Law on Tong v. The China Engineers, Ltd

DCPI 927/2022

[2024] HKDC 651

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 927 OF 2022

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DECISION

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INTRODUCTION

1.This is the defendant's appeal against the decision made by a master who had refused its application to obtain a supplemental expert report from the joint neurological experts.

2.By a summons dated 4 October 2024 (“the Summons”), the defendant sought leave to obtain a joint supplemental report from Dr Kan Yiu Ting (“Dr Kan”) and Dr Christopher YF Poon (“Dr Poon”).

3.On 23 January 2024, Master Anny Chak (“the Master”) dismissed the Summons with reasons of the decision given to the parties on the same day. She also summarily assessed the costs of the application at HK$85,000 and ordered the defendant to pay those costs within 14 days.

4.The defendant was dissatisfied with the decision and appealed against the Master’s decision by way of a notice of appeal dated 31 January 2024 (“Notice of Appeal”).

BACKGROUND

5.The plaintiff suffered injuries when he was employed by defendant as a senior mechanic. On 29 April 2019, when the plaintiff was manually handling a steel cover plate with his co-workers, he suffered serious injuries to his back (“the Accident”).

6.The plaintiff underwent numerous medical treatments since the Accident. Multiple MRIs have been conducted, with 2 conducted shortly after the Accident on 3 & 4 May 2019, ie the 1^st and 2^nd MRI. The 1^st and 2^nd MRI Reports were prepared following the scanning.

7.On 22 May 2019, the plaintiff underwent an operation of microdiscectomy of the left side L2/3 at a private hospital.

8.On 18 September 2019, a third MRI was conducted, with a 3^rd MRI Report was prepared.

9.Subsequently 2 further MRIs were conducted, on 25 February 2020 and 24 November 2021 respectively. As a result, the 4^th and 5^th MRI Reports were prepared.

DISCUSSION

Joint Medical Report

10.By a joint expert instruction letter dated 19 July 2022 (“the Instruction Letter”), the plaintiff appointed Dr Kan and the defendant appointed Dr Poon, as their respective experts in this case.

11.In the Instruction Letter, it stated that the plaintiff would be jointly examined by both experts.

12.Enclosure 1 of the Instruction Letter set out the documents that have been sent to the experts for their reference, including all the 5 MRI reports, discharge summary, medical reports, operation record, examination reports, physiotherapy progress report, psychological report, occupational therapy report, medical notes and records.

13.Enclosure 2 of the Instruction Letter requested the experts to include their comments on the matters as specified. But the experts opinion would not be limited to those matters. In any event, in §5 of the said enclosure, it specifically stated that the experts should give their comments to “whether there is any pre-existing medical conditions suffered by Applicant/Plaintiff” not related to the accident. If so, kindly explain the nature the extent thereof and apportion the Applicant/Plaintiff’s disability that cause by the pre-existing condition and the Accident”. The experts were also requested to confirm whether:-

(a)  The plaintiff was almost certain to have gone through life unaffected by the pre-existing condition but for the Accident;

(b)  There is a strong possibility (please give a percentage if possible) that some other event (please specify if possible) or natural progression of the condition would have brought about the plaintiff’s present stage and if so, when would that happen;

(c)  This would certainly have occurred at some stage in any event and when would that happen.

14.In §11 of the Joint Medical Report dated 15 September 2022 (“the Joint Report”), under the heading of “Effects of Pre-existing Medical Conditions”, both experts jointly and unequivocally stated as follows:

“We have no disagreement that there was no pre-existing medical condition of (the plaintiff) that had contributed to the cause of the accident in 2019 or the subsequent impairments”.

The defendant’s submissions

15.The defendant’s primary submissions are that:-

(a)  the experts’ conclusion that “there was no pre-existing medical condition of (the plaintiff) that had contributed to the cause of the accident in 2019 or the subsequent impairments” was made without any explanation and “appears” to be inconsistent with the 5 MRI Reports;

(b)  there have been “lumbar spondylosis” as mentioned in the 1^st MRI Report and “spondylotic changes with marginal lippings are again noted in the lumbosacral spines” is noted in the 2^nd MRI Report; and that the experts have “likely overlooked or did not consider the pre-existing implications of plaintiff suffering from degenerative change of lumbar spine”; and

(c)  a supplemental neurosurgical expert report is proportionate and will not cause prejudice to the plaintiff.

The plaintiff’s submissions

16.The plaintiff submits that a supplemental expert report is not relevant and unnecessary and that the two experts have already been provided with all the medical reports including the 1^st to 5^th MRI Reports and came to an agreement that there was no pre-existing medical condition that had contributed to the cause of the Accident or the subsequent impairment.

17.Further, the plaintiff submits that there is no evidence to suggest that the experts have overlooked or misunderstood the 1^st to 5^th MRI Reports and their expertise are not challenged.

18.In short, there is no ambiguity in the agreed opinion as expressed in the Joint Report.

Legal principles involved

19.The principles applicable for leave to adduce expert evidence are trite and have been succinctly summarized by Bharwaney J in Fung Chun Man v Hospital Authority, unreported, HCPI 1113 of 2006 (24 June 2011) as follows:-

(i)  The court's discretion to grant leave to adduce expert evidence is to be exercised within the ambit of the court's management powers in the light of the underlying objectives of the Civil Justice Reform (“CJR”): §9.

(ii)  In deciding whether or not to grant leave, the court must ensure that such evidence is admitted only if it is likely to be of real assistance to the determination of the issues, and that it is adduced in the most effective and economic way consistent with the objectives of the CJR: §11.

(iii)  The following 3 questions ought to be asked before deciding to allow expert evidence:

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

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

(c)  how much it will cost and the relationship of that cost to the sums at stake: §13.

(iv)  The expert evidence must be reasonably required to resolve the issues before the court before leave would be granted to adduce it: §14.

(v)  In summary, the expert evidence must be (i) in a recognised discipline, (ii) reasonably required to enable the court to resolve the issues in dispute, and (iii) proportionate: §15.

(vi)  Even if a prima facie case is made out for the admission of expert evidence, in every case, the court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant in cases where a late application is made for expert evidence to be adduced. These matters have to be considered and weighed in the light of and against the underlying objectives of the CJR: §16.

20.In the present case, the defendant bears the burden to demonstrate the necessity of obtaining a supplemental expert report which is relevant and can be of assistance to the trial judge.

21.In my view, the relevant issue to be determined in the application is whether there was any pre-existing medical condition that had contributed to the cause of the Accident or the subsequent impairment but not simply on whether there was any pre-existing medical condition. [emphasis added]

What were the experts originally asked to give their opinion on?

22.I agree with Mr Cheng, counsel for the plaintiff, that the presence of pre-existing degeneration in the plaintiff’s lumbar spine is relevant to quantum, if, independent of the injuries caused by the Accident, it affects his work capacity, or subjects him to pain and suffering. It is otherwise irrelevant if it does not bring about any loss to the plaintiff.

23.This is why in the Instruction letter the experts were specifically invited to state their opinion on:-

“whether there is any pre-existing medical condition suffered by the Applicant/Plaintiff not related to the accident. If so, kindly explain the nature the extent thereof and apportion the Applicant/Plaintiff’s disability that caused by the pre-existing condition and the Accident …”[1] [Emphasis added]

24.Similarly, further down at §7 of the Instruction Letter, they were asked:-

“whether the Applicant/Plaintiff’s current medical condition and his symptoms/complaints were all attributable to the Accident. If not, please state the extent to which they were related to the Accident” [Emphasis added]

25.The 1^st to 5^th MRI reports (ie all of the MRI reports available at the time of the instruction) were provided to them by way of the Instruction Letter to facilitate the experts to give their views on the above questions: See affidavit of Leung Yi Lam (“P’s Aff”) at §10[2].

26.The above is standard in personal injuries litigation. It is not asserted, and there is no evidence to suggest that experienced experts like Dr Kan and Dr Poon did not know what they were asked to look for and comment on.

27.It is important to bear in mind that it is in the above context that the experts came to their view that there was no pre-existing medical condition that had contributed to the cause of the Accident or the subsequent impairments: See Joint Report at §11.

Defects in the defendant’s submissions

28.Mr Lau for the defendant has singled out the presence of spondylosis in the plaintiff’s lumbar spine as stated in the 1^st and 2^nd MRI as the most important factor to indicate that there had been degenerative changes in the plaintiff’s lumbar spine at the time of the joint examination. So much so that Mr Lau saw fit to provide the definition of the term “spondylosis” from a medical dictionary[3] in his submissions to demonstrate to “the plaintiff’s solicitors” as “records” of the plaintiff’s degenerative change in his lumbar spine in the 1^st and 2^nd MRI.

29.The defendant also boldly asserted that the experts did not consider and address what was stated in the 1^st and 2^nd MRI: See §2 of the affidavit of Lee Shuk Ling Linda.

30.The defendant further argues that the experts might have overlooked both 1^st and 2^nd MRI Reports in which both reports mentioned about “lumbar spondylosis” and “spondylotic changes with marginal lippings are again noted in the lumbosacral spines” respectively and there were contradictories views between the 2 radiologists preparing the 1^st and 2^nd MRI Reports and the 2 experts which they did not deal with in the Joint Report.

31.With respect, there is no evidence from the defendant to demonstrate such alleged overlook on the part of the experts. In fact, the Joint Report expressly referred to these 2 MRI Reports, for instance:-

(a)  At §2.6 of the Joint Report: it states that “[the plaintiff] had an urgent MRI examination (without contrast) of the Lumbar spine performed on 3^rd May 2019 after being seen by an orthopaedic surgeon. The purpose of the scan was to rule out any acute spinal trauma or complication sustained in the alleged accident. According to the report of the MRI Study, no gross spinal bony fracture or acute central prolapse of intervertebral disc were detected but a suspicious shadow over the Left side L2/3 intervertebral foramen was found, nature of the lesion was dubious”; and

(b)  Further, at §2.7 of the Joint Report: it states that “In order to clarify the nature of lesion, [the plaintiff] was arranged to have another MRI examination of the Lumbar spine with contrast the next day (4^th April 2019). The previously detected lesion at Left L2/3 intervertebral foramen was reported to be either a neurogenic tumor or an extruded disc over that site”.

32.Again, with respect, I think the defendant has failed to read the experts’ opinion on this matter properly. The experts did not say that there was no pre-existing degeneration, rather their view was that the plaintiff’s impairments were not contributed by any pre-existing medical condition, including the spondylosis or degenerative changes to his spine.

33.In my judgment, the experts have clearly looked into and considered what have been contained in the 1^st and 2^nd MRI Reports. Their joint opinion is simply that the existence of any pre-existing conditions had not contributed and caused the Accident in 2019 or the subsequent impairments. This was exactly what the experts were requested to give their opinion on, namely, whether such pre-existing condition, in the present case, including the lumbar spondylosis or the spondylotic changes, had contributed to the Accident or the subsequent impairments. There joint, unequivocal and agreed opinion is that they had not. In my opinion, there is simply no ambiguity or anything unclear in their opinion which needs to be clarified by way of a supplemental joint report.

34.In this case, both experts are experienced and well respected specialists in neurosurgery. They have had many years of experience in writing medical-legal reports and often act as experts in their field of specialty in personal injuries cases. It is absurd to suggest that they did not understand the scope of their instructions as contained in the Instruction Letter. Further, I notice that there is no challenge as to their expertise by the defendant. There is simply no evidence produced by the defendant to remotely suggest that they have overlooked or misunderstood the contents of the 1^st to 5^th MRI Reports. In my judgment, the defendant's allegation is therefore unwarranted and in fact being quite unfair to the experts.

35.In the aforestated premises, regrettably, I come to the view that the defendant’s application is an attempt to have a second bit of the cherry, in the hope that somehow the expert opinion would become more favourable to the defendant’s case if the court allows a supplemental joint report to be prepared by the experts.

36.Further, I agree with the plaintiff’s submission that the defendant’s application, including the present appeal to the Master’s decision, has caused unreasonable delay to the resolution of the case. I agree with Mr Cheng that if the defendant genuinely believed that the experts failed to give sufficient regard to the reference of lumbar spondylosis in the 1^st and 2^nd MRI, this application could have been issued shortly after the Joint Report became available in September 2022 or at least soon after the writ of these proceedings has been issued. However, the defendant waited for over a year to issue the Summons in October 2023 only. No explanation has been given by the defendant to explain such a lengthy delay.

37.I further agree with the plaintiff’s solicitors that this case could have been set down for trial in November 2023: See P’s Aff §14. The belated application of the defendant by way of the Summons and the subsequent Notice of Appeal has already caused a delay of more than 6 months in this case. If the court allows the application, at least a further delay of 6 to 9 months will likely be caused in order to allow the experts to come up with a supplemental report and for the parties to amend the pleadings, etc. Such delays all go against the underlying objectives of the CJR and should not be encouraged in a simple personal injuries case like our present one at all.

CONCLUSION

38.In the aforestated premises, I entirely agree with the Master’s decision to refuse to grant leave to the defendant to adduce a supplemental neurosurgical expert report from Dr Kan and Dr Poon. I therefore would dismiss the defendant’s appeal with costs in favour of the plaintiff, with certificate for counsel. Such costs has been summarily assessed at HK$90,000 at the end of the hearing today and is ordered to be paid within 14 days by the defendant.

39.I would also like to give the following case management directions in this case in order to ensure that the case will be set down for trial as soon as possible. In this regard, I would direct that:-

(1)  The Checklist Review hearing fixed on 21 October 2024 at 10:00 am in Court no.15 before the PI master be vacated;

(2)  This action be set down for trial before a Judge in the fixture list, commencing at 9:30 am on 21 October 2024 at in Court no.8, with an estimated length of 4 days (with 22 to 24 October 2024 reserved), using the trial bundle agreed by the parties;

(3)  There will be a pre-trial review hearing fixed on 26 August 2024 at 10:00 am in Court no.8, with 1 hour reserved; and

(4)  Parties do file a Consent Summons for setting down directions within 7 days from the date hereof for the court’s approval.

40.Finally, I would like to thank counsel on both sides for their submissions.

Mr Alfred Cheng instructed by Messrs Hom & Associates, for the plaintiff

Mr Lucas Lau instructed by Messrs Deacons, for the defendant