Chan Ki v. General Security (H.K.) Ltd

DCEC 1808/2022

[2024] HKDC 1689

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1808 OF 2022

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DECISION

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INTRODUCTION

1.By Summons dated 22 December 2023 (“the Summons”), the respondent applies for leave to adduce the cardiological expert evidence of Dr Goh King Man Viktor (“Dr Goh”) on liability in relation to two issues stated as follows:-

(i)  whether there is any causation between the applicant’s alleged insect stings/bites and her alleged vasovagal attack; and

(ii)  whether there is any causation between the applicant’s alleged vasovagal attack and her employment.

2.These are two issues that the respondent is seeking the expert evidence to resolve.

3.At the hearing of the Summons on 22 January 2024, the Legal Aid assigned solicitor, Mr Leung, informed the court that as the Legal Aid Certificate did not cover any opposition to the Summons, he had to maintain a neutral stance, notwithstanding his indication to the court that he disagreed with the Summons.

BACKGROUND

4.I will first briefly discuss the facts of this case. The question of insect bites and the applicant’s vasovagal attack arose from an accident on 31 October 2021 while she was on duty at work.

5.It is alleged that she was bitten by insects, and she started to feel uncomfortable. Shortly after, she started to feel faint and started to vomit. She lost consciousness and fell on the ground. This sudden fall had caused physical injuries. According to the Form 9 (“Form 9”) issued by the Medical Assessment Board, she suffered injuries on her right shoulder, right knee and lower back.

6.In the supporting affirmation of the Summons (the Affirmation of Tse Heung Ching Helen), the respondent relies on two medical reports of Ruttonjee and Tang Shiu Kin Hospitals and Shun Lee General Out-patient Clinic of the General Out-patient Department respectively in relation to two consultations dated 31 October 2021 and 22 November 2021 the Applicant attended.

7.In these reports, there was a record describing the applicant’s loss of consciousness. In the first consultation report, it was also stated that the applicant had likely suffered from vasovagal attack.

8.However, in both reports, it was stated that the fall or the sudden loss of consciousness suffered by the applicant was not related to her work or employment. The respondent relied heavily on these comments of these consultation reports.

9.I now go back to the hearing on 22 January 2024. In view of the awkward stance at the hearing the assigned solicitor had expressed to this court, and the concerns raised as to the appropriateness of the proposed medical experts, I adjourned the Summons to allow the respondent’s solicitor to consider whether she would be able to find another appropriate field of expert, but not a cardiologist, as it is a matter in relation to insect bites. I questioned whether a cardiology expert would be in a position to comment on the relationship between insect bite and vasovagal attack.

10.I expressed to the parties, particularly to the respondent’s solicitor that the applicant’s sudden loss of consciousness seemed to have apparently been preceded by an incident of insect bites. I therefore invited the respondent’s solicitor to look for an expert who could comment on or who had the experience or expertise on the relationship of the causation between insect bite and vasovagal attack. It might be more suitable.

11.Pursuant to my direction, on 25 March 2024, the respondent’s solicitors wrote to this court indicating that the respondent would stand by its view that a cardiology expert would be appropriate on the issue of liability. They further enclosed with their letter a letter from the proposed cardiologist, Dr Goh. In the letter, Dr Goh stated that he could comment on the relationship between insect bites and vasovagal attack.

12.Dr Goh’s letter did not clarify if he had any previous experience or training in cases involving insect bites leading to vasovagal attack. I therefore directed the respondent’s solicitors to provide clarification in that regard.

13.In their reply dated 6 May 2024, the respondent’s solicitors confirmed that Dr Goh did not have any previous experience in treating vasovagal attack caused by insect bites. They continued with the same submission in the letter, which I now quote:-

“Dr Goh has the professional knowledge and expertise in the causes and symptoms of vasovagal attack and is well in a position to comment on the medical relationship between insect bites/stings and vasovagal attack.”

14.In response, the Legal Aid assigned solicitors on 24 May 2024 informed this court that the applicant continued to remain neutral stance owing to the constraint of the Legal Aid Certificate. However, the assigned solicitors went on to provide a three-page submissions stating that any liability expert is not necessary to resolve the liability issues. Further, it was submitted that it was not proportionate in incurring additional costs and expenses since the value of the claim was relatively modest.

15.In light of the submissions of the assigned solicitor and the contents disclosed in that letter, this court directed the restoration of the hearing of the Summons.

16.Consequently, the Legal Aid Certificate was extended to cover the applicant’s opposition to the Summons. The assigned solicitors at the restored hearing today lodged a written submission together with a list of authorities of five cases in support of the applicant’s opposition to the Summons.

LEGAL PRINCIPLES

17.I am indebted to Mr Chan’s written submissions. In the submissions, he set out in detail the legal principles governing an application for leave to adduce expert evidence.

18.As Mr Chan stated in §5 of his written submissions, these principles are trite, and I do not think that Ms Tse takes any issue with these well-established legal principles. Mr Chan summarized the legal principles in the case of Law On Tong v The China Engineers, Limited [2024] HKDC 651, the decision of His Honour Judge Andrew Li.

19.In that decision the court set out six principles or criteria that a court needs to consider when dealing with an application for leave to adduce expert evidence. His Honour Judge Andrew Li, in fact, summarized the decision of Bharwaney J (as he then was) in the case of Fung Chun Man v Hospital Authority, unreported, HCPI 1113 of 2006 (24 June 2011).

20.I will summarise the broad principles that the court needs to consider.

(i)  How cogent the proposed expert will be;

(ii)  whether there is any real assistance the proposed expert will help determine the issues of the case; and

(iii)  how much it will cost and the relationship of the cost to the sum at stake, which is what Mr Leung has referred to as “the proportionality test”.

DISCUSSION

21.In a gist, the above-stated first and second criteria can be summed up by the threshold requirements of relevance, necessity and probative value: See Wong Loy for himself and other family members of Wong Sui Ping, deceased v BDO Limited [2014] HKDC 269.

22.Even if an applicant for expert evidence can overcome these threshold requirements, the court still retains a residual discretion with reference to the following considerations stated in Law On Tong (supra).

(i)  the potential disruption to the trial;

(ii)  the prejudice to the other parties; and

(iii)  the explanation offered by the applicant in cases where late application is made for expert evidence to be adduced.

23.For the present purpose, I do not think, the above factor (iii) is relevant because there is no issue of delay.

24.An applicant for expert evidence would undoubtedly bear the burden of proof. In this case, it would be on the respondent. The respondent will need to persuade this court that the obtaining of the cardiology expert evidence is relevant and necessary for resolving the issue on liability.

25.As for the burden of proof, the case Mr Leung cited in Shenzhen Futaihong Precision Industry Company Limited [2019] 2 HKC 175 has set out the legal principles and the criteria the respondent needs to meet in this Summons. I will now examine the first and the most important issue, which is whether the evidence of the proposed cardiology expert is relevant, necessary; and bears probative value.

26.In determining this criterion, it is essential to firstly examine the issue of liability in this case. Up to this stage, the pleadings are already closed, and further that witness statements have also been filed and exchanged. The applicant has filed her witness statement, and the respondent has also filed one witness statement from the respondent’s staff.

27.Based on the evidence, I think there is one highly contentious factual dispute: whether the applicant was indeed bitten by insects before her loss of consciousness.

28.According to the respondent’s pleaded case and the witness statement, the respondent plainly takes issue with the applicant’s assertions in relation to the allegation of the event of insect bite having preceded her sudden loss of consciousness.

29.For illustration, in the witness statements of Ho Ho-yin filed on behalf of the respondent, he expresses great doubt on the applicant’s allegation that she was bitten by insects before her sudden loss of consciousness. (See §§10 to 17 of Mr Ho’s witness statement.)

30.The contentions raised by the respondent are clearly and undisputably, in my view, factual disputes. The applicant will have to prove at the trial in satisfying the court on balance of probabilities that her vasovagal attack was preceded by insect bites. Once she is able to prove that, it is only then the issue of the causation between the insect bites and the alleged vasovagal attack arises.

31.In the supporting affirmation of the respondent’s Summons, the deponent (Ms Tse), apart from relying on the two consultation reports referred to above stated that there was no relationship between the vasovagal attack and the employment, also heavily relied on an article published on the website of Cleveland Clinic in the US. In the article, it states that there are a number of triggers that may cause vasovagal attack.

32.Ms Tse relied on that article in submitting that a person suffering from this condition would normally lose the ability to control blood pressure and result in a drop in blood pressure and heart rate.

33.Referring to the said information, Ms Tse submitted that a cardiology expert is therefore suitable. In my view, this is wholly misplaced.

34.Firstly, there is no evidence placed before this court that vasovagal attack is a condition belonging to the field of cardiology or even a cardiological illness.

35.Secondly, there is no evidence placed before me that the applicant has any underlying cardiological medical condition, or any suggestion that a vasovagal attack relates to a cardiological illness. Neither can one find from that article a suggestion that a vasovagal attack is a heart-related condition.

36.According to the information published in that article, it seems that triggers of vasovagal attack involve a host of situations including a needle prick, stress and anxiety, so on and so forth. If she were able to prove that she had indeed been bitten by insect, a trial judge should be able to apply one’s common sense in determining whether the emotional state of the applicant would likely cause sudden loss of consciousness.

37.I am unable to see how a cardiologist can assist the court in this regard. If an expert were really required, I believe that an expert who specializes in insect bites leading to various conditions, including vasovagal attack, may even be more appropriate. However, there is no such evidence before the court and no such proposed expert despite an opportunity having been given to the respondent. Hence, I am of the view that a cardiologist will not resolve the first issue as stated in the Summons.

38.As for the second issue which the respondent proposed to resolve, I am a little bit puzzled by the framing of this issue that whether there is any causation between the applicant’s alleged vasovagal attack and employment. In the Form 9, the applicant’s injuries are not found to have been vasovagal attack. Rather, they are physical injuries caused by her fall.

39.Therefore, it is not the applicant’s case that it was the nature of her work that caused her to suffer a sudden loss of consciousness. She did not faint because she had to perform her duties or her work as a security guard. Therefore, the second issue has not been properly framed. It is not an issue a trial judge would be required to determine. For these reasons, I am not satisfied that the respondent has persuaded this court that cardiology expert evidence is relevant or necessary or has any probative value. Hence, the respondent has failed to meet the first threshold requirement.

40.Furthermore, I am also in agreement with Mr Leung that the additional costs and expenses involved for adducing a cardiology expert are not going to be proportionate to the amount of the compensation the applicant will likely obtain.

41.The respondent had filed an appeal against Form 9. By the appeal, the respondent probably believes that the likely amount of compensation of the Applicant should be much less than an assessment to have been based on the Form 9 assessment.

42.According to Mr Leung’s calculation of the estimated amount of quantum of compensation based on Form 9, the additional costs including the trial will make up more than 50% to 70% of the estimated value of the quantum of compensation.

43.Hence, if the respondent’s application were to succeed, the likely additional expenses of an expert will even be higher. In such circumstances, I believe that the costs are wholly disproportionate to the value of the claim.

44.Lastly, I also believe that the adducing of a liability expert will further delay the proceedings. Up to now, the parties have already filed their witness statements, and should the respondent decide not to adduce further expert evidence on quantum, this matter is ready to be set down for trial.

45.In all the circumstances, having regard to the statutory objective of the statutory employees’ compensation regime which requires such proceedings to be resolved as expeditiously as possible so that an injured employee would be able to obtain fast and quick relief, I believe that by allowing the adducing of the cardiology expert would not only substantially lead to the incurring of additional costs and expenses, but also delay the proceedings. This will not be within the ambit of the underlying objectives of the Civil Justice Reform or the statutory objective of the employees’ compensation regime.

CONCLUSION

46.For the foregoing reasons, I dismiss the Summons.

47.I order the respondents to pay the applicant’s costs, to be taxed if not agreed. For the avoidance of doubt, the applicant’s costs shall also include the costs of the correspondence before the hearing today.

48.The Applicant's own costs are to be taxed in accordance with the Legal Aid Regulations.

Mr Leung, of Ho & Associates, for the applicant

Ms H C Tse, of Fairbairn Catley Low & Kong, for the respondent