Cheng Lung Fong v. Mitoyo Hong Kong Ltd

HCPI 63/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 63 OF 2007

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Before: Hon Fung J in Chambers

Date of Hearing: 22 September 2008

Date of Ruling: 22 September 2008

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R U L I N G

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1.The issue at the Pre-trial Review is the calling of the experts to give oral evidence, and the estimate of the length of trial.  But it touches on the wider impact of failure to arrange a joint examination.

2.The plaintiff is a restaurant worker, and she complained of a sprained back when mobbing the floor.  The factual issues include her workload, the state of obstruction by sundry items near the cashier counter, and whether she was allowed to approach the cashier counter at all.

3.The plaintiff has retained Dr. Johnson Lam, orthopaedic expert, and the defendant, Dr. Danny Choi.  No joint examination has been conducted, and no joint report has been prepared.  Due to past experience of repeated failures to arrange joint examination between the doctors concerned, the PI Master did not see the wisdom to insist.

4.That said, lawyers for the parties are reminded of by now the mainstream practice of joint examination and joint reporting.  Mr. Chan, counsel for the defendant, echoed the advantages of a joint report.  He submitted that a joint report conveniently separates the issues into agreed and disagreed sections, and there is no need to painstakingly plough through the separate reports to identify the agreement and disagreement as he has done in this case.  Further, chances of the respective doctors making different observations at separate examinations can be avoided, whereas in this case, that is one of the reasons why the doctors have to cross-examined.  Mr. Chan added that sometimes, post-examination discussions between the doctors narrowed down even if not resolved the areas of disagreement.

5.In this case, the experts have disagreed on every conceivable aspect including factual observations during separate examinations.  Undoubtedly, a joint examination and constructive discussions amongst fellow professionals will reduce the scope of disagreements.

6.The Final Report on Civil Justice (2004) highlighted the expert’s overriding duty to assist the Court, whilst partisanship and lack of independence on the part of the expert will devalue his/her role in the judicial process.  I commend practitioners to have an early familiarization of the draft revised Practice Direction on Personal Injuries Cases PD 18.1 on joint examination, and be quick to remind their experts of such precepts.

7.I have tried to enquire into why the failure in arranging a joint examination here, and not unsurprisingly, lawyers led me through a myriad of irrelevant considerations.  On this note, the revised PD suggested the nomination of alternative experts on each side upon failure to arrange a joint examination.  This case gives the very example for supporting the proposed new practice.  For the time being, I ask the PI Master to record the incidences of such failures and the protagonists involved, which will hopefully provide statistical information for administering the new regime.

8.Parties jointly suggested the estimate of 4 days for the trial, and as such, a Fixture listing.  Mr. Chan agreed the case is not complicated notwithstanding the numerous witnesses intended for the defence, and should have taken at most 3 days, but the extent of disagreement of the experts make it wise to put down 4 days.  While the Court will rely on effective cross-examinations to sieve through the divergent expert opinions, I cannot help but accede to the request.

9.In the premises, I direct that the doctors be called to give oral evidence, and the case be set down in the Fixture List.

Mr Tam Ying Kit of Messrs Ambrose Ng & Co. assigned by (D.L.A),  for the Plaintiff

Mr K C Chan instructed by Messrs Tang & Lee, for the Defendant