Lam Lai Ying v. Choi Min and Another

HCPI 1366 /2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1366 OF 2003

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BETWEEN

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Coram : Before Master Kwan  in Chambers (Open to Public)

Date of Hearing : 15 February 2006

Date of Handing Down : 24 February 2006

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D E C I S I O N

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Background

1.The plaintiff, then a housewife aged 66 was run down by a vehicle driven by the defendant on 26.8.02.  She brings this claim for damages for personal injuries suffered as a result of that road traffic accident.  The plaintiff was admitted to Queen Elizabeth Hospital, and it was recorded that

“	Her vital signs were all normal except scalp abrasion and multiple musculoskeletal pain over chest wall.  She was stable and discharged home on 28.8.02.”

2.It is common ground that the plaintiff had a pre-existing heart condition for which she had been receiving treatment in Kwong Wah Hospital since June 2001. It is not disputed that the report of Dr Leung Sum Kin dated 14.12.04. Consultant Physician of Kwong Wah Hospital stated that

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she was repeatedly admitted for chest pain, so eventually she agreed for coronary angiogram which was done in September 2002 and showed critical proximal LAD artery stenosis and she underwent percutaneous coronary intervention to the LAD artery the next day.  Since then she had no more angina and was last seen in our clinic in January 2003 when she had no symptoms.  She did not turn up for further follow up since then.  The coronary artery disease that she had is not related to the traffic accident that she had.”

3.A full set of notes and records relating to the plaintiff’s treatment for her heart condition in Kwong Wah Hospital comprising of 187 pages was obtained prior to the hearing, and placed in the Hearing Bundle before me.

The present application

4.The plaintiff’s solicitors obtained a medical report from a Cardiologist Dr Chiu Chun Wai dated 11 November 2005 and applied by Summons for leave to adduce the same.  The application was resisted by the solicitors for the Intervener.

A summary of the plaintiff’s argument

5.The report of Dr Chiu should be adduced “on the ground that there is an issue whether the accident deteriorated the heart condition of the plaintiff”.  The test to be applied in relation to this application is that enunciated by Mr Justice Suffiad in Chan Kwok Ming v Hitachi Electric Service Co Ltd HCPI 322/2002, that is, whether the applicant can fulfill the criteria of “necessity”, “relevance” and “probative value”, if so, the report should be adduced.  Ms Au submitted that the report is necessary and relevant as the plaintiff’s pleadings alleged that the plaintiff’s heart condition had deteriorated as a result of the accident.  Therefore the report of Dr Chiu will tend to show that the accident caused that deterioration.  It was further submitted that the criteria of probative value was satisfied because the contents of Dr Chiu’s report would help to advance the plaintiff’s claims.

A summary of the Intervener’s argument

6.The Intervener submitted that, in considering an application of this nature, the principles relating to the adducing of experts reports as set out in the cases of Ho Man Fong v Sime Darby HCPI 1096/2003, and Wong Hin Pui v Mok Ying Kit & Anor HCPI 763/97, are to be adhered to.  In those cases the respective PI Judges cautioned against unnecessary proliferation of experts’ reports.  The Intervener submitted that Dr Chiu’s report was unnecessary in the circumstances of this case, and moreover that the report cannot assist the plaintiff as alleged.

Consideration of Dr Chiu’s report

7.Mr Justice Seagroatt illustrated in Cho Kam Chuen v Tse Chi Hung HCPI 170/2000 the proper way to analyze an expert’s report.  I will adopt that method in my analysis of the report of Dr Chiu.

8.When considering whether to adduce the report, I bear in mind that the trial judge will have access to all the material available to Dr Chiu.  In fact the trial judge will have more material than Dr Chiu, as the 187 pages of notes and records from Kwong Wah Hospital were obtained after Dr Chiu had compiled his report.

9.Paragraphs 2 to 18 of Dr Chiu’s report comprised of his comments on materials. The trial judge will also have access to the same materials.  In fact the trial judge will have the opportunity of seeing the plaintiff give evidence, and assess her demeanour when he hears directly from the plaintiff herself give an account of the heart symptoms prior to, and after the accident.  Most importantly, the trial judge will be able to hear from the plaintiff herself the reasons why she decided to undergo the angioplasty operation on 14.9.02.

10.In paragraphs 19 and 20, Dr Chiu gave a short summary of his findings after a physical examination of the plaintiff conducted on 24.5.05. The findings do nothing to advance the plaintiff’s case.

11.Paragraph 21 of Dr Chiu’s report is the crux of the matter. It is the part of the report the plaintiff seeks to rely upon.  The material part of that paragraph states :-

“	…the coronary artery stenosis was present before the accident and was not caused by the accident.  However the car accident might have affected the stability of the coronary atheromatous plaque in the diseased coronary artery leading to deterioration and onset of unstable angina.”

12.Paragraph 22, the last paragraph of the report contains a brief estimate of future treatment costs.  The other matters in the final paragraph of the report are also matters that can be obtained from the testimony of the plaintiff at trial.

13.In her submissions, Ms Au contended that Dr Chiu’s report would assist the plaintiff in showing that the road traffic accident caused a deterioration of the plaintiff’s heart condition.  It is my view that it cannot do so.  I will endeavour to explain why the report of Dr Chiu cannot show that the accident caused a deterioration of the plaintiff’s heart condition.

14.First, it is not for a doctor to decide on causation.  That is the province of the trial judge, see paragraph 54 of the judgment of Mr Justice Cheung JA in Li Sau Keung v Maxcredit Engineering Ltd CACV 16 of 2003. Even if (for the sake of argument), an expert may give an opinion as to causation, Dr Chiu’s report still cannot assist the plaintiff because Dr Chiu only said the accident “might” have caused the onset of unstable angina.  Dr Chiu did not go so far as to give the opinion that the accident had caused the onset of unstable angina on a balance of probabilities.

15.A careful reading of the report shows that it did not contain any “special expertise”.  See my comments in paragraphs 9-12 above. In any event, the “conclusion” that the accident might have caused the onset of unstable angina is within the fact finding duty of the trial judge.  Whether a situation caused or led to another situation is a matter of findings of fact, and findings of fact are within the province of the judge.  Whether the accident caused a deterioration of the plaintiff’s heart condition is a finding of fact.

16.Even on the basis argued by Ms Au, I cannot find the report to be relevant or necessary, because the contents do not reach the conclusion claimed by the plaintiff.  The report did not purport to say that the accident caused a deterioration of her heart condition.  The report merely stated that it “might” have done so.  The report does not possess probative value because causation is not a matter for the expert, see CACV 16/2003.

Conclusion

17.The application to adduce the report of Dr Chiu Chun Wai dated 11.11.05 is dismissed with costs to the Intervener.  This costs order nisi of the application by Summons dated 1 February 2006 shall be taxed if not agreed, and will become absolute unless the plaintiff applies in writing to vary the same within 14 days of the handing down of this Decision.

Ms B Au of Messrs Alvin Liu & Partners for the plaintiff

Mr T Ngai of Messrs Munros for the Intervener