Kwok Hing Yuen v. Goodpoint Engineering Ltd and Others

HCPI 736/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.736 OF 2004

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BETWEEN

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Before : Deputy High Court Judge Muttrie in Chambers

Date of Hearing : 13 January 2006

Date of Judgment : 25 January 2006

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J U D G M E N T

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1.This is an appeal against an order of Master B. Kwan.  In brief, in this personal injury claim, the Master at a check list review hearing directed a joint medical report on the plaintiff.  The parties’ medical experts examined him, and their joint opinion was that, notwithstanding that he still complained of disability some three years after the accident, he should be fully recovered and able to return to his pre-accident employment.  However, subsequently the plaintiff’s expert changed his mind and produced a supplementary opinion, to the effect that the plaintiff was not fully recovered or fit to return to his pre-accident employment.  At a second check list review, the plaintiff applied to adduce this supplementary report and call his expert to give oral evidence.  This the Master refused, and the plaintiff now appeals against that refusal.

The accident

2.The accident happened on 21 August 2001.  The plaintiff was working as a lift technician.  A cement wheel bounced out of a lift shaft and hit him in the abdomen.  He suffered abdominal injuries with bowel perforation which required emergency surgery, and a fractured finger which was treated conservatively.

The joint report

3.The experts are Dr Edward C.S. Lai, instructed by the plaintiff, and Dr Derek S.Y. Kwok, instructed by the 1^st and 2^nd defendants.  They examined the plaintiff on 9 September 2005.  They noted that the plaintiff had not returned to work, mainly because, as he claimed, he was still suffering from residual pain from his long abdominal incision.  They noted that he claimed that discomfort at the anterior abdomen compromised his ability to resume work as an electrical technician as he needed to climb while carrying heavy equipment.

4.The experts found that the plaintiff’s complaints were not supported by their physical examination.  The wound had healed well and the bowel injuries did not have any long term sequelae.  The only problem was some abdominal distension after eating a large meal.  Their opinion was that, some three years after the accident, residual physical limitation should be minimal.  The plaintiff’s working ability is not impaired by the accident and the plaintiff is considered fit to take up his job as an “electric technician”.

The supplementary report

5.This is dated 12 December 2005 and reads :

“Further to the joint examination between myself and Dr Derek Y.S. Kwok, I write to further emphasise on the current status of Mr Kwok.

The original work of Mr Kwok was a lift technician for lift installation.  Before the accident, Mr Kwok was required to carry a weight of 10 to 15 kg (tool box, and brackets), and to climb up the scaffolding inside the lift shaft of different height as his routines.  In addition, Mr Kwok had to wear a safety belt around his waist, and directly over his wound.  Such safety precaution is no longer possible because of the strain exerted on the wound by the safety belt.  Considering the strenuous nature of his work, Mr Kwok could no longer resume his original duties as a lift technician.  While other position might fit Mr Kwok, the earning capacity is severely compromised.  I would uphold my initial assessment of a 40% loss of earning capacity”.

The basis of the application

6.This appears in the affidavit of the plaintiff’s solicitor, Mr Szeto.  He says that the plaintiff, when the contents of the joint medical report were explained to him, denied that he had been an electrical technician responsible for lift repair and maintenance.  He said that he was a lift technician responsible for the installation of lifts, and did not do electrical work, nor was he licensed or trained to work as an electrician.  Mr Szeto informed Dr Lai, who said that he would follow up with Dr Kwok; but the latter refused to change the joint report.  Mr Szeto suggested a supplementary report and this was prepared.

7.Mr Szeto exhibits a letter from Dr Lai in which the latter says that it had been pointed out to him that the plaintiff was not an electrical technician but a lift technician responsible for the installation of lifts.  He had no formal qualification as an electrical technician.  The doctor believed that the misunderstanding arose from the Chinese words used by the plaintiff to describe himself.  Dr Lai had asked Dr Kwok if he agreed to amend the joint report, but he refused. 

Should the supplementary report be adduced?

8.There are two issues.  The first is whether Dr Lai has made a genuine mistake.  If he has, he should be allowed to rectify it.  The second is whether, if the supplementary report is adduced, and Dr Lai is allowed to give oral evidence, which will no doubt also require a supplementary report and oral evidence from Dr Kwok as well, this will be relevant and assist the court to arrive at a just resolution of the case.

Mistake

9.The terms of the report itself suggest that both doctors knew perfectly well what kind of work the plaintiff had to do.  He himself told the doctors that his ability to resume work was compromised because he needed to climb while carrying heavy equipment.  Further the doctors had available to them the Form 2 and various previous medical reports.  Included in the latter was Dr Lai’s own report dated 1 May 2003 as well as a report by Dr Lau Man Tsang Richard, made on the instructions of the defendants’ solicitors on 11 January 2005

10.In his report, Dr Richard Lau described the plaintiff as a “construction site worker — lift installation” and expressed the view that he could “resume his pre-accident job as a lift installation labourer”. 

11.In Dr Lai’s report of 1 May 2003, he noted that the plaintiff was “a full time technician for repair of lift”.  In his “Comments” he said this:

“Based on the brief description on Mr Kwok’s condition at the time of the emergency, the medical treatment given at UCH were correct and appropriate.

The residual pain from his emergency abdominal operation is Mr Kwok’s main complaint.  Although work [sic] as a technician related to lift repair, Mr Kwok’s original duty demands substantial use of force.  With a long abdominal incision, Mr Kwok claims that he could at best resume half of his pre-injury power.

Mr Kwok does not require any further active treatment for his abdominal injury at present.

Mr Kwok is considered fit to take up position which does not require heavy weight-lifting, such as security guard.  Nonetheless, as a skilled labor [sic] involving lift repair, Mr Kwok’s performance is definitely compromised by the accident involved.  Although the estimate permanent disability was 10 percent, the earning capacity is reduced by 40 percent.”

12.I do not see that there was any real mistake.  What the job is called, in two Chinese characters, does not matter for the purposes of a medical opinion.  What the worker has to do in the course of the job does matter.  Dr Lai knew from what he was told, and the documents he read, that the plaintiff’s pre-accident work involved heavy lifting, and climbing while carrying heavy equipment. 

Would the evidence be relevant and assist the court?

13.In his report of 1 May 2003 Dr Lai took the view that the plaintiff could not return to his pre-accident work, apparently because of his continuing abdominal pain.  This opinion was given against the background that no further treatment was required, the plaintiff’s physical limitation was good, and he had no limitation of the range and power of flexion of his abdomen, except mild tenderness when flexion was performed against resistance. 

14.In the joint report, we see the same background.  The defendant claimed persistent pain at the anterior abdomen on straining the abdominal wall muscle and easy fatigue.  However, there was no limitation of the range and power of flexion, except mild subjective tenderness on the right abdomen.  But Dr Lai’s opinion changed.  In this report he agreed with Dr Kwok that the plaintiff’s complaints were not supported by physical examination, that residual physical limitation should be minimal and that the plaintiff had fully recovered and could return to work.

15.Then in the supplementary report, Dr Lai’s opinion apparently changed again.  Effectively he went back to what he had been saying in May 2003.  The basis for the change seems primarily based on the job name, which, as I have indicated, makes no difference, in the light of what Dr Lai actually knew.

16.It is true that this report mentions a safety belt and strain exerted on the wound by it.  It is very strange that the plaintiff should not have mentioned this problem before.  There is nothing about it in the Statement of Damages, or the report of Dr Lai dated 1 July 2003 which was filed with the Statement of Claim and served pursuant to Order 18 rule 12(1)(a).  It does not appear in any of the previous medical reports, though the plaintiff did say at the joint examination that he had to climb while carrying heavy equipment, and everyone who deals with accident claims, including medical experts, must know that workmen who climb are supposed to wear safety harness of some sort, whether in fact they do so or not.  It does not appear anywhere, until the plaintiff’s statement dated 8 December 2005 and Dr Lai’s supplementary report.  In my view this absence of any mention of the safety belt, coupled with the medical findings since 2003 of nothing more than mild tenderness at the scar site suggest that there is simply nothing in this complaint.

17.It is obvious that if Dr Lai’s supplementary report were to be adduced, and he were called to evidence, it would be necessary, to allow the defendants to obtain a supplementary report and call Dr Kwok to give evidence; after all, Dr Lai has approached him, and he has refused to change his opinion, and he should be allowed to explain why.

18.In my view Dr Lai’s supplementary report is incredible.  Of course an expert may change his mind, but he needs to show some valid basis for doing so.  If he does, he can speak to his new opinion and be cross-examined on it, but if he does not, the new opinion can have no credibility.  In my view Dr Lai has not given any valid reason for his change of mind.  If the supplementary report is adduced, and Dr Lai called, therefore, the position will be no different from the position now, where the court will rely on the joint report.

19.It is true that credibility is a matter for the trial judge, and I have expressed to counsel my concern that taking too robust an approach in the current climate of pro-active case management may cause injustice.  Nevertheless, one of the objects of case management, like the summary judgment procedure in a different context, is to keep incredible evidence from going before the trial judge and thereby wasting time and costs. 

Result

20.In my view, the Master was right to exclude this evidence.  The appeal is dismissed with costs (nisi) to the 1^st and 2^nd defendants in any event.  The plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.

Mr M.C. Chiu, instructed by Messrs Philip S.W. Chan & Co., for the Plaintiff

Mr Herbert Au-Yeung, instructed by Messrs C.K. Mok & Co., for the 1^st and 2^nd Defendants

The 3^rd, 4^th and 5^th Defendants, acting in person, absent

Application by the plaintiff to Court of Appeal to adjourn the hearing of the appeal granted by Court of Appeal. Please refer to CACV107/2006 dated 12 June 2006