shoulder was caused by the Accident (see paragraph 84 of P’s 2nd WS) [18] according to QEH’s operation record, P underwent arthroscopic rotator cuff repair, arthroscopic acromioplasty and arthroscopy of shoulder with the following findings: “GH joint, biceps anchor intact, PASTA [partial articular supraspinatus tendon avulsion] seen, subscapularis: fraying of upper 1/3, tension normal, biceps long head: mild inflamed, subacrominal space, moderate bursitis, type II acrominion, Bursal surface of the PASTA [partial articular supraspinatus tendon avulsion] lesion was soften with fraying => decided to convert to full-thickness tear”, and the operation record stated inter alia that “PASTA [partial articular supraspinatus tendon avulsion] lesion seen and tagged with acromiolizer …… cuff tear measured, foot print debrided and decorticated ……” with operative diagnosis as “Rotator cuff tear of shoulder (Left)” and “Accident” [19] according to the examination report dated 28 February 2019 by QEH’s department of radiology and imaging, the MRI scan was done on 19 February 2019 [20] the Experts also noted from the psychiatrist report dated 24 April 2017 by Dr Cheung Chi-kwan and from the consultation summaries of Kowloon Hospital that (a) P began to consult psychiatrist on 22 June 2016 as he developed low mood, irritability, poor concentration and increased anxiety due to persistent and severe pain over his left upper limb after his injury on duty on 9 April 2014, (b) he was diagnosed to have mixed anxiety and depressive disorder, and was treated with antidepressant and hypnotic, (c) he attended regular follow-up up to June 2019, and (d) he also had relationship stress, accommodation and financial problem later [21] according to QEH’s operation record, the operative diagnosis was “Shoulder pain (Lt)” and “Tendinitis of shoulder (Lt, tendinosis)”, and the procedure was “Injection or infusion of therapeutic or prophylactic substance (Lt supraspinatus, infraspinatus, subscapularis dextrose injection)” [22] according to QEH’s operation record, the operative diagnosis was “Shoulder pain (Lt)”, and the procedure was “Radiofrequency thermocoagulation of peripheral nerve” (left suprascapular nerve and left lateral pectoral nerve) [23] CACV196/2017 (unreported, 7 September 2018) [24] DCPI1463/2011, HHJ Andrew Li (unreported, 13 December 2013) [25] [2010] 5 HKLRD 599, 619-620 [26]HCA1587/2017 (unreported, 31 October 2018) [27] see Shenzhen Futaihong Precision Industry Co Ltd & ors v BYD Co Ltd & ors [2019] 2 HKC 175, 182-183 [28] see X v Dr Hung Cheung Tsui & anor HCPI67/2014, Chow J (as he then was) (unreported, 23 May 2017) para 10, Ng Wing Man, a mentally incapacitated person by his wife and next friend, Ho Siu Fun v Everbest Port Services Limited HPI780/2012, Bharwaney J (unreported, 21 March 2013) para 8 and Sun Ming Lok, a minor suing by his mother and next friend, Hui Man Chong v Choy Wing Ho & anor HCPI200/2017 (unreported, 31 March 2021) para 58 [29] CACV259/2011 (unreported 17 July 2012) [30] CACV6/2014 (unreported, 13 May 2015) [31] HCPI772/2016, DHCJ Raymond Leung SC (unreported, 20 May 2020) [32] [2015] EWHC 68 (QB) (23 January 2015) [33] HCPI613/2014 (unreported, 6 April 2018) [34] see Lee Kin-kai, a patient by his father and next friend Li Wah v Ocean Tramping Co Ltd t/a Ocean Tramping Workshop [1991] 2 HKLR 232, 236, Hung Sau Fung v Lai Ping Wai [2016] 1 HKLRD 106, 125, and Yu Wai Kan v Law Cho Tai HCPI62/2010 (unreported, 11 May 2011) para 71(a) [35] see CMY v Tam Siu Wing [2008] 4 HKLRD 604, 612, McGhee v National Coal Board [1973] 1 WLR 1, 6, 8 and 11, Heung Wing Yan v Hangway Housing Management Limited & ors HCPI347/2012 (unreported, 14 October 2016) para 65, and Yu Wai Kan at para 71(b) [36] there is a causal connection in law if it is shown on the balance of probabilities that the incident is a substantially contributing cause of the injury, but doctors practice the science of aetiology and look for “clinical cause” or “irrefragable chain of causation” which is to be proved beyond reasonable doubt or beyond any doubt (see Lee Kin-kai, a patient by his father and next friend Li Wah at pp 235-236, Li Sau Keung v Maxcredit Engineering Ltd & anor [2004] 1 HKC 434, 450, Ansar Mohammad v Global Legend Transportation Limited CACV162/2010 (unreported, 24 March 2011) para 22(2), Heung Wing Yan at para 66, and Yu Wai Kan at para 71(c)) [37] DCEC784/2007 (unreported, 29 February 2008) para 18 [38] see Wong Man Kin v Secretary for Justice [2017] 4 HKLRD 412, 419-420 (see also Yip Kwok Sun v Poly-Style Limited DCMP2891/2011, HHJ Andrew Li (unreported, 31 October 2013) and Sun Ming Lok, a minor suing by his mother and next friend, Hui Man Chong at para 59) [39] eg as seen on the face of TY Medical’s WIR dated 29 April 2014 [40] eg the printed standard form for Elitecare’s and TY Medical’s WIRs stated that “Please complete this Report clearly, and fax to [Ds’ insurers] within 24 hours (Fax: 2xxxxxx3)”, and Elitecare’s letter dated 17 May 2021 in reply to PSols’/DSols’ joint letter dated 13 May 2021 that the original WIR had been taken by staff of Ds’ insurers (see para 41(a)(ii)(2) above) | 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