Huang Weihong v. Tao Kee Engineering Company Ltd and Another

HCPI 206/2024

[2025] HKCFI 6157

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 206 OF 2024

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D E C I S I O N

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1.Considering the parties’ submissions, the master directed that single joint expert should be instructed for expert evidence on quantum in the present case. This is the plaintiff’s appeal against the master’s order.

BACKGROUND

2.For injuries at work on 29 January 2022, the plaintiff commenced the present action, claiming for damages against the 1^st defendant as his employer and the 2^nd defendant as the principal contractor at the time of the accident. The plaintiff was then a 49-year-old steel-bender.

3.The pleaded case of the plaintiff is that the accident happened in the course of his transporting 50 to 60 pieces of iron bars when he had to straddle across the metal framework without walkway on it. Due to the oil stains over the surface of the framework, the plaintiff slipped, lost his balance, and fell into a trench. He landed on his back, with his right lower back hitting against the bank of the trench. He was admitted to the accident and emergency department of the hospital afterwards.

4.For his injuries, the Plaintiff had commenced proceedings for employees’ compensation, which have been settled for a sum of HK$1,691,489.67. Giving credit to that, the plaintiff pleaded in his statement of damages a quantum in the sum of HK$7,212,654.39 plus interest.

5.Liability and quantum are in dispute.

6.By joint letter dated 21 March 2025, the parties sought directions in respect of medical expert evidence. They sought leave to adduce such evidence from their respective orthopaedic experts by way of joint examination of the plaintiff.

7.On 24 March 2025, the master gave her directions, including those in respect of medical expert evidence. The terms of the directions were in line with what this court subsequently recited in Tamang Dhirendra v Toko Construction & Machinery Ltd & Anor HCPI 285/2024 (27 June 2025). Essentially the parties were asked to consider and to explain whether it is appropriate to obtain medical expert evidence from a single joint expert (“SJE”).

8.Pursuant to the direction, the parties by joint letter dated 24 April 2025 explained why instructing separate experts was preferred. However, should the court be minded to grant leave to adduce medical expert evidence by way of SJE, the parties also provided in the joint letter their respective nominated experts for the court’s selection as the SJE.

9.By order dated 25 April 2025, the master gave leave to the parties to adduce orthopaedic expert evidence from a SJE, namely Dr Lam Kwong Chin, together with other incidental directions (“the 25/4/2025 Order”). Reasons for the decision were set out in the master’s note to the parties of the same date.

10.On 2 May 2025, the parties by joint letter informed the master of the plaintiff’s intended appeal against the 25/4/2025 Order. The defendant in the letter stated their stance of no intention to disagree with the master whereas the plaintiff seeks stay of execution of the order being appealed. On the same day, the notice of appeal was filed.

11.By order dated 6 May 2025, the master acceded to the stay with costs reserved to be dealt with at the next direction hearing.

12.The appeal was argued before this court, and this is my decision.

POINTS TO NOTE

13.This is an appeal pursuant to O58, r1 of the Rules of the High Court, Cap 4A (“RHC”), which proceeded as a re-hearing of the application for leave to adduce orthopaedic expert evidence on quantum. The issue is whether such evidence should be obtained from the parties’ separate experts or their SJE.

14.This court notes that the sealed orders of the master mentioned above, including the 25/4/2025 Order, were stated as those by consent of the parties. The order was made pursuant to the proposal of the parties by way of joint letter primarily for separate medical experts but, if the court was minded to direct for a SJE, then, as their secondary position, their respective nominations for selection by the court. In turn, the parties proceeded in this manner due to compliance with the specific direction of the master dated 24 March 2025 mentioned above. Understood against this background, the appeal perhaps should not be categorised as an attempt to backtrack from consent, which would have attracted the application of different legal principles and probably less favourable view of the court.

15.Nevertheless, this appeal remains one against the exercise of discretion of the master in case management direction: see Tamang Dhirendra (above) at §17. Further, pursuant to O58, r1(5), no further evidence, which was not before the master, may be received for the purpose of the appeal. It will be seen below that counsel does raise new argument and for that refer to evidence not placed before the master.

OBTAINING MEDICAL EXPERT EVIDENCE AND SJE

16.O38, r4A of the RHC provides:

“(1) In any action in which any question for an expert witness arises, the Court may, at or before the trial of the action, order 2 or more parties to the action to appoint a single joint expert witness to give evidence on that question.

(2) Where the parties cannot agree on who should be the joint expert witness, the Court may–

(a) select the expert witness from a list prepared or identified by the parties; or

(b) direct that the expert witness be selected in such manner as the Court may direct.

(3) Where an order is made under paragraph (1), the Court may give such directions as it thinks fit with respect to the terms and conditions of the appointment of the joint expert witness, including but not limited to the scope of instructions to be given to the expert witness and the payment of the expert witness’s fees and expenses.

(4) Notwithstanding that a party to the action disagrees with the appointment of a single joint expert witness to give evidence, the Court may, subject to paragraph (6), make an order under paragraph (1) if it is satisfied that it is in the interests of justice to do so after taking into account all the circumstances of the case.

(5) The circumstances that the Court may take into account include but are not limited to–

(a) whether the issues requiring expert evidence can readily be identified in advance;

(b) the nature of those issues and the likely degree of controversy attaching to the expert evidence in question;

(c) the value of the claim and the importance of the issue on which expert evidence is sought, as compared with the cost of employing separate expert witnesses to give evidence;

(d) whether any party has already incurred expenses for instructing an expert who may be asked to give evidence as an expert witness in the case; and

(e) whether any significant difficulties are likely to arise in relation to–

(i) the choosing of the joint expert witness;

(ii) the drawing up of his instructions; or

(iii) the provision to him of the information and other facilities needed to perform his duties.

(6) Where a party to the action disagrees with the appointment of a single joint expert witness to give evidence, the Court shall not make an order under paragraph (1) unless the party has been given a reasonable opportunity to appear before the Court and to show cause why the order should not be made.

(7) Where the Court is satisfied that an order made under paragraph (1) is inappropriate, it may set aside the order and allow the parties concerned to appoint their own expert witnesses to give evidence.”

17.Application of the rule was discussed in Tamang Dhirendra (above), which needs no repetition here.

STANCE OF THE PARTIES

18.According to their joint letter dated 24 April 2025 to the master, the parties mainly pointed out the plaintiff’s case of injuries to his lower back, hip and right lower limbs without fracture. The MRI examination 3 weeks after the accident showed prolapsed intervertebral disc at lumbar vertebrae with root compression. The plaintiff had received private medical treatment. In August 2024, he underwent a transforaminal lumbar interbody fusion (“TLIF”) L4/5 pursuant to medical advice. It was a major surgery. Sick leave had been given up to mid-May 2025 and might continue. Given a major surgery was involved, the necessity and reasonableness is likely in dispute, and the medical issues to be unraveled are not straightforward. Separate experts are preferred for prudence, they said. Further, the pleaded quantum and the cost of the surgery are substantial. The cost of instructing separate experts would not be disproportionate.

19.Enclosed with the joint letter and therefore placed before the master was the medical report dated March 2025 from the plaintiff’s treating doctor from CUHK Medical Centre. The report referred to the slip-and-fall accident and the plaintiff’s admission to the accident and emergency department of the hospital on the date of the accident. Then its reference to the MRI results mentioned above. The condition of the plaintiff was said to be static after conservative treatment, and it deteriorated 6 months before attending this treating doctor without history of further injury.

20.The complaint since the accident has always been right sciatica. The report referred to the plaintiff’s complaint about right foot numbness and weakness, with limited walking distance and sudden giving way during walking. The treating doctor found clinical signs of significant sciatic nerve tension. Comparing the more up-to-date MRI results in August 2024 with those in February 2022 (mentioned above), the doctor found similar images of lumbar spinal stenosi L4/5, which he found explained the symptoms complained about and the clinical signs found.

21.Considering the right foot neurological symptoms with motor deficit, plan for TLIF L4/5 was recommended, which the plaintiff agreed. The surgery was performed in late August 2024. Post-operation mild wound infection was successfully managed. At the follow-up in February 2025, the plaintiff complained about residual right leg numbness and weakness. Foot strength improved but walking tolerance remained limited to 15 minutes. The doctor gave another 3 months of sick leave, but advised that the plaintiff should be able to resume light work.

THE MASTER’S ORDER

22.In her note of reasons dated 25 April 2025, the master explained that the injury sustained by the plaintiff was not serious or complicated, and the amount of claim is not exceptionally substantial, to justify the need for separate experts. The plaintiff’s reference to his surgery, the necessity of which is likely to be in dispute, does not amount to complex medical issue but an usual topic for experts in personal injuries cases. The master considered that the cost of instructing a SJE is always more economical and in the circumstances of the case the most cost effective for the parties. In selecting the SJE, the master acknowledged that all the nominated candidates are experts in the field qualified to deliver the necessary assistance to the court. The master selected the SJE to be appointed, after considering the respective cost and availability of the candidates.

THE APPEAL

23.The solicitor for the defendants makes submission to the effect that there is no good reason to disturb the master’s direction. This is not surprising as the SJE selected by the master is one of the two candidates nominated by them. In view of the stance once adopted jointly with the plaintiff, solicitor for the defendants confirmed during the hearing that her clients do not really insist in terms of stance on appeal. However, she points out that if SJE is maintained, there is no justification for merely disturbing the master’s selection of the SJE. This is understandable as a matter of principle. Submission of counsel for the plaintiff does not suggest otherwise in such event.

24.For the purpose of this appeal, the issues and the basis, which are said to render SJE inappropriate, are not entirely what was argued before the master. If this is said to be evolution of the argument of the plaintiff, then it is not readily apparent to this court that such evolution is occasioned by the handling down of the decision in Tamang Dhirendra after the 25/4/2025 Order. The appeal had already been lodged before that decision was handed down. Further, what this court did in Tamang Dhirendra was to emphasize the proper mindset and to illustrate the approach of legal practitioners in respect of SJE evidence within the existing statutory framework. That the application of O38, r4A always depends on the circumstances of the case is nothing new. In other words, the application of what was said in the decision is not expected to take the form of distinguishing the circumstances of the plaintiff in that case from those in the case in hand.

25.Anyway, what the plaintiff now argues is that there is issue of medical causation which entails debatable diagnostic methodologies. Specifically, issue is projected to arise in respect of the condition of the plaintiff being the result of traumatic or degenerative causes or, if both, their respective contributions. The court, it is argued, would be better assisted by separate orthopaedic experts instead of SJE in judging such issue.

26.Obviously the above projection is not what was argued before the master. Unlike the apparent consensus by virtue of their previous joint letters to the court, the new issue and concern now raised in the consideration was not hinted or is now endorsed by the defendant. In projecting and rehearsing the issue and concern, even counsel for the plaintiff does not seem to suggest that it is a real concern rendering SJE inappropriate. I shall explain.

27.Counsel starts by reciting from the observations recorded in the medical reports that his client has L4/5 lumbar disc bulging or, he considers, herniation. Diagnosis of whether this is of traumatic or degenerative cause, he reckons, has been a debatable issue. Essentially, lumbar disc herniation is usually considered as a non-traumatic pathological condition. However, given the absence of high grade pre-existing disc degeneration and an adequate trauma, the diagnosis of lumbar disc herniation being trauma caused should nevertheless be considered.

28.Counsel brings in articles from a couple of medical journals in support, which do not seem to have been materials presented to the master for the obvious reason mentioned above. They are not legal authorities but strictly evidence. O58, r1(5) mentioned above refers. That said, the defendants do not take issue.

29.The first extract is a 2014 article on lumbar disc nomenclature which set out to review and to promote accurate and consistent lumbar disc terminology. To this court, this article or what was advocated there is no longer new, when instances of non-standard terminology pointed out in the article have been highlighted by orthopaedic experts in their evidence in writing and in court when referring to the records and findings of treating doctors and radiologists in previous cases.

30.Oddly, counsel uses disc bulging and disc herniation interchangeably, which, according to the article he cites, is not accurate. Herniation refers to displacement (protrusion or extrusion) of disc material beyond the limits of the intervertebral disc space, which, if localized or focal, is less than 25% of the disc circumference. Bulging refers to the presence of disc tissue extending beyond the edges of the ring apophyses, usually greater than 25% of the circumference of the disc, and is not considered a form of herniation.

31.In any event, the issue raised is medical causation, specifically trauma or degeneration. Trauma includes disruption of the disc associated with physical and/or imaging evidence of violent fracture and/or dislocation and does not include repetitive injury, contribution of less than violent trauma to the degenerative process. Whether or not a “less than violent” injury has contributed to or been superimposed on a degenerative change is a clinical judgment that cannot be made based on images alone; therefore, from the standpoint of description of images, such discs, in the absence of significant imaging evidence of associated violent injury, should be classified as degeneration rather than trauma. The 2014 article says that.

32.The 2023 article from another medical journal cited by counsel does not say otherwise. It advocates that trauma with related injury mechanism is the highest priority for the diagnosis of traumatic lumbar disc herniation. A fracture in the in-situ motion segment of traumatic lumbar disc herniation should be ruled out. Radiologically, mild disc degeneration without spinal instability does not negate diagnosing traumatic lumbar disc herniation. The article gives example of the kind of imaging results in such scenario. If necessary, a histological examination could be performed to evaluate the degenerative changes in the injured disc, if disc tissue happens to have been removed during surgical decompression, especially to assist the evaluation due to legal reason such as a work-related case.

33.However, this by now is again nothing new. Orthopaedic experts and the court have repeated in previous cases that one must correlate the imaging evidence with the clinical findings, background and medical history of the plaintiff in the consideration. This is the methodology. There is no basis for suspecting that the methodology in the diagnosis and classification of injury to lumbar disc in a work-related case would be less than known or acknowledged by any of the orthopaedic experts proposed by the parties. The concern about misdiagnosis due to focus on signals presented by the imaging results and thus failure to adopt the correct methodology is not made out.

34.Different experts adopting the same methodology does not necessarily give the same opinion and conclusion. However, lack of certainty in this respect does not therefore render SJE inappropriate. The party advocating that is expected to point to the likelihood for concern or controversy on the basis of the available medical evidence. However, if one turns to the circumstances of the present case, even counsel for the plaintiff suggests the lack of such basis.

35.Counsel submits that the MRI results prima facie fits the diagnosis for traumatic cause. There was no sign of high-grade disc degeneration (such as existence of desiccated discs) exhibited in the MRI taken shortly after the accident. There was no previous complaint of back pain prior to the accident. The mechanism of injury according to the plaintiff was capable of producing significant traumatic force. The plaintiff felt immediate back pain immediately after the accident. The disc bulging suffered by the plaintiff was significant, i.e. moderate disc bulging of L4/5 was significant with posterior annular tear (or perhaps to be accurate as a matter of imaging observation, fissure). Other than the moderate disc bulging at L4/5 level, nearby mild diffuse disc bulging at nearby L3/4 level partially resolved with time. This tends to indicate that the disc bulging was mainly trauma caused and then gradually partially resolved, rather than degeneration caused and merely worsened over time.

36.At this stage, one may go no further than categorizing the above observations as what counsel is entitled to make with reference to the available medical evidence. As mentioned, the defendants do not seek to suggest otherwise. They just see nothing about the circumstances of the case which substantially gives rise to concern that the issue of medical causation, ie between trauma and degeneration, is anything but a common question expected to be visited by orthopaedic experts in any given case. This does not connote complexity.

37.Counsel submits, but it actually goes without saying, that the issue of medical causation, if indeed taken, will have bearing on a plaintiff’s claim to the extent that pre-existing degeneration is in play. This depends on the expert’s categorization of the case into the 3 scenarios under Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958. This does not connote complexity either.

38.The necessity and reasonableness of the surgical operation, which is said to be likely an issue in dispute, remains, though not repeated in the argument on appeal. I do not differ from the master’s observation that this does not amount to a complex medical issue but an usual topic for experts. One should also note that the necessity and reasonableness of the surgery as treatment is expected to be assessed in the circumstances when the medical advice was given, not as a matter of utility gauged by reference to the actual result and effectiveness of the surgery, which would have been hindsight. The treating doctor’s report on the plaintiff’s post-surgery condition, subjective report of improvement and his ability to resume light work after sick leave by mid-2025 mentioned above refers. Physiotherapy also stopped after the last treatment in August 2024.

39.As far as the expertise and capability of the proposed experts are concerned, no contrary observation is made by the parties about that of the master. Any one of those proposed as SJE is expected to so experienced and capable.

CONCLUSION

40.All the circumstances considered, I do not agree that it is inappropriate to direct for the appointment of a single joint expert on quantum in the present case. I see no reason for differing from the view of the master that it remains in the interest of justice to do so.

CHOICE OF THE SJE

41.Counsel heeds the defendants’ concern previously expressed about one of the two candidates proposed by the plaintiff for appointment. He therefore asks the court to consider appointing the other candidate proposed by his client if the appeal is allowed. Given the contrary event of this appeal as discussed, there is no basis for further considering if the master’s choice of expert as the SJE ought to be disturbed.

ORDER

42.The appeal is dismissed.

43.The parties shall therefore confirm afresh in writing to the master within 14 days (taking into account the intervening holidays) the timetable for compliance with the direction of the master under the 25/4/2025 Order which has been stayed.

44.In view of the event of this appeal, I make a nisi order that the plaintiff pays the defendants’ costs of and occasioned by the appeal; and the plaintiff’s own costs shall be taxed in accordance with legal aid regulations. In the absence of application in 14 days to vary, this nisi costs order shall become absolute without further order of the court; and in that case, unless resolved by agreement, the defendants shall lodged and serve their statement of costs within 7 days. Considering any comment on the statement of costs which the plaintiff may submit in writing to the court within 7 days thereafter, this court will proceed to summary assessment of such costs on paper only.

Mr Edward Poon, instructed by Kenneth Lam Solicitors, assigned by Director of Legal Aid, for the plaintiff

Miss Veronica Lam, of K B Chau & Co, for the 1^st and 2^nd defendants