Sunar Nib Bahadur v. Tin Wo Engineering Co Ltd and Another

DCEC000105/2001

DCEC105/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 105 OF 2001

Coram: H H Judge Carlson in Court

Date of hearing: 21 November 2003

Date of Ruling: 24 November 2003

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R U L I N G

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1.This matter calls for a case management decision by me. The claim is one for employees' compensation. The applicant is a steel binder by occupation.

2.On 6 September 2000, in the course of his work, he was struck in the abdomen by a steel bar. The force of the blow pushed him backwards causing him to fall on his back and on to a pile of steel reinforcement bars that were lying on the ground.

3.He was sent to hospital where he was examined. The examination showed right flank and loin pain but with no anterior abdominal pain. X-ray examination, ECG and blood tests were normal except for an elevation of muscle enzyme which indicated muscle injury. He was treated conservatively and sent home the next day.

4.He subsequently returned to the Accident and Emergency Department on 14, 23 and 28 September complaining of right upper quadrant pain and chest wall pain. He was treated conservatively, which I assume means that he was prescribed analgesics.

5.On 4 October 2000, he complained of having had abdominal pain for 4 days and was admitted to the surgical clinic at Ruttonjee Hospital. It was found that there was mild bleeding of the prostate gland. He was given antibiotics for what was diagnosed to be prostatitis. There was a further urological episode in November, but it is clear that these matters are unrelated to the injury. As to the back pain which he continued to complain of, he was given physiotherapy and he has been unable to return to work.

6.Sensibly, it would appear, the solicitors decided to jointly instruct Dr Lau Hoi-kuen FRCS, who is a very experienced orthopaedic surgeon, to examine the applicant and to prepare a report. He has now prepared two reports, both of which I have read. The first is dated 22 March 2002. This is unquestionably adverse to the applicant. It is worth reciting here some of the material parts of that report.

"After having examined Mr Sunar, I am of the opinion that:

(1)	He should have suffered blunt injury to his abdomen in the accident. He might have suffered minor injury to his back when he fell back and landed on the ground.
(2)	For such minor injury to his back, patients are expected to recover at the most in a few weeks' time. But he is still complaining of severe pain in his low back at the time of 1 1/2 years after the accident.
(3)	The physical findings at this examination included:
	- he cannot squat down
	- he has diffuse tenderness over the whole of his back
	- he has extremely severe limitation of the movement of his low back with virtually no extension possible and he can only flex down to touch the top of the kneecap
(4)	In spite of his complaint of severe pain over his back and especially the paraspinal muscles, there is no spasm of the muscle observed. Gentle movement of his knees, ankle and hips are all associated with aggravation of his back pain. These are signs suggesting that he is exaggerating his complaint of back pain.
(5)	X-rays of his lumbosacral spine reveal only mild degenerative change at the lower levels. The lordotic curvature is well preserved. This is again in contrast with the severe complaint of pain and the severe stiffness of his back at physical examination.
(6)	Examination of his abdomen revealed only subjective tenderness over the right lower quadrant. Other than that, there is no evidence that he has suffered any significant injury to his abdomen."

He then concluded by saying:

"In conclusion, Mr Sunar did suffer blunt injury to his abdomen in the accident on 6 September 2000. He might have suffered minor injury to his low back as well in the accident. But he should have recovered well from the injury to his abdomen and back. He should be able to return to his pre-injury job as a steel binder. He has not suffered any permanent impairment according to the criteria of the AMA Guides. The appropriate period of sick leave for the injury to his abdomen and possibly the back should not be more than 3 months. The loss of earning capacity is estimated at 1%."

7.No doubt encouraged by the opinion that the applicant was exaggerating his symptoms, the respondents had him followed and filmed to see whether further evidence might be obtained showing that his movements gave the appearance of being pain-free and that there was no obstacle to him returning to his pre-accident employment. I have been provided with a copy of the surveillance tape which shows that the applicant is able to move perfectly fluently.

8.Subsequently, an MRI scan was carried out on the applicant's back which showed an irregularity. This was referred to Dr Lau, who was asked to review it. He did, and he also examined the applicant again who appeared at the examination walking with the assistance of elbow crutches.

9.Dr Lau's second report is dated 22 August this year. As to the MRI scan, he confirms these irregularities, the most significant being disc bulging at L3-4 and L4-5 levels, disc protrusion and degeneration at L5-S1 level with an annular tear. The left S1 nerve root was found to be mildly impinged. Given the nature of the application made by Mr Brettell, who appears for the applicant, I should read the comments made by Dr Lau on the applicant's condition:

(1)	Mr Sunar alleged that he was working on 6 September when he was hit by a steel bar on his abdomen. He then fell and had his back landed on some steel reinforcement bars left on the ground. He claims to have suffered injury to his chest, abdomen and back.
(2)	As I have commented before in the previous report dated 28 March 2002, according to all the medical records prepared in the earlier period of time after the accident (including those from the A&E Department of TKOH, Surgical Department TKOH), he should have suffered injury to his right flank and loin although minor injury to his low back cannot be excluded.
(3)	A review of the progress notes at the surgical clinic of RH reveal that he first mentioned to the doctors about back pain at the follow up on 20 October 2000. X-rays of his lumbosacral spine taken on this date revealed only mild degenerative change at the lower lumbar levels.
(4)	It is now approaching 3 years after the accident. He is complaining of increasing pain in his low back such that he cannot return to any gainful employment. He no longer complains of pain over the right side of his abdomen and this is confirmed at the physical examination carried out at this assessment.
(5)	The physical findings at this examination include:
	- walking with a severe limp even with the help of a pair of elbow crutches
	- has difficulty in standing even for a few minutes without support
	- diffuse tenderness over the lumbar region of his low back
	- there is now even more severe limitation of the movement of his low back. Absence of active extension and very little active flexion of his low back. The straight leg raising of his legs is limited by increasing back pain with the act.
(6)	I have specifically looked into physical signs indicative of symptom magnification. He complains of increasing pain in his low back with compression on the top of his head and rotation of his trunk in one piece. The very limited straight leg raising of his legs was reverted to full when the test was repeated without his notice in the sitting position. These are signs suggesting that he is exaggerating his complaint of back pain.
(7)	I have reviewed the MRI films of his lumbar spine taken at RH. There is mild bulging of the L3-4 and L4-5 discs. The more significant finding is the desiccation (degenerative change) and posterior annular tear and protrusion of the L5-S1 disc. Any compression on the S1 nerve root should be minimal.
(8)	The surveillance video recording taken in the period between April 2001 and March 2002 showed that he was in satisfactory health. He was able to walk in a leisure manner and for a long period of time. The recording taken in early 2002, close to the time when I first examined him in March 2002, showed that he was able to bend down freely at the entrance to the temple. This was clearly quite different from what he appeared to be at the assessment on 21 March 2002. This gives further support that he is exaggerating his back problem.
(9)	The presence of muscle guarding over the left side of his low back noted at this examination does suggest that he has some degree of pain in his low back. But this cannot be as severe as what he is complaining or appearing to have. This mild degree of pain is compatible with the degenerative disc disease of his low back.
	In conclusion, I am still of the opinion that Mr Sunar did suffer blunt injury to his abdomen in the accident of 6 September 2000. He might have suffered minor injury to his low back in the accident as well. But he should have recovered well from the injury to his abdomen and back. He may have some degree of pain in his low back at present, but this is mainly related to the degenerative disc disease in the low back.
	Mr Sunar has not suffered any degree of permanent impairment as a result of the accident of 6 September 2000. The surveillance recording taken on 23 April 2001 showed that he was already in good health at that time. This further supports my assessment that the appropriate period of sick leave of the injury should not be more than 3 months. The loss of earning capacity, as a result of the accident on 6 September, is 0%."

10.Clearly this report is even more adverse to the applicant than the first one. Mr Brettell now seeks leave to allow the applicant to be examined by another orthopaedic expert in the hope, no doubt, of getting a more sympathetic hearing. This is opposed by the respondents, on whose behalf it is submitted that where the parties have agreed to jointly instruct an expert, it would not now be right to allow one of the parties to try and do a little better with another one. The new discipline of modern litigation stresses the need to maintain a sense of proportion as to costs and there is now a particular emphasis on seeing to it that the use of expert evidence is limited to what is absolutely necessary. It is with this in mind that the parties are encouraged to use jointly instructed experts. If I were to allow Mr Brettell to look elsewhere, then the respondents, who are no doubt very keen on Dr Lau, will have to return to him for him to comment on the applicant's new expert's report, assuming of course that this report materially contradicts Dr Lau's conclusions.

11.Mr Ngai for the respondents has drawn attention to a recent unreported decision of mine, Ng Kwok Hoi v Hop Shing Lung Industrial Limited, DCEC 792/02, where the jointly instructed clinical psychologist, Professor Lee, had made extremely adverse remarks about the applicant which had a materially undermining effect on the applicant's case. At paragraph 26 of the judgment, I said the following:

"Of all the experts (Professor Lee), he is the most critical of the applicant for feigning and/or exaggerating his situation. Professor Lee is a leading clinical psychologist in Hong Kong. His report is one that had been jointly commissioned with the result that the applicant is rather stuck with its conclusions. Ideally, I suppose, the applicant's solicitors might have preferred to have been given the opportunity to seek other psychological opinion. With the constraints of modern case management and the desire to pare down expert opinion to what is really necessary has meant that the applicant is going to have to live with Professor Lee's views."

12.Mr Ngai relies on those sentiments to support his case. He has also drawn attention to, if I may say so, a far more weighty decision, that of Seagroatt J in Wong Hin Pui v Mok Ying Kit HCPI 763/97. I need to read extensively from this judgment before I make some comments of my own.

"Expert Evidence of the Need and the Costs Involved

I regret that I have to return to this aspect of this case. I was required to listen to the oral evidence of two consultant neurologists who did not agree on any essential matter and two consultant psychiatrists who disagreed only as to the extent of the plaintiff's future need of psychiatric psychotherapeutic support.

Having listened to the impressive evidence of the plaintiff's consultant psychologist, whose evidence for some reason the plaintiff's advisors did not seem to want to accept, it was quite unnecessary to call the two psychiatrists to repeat what they had stated in writing with inconsequential variation. I would have expected the parties to have agreed the ambit of their differences to be resolved in the light of the plaintiff's evidence and that of Professor Peter Lee.

Furthermore, both parties called an occupational therapist, Mrs Alice Chung(?) and Mr David Man. I cannot stress too strongly that this court is aware of the excessive, expensive and wholly unjustified use of occupational therapists in personal injury cases. In the majority of cases their reports state no more than is apparent to any judge with any understanding of the effect of serious injuries on any human being. Essential matters are within the cognisance of orthopaedic and neurological consultants. Any practical problems can adequately be dealt with by rehabilitation consultants and nursing advisors.

In the case of this plaintiff, his claim was significantly overstated in a number of respects. The defendant's expert had not acquainted himself with a number of vital areas for consideration, but even then his evidence would have been no more relevant. It is incumbent upon all counsel, both senior and junior, to exercise detached and practical judgment when it comes to deciding what areas of damage, care and provision actually need expert evidence to be satisfied that what they need is actually expert evidence. An indiscriminate obtaining of reports provides for any judge an enormous amount of reading before he is able to decide to what extent the contents of reports are relevant and essential. He or she ought to be able to rely on counsel exercising a degree of judgment which reduces the material to that which is necessary. Counsel should impute to the judge, whoever he or she may be, a degree of understanding of life, of disability and what it is necessary to compensate in principal.

In this case I read reports from neurologists, psychiatrists and occupational therapists totalling 170 pages, quite apart from the essential reports, one of which I ordered as a joint report. Some of these reports were in any event premature. This aspect of the case is a classic example of what this court sees as an unrestrained use of resources with little regard for the cost involved. As a consequence, a significant amount of time and effort has been wasted. The trial lasted at least 2 days more than was necessary. If the plaintiff is required to meet any of the costs to which I have referred out of his damages, then that would be wholly unwarranted. In my view, they fall to be paid out of the costs of the legal advisors who failed to exercise that judgment where they are not met by the unsuccessful party.

The time is now right for the court to exercise a controlling hand far earlier than I thought was necessary. Practitioners are not prepared to look hard and fast at the case for the person they represent and ask themselves, 'What do we really need in the way of expert evidence and what can we ask the defendants to agree at an early stage?'"

13.It must be clear from this passage that Seagroatt J was dealing with a far more complex case than this one where quite obviously there had been "expert overload", if I may so term it, with the parties' advisors anxious to cover every possible contingency. I, of course, respectfully agree with Seagroatt J's remarks. Nevertheless, every case is different and the case management that a judge applies inevitably will be tailored to the demands and the justice of the particular case before him.

14.In this matter, if Dr Lau's report stands alone, the applicant, to put it rather crudely, is dead in the water. He will have no chance of advancing his case as he would wish to. The usual course still is that parties will call their own experts. This, after all, is an adversarial process. The court's task is to ensure that this process does not fall prey to a profligate and unnecessary use of expertise. Everything should be directed to a narrowing down of issues.

15.But in this case it would simply not be just to restrict the applicant to Dr Lau. His counsel could of course cross-examine Dr Lau, but I suspect with little hope of making much progress without expert material of his own to confront Dr Lau with. The particular facts of this matter are such that Mr Brettell ought to have the opportunity of calling his own expert, assuming that he can be of assistance.

16.For the present I am content to allow him to instruct another orthopaedic specialist. Perhaps his views may be diametrically opposed to Dr Lau or at least meaningfully different so as to justify calling that expert. That of course remains to be seen.

17.For these reasons I am going to allow Mr Brettell's application.

Representation:

Present: Mr David Brettell, of Messrs Erving Brettell, for the Applicant

Mr T Ngai, of Messrs Munros, for the 1st and 2nd Respondents