Lau Lai Shan v. Hospital Authority

DCEC784/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 784 OF 2007

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BETWEEN

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Coram : H H Judge Marlene Ng in Chambers (open to the public)

Date of Hearing : 28^th February, 2008

Date of Handing Down Decision : 29^th February, 2008

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D E C I S I O N

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I. Introduction

1.On 30^th November 2004 and 11^th April 2005, the Applicant was a health care assistant employed by the Respondent. The Applicant claimed that:

(a)

On 30th November 2004, she was working at the Princess Margaret Hospital serving a patient at the side of his bed when the patient suddenly fell forwards. She immediately pulled the patient up with both hands, and felt an acute pain at her low back (“1st Accident”). The Applicant claimed she sustained serious personal injuries to her low back, left shoulder and left arm arising out of and in the course of her employment for which she was granted intermittent sick leave “from 30th November 2004 to 18th June 2006 (which may be continuing)”.

(b)

On 11th April 2005, she was working at Princess Margaret Hospital assisting a patient to rise from the bed to go to the toilet. The patient held her left arm, and she felt pain and numbness at her left arm (“2nd Accident”). The Applicant claimed she sustained serious personal injuries to her left shoulder and left arm arising out of and in the course of her employment for which she was granted sick leave “from 11th April 2005 to 18th June 2006 (which may be continuing)”.

2.On 26^th June 2007, the Applicant commenced the present employees’ compensation proceedings in respect of the 1^st and 2^nd Accidents. She also appealed against the assessments in the Certificates of Review of Assessment in respect for the 1^st and 2^nd Accidents both dated 16^th February 2007 (“Forms9”), and applied to cancel the Certificates of Compensation Assessment dated 23^rd and 27^th February 2007 respectively (“Forms5”).

3.On 6^th September 2007, the Respondent filed an Answer denying the Applicant’s claim. Pursuant to section 14(4) of the Employees’ Compensation Ordinance Cap.282, H H Deputy Judge E Yip on 23^rd October 2007 granted leave for the Applicant to issue the present employees’ compensation claim out of time. On 21^st December 2007, judgment on liability was entered in favour of the Applicant against the Respondent leaving compensation to be assessed.

4.The Applicant and Respondent filed their Lists of Documents on 24^th November and 20^th December 2007 respectively. The discovered medical reports were mainly from the accident and emergency department, department of orthopaedics and traumatology, occupational therapy department, and physiotherapy department of Princess Margaret Hospital. Other medical documents disclosed in the course of discovery included the Applicant’s sick leave certificates between 30^th November 2004 and 18^th June 2006.

5.On 21^st December 2007, I directed the parties to jointly write to the court within 14 days to confirm whether directions in relation to inter alia expert medical evidence (if appropriate) and other case management directions could be agreed, and if so, the terms thereof.

6.On 29^th January 2008, the parties jointly wrote to the court inter alia as follows :

“[letterhead of the Applicant’s solicitors]
…… We apologise for the late reply as we have taken time to take instructions from the Applicant, in particular her current medical conditions and the appointment of medical experts.
We write to inform this Honourable Court that the Applicant is still attending follow-up treatment at the Department of Orthopaedics and Traumatology of Princess Margaret Hospital. We are instructed that she is currently suffering from Carpal Tunnel Syndrome. In the premises, we are instructed to apply for an updated medical report from the Department of Orthopaedic and Traumatology Department of Princess Margaret Hospital and we estimate that the report shall be ready within 42 days. Upon receipt of the said updated report, the Applicant shall consider whether she is fit to be examined by orthopaedic expert.
In light of the above, the parties would like to obtain the following directions in order to proceed with the above case:
……
(2)	The medical evidence is to be limited to one orthopaedic expert for each party;
(3)	Parties shall within 14 days after the receipt of the updated medical report from the Department of Orthopaedic and Traumatology arrange for medical examination of the Applicant, if so advised, and the medical expert reports shall be ready within 70 days thereafter;
……
Yours faithfully,
[signed]
[Applicant’s solicitors]
We, the undersigned, agree to the above contents.
[signed]
[Applicant’s solicitors]”

7.On 30^th January 2008, I granted paper directions inter alia that (a) expert medical evidence for the assessment hearing in these proceedings shall be limited to one orthopaedic expert for each party, and (b) the parties do jointly write to the court on/before 13^th February 2008 to confirm whether the medical experts would conduct joint medical examination and prepare joint expert report.

8.On 18^th February 2008, the parties jointly wrote to the court inter alia as follows :

“[letterhead of the Applicant’s solicitors]

We refer to the above action and the Remarks given by the Learned Judge on 31st January 2008.

We apologise for the late reply as the Applicant has just received the updated medical report of the Orthopaedic & Traumatology Department of Princess Margaret Hospital after the Chinese New Year Holidays. The same was provided to the Respondent’s solicitors on 13 February 2008. Upon considering the report and after taking instructions on engagement of expert by the Respondent, the parties would engage their respective experts to conduct examination and to compile medical expert reports thereafter. The Applicant would like to instruct Dr. Johnson Lam to conduct medical examination on her. The Respondent would like to engage either Dr David Cheng or Dr Chun Siu Yeung depending on their earliest available dates for the examination.

The Respondent has no objection to have a joint examination and requesting the experts to comply a joint report. But the Applicant prefers not to do so. We have duly advised the Applicant of the standards and guidelines in relation to the requirement in appointing medical experts as laid down in P.I. Practice Direction 18.1 and the costs consequences thereof. We understand these standards and guidelines are not mandatory in nature and are not regarded as rules of law to be followed.

After due consideration, the Applicant would like to have the medical opinion covered by legal privilege. In the premises, the parties’ medical experts will not conduct joint medical examination and prepare the joint report.

Should the Learned Judge require any further clarification, please let us know.

Yours faithfully,

[signed]

[solicitors for the Applicant]

We, the undersigned, agree with the above contents.

[signed]

[solicitors for the Applicant]”

9.On 20^th February 2008, I directed (a) the parties to attend before me on 28^th February 2008 to address on the issue of whether there should be joint medical examination and/or joint expert report by the parties’ respective orthopaedic experts, and (b) pending the hearing the parties should not, for the purpose of obtaining expert medical evidence to be adduced at the assessment of compensation, proceed with separate medical examination of the Applicant by the parties’ respective orthopaedic experts.

II. Common law claim for damages

10.The Applicant’s solicitors by letter dated 26^th February 2008 informed this court that she commenced her common law claim for damages in respect of the 1^st and 2^nd Accidents (HCPI1006/2007, “HCPI Action”) on 28^th November 2007 by issuing a protective writ against the Respondent, which has not been served. The Check List Review hearing is due to be heard by the Personal Injuries Master in the High Court on 9^th April 2008.

11.The Applicant confirmed she has not extended any invitation to the Respondent for joint medical examination by the parties’ respective medical experts in the HCPI Action since “[she] would like to have the medical opinion covered by legal privilege, despite [the Applicant’s solicitors] have explained to her the standards and guidelines in relation to the requirement in appointing medical experts as laid down in P.I. Practice Direction 18.1 and the costs consequences”.

III. Issue

12.The issue before me is whether I should exercise my discretion to direct the parties to have their respective orthopaedic experts carry out joint medical examination of the Applicant and render joint expert report instead of separate medical examinations and separate expert reports.

IV. Statutory provisionsas to expert evidence

13.The starting point are the following statutory provisions :

(a)	Section 58 of the Evidence Ordinance Cap.8 states that “[subject] to any rules, where a person is called as a witness to any civil proceedings, his opinion on any relevant matter [ie an issue in the proceedings in question] on which he is qualified to give expert evidence shall be admissible in evidence”.
(b)	Order 38 rule 4 of the Rules of the District Court (“RDC”) states that “the Court may, at or before the trial of any action, order that the number of …… expert witnesses who may be called at the trial shall be limited as specified by the order”.
(c)	Order 38 rule 6 of the RDC states that except with the court’s leave or the consent of all parties, no expert evidence may be adduced at the trial or hearing unless the party seeking to adduce the evidence has first sought and complied with directions of the court concerning pre-trial disclosure of the substance of the expert evidence sought to be relied on.

V. Admissibility of expert evidence

14.Admissibility of expert evidence is dependent on certain conditions being satisfied, including inter alia that :

(a)	the subject matter of the expert opinion must come within an area for which the expert evidence may properly be adduced;
(b)	the witness must be a qualified expert who can give evidence on the subject matter in question;
(c)	his evidence must be relevant to the issues in the proceedings in question.

For the purpose of resolving the issue before me, there is no contention between the parties as to the qualification and expertise of Dr Lam, Dr Cheng and/or Dr Chun.

VI. Control by the court

15.Several case management considerations conspire to put the calling of expert evidence under the court’s complete case management control.

16.First, the court must be satisfied that the expert evidence intended to be adduced will be of assistance to the court, ie reasonably required to resolve the issues before the court (see Wong Hoi Fung v American International Assurance Co (Bermuda) Limited & anor HCA4576/2001, Chu J (unreported, 8^th October 2002) para.12 citing Barings plc (in Liquidation) & Anor v Coopers and Lybrand & Ors, Lexis transcript, 9^th February 2001, Evans-Lombe J at paras.44-45). A corollary to such proposition is that there shall be no expert evidence unless the court considers such evidence helpful in arriving at a determination of the issues before it. This means the court has to make a judgment on the usefulness of the expert evidence to be adduced (see the English case of Baldev Singh Mann v Messrs Chetty & Patel [2000] EWCA Civ 267 (26^th October 2000) on the Civil Procedure Rules, which suggested that some of the relevant considerations included (a) how cogent the proposed expert evidence will be; (b) how helpful it will be in resolving any of the issues in the case; and (c) how much it will cost and the relationship of that cost to the sums at stake).

17.Secondly, there is no entitlement to adduce opinion evidence from experts. A party may not adduce expert evidence at trial or put an expert report in evidence without permission by the court.

18.Thirdly, the true function of an expert witness in civil litigation is to carry out objective fact-finding and provide impartial opinion. The expert should not be a partisan advocate who espouses the views of the party who engages him.His opinion evidence shouldbe, and should be seen to be, unbiased and impartial, and his own independent product uninfluenced by the exigencies of litigation (see Ansar Mohammad v Global Legend Transportation Limited DCEC1090/2006 (unreported, 8^th May 2007) para.37 citing Cresswell J in Ikarian Reefer [1993] Lloyd’s Rep 68). After all, the purpose of such expert evidence is to educate and inform the court on issues arising within the expert’s specific area of expertise.

19.The above matters plainly show that the court is empowered to determine how expert medical evidence is to be obtained and presented so that it brings clarity to the schools of thought on the issues and is helpful to the court in its adjudication.

VII. Approach to be adopted

20.As I have explained in paragraph 32 of my decision in Ansar Mohammad, in employees’ compensation cases, there is no inflexible rule or practice as to how expert medical evidence is to be obtained or presented. In most cases, the parties reach sensible consensus on how medical examinations and expert reports are to be done. Normally, if the medical experts are satisfied they can properly perform their task by way of a joint medical examination and a joint report, there can be little objection to such course of action.

21.In the present case, there is no suggestion before me that :

(a)	Dr Lam on the one hand and Dr Cheng/Dr Chun on the other hand are unable to perform their task as experts if a joint medical examination of the Applicant is carried out;
(b)	the orthopaedic medical issue(s) to be canvassed by them are so cutting-edge or controversial that it will be subject to strong professional debate;
(c)	the Applicant is physically or mentally unsuitable to undergo a joint medical examination attended by both parties’ orthopaedic experts; or
(d)	there is severe difficulty in scheduling timely joint medical examination to be attended by the parties’ respective orthopaedic experts.

22.In such circumstances, directions on how expert medical evidence is to be obtained/presented in the present case essentially requires this court to resolve the dilemma of preserving the unmitigated adversarial model and giving greater case management power to the court to bring about just and efficient resolution of litigation. The position is left open on principle, and any relevant decision falls within the realm of discretion, which is to be exercised judicially on the facts of each particular case. The court has to conduct a balancing exercise in each case and ask itself whether in all the circumstances it is reasonable/fair or otherwise to ask for joint or separate medical examination as well as joint or separate expert report.

VIII. Adversarial model vs case management

23.I adopt what I have said in paragraphs 39-40 of my decision in Ansar Mohammad on the adversarial model. In short, under the full adversarial model, the court takes a passive stance as to the evidence leaving it to the parties to decide on the material facts that support their claim/defence and the evidence to substantiate such facts. In the context of expert evidence, the full adversarial model allows the parties to select the expert evidence to be presented to the court, which selection is made on the basis of whether such expert evidence will help the party adducing the same, and not necessarily on whether such expert evidence will help the court in coming to a correct and fair decision on the facts. Then it is up to the opposing party to challenge the reliability of such expert evidence by cross-examination or by adducing expert evidence to the contrary.

24.Mr Ng, solicitor for the Applicant, submitted that joint medical examination and joint expert report by the parties’ respective orthopaedic experts is inappropriate in the circumstances of the present case. The sole ground relied on for such contention was the Applicant’s right and wish to maintain legal professional privilege over Dr Lam’s expert report when it is prepared.

25.Such contention advocates the traditional adversarial approach to expert evidence, ie that legal professional privilege is a fundamental right of every litigant which should not be abrogated in any way, so any expert medical report (even if it is commissioned for the purpose of adducing the same in ongoing litigation) is entitled to remain privileged until such time as the party who obtained it chooses to surrender such privilege. 

26.Mr Ng frankly admitted the underlying implication of such proposed approach was that the Applicant wished to maintain her freedom to withhold from the Respondent expert evidence that might be damaging to her case or that might be helpful to the Respondent, which would then leave greater room for her to negotiate a more favourable settlement despite such adverse opinion.

27.It is not suggested that the Applicant wishes to reserve such freedom with an eye for possible “change” of expert if the opinion is adverse. In any event, the court usually takes a dim view over “expert-shopping” and there is a steady line of authorities suggesting that even if a party is allowed to “change” experts the court may require forthwith disclosure of the report of the original expert to facilitate an informed and fair trial (see Gary Beck v Ministry of Defence WT [2003] CP Rep 62 cited in my decision in Yeung Man v Wing Shing Caisson & Foundation Limited & Anor DCEC851/2004 (unreported, 1^st September 2005) and the more recent case of Nicos Varnavas Hajieorgiou v Vassos Micahel Vasiliou [2005] EWCA Civ 236 (10^th March 2005)).

28.Obviously, Mr Ng advocated the full-scale adversarial model. But it is important to remember that the objective of the adversarial model is to achieve justice, and its true purpose is to assist the court is coming to a fair and correct decision on the facts. It is not to facilitate an extravagant settlement. Where adoption of the full-scale adversarial model is inconsistent with the underlying aim of achieving justice (see paragraph 40 of my judgment in Ansar Mohammad), the court has wide but flexible case management powers to modify the adversarial system to foster a focused approach on expert evidence that reduces costs and delay and that avoids an unfair result.

29.A prime example of such modification of or inroad into the traditional approach is the Ikarian Reefer principles with their emphasis on inter alia (a) the expert’s overriding duty to assist the court and not to be a partisan advocate, (b) the requirement that nothing significant is to be withheld by the expert, and (c) the need for all assumptions/ instructions as well as subsequent change of opinion to be disclosed.

30.But the courts have gone further in bringing about fundamental change. I refer to paragraphs 41-44 of my decision in Ansar Mohammad.  In particular, Seagroatt J spearheaded the shift to tighter case management control in personal injuries litigation with emphasis on effective, expeditious and cost-minimising case management (that covers inter alia guidance on obtaining/presenting expert medical evidence) now enshrined in Practice Direction PD18.1. There is no reason why such case management measures cannot be effectively borrowed (with adjustments if necessary) for dealing with employees’ compensation cases.

IX. Joint medical examination/report

31.I have in paragraphs 46-47 of my decision in Ansar Mohammad set out the case management objectives and advantages in requiring parties in employees’ compensation cases to produce joint expert medical reports pursuant to a joint medical examination by their respective medical experts in order to identify the agreed matters and to identify/reduce the areas of dispute thereby minimising time and costs of litigation. Early focus on the real medical issues to be resolved is plainly a laudable case management objective in any personal injuries litigation.

32.A joint medical examination also alleviates the risk of dispute on history taking and on observations (which may include objective or subjective signs, eg in the orthopaedic context, muscle wasting, muscle guarding/spasm, Waddell’s signs) during physical examination by competing medical experts. This is of some moment because disputes on such matters go to the underlying assumptions that form the basis of expert opinion and such disputes compound the court’s difficulty in assessing competing medical opinion and in answering the ultimate medical issues. By capturing such information and observations in a single medical examination, areas of dispute over expert opinion will obviously be reduced.

33.A joint expert report requires the medical experts to confer, which has the advantage of minimising extreme views. When a medical expert has to justify his opinion to a fellow professional, partisan opinion tends to become more balanced and/or moderated. The discussion between experts may also reveal relevant facts or information that are not appreciated by one of them and may help in identifying and putting aside peripheral issues. The joint discussion and the exercise of drafting the joint report can lead to greater focus on narrowing the medical issues and expert opinion, and on defining significant areas of disagreement, which coincide with the fundamental purpose of case management. Contrary to what Mr Ng suggested, such approach should facilitate reasonable and honest settlement, and even if it does not result in settlement, it will ensure efficiency of the trial by bringing the essential issues into sharper relief. All this translates into savings in time and costs. To harness the advantages discussed above, it is essential for the medical experts to confer at the earliest stage to ensure they consider the same primary information, address the same issues and give opinion on the same medical questions.

34.There are of course countervailing considerations in some cases where joint medical examination and joint expert report are inappropriate, but such considerations discussed in paragraphs 48-50 of my decision in Ansar Mohammad are not applicable to the present case.

X. Balancing exercise in the present case

35.In the present case, there is no dispute that expert orthopaedic evidence is relevant, necessary and of probative value, and that the Applicant is now fit to be medically examined. Parties have sought and I have already granted directions to the effect that there be one orthopaedic expert for each party for the purpose of the present proceedings.

36.Indeed, in light of the Applicant’s appeal against the Forms 9 and the applications for cancellation of the Forms 5 made at the very outset of the present proceedings, it is the Applicant and not the Respondent who puts in issue her earning capacity and extent of sick leave. The Respondent does not challenge the Forms 9 and 5. But for the Applicant’s applications, the Forms 9 and 5 would have been binding and there simply would have been no need for expert medical evidence. Hence, it is the Applicant rather than the Respondent who puts the medical questions (for which she wishes to adduce expert orthopaedic evidence limited to one orthopaedic expert for each party) in issue.

37.However, the Applicant insists on legal professional privilege and declines joint medical examination and/or joint report for the purpose of both the present employees’ compensation proceedings and also in the context of the HCPI Action despite the good practice guidance in the Guidance Note to Practice Direction 18.1 as follows :

“	Paragraph 2
	Many practitioners obtain reports in every conceivable medical or quasi-medical discipline before they establish sensible contact with the insurance company concerned or their solicitors e.g. orthopaedic, neurological, urological and psychiatric reports, and reports from an occupational therapist, physiotherapist, rehabilitation consultant, surveyor etc. What they should be doing instead of this “front-loading” exercise on costs is to invite the Defendants to take part in a joint examination by respective experts, or in a joint instruction to an agreed expert. Failure to do so is likely to result in the Plaintiff's' practitioners not recovering such costs from Defendants in the event of a settlement or a judgment against the Plaintiff.
	The Court will be alert to prevent, when it can, practitioners from recovering such costs from the Plaintiff or out of the Plaintiff's damages.”

38.Mr Ng submitted that the guidance in Practice Direction 18.1 was not mandatory and the Applicant could ignore the same so long as she was willing to bear the costs consequence of non-compliance. In my view, the focus of the guidance in Practice Direction 18.1 is not on the cost penalties on non-compliance of the recommended approach, but on the fact that such approach reflects the case management goals of achieving justice and encouraging fair, expeditious and cost-saving determination of claims. In personal injuries and employees’ compensation litigation, where medical expert evidence is often used, the significant advantages of joint medical examination and joint expert report discussed above are such that the court should be satisfied there are cogent and compelling reasons to decline following such approach. It is not enough for a party to insist on separate medical examination and separate expert report provided he or she is willing to bear the costs consequences.

39.Bearing in mind that it is the Applicant who puts the medical questions in issue and who wishes to adduce expert medical evidence to support its applications, and further noting that (a) expert orthopaedic evidence in employees’ compensation cases arises from substantially established if not well-trodden area of knowledge and (b) there is no suggestion here of any need to sample a range of controversial medical opinion, I am of the view that, given the advantages of adopting a cooperative approach to expert medical evidence from an early stage as discussed above (see also paragraphs 56-57 of my decision in Ansar Mohammad), the appointment of separate orthopaedic experts in the present case do not preclude joint medical examination and joint expert report. In fact, upon consideration of the above matters, I find it axiomatic that such approach should be adopted in the present case.

40.Further, such approach is not an abrogation of legal professional privilege. It merely reflects that where a party seeks the permission of the court to rely on expert medical evidence, the court, upon considering the principles of justice and the case management objectives discussed above, can require a cooperative approach on such expert evidence as a condition of being permitted to adduce the same. I also note that the overriding duty of the orthopaedic experts of both parties herein is to give impartial and unbiased opinion to assist the court, and that in adopting a cooperative approach both parties are subject to the same even-handed treatment.

41.Mr Ng next proposed that directions on the disclosure of expert medical reports be deferred until the Applicant obtained her expert orthopaedic report. He did not deny that such approach was offered so as to enable the Applicant to obtain her own separate expert orthopaedic report and then present the court with such fait accompli when directions are sought in future for disclosure of expert medical reports. This of course is an attempt to usurp effective case management by the court, and is necessarily rejected.

42.In the circumstances, I find it appropriate and of assistance to the court in the present case to require the parties to arrange for joint medical examination and joint expert report by their respective orthopaedic experts.

43.I therefore make the following directions :

(a)	the Applicant do within 91 days file the joint expert orthopaedic report of (i) Dr Johnson Lam for the Applicant and (ii) Dr Danny Tsoi or Dr Chun Siu Yeung for the Respondent pursuant to their joint medical examination of the Applicant;
(b)	the parties do jointly write to the court after 91 days and before 105 days from the date hereof to set the case down for assessment hearing by paper application upon confirming the following matters :
	(i)	the number of witnesses as to quantum for each party;
	(ii)	the estimated length of the assessment hearing;
	(iii)	whether the expert doctors are required to give evidence at the assessment hearing or whether their joint expert report can be adduced at the assessment hearing without calling the makers;
	(iv)	whether the assessment hearing can be set down in the running list;
	(v)	the date when the case can be warned for assessment of compensation;
(c)	liberty to apply.

XI. Costs

44.Whilst the Respondent has indicated at the outset that it has no objection to joint medical examination and joint expert report by the parties’ respective orthopaedic experts, the issue before me is a case management matter and the hearing was fixed at my direction. I am prepared to order that costs of the hearing before me be costs in the cause of the assessment of compensation. I make a costs order nisi to such effect.

XII. Postscript

45.Given the Applicant’s stance in relation to expert medical evidence for the HCPI Action and the impact this decision may have on such parallel common law proceedings, I direct that a copy of this decision be forwarded to the Personal Injuries Master of the High Court for her consideration.

Representation:

Mr K W Ng of Messrs W K To & Co for the Applicant.

Ms H Hui of Messrs Deacons for the Respondent.