Chan Hon Fai v. Ng Chiu Construction Co Ltd and Another

HCPI 1028/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1028 OF 2004

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BETWEEN

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Before: Hon Fung J in Chambers

Date of Hearing: 9 December 2008

Date of Decision: 11 December 2008

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REASONS FOR DECISION

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1.There are two summonses before me:

(1)  the plaintiff’s summons dated 8 August 2008 for leave to engage another single joint expert (“SJE”);

(2)  the defendant’s summons dated 29 August 2008 to strike out the action for want of prosecution.

2.At the hearing, I dismissed the striking out summons, refused to allow the appointment of another SJE, but allowed a supplemental psychiatrist report from the SJE.  I now give my reasons.

Background

3.The plaintiff was a construction worker employed by the 1^st defendant whereas the 2^nd defendant was the principal contractor.  The plaintiff alleged to have been hit by a falling concrete slab on the site on 27 November 2001.  He claimed to suffer from Post Concussion Syndrome (“PCS”) with serious mental impairment (with symptoms of dizziness, irritability, short temper and paranoia) inhibiting him from returning to any gainful employment.  There is an issue as to whether the plaintiff lost consciousness (or had post traumatic amnesia) as a result of the accident.

4.The Writ was taken out in November 2004, but was served with the Statement of Claim only in July 2005.  The Statement of Claim was accompanied by the medical report of Dr Li Ching of South Kwai Chung Hospital stating the plaintiff was suffering from PCS.

5.The joint neurological report by Dr Robert Ho (for the plaintiff) and Dr Edmund Woo (for the defendant) considered a diagnosis of PCS consistent with the history of hit by concrete on the head and found him to have normal cognitive function but mild mental state impairment.  Dr Ho said it was difficult to ascertain loss of consciousness, but estimated 2 hours of post traumatic amnesia, while Dr Woo doubted either.  They also differed on the ability to return to employment on the ground of headache and giddiness.

6.The 1^st Check List Review (“CLR”) fixed on 29 March 2005 was adjourned without restoration.

7.In November 2005, the parties appointed Prof. Lieh-Mak as the SJE in psychiatry.  She conducted an examination of the plaintiff and an interview of his wife and prepared a report on 7 December 2005.  She noted the wife’s claim that the plaintiff was unconscious for 2 hours but the 1^st A&E record of Yan Chai Hospital did not record any loss of consciousness.  She noted a colleague in saying that the plaintiff was hit by a 40 catties stone, but considered that was not congruent with a simple sutured wound as per the A&E record.  She concluded the plaintiff and his wife lacked credibility, most of the psychiatric symptoms were feigned and/or exaggerated, and the plaintiff did not suffer from a psychiatric disorder as such but had non-specific symptoms of dizziness, headache, irritable mood and insomnia. By reason of temporal connection, the symptoms were probably due to the alleged head injury.

8.Shortly thereafter, the plaintiff was admitted to Shatin Hospital.  The medical report of Dr HB Lam dated 3 April 2006 stated the clinical diagnosis was PCS and Dissociative Disorder and differential diagnosis was malingering.

9.In May 2006, solicitors for the defendant urged the solicitors for the plaintiff to resume the CLR.  The plaintiff’s solicitors informed the Court that a medical report from Prince of Wales Hospital confirmed that the plaintiff was mentally incapacitated under Part II of the Mental Health Ordinance (Cap. 136).  However, no action has been taken to appoint a next friend.

10.In October 2006, the defendant’s solicitors  urged the plaintiff’s solicitors to restore the CLR.   The plaintiff’s solicitors asked the defendant’s solicitors to consent to the application for next friend, but it was refused as the defendant did not admit that the plaintiff had any mental disorder.

11.In December 2006, the defendant’s solicitors complained of delay for over a year and reserved the right in respect of the delay.

12.In March 2007, the plaintiff’s solicitors unilaterally sought a further opinion from Prof Lieh-Mak.  The professor properly refused on the basis that she was a SJE.  However, the defendant’s solicitors agreed to obtaining a further report from Prof Lieh-Mak, but complained about materials sent to the expert without the defendant’s knowledge.

13.In October 2007, the defendant’s solicitors again urged the plaintiff’s solicitors to restore the CLR.  The plaintiff’s solicitors replied that the inability to obtain an updated report meant the CLR could not serve any purpose and would be a waste of costs and time.  The defendant’s solicitors intimated to restore the CLR in the absence of action from the plaintiff’s side within 7 days. 

14.On 17 October 2007, the plaintiff’s solicitors filed a Notice of Intention to Proceed, and indicated the application for the appointment of next friend.  However, in January 2008, the plaintiff’s solicitors indicated that the plaintiff had improved and the appointment of next friend would be withheld until an updated report is obtained.

Striking out

15.The defendant may seek to strike out the claim on the following grounds:

(1)  intentional and contumelious default amounting to an abuse of process e.g. disobedience to a peremptory order (1^st limb under Birkett v James [1978] AC 297);

(2)  inordinate and inexcusable delay giving rise to a substantial risk of  impossibility of a fair trial and prejudice to the defendant (2^nd limb under Birkett v James);

(3)  demonstrative lack of real intention to prosecute the claim to trial amounting to patent abuse of process (Grovit v Doctor [1997] 1 WLR 640 (HL)).

16.The Grovit v Doctor jurisdiction is exceptional where the conduct of the party in default amounts to an affront to the Court and its rules, and the requirement of consequent prejudice under the 2^nd limb of Birkett v James should not be emasculated by the back door (see my judgment in Chevalier (E & M Contracting) Ltd v Rotegear Development Ltd & ors [2005] 4 HKLRD 30).

17.Prima facie, there is undue delay.  Mr. Gidwani, for the plaintiff, explained that those instructing him had difficulty communicating with the plaintiff.  Needless to say, there should be so where the appointment of next friend ever becomes relevant.  I can see no reason to delay the application under Part II or next friend simpliciter.   Costs is not a problem as the plaintiff is legally aided.  I sense an ill conceived tactical move to seek consent from the defendant on the application of the next friend, which is a separate issue from causation and quantum.

18.Mr Wong, for the defendant, indicated he was proceeding under the 2^nd limb of Birkett v James, but conceded that there is no evidence of consequent prejudice on the part of the defendant.  In the interest of saving costs, Mr Wong quickly agreed to the obtaining of a updated SJE report from Prof Lieh-Mak.

Expert report

19.Mr Gidwani submitted that another SJE be appointed, or the plaintiff be at liberty to appoint his own expert and Prof Lieh-Mak be treated as the defendant’s expert.  The basis of the application is that the plaintiff has lost confidence in Prof Lieh-Mak.

20.Mr Gidwani submitted that under the present rules, there is no provision for the Court to appoint a SJE.  Even under the amended RHC coming into effect in April 2009, the appointment of a SJE is discretionary.

21.Mr. Gidwani referred to the automatic directions for personal injuries action under O. 25, r.8(1), RHC:

“(1)  When the pleadings in any action to which this rule applies are deemed to be closed the following directions shall take effect automatically-

(b)  subject to paragraph (2), where any party intends to place reliance at the trial on expert evidence, he shall, within 6 weeks, disclose the substance of that evidence to the other parties in the form of a written report, which shall be agreed if possible;

(c)  unless such reports are agreed, the parties shall be at liberty to call as expert witnesses those witnesses the substance of whose evidence has been disclosed in accordance with the preceding sub-paragraph, except that the number of expert witnesses shall be limited in any case to two medical experts and one expert of any other kind;”

22.Hence, the plaintiff is entitled to call his own expert.

23.It is noted that O. 25, r. 8(1)(b) and (c), RHC are to be deleted in the new RHC.  Be that as it may, O. 38, r. 4, RHC provide that:

“The Court may, at or before the trial of any action, order that the number of medical or other expert witnesses who may be called at the trial shall be limited as specified by the order.”

24.In the present case, there is also the special feature that the parties have already agreed to appoint Prof Lieh-Mak as the SJE, albeit without order.  Subject to queries such as errors of fact or want of reason, or actual or apparent bias, etc (where I can see none), the parties must take the report warts and all and there is no room for expert shopping.

25.Mr Gidwani submitted that Prof Lieh-Mak referred to inconsistencies between the medical reports and reported history, and took up the role as an advocate.  As pointed out by Prof Lieh-Mak, the diagnosis of psychiatric disorders is almost entirely based on reported symptoms, and in forensic cases or claims for compensation, the clinician has a duty to go beyond the information provided by the plaintiff or the defendant to make a clinical judgment, and the core of that judgment is based on the concept of consistency.

26.In any case, the trial judge is not bound by any finding of facts by the expert, and his function as a tribunal of facts is not detracted by references to the facts or perceived inconsistencies by the experts.  In the present case, there is no indication of such prejudice on the trial judge to warrant a substitution of the SJE.  

27.I order that a supplemental SJE report be obtained from Prof Lieh-Mak on the updated condition of the plaintiff.  The parties have agreed that the following materials be placed before the expert:

(1)  clinical notes from the treatment hospitals and/or doctors since the date of the last SJE report;

(2)  the part of the witness statement relating to quantum only;

(3)  surveillance tape(s) on the plaintiff.

28.I also gave directions on the tighter management of the case:

(1)  the plaintiff do obtain the clinical notes within 6 week;

(2)  the supplemental single joint expert report be prepared within 6 weeks thereafter;

(3)  the plaintiff do make an appointment to restore the CLR forthwith.

29.Mr. Gidwani urged me to give directions on the treatment of inconsistencies by the expert.  I do not think I should tie the hands of the expert save in exceptional circumstances.  In the present case, I merely wish to say that the symptoms alleged by the plaintiff are well documented, and no doubt the updated complaints will be subject to such treatment.  In the event that the trial judge accepts the evidence of the plaintiff and his witnesses on the course of the accident, he may not find it difficult to hold for the plaintiff accordingly.  On the other hand, should the judge find any exaggeration, perhaps the reducted version in the expert opinion may provide some basis for the Court to arrive at the just decision.

30.Mr. Gidwani explored the possibility of an updated joint neurological report.  The joint report stated pleateauing of the neurological condition.  I do not see any updating is necessary.

Costs

31.I make the following order on costs:

(1)  There be no order as to costs on the striking out summons;

(2)  On the summons on the expert:

(a)  the costs of the argument on the substitution of the SJE be to the defendant in any event and assessed at gross sum of $5,000;

(b)  the costs of the argument on the supplemental SJE report be in the cause with certificate for counsel either way;

(3)  Legal Aid taxation for the plaintiff.

32.I shall apportion ½ of the time of the hearing for (1), and ¼ for each of 2(a) and 2(b).  The reasons for the making no order as to costs on (1) is because the defendant is justified in making complaint of inordinate delay, and the matter was met with sensible agreement by defence counsel upon indication from the Court.

Postscript

33.I wish to register my dissatisfaction of the plaintiff’s solicitors in taking no constructive steps for over 2 years.  The procrastination on the application of next friend is unjustified.  They should have restored the CLR and made the application for the Supplemental SJE report upon the discharge from Shatin Hospital if not earlier.  The defendant’s solicitors could have restored the CLR but that is no excuse for the plaintiff’s solicitors.  I shall refer the matter to the Director of Legal Aid for consideration of re-assignment should he deems fit. 

Mr Victor Gidwani, instructed by Messrs Simon Si & Co., assigned by Director of Legal Aid, for the Plaintiff

Mr C K Wong, instructed by Messrs Baker & McKenzie, for both Defendants