Lam To v. Grandsfield Ltd t/a Union Entertainment Club and Another

HCPI719/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 719 OF 2004

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BETWEEN

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Before : Deputy High Court Judge Longley in Court

Date of Hearing : 28 June 2006

Date of Ruling : 28 June 2006

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R U L I N G

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1.This is my ruling.  This personal injury action on the running list has been listed for trial today, 26 June 2006.  Judgment in default of notice of intention to defend was given against the 1st defendant on 30 December 2005. 

2.Mr Clough, on behalf of the plaintiff, makes application to adduce two documents both dated 23 June 2006; one is a certificate from a previous employer of the plaintiff, Club Canary, showing that for a short period in 2002 the plaintiff was earning $12,000 per month; the other is a letter from Dr David Cheng, whose two previous medical reports dated 18 September 2003 and 23 August 2004, were disclosed long ago and were the subject of an order on the checklist review of 15 November 2005 that they constitute the only expert medical evidence in the trial and that they be adduced without oral evidence.

3.Mr Wong for the 2nd defendant, understandably in the circumstances, objects to the admission of these documents if the trial is to proceed today on the basis that his client is taken by surprise.

4.The application in respect of the certificate from Club Canary is not as significant as that in respect of Dr Cheng’s letter of 23 June 2006.  It is understandable, however, that Mr Wong should take objection to the introduction of the document at this late stage, not simply because his client has had no opportunity to verify the information in the document, but because in Mr Clough’s written opening submissions he seeks to quantify the plaintiff’s loss of future earnings on the basis of an earning capacity, had it not been for the accident, of $12,500 per month, rather than the figure of $9,100 per month, upon which his client’s claim in the revised statement of damages is formulated.  Ultimately Mr Clough conceded that he would be content for the case to proceed, even without the introduction of the certificate.

5.The letter of Dr David Cheng of 23 June 2006 is much more significant.  It states for the first time that the plaintiff has the need for a posterior spinal fusion operation, following the unsuccessful anterior spinal fusion operation in 2003.  Dr Cheng states the cost of such an operation and post-operation care as a private patient.  Mr Clough is quite right is saying that the case should not proceed without Dr Cheng’s letter.  It would be wrong for the trial to proceed on the wholly artificial basis that the operation would not take place and that based on Dr Cheng’s earlier reports  the plaintiff’s current symptoms are likely to persist without further improvement.  However, if Dr Cheng’s letter was admitted, the court would have no evidence upon which to make any assessment of the plaintiff’s residual disability, or earning capacity after treatment, as Dr Cheng gives no indication of the prognosis for the plaintiff after such an operation.  Dr Cheng’s letter would have to be supplemented by further evidence from him as to these matters.

6.Mr Wong is right to complain that his client should have an opportunity of considering the contents of the letter and any further evidence which Dr Cheng would give, and if necessary seeking their own expert advice.

7.It is clear that I should allow Mr Clough’s application for these two documents to be admitted so that the case can be decided upon its real merits, but it is equally clear that the trial cannot proceed today. 

8.The plaintiff was aware as early as April this year that she had to decide whether to have an operation.  I am told that on 29 May she gave instructions to her legal advisors that she was willing to have the operation, provided that it was performed as a private patient.  It would have been obvious then to the plaintiff’s legal advisors that the matter could not proceed to trial on the basis of the medical reports already obtained and disclosed.  The 2nd defendant’s solicitors should have been immediately informed and the matter taken out of the running list.  This was not done.  The 2nd defendant should be compensated for the costs of and thrown away by the adjournment.

9.I do not consider it appropriate for the issue of liability, which appears on the face of it to be a short matter, to be decided today.  The 2nd defendant should be in a position to have the necessary information so as to take steps to protect its position as to costs before any trial as to liability.  I allow the application by the plaintiff to adduce the two documents into evidence, but it is a condition of my allowing the application that the matter be adjourned and that the plaintiff pay the 2nd defendant’s costs occasioned by the adjournment on a party and party basis.

(Further submissions)

10.I make the following order.  There be a joint report by Dr Cheng and an expert nominated by the 2nd defendant, based upon a joint examination of the plaintiff as to (1) the plaintiff’s current medical position; (2) the need for a further surgical operation, and if so; (3) whether such operation should be conducted in the private or public sector; (4) the prognosis if such an operation were to take place and; (5) the associated costs of such treatment.  The experts are at liberty to express areas of disagreement, and their reasons therefore, in the joint report.  Such report to be filed within 42 days.

11.Leave to the plaintiff to file a further revised statement of damages within 14 days of the filing of the joint medical report.  Leave to the 2nd defendant to file an answer to the further revised statement of damages within 14 days thereafter.

12.Costs in relation to the direction herein to be costs in the cause.

(Discussion re directions)

13.Upon compliance with all directions given, the plaintiff do have leave to set the action down for trial on or before 13 October 2006, before a judge without a jury in the running list, not to be warned before 31 October with an estimated length of two days.  Upon application to set down the plaintiff’s solicitors to provide the listing officer with a letter stating that all directions given have been complied with.

Mr N Clough, instructed by the Director of Legal Aid, for the Plaintiff

Mr Charles T C Wong, instructed by Messrs Tong & Tsoi, for the 2nd defendant

1st defendant, absent