Kan Wai Yip v. Everbest Port Services Ltd

DCEC383/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 383 OF 2008

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BETWEEN

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

Date of Hearing: 12^th January, 2009

Date of Decision: 12^th January, 2009

Date of Handing Down Reasons for Decision: 3^rd February, 2009

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REASONS FOR DECISION

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I.  Background

1.The Applicant claimed that on/about 13^th May and 14^th August 2006 he suffered personal injuries by accidents arising out of and in the course of employment with the Respondent. The Respondent disputed liability.

2.At the interlocutory stage, leave was granted for expert medical evidence to be adduced from 1 orthopaedic and 1 psychiatric expert for each party. By a joint paper application dated 10^th November 2008, the Applicant’s former solicitors and the Respondent’s solicitors jointly applied for leave to set the case down for trial in the running list to be warned in/about early January 2009, and for leave to adduce the orthopaedic expert report of Dr Wong See Hoi (“Dr Wong”) filed for the Applicant on 8^th October 2008 (“Wong Report”), the orthopaedic expert report of Dr Lee Po Chin (“Dr Lee”) filed for the Respondent on 13^th August 2008, and the joint psychiatric expert report of Dr K Singer (“Dr Singer”) for the Applicant and Dr Benjamin Lai for the Respondent filed on 31^st October 2008 as expert evidence at trial without calling the makers thereof.

3.By consent, on 13^th November 2008 I directed that the aforesaid expert medical reports be adduced as expert evidence at trial without calling the makers thereof, and that the case be set down for trial in the running list not to be warned before 13^th January 2009 with an estimated length of trial of 2 days.

II.  Wong Report

4.Dr Wong noted the following particulars of the Applicant in the Wong Report :

“Pre-injury Occupation:

He worked as a container port general worker. His duties involved both clerical work and heavy manual work. He had to deliver metal block of 10-15kg 200-300 times a day, connect hooks from boxes to containers and install the metallic frame of the container. He was required to climb up and down the containers for inspection 20-30 times a day. He was also needed to work on ship, with 24 hours a shift and 72-96 hours a week. Previously, he had worked as a delivery worker and decorative worker since graduation.

Present Occupation:

He is still on sick leave.”

5.According to the history from the Applicant taken by Dr Wong, the Applicant attended psychiatric follow-ups at Tuen Mun Mental Health Centre from September 2007 up to the time when he was medically examined by Dr Wong. “He attended follow-up monthly.” The Applicant also attended regular orthopaedic follow-up up to the time when he was medically examined by Dr Wong. “The last follow-up was in June 2008 and the next appointment was scheduled in August 2008. He was treated with medication. Sick leave was granted till now.”

6.Dr Wong noted that the Applicant’s then complaints included the following :

(a)  back pain (VAS 6-7/10) with radiation to right lower limb. “The radiating pain was started after the 2^nd accident. The pain was aggravated by prolonged sitting (more than 30 minutes), prolonged walking (more than 45 minutes), bending of back, lifting heavy object (around 12 cans of soft drink) and squatting. The pain could be relieved by regular drugs, 3 times a day”;

(b)  intermittent right lower limb paraesthesia about 2-3 times a week. “The paraesthesia usually lasted for several minutes per time. It was aggravated by prolonged sitting (more than 1 hour), cross-leg sitting (more than 30 minutes) and bus travelling (more than 30 minutes). It could be relieved by stretching and walking around”;

(c)  poor mood, insomnia and depression for which he required anti-depressant drugs;

(d)  being awaken by pain every night.

7.Dr Wong’s diagnosis for the 2 episodes of injury on duty to the Applicant’s back was soft tissue injury to lumbar spine. In respect of the 1^st accident on 13^th May 2006, he opined that the mechanism of injury given was compatible with simple back sprain, and with standard and appropriate treatment there was 50% pain relief and the Applicant could manage to return to light duty on 10^th August 2006. As regards the 2^nd accident on 14^th august 2006, Dr Wong opined that it seemed to further aggravate the Applicant’s not yet resolved back symptoms. The treatment was standard and appropriate, but it failed to satisfactorily relieve the Applicant’s back symptoms.

8.Dr Wong was of the view that the 2 accidents aggravated the Applicant’s pre-existing degeneration of the lumbar spine and triggered his back symptoms which after 2 years were still particularly severe upon exertion. There were tenderness over the lumbar spine and bilateral paraspinal muscles, tightness over right paraspinal muscle, decreased range of movement of the back, and decreased right lower limb muscle power and sensation of touch. Nerve tension test was positive.

9.As regards the Applicant’s orthopaedic problem, Dr Wong was of the view that he had reached maximum medical improvement (“MMI”). The prognosis was fair although the Applicant would have on and off back pain associated with right lower limb pain, weakness and numbness, particularly on extreme range of back movement, after prolonged sitting and walking, when lifting heavy objects and upon changes of weather. Dr Wong recommended 6% impairment of whole person for the Applicant’s orthopaedic condition after the 2 accidents.

10.As regards the Applicant’s working capacity, Dr Wong had the following to say :

“With the present degree of impairment, Dr. Wong believes [the Applicant] is able to resume his pre-injury work as a container port general worker. He is able to handle his clerical work, but his concentration span may be affected, as prolonged sitting would aggravate his back problem. However, with persistent back pain and weakness and numbness of right lower limb, [the Applicant] would be less suitable for performing heavy manual work physically. He would encounter certain difficulty in climbing up and down the containers for inspection. He is suggested to change to work a more sedentary work with no manual work, like car park attendant, messenger, etc.”

11.As regards sick leave, Dr Wong opined that sick leave granted by the Applicant’s treating doctors up to the time of the Wong Report was reasonable.

III.  Present application

12.On 8^th December 2008, the Director of Legal Aid re-assigned the Applicant’s present solicitors to handle the present proceedings on behalf of the Applicant in place and stead of the Applicant’s former solicitors.

13.On 6^th January 2009, the Applicant’s present solicitors filed a summons (“Summons”) on behalf of the Plaintiff for inter alia the following reliefs :

(a)  leave for the Applicant to file and serve a supplemental report by Dr Wong within 28 days from the date of the order to be made therein;

(b)  the trial be adjourned and not to be warned before 18^th March 2009;

(c)  alternatively, the Application be adjourned with liberty to restore pending the assessment by the Medical Assessment Board (“MAB”) and issuance of the Certificate of Assessment (“Form 7”).

IV.  Applicant’s case

14.The Summons was supported by the affirmation of Ms Fong Wai Yan (“Ms Fong”), solicitor for the Applicant, also filed on 6^th January 2009.

15.Ms Fong claimed she noted upon perusal of the papers and documents passed to her firm by the Applicant’s former solicitors on 17^th December 2008that the Applicant was still on sick leave and attending regular follow-up treatment at the orthopaedic clinic of Tuen Mun Hospital and at Tuen Mun Mental Health Centre and he had not been assessed by the MAB so there was no Form 7 as yet.

16.Ms Fong noted the Applicant’s injuries (ie soft tissue injury to the lumbar spine and adjustment disorder with mixed anxiety and depressed mood or major depressive disorder) were not injuries specified in the First Schedule of the Employees’ Compensation Ordinance Cap.282 (“Ordinance”), and Dr Wong had not given his opinion as to the Applicant’s degree of loss of earning capacity (“LOEC”) in the Wong Report.

17.Ms Fong further noted that notwithstanding Dr Wong’s opinion in the Wong Report in respect of the Applicant’s working capacity (see paragraph 10 above), the Applicant’s instructions were that his pre-accident duties involved both clerical and heavy manual work, including delivering 10-15kg metal block 200-300 times a day, connecting hooks from boxes to containers, and installing metallic frame of containers, and he was required to climb up and down the containers for inspection 20-30 times a day, so the Applicant took the view that he would not be able to resume his pre-accident work.

18.Although Ms Fong agreed the court should not rely on the assessment of LOEC by doctors, she argued that “the opinions of the parties’ experts in their reports as a whole should be considered by the Court” to enable the court to come to its own assessment in accordance with the Ordinance.

19.Ms Fong claimed that if the court would not accept that any compensation payable to the Applicant should be assessed in accordance with section 9(1A) of the Ordinance, “there will be no basis for the Court to come to its own assessment if the degree of [LOEC] is not stated in the parties’ expert reports especially when the Applicant’s injury is a non-scheduled injury”. So to enable the Applicant to have a fair trial, it was necessary for Dr Wong to provide a supplemental report giving his opinion on the Applicant’s degree of LOEC and his employability.

V.  Respondent’s response

20.The Respondent opposed the reliefs sought in the Summons. Ms Leung, solicitor for the Respondent, submitted that the application made just 7 days before the case could be warned for trial was plainly late. Given that the Applicant’s witness statement and the Wong Report were respectively dated 11^th and 30^th September 2008, and the relevant expert directions were made by consent, no good reason was given for the lateness of the application.

21.Ms Leung submitted it was for the court to determine the degree of LOEC, and to aid the court (a) the Applicant would adduce relevant medical reports/notes/records from the treating hospitals in relation to his orthopaedic injuries and psychiatric impairment, and (b) both parties would adduce the expert medical reports of their respective orthopaedic and psychiatric experts which thoroughly set out their expert opinion on the Applicant’s injuries and lasting impairment. There was no suggestion from the Applicant of any change in his medical condition or of any loss of confidence in Dr Wong’s expert opinion.

22.Ms Leung further submitted that Dr Wong had expressed his opinion as to the Applicant’s ability in resuming his pre-accident work, and acknowledged that the Applicant was less suitable for performing heavy physical manual work. In the circumstances, there was no need to obtain further opinion from Dr Wong as to the Applicant’s employability.

23.Ms Leung argued it was neither here nor there that the Applicant was still on sick leave and attending follow-up treatment because both orthopaedic experts opined that his stabilised orthopaedic condition had reached MMI and thus fit for assessment of compensation. Since it was more than 2½ years after the accidents and the present case was ready for trial, there was no justification for adjourning the Application to await assessment by the MAB and/or issuance of the Form 7 especially when it was unclear whether the Applicant had made any enquiries to see whether and when such assessment would be arranged.

24.In summary, Ms Leung contended there was no probative value in obtaining any supplemental orthopaedic expert report from Dr Wong, which exercise would only lead to delay and costs.

VI.  Decision

25.At the hearing, I declined to grant leave for the Applicant to adduce supplemental orthopaedic expert report from Dr Wong, and made the following orders :

(a)  paragraphs 1 and 3 of the Summons be dismissed;

(b)  the case be set down for trial in the running list not to be warned before 17^th February 2009 instead of 13^th January 2009;

(c)  costs of the Summons be paid by the Applicant to the Respondent to be taxed if not agreed;

(d)  the Applicant’s own costs be taxed in accordance with Legal Aid Regulations;

(e)  order made by me to be drawn up.

26.I now give my reasons for the above decision.

VII.  Discussion

27.There is no doubt that the Summons was late. Although I accept that the Applicant’s present solicitors (a) only took up handling of the present proceedings in early December 2008 and received the relevant papers and documents in mid-December 2008, (b) written to the Respondent’s solicitors on 29^th December 2008 for their consent to the reliefs sought in the Summons, and (c) issued the Summons on 6^th January 2009 upon the Respondent’s rejection of their request on 2^nd January 2009, there can be no denying that the present application made  a few days before the date when the case can be warned for trial is plainly late. The fact that the Applicant changed solicitors at a late stage of the proceedings may explain the delay in making the application, but it does not excuse the lateness, especially when the Applicant all along has been legally represented and has jointly with the Respondent applied to set the case down for trial on the basis of the Wong Report without intimating any need for supplemental orthopaedic expert report from Dr Wong.

28.Ms Leung submitted that the court should not exercise its discretion to allow the Applicant to adduce additional orthopaedic expert evidence. But I bear in mind that whilst adherence to goalposts is of importance, there is a need to strike a balance between timely progress of cases and their proper adjudication. The principles are well summarised by Sir Thomas Bingham MR in Costellow v Somerset County Council [1993] 1 WLR 256, 263-264 as follows :

“As so often happens, this problem arises at the intersection of two principles each in itself salutary.  The first principle is that the rules of court and associated rules of practice, devised in the public interest to promote the expeditious despatch of litigation, must be observed.  The prescribed time limits are not targets to be aimed at or expressions of pious hope but requirements to be met.....

The second principle is that the plaintiff should not in an ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate.....

Neither of these principles is absolute.  If the first principle were rigidly enforced, procedural default would lead to dismissal of actions without any consideration of whether the plaintiff’s default has caused prejudice to the defendant.  But the court’s practice has been to treat the existence of such prejudice as a crucial, and often a decisive, matter.  If the second principle were followed without exception, a well-to-do plaintiff willing and able to meet orders for costs made against him could flout the rules with impunity, confident that he would suffer no penalty unless or until the defendant could demonstrate prejudice....  The resolution of problems such as the present cannot in my view be governed by a single universally applicable rule of thumb.  A rigid, mechanistic approach is inappropriate.”

29.In carrying out such balancing exercise, the court should bear in mind the prime consideration of enabling the real question or controversy to be determined. The court has to take into account all relevant factors in the exercise of discretion, including the relevance and necessity of the proposed additional orthopaedic expert evidence and/or the MAB assessment or the Form 7 for a just determination of the present case, their importance to the Applicant who seeks to rely on them, and the prejudice to the Respondent, if any, and whether any such prejudice can be compensated by costs.

30.I pause here to say that after implementation of the Civil Justice Reform in April 2009 the courts are unlikely to be sympathetic to late applications arising from, say, change of legal representation. It is expected that the courts will be more firm in rejecting late applications that may upset the trial date or the period when the case can be warned for trial, which date/period will generally be regarded as immovable.

31.At the hearing before me, Ms Fong confirmed that the Applicant would not insist on waiting for the issuance of the Form 7 if he were allowed to obtain and adduce supplemental orthopaedic expert report from Dr Wong on the Applicant’s percentage of LOEC and the Applicant’s employability in the context of the Applicant’s instructions. Such confirmation plainly shows that the Form 7 is not an essential piece of evidence for the just and proper determination of the present case. This must be correct because not each and every injury on duty will attract an assessment by the MAB. Indeed, it was due to the very absence of any Form 7 that I granted leave in the first place for the parties in the present proceedings to obtain and adduce expert medical evidence. This is to ensure that there will be helpful evidence to facilitate the trial judge in assessing the amount of compensation (if liability were established).

32.Ms Fong also agreed that although (a) Dr Singer opined that the Applicant had not reached MMI in relation to his psychiatric condition, that he should receive further psychiatric treatment, and that he could only return to his pre-accident work on part-time basis with distress and inefficiency before further psychiatric treatment, (b) the Applicant was still attending follow-up at Tuen Mun Mental Health Centre, and (c) there was as yet no Form 7, the Applicant would not require any supplemental psychiatric expert evidence. In short, even though the Applicant’s psychiatric condition is, according to his own psychiatric expert, arguably not settled, he is quite prepared to proceed to trial on the basis of existing psychiatric expert evidence.

33.Having thus narrowed the relevant considerations, the true question here is whether by allowing the Applicant to adduce the Wong Report a fair opportunity has been afforded for him to present his whole case or whether justice requires supplemental expert opinion from Dr Wong as proposed. In determining such question, the court has to consider whether the proposed supplemental orthopaedic expert opinion is relevant and necessary for proper adjudication by the trial judge, and whether any prejudice will be caused to the Respondent.

34.I am not persuaded that the fact the Applicant is still on sick leave and attending regular follow-up treatment at the orthopaedic clinic of Tuen Mun Hospital forms any sufficient basis for deferring the trial. Both Dr Wong and Dr Lee opine that in respect of the Applicant’s orthopaedic condition, he has reached MMI and is therefore fit for orthopaedic medical assessment. Further, both orthopaedic experts in their respective expert reports have also expressed their opinion as to the appropriate period of sick leave from an orthopaedic perspective. It is important to note that Ms Fong did not attempt to resile from Dr Wong’s opinion on these matters. In my view, even without the MAB assessment and/or the Form 7, these matters plainly show that any temporary incapacity in relation to the Applicant’s orthopaedic condition has ended, and if there is still any incapacity it has become lasting and permanent.

35.Ms Fong next complained that the Wong Report did not give the degree of LOEC suffered by the Applicant as a result of the 2 accidents. She further suggested that in the absence of Dr Wong’s view on such matter, if the court does not accept that employees’ compensation payable to the Applicant should be assessed in accordance with section 9(1A) of the Ordinance, there will be no basis for the court to come to its own assessment of LOEC in accordance with section 9(1)(b) of the Ordinance, especially when the Applicant’s injuries are non-scheduled injuries.

36.Section 9(1A) of the Ordinance provides that where permanent partial incapacity results from a scheduled or non-scheduled injury and the percentage of LOEC assessed in relation to that injury in accordance with section 9(1) of the Ordinance would be substantially less than the percentage of LOEC permanently caused by the injury in the special circumstances of the employee, including (a) the nature of the injury in relation to the nature of his former usual employment and (b) his qualifications, previous training and experience, the amount of compensation shall be such percentage of the compensation which would have been payable in the case of permanent total incapacity as is proportionate to the LOEC permanently caused by the injury in any employment which, having regard to those special circumstances, the employee was capable of undertaking at that time.  

37.The circumstances of the Applicant, including the matters in (a) and (b) of the above paragraph, are clearly factual matters outside the expertise of the medical experts. It is therefore evident that under section 9(1A) of the Ordinance, the employee’s physical and medical condition is not the only relevant factor affecting his earning capacity (see Yip Fong Ming v Joint-Effort Engineering Co & anor [1989] 1 HKC 505, 509). In such circumstances, I do not see how an assessment of LOEC by a medical expert (which as a result of the confines of his expertise must often be based on his assessment of the employee’s physical disability and comparison with the relevant scheduled injury) is relevant or admissible for the purpose of section 9(1A) of the Ordinance.

38.The next question is whether there is any difference if the assessment of the degree of LOEC is made under section 9(1)(b) of the Ordinance. Section 9(1)(b) provides inter alia that where permanent partial incapacity results from a non-scheduled injury, the amount of compensation shall be such percentage of the compensation which would have been payable in the case of permanent total incapacity as is proportionate to the LOEC permanently caused by the injury in any employment which the employee was capable of undertaking at that time.

39.In short, the court should compare the employee’s bodily impairment arising out of his injury with the various scheduled bodily impairments, and the assessed percentage of LOEC should reflect as far as possible the fixed percentage for comparable scheduled injuries.

40.This raises two issues : (a) whether any view expressed by a medical expert as to the percentage of LOEC is relevant and/or admissible, and (b) whether the absence of such view means there is no basis for the court to come to its own assessment.

41.In Tang Shau Tsan v Wealthy Construction Company Limited CACV58/2000 (unreported, 5^th April 2000), Rogers JA (as he then was) said as follows :

“11.  An expert witness can give evidence as to the nature of the plaintiff’s injuries, what effect that has on the plaintiff physically and what lasting effect that is likely to have. Statements of opinion in relation to earning capacity are, in my view, inadmissible, either from a doctor or even from an occupational therapist. Indeed, to a large extent, they seem to be to be confusing, at best, and meaningless at worst. The expression of the earning capacity in percentage terms is particularly unhelpful and indeed confusing because it is imprecise.

……

12.   …… All the more so, it is for the court to draw its own conclusions as to the earning capacity of the plaintiff.” (my emphasis)

Mayo VP also shared the same view :

“24.  I also find myself in agreement with the observations made concerning the evidence given by Dr Mao and Ms Alice Tsang. Clearly any expert evidence given by them should have been confined to the Plaintiff's medical condition. It was not permissible for them to venture to give opinions relating to the labour market a subject upon which they were not competent to express an opinion.”

42.Insofar as common law claims for loss and damages for personal injuries are concerned, it is plain that medical experts are incompetent to give opinion as to the degree of LOEC, which not only is unhelpful to the trial judge but, more importantly, is inadmissible evidence which should be ignored. This is made clear by H H Judge Chow in his decision in Yung Wai Ping v Century Pools Ltd DCEC1162/2003 (unreported, 5^th October 2006) in the context of employees’ compensation claims :

“根據Tang Shau Tsan v. Wealthy Construction Company Limited (CACV 58/2000) 一案的判決，專家證人祗可就他的專長給予意見；Au Kar Kau醫生的專長是醫學方面的證據和意見，賺取收入能力的意見不屬於醫學方面的範疇，因此Au Kar Kau醫生在這方面的意見不能被接納為證據。……”

43.The rationale as explained in Tsang Shau Tsan is straightforward – LOEC is a combination of various factors which include the injuries suffered by the employee and the resulting impairment as well as other matters of fact such as the employee’s age, education and background, his degree of difficulty in finding placement in the labour market and a comparison of the earnings that he is capable of with his impairment and the earnings he would have been able to make but for his injuries. These other factors concern matters of fact, and it is for the judge hearing the case as arbiter of fact to evaluate such factual evidence as well as the medical evidence and then come to his own assessment of the LOEC.

44.Ms Fong fairly accepted that the above principle applied equally to employee’s compensation cases (see the judgments of H H Judge Lok in Woo Wai-kuen v Li Siu-keung, Alex trading as Alex’s Kitchen DCEC489/2000 (unreported, 7^th July 2001), Kwan Yee Chor v Hung Fau Metal Construction Company Limited & ors DCEC520/2001 (unreported, 10^th July 2002) and Chu Shu Wor v Cheng Kai Chai trading as Carry Engineering Company DCEC161/2002 (unreported, 14^th March 2003), the ruling of H H Judge Muttrie in Chau Muk Chi v Chinagold Transportation Limited DCEC506/2002 (unreported, 1^st April 2003),my judgment in Law Siu See v De Rodeo Human Resources Ltd DCEC989/2001 (unreported, 22^nd April 2003), the judgment of H H Judge Chow in Yung Wai Ping, and the judgment of Deputy Judge Abu B bin Wahab in Yu Wing Sun v Ho Wai Leung trading as Hip Wo Engineering Co & anor DCEC1245/2005 (unreported, 15^th June 2007).

45.In my view, the rationale for such principle as explained in paragraph 43 above is equally applicable to employees’ compensation cases. Indeed, section 9(4) of the Ordinance, which provides inter alia that : “[in] assessing the [LOEC] for the purposes of subsection 3(b), …… the Court …… may but shall not be obliged to give weight to any actual earnings of the employee earned after the accident causing the injury”, makes it abundantly clear that aside from medical opinion other factual matters are also pertinent in assessing LOEC under section 9(1)(b) of the Ordinance. Given that statements of opinion by medical experts must be limited to their areas of expertise, they cannot speak to these other matters which the court may take into account in making its own assessment of the degree of LOEC.

46.In my view, since medical experts are incompetent in expressing opinion as to the percentage of LOEC, any such statement of opinion is inadmissible. In the circumstances, there is no justifiable reason to allow the Applicant to obtain supplemental orthopaedic expert report from Dr Wong on such subject.

47.But Ms Fong cited Chan Sau Kam v Yee Hing Construction Transportation Co Ltd DCEC1361/2005, Deputy Judge C P Pang (unreported, 19^th January 2007) to say that the opinion of medical experts set out in their expert reports as a whole should be considered by the court, and the court will then come to its own assessment in accordance with the guidelines in section 9(1)(b) of the Ordinance.

48.I have no quarrel with the suggestion that the trial judge should be entitled to consider the expert medial opinion as expressed in the Wong Report for such opinion is within the expertise of Dr Wong as an orthopaedic expert and may be helpful to the trial judge in forming his own assessment of LOEC. But his opinion “as a whole” does not necessarily mean or include his view as to the percentage of LOEC, and this can be seen from the facts of Chan Kam Sau.

49.In that case, both parties appealed against the certificate of assessment under section 18 of the Ordinance, but in the course of the assessment hearing the applicant withdrew his appeal. Relying on Tang Shau Tsan, the applicant’s solicitor submitted that since statements of opinion from medical experts on earning capacity were inadmissible, the only evidence that the court could consider was the certificate. To put it in another way, the applicant’s solicitor was attempting to prevent the court from considering the expert medical evidence from his own orthopaedic and psychiatric experts altogether notwithstanding the respondent’s section 18 appeal. It was in such context that the learned judge considered the opinions of the orthopaedic and psychiatric experts set out in their reports as a whole could be considered by the court. I do not see this as any endorsement that the court can or should consider any statement of opinion by a medical expert as to the percentage of LOEC. Quite to the contrary, the learned judge in Chan Kam Sau found the guidance in Tang Shau Tsan relevant for employees’ compensation claims.

50.I also disagree that without any statement of opinion by Dr Wong as to the percentage of LOEC there will be no basis for the court to come to its own assessment of LOEC under section 9(1)(b) of the Ordinance. In the present proceedings, the Applicant’s witness statement speaks of (and no doubt he will give evidence at trial on) his injuries and physical condition, and there is documentary evidence from the treating hospitals as to his medical condition and treatment as well as opinion evidence from the orthopaedic and psychiatric experts concerning his injuries, treatment and lasting impairment and the effect of his injuries and impairment on his daily life and working ability. All these matters are pertinent, and the court in discharging its adjudicating function will evaluate such evidence and form its own assessment of the degree of LOEC in accordance with the guidelines in sections 9(1)(b).

51.As regards Ms Fong’s submission that Dr Wong should be asked to further address on the Applicant’s employability in light of the Applicant’s instructions that he could not return to his pre-accident work (see paragraph 17 above), I find no merit in such contention. In fact, Dr Wong has expressed his views on the Applicant’s employability from a medical perspective in the Wong Report (see paragraph 10 above). More importantly, he has given such opinion with full knowledge of the Applicant’s instructions as to the nature of his pre-accident work (see paragraph 17 above), which have been set out in detail in the Wong Report (see paragraph 4 above). This is also reflected by the reference to the Applicant’s “pre-injury work as a container port general worker” and the discussion on his ability for handling both clerical and heavy manual work (which includes climbing up and down containers) in his statement of opinion in the Wong Report on the Applicant’s working capacity (see paragraph 10 above).

52.I am not persuaded that Dr Wong has omitted to consider or has ignored the Applicant’s assertions and complaints. The Applicant may be disappointed that his own orthopaedic expert has not fully endorsed his stance that he is unable to resume any aspect of his pre-injury occupation at all, but this is not a sufficient reason for asking Dr Wong to revisit his expert opinion which has been expressed in light of relevant material.

53.In light of the above analysis, I am of the view that it is neither necessary nor helpful to the trial judge to have any supplemental orthopaedic expert report on the degree of LOEC and/or the Applicant’s employability. Since the trial judge can come to his own assessment of the LOEC from a range of evidence from lay witnesses, medical documents and medical experts, there is no need to await any MAB assessment or Form 7 particularly as both orthopaedic experts have opined that the Applicant has reached MMI in relation to his orthopaedic condition. In my view, it is not unjust to dismiss the Summons.

54.The above conclusion does not in any way diminish the general usefulness and importance of the MAB assessment and/or the Form 7 (or Form 9) for assessment of compensation in employees’ compensation cases. This statutory mechanism for assessment of the percentage of LOEC and the period for which the employee is absent from work as a result of his injury is a simple, cost-saving and helpful way for employers and employees to have an independently assessed basis for calculating the amount of compensation. Parties to employees’ compensation litigation often take advantage of such statutory mechanism and withhold efforts to obtain expert medical opinion in order to save costs in the event that the assessments in the Form 7 or Form 9 are acceptable. Such approach, which is in line with social intent of employees’ compensation legislation to give employees a practical and non-technical avenue to recover compensation (see Lam Kin Man v Kowloon-Canton Railway Corporation DCEC412/1997, H H Judge To (unreported, 29^th October 1998), is encouraged by the court.

55.But there may be salutary reasons why parties do not wish to await the assessment by the MAB and/or the issuance of the Form 7 or Form 9. For example, where there is corresponding personal injury litigation, both parties may find it useful to obtain relevant expert medical evidence at an early stage, and once such expert opinion is available such parties may consider that even without the MAB assessment or the Form 7 there is sufficient evidence for progressing the employees’ compensation proceedings to trial. As a further example, both parties may agree to arrange a joint medical examination of the employee by their single joint expert or respective medical experts without finalising the joint expert medical report pending the MAB assessment or the Form 7. This flexible approach may be useful in saving time and costs of preparing supplemental expert medical report after issuance of the Form 7, but it also enables the parties to liaise with their expert(s) for preliminary views on the physical and/or medical condition of the employee to facilitate preparation of the case or negotiation for settlement. In the present case, both parties agree to obtain expert medical evidence, and the court will not stand in the way of such common intent and effort for expeditious resolution for the employees’ compensation claim. The above examples are not exhaustive of the flexible ways by which parties to employees’ compensation proceedings can obtain useful, effective and cost-saving expert medical opinion at an opportune stage of the proceedings, and the appropriate approach turns on the circumstances of each case.

56.I note that the Applicant’s present solicitors have taken up the case only in December 2008, so I postponed the date when the case can be warned for trial from 13^th January 2009 to 17^th February 2009. But, as explained above, after implementation of the Civil Justice Reform, it is unlikely that the court will be so accommodating.

57.There is no reason why costs should not follow event, and I have therefore made the costs orders set out in paragraph 25 above at the hearing.

Representation:

Ms Veronica Fong of Messrs Tung, Ng, Tse & Heung for the Applicant.

Ms F C Leung of Messrs Winnie Leung & Co for the Respondent.