Lau Wai Ping v. Hsu Tsui Fong, Hsu Jung Chiao, Hsu Chih Jen and Hsu Chih Yung t/a Yiu Fung Transportation Co

DCEC1563/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1563 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: 15^th April, 2009

Date of Directions: 15^th April, 2009

Date of Handing Down Reasons for Directions: 13^th May, 2009

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REASONS FOR DIRECTIONS

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I.  Introduction

1.On 4^th January 2007, the Applicant was employed by the Respondent as a container truck driver.

2.On 30^th December 2008, the Applicant commenced the present proceedings to recover employees’ compensation against the Respondent. He claimed that at about 7:30pm on 4^th January 2007 the Respondent instructed him to return an empty container to a car depot after unloading goods in the PRC. He further claimed that he sprained his lower back as he closed the defective container door (“Accident”).

3.In the Answer filed on 28^th February 2009, the Respondent denied the Accident as well as any liability for employees’ compensation.

II.  Dispute over expert medical examination

4.On 30^th January 2009, the Respondent’s solicitors invited the Applicant to attend a medical examination by their orthopaedic expert, Dr Lee Po Chin (“Dr Lee”), pursuant to section 16(1) and (2) of the Employees’ Compensation Ordinance Cap.282 (“Ordinance”), but made clear the Applicant could engage his own orthopaedic expert to conduct joint medical examination with Dr Lee or he could also commission Dr Lee as the parties’ single joint expert (“Proposal”).

5.On 2^nd February 2009, the Applicant’s solicitors declined the Proposal on the basis that it was premature. The Applicant was still on sick leave and there was no assessment by the Employees’ Compensation (Ordinary Assessment) Board (“Board”) as yet. Further, approval by the Director of Legal Aid (“DLA”) was required for engaging any medical expert for the legally aided Applicant. However, the Applicant’s solicitors promised to “…… let you have our answer as soon as possible, hopefully within next 14 days”.

6.On the following day, the Applicant’s solicitors wrote to the Respondent’s solicitors expressing concern that if following a medical examination at such an early stage Dr Lee opined the Applicant’s condition had not stabilised, further medical examination might be required in future. “Having said that, we will inform our client and legal aid of your intention and revert to you our instructions as soon as possible.”

7.By a Consent Summons dated 4^th February 2009, the parties proposedto write to the court within 70 days of the date of the order to be made to provide information on inter alia the status of the Applicant’s sick leave, possible assessment by the Board, possible issue of Form 7 or Form 9 and possible appeal therefrom, and to seek directions on expert medical evidence.

8.On the same day, I granted an order in terms of the aforesaid Consent Summons, and further directed that notwithstanding such directions, where any party wished to adduce expert medical evidence at trial and the parties were unable to agree on directions for arranging joint medical examination and/or compiling joint expert report, the parties should forthwith jointly write to the court or apply inter partes to the EC Judge to seek relevant case management directions. The parties were reminded of case law discussions in respect of the joint approach for obtaining expert medical evidence for trial (see Ansar Mohammad v Global Legend Transportation Ltd DCEC1090/2006 (unreported, 8^th May 2007), Lau Lai Shan v Hospital Authority DCEC784/2007 (unreported, 29^th February 2008), Cheng Lung Fong v Mitoyo Hong Kong Limited HCPI63/2007 (unreported, 22^nd September 2008), Limbu Bhimraj v All Clad Asia Limited HCPI603&606/2007 (unreported, 4^th November 2008), and Wong Kam Lee v Dragages et Travaux Publics (HK) Limited HCPI824/2004 (unreported, 17^th November 2008)).

9.On 2^nd March 2009, the Respondent’s solicitors chased the Applicant for a reply to the Proposal and reiterated an earlier request for medical notes/records from Tuen Mun Hospital (“TMH”) in respect of treatment received by the Applicant on 10^th January 2007 which had not been disclosed in the Applicant’s discovery.

10.On 4^th March 2009, the Applicant’s solicitors reiterated it was premature to engage any medical expert since there was no assessment by the Board as yet. The Respondent’s solicitors therefore proceeded to prepare a draft joint letter to the court to seek directions on the dispute over the Proposal.

11.In the meantime, the Applicant’s solicitors made enquiries with the Respondent’s solicitors about the available date for the proposed medical examination by Dr Lee, and indicated they might consider arranging a joint medical examination to be conducted several months later on the basis that the Applicant’s medical condition might have stabilised by that time. The Respondent’s solicitors confirmed Dr Lee would only be available on 16^th June 2009, and suggested letting the parties’ respective medical experts to liaise on a mutually available date.

12.But on 11^th March 2009, the Applicant’s solicitors again maintained it would be premature to engage any medical expert and reminded that approval of the DLA was required for engaging medical expert.

13.In view of the disagreement over the Proposal, the parties jointly wrote to the court on 18^th March 2009 to seek case management directions (“Joint Letter”).

14.In the Joint Letter, the Respondent’s solicitors indicated that the Respondent wished to ascertain the Applicant’s medical condition and whether it had stabilised. By that time, the Applicant had more than 2 years of sick leave and the latest sick leave granted by private doctor Dr Lau Sing Ki Kenric (“Dr Lau”) was up to 23^rd March 2009. The Respondent believed the proposed medical examination reflected “the spirit behind sections 16(1) and 16(2) of ECO”. Given Dr Lee’s earliest available date would be in June 2009 and time would be required for him to compile his expert report, the Respondent’s solicitors were of the view that the parties could proceed to make arrangements for medical examination by the orthopaedic expert(s) in line with the spirit of the pre-action protocol in paragraph 22 of Practice Direction 18.1 (“PD18.1”).

15.In response, the Applicant’s solicitors indicated that the Applicant was in principle willing to attend a joint medical examination by the parties’ respective orthopaedic experts, but claimed it was premature to do so at that time because :

(a)  the Applicant’s sick leave had not expired;

(b)  no assessment by the Board had been scheduled;

(c)  the Applicant would be admitted to TMH on 16^th April 2009 for investigation of neurogenic bladder; and

(d)  the Applicant feared the Proposal would be a waste of time and costs.

16.By paper directions dated 25^th March 2009, I directed the parties to attend a Direction Hearing before me on 15^th April 2008 for argument on the matters raised in the Joint Letter. I further drew the parties’ attention to a number of matters in relation to section 16 of the Ordinance which I will discuss in further detail below.

17.On 9^th April 2009, the Applicant’s solicitors invited the Respondent to withdraw the request for medical examination under section 16 of the Ordinance, failing which they would ask for costs of the forthcoming Direction Hearing. They further forwarded copies of 2 recent sick leave certificates of the Applicant dated 23^rd March and 6^th April 2009 respectively to the Respondent’s solicitors.

18.On the same day, the Respondent’s solicitors replied by saying the Respondent had a right to require the Applicant to undergo the medical examination in question whether pursuant to section 16 of the Ordinance or for the purpose of enabling the Respondent to fairly dispose of the present proceedings.

III.  Direction Hearing on 15^th April 2009

19.At the Direction Hearing before me on 15^th April 2009, I granted inter alia the following directions :

(a)  the Applicant do serve copies of all medical treatment notes, records and reports of the Applicant’s treatment doctors or medical personnel (obtained pursuant to the Respondent’s written request) within 7 days of receipt of the same upon undertaking by the Respondent’s solicitors to pay reasonable copying charges;

(b)  the Applicant do file and serve Supplemental List of Documents within 14 days of receipt of the aforesaid medical notes, records and reports;

(c)  parties do jointly write to the court by Joint Written Application within 14 days from the date thereof on the following :

(i)  state whether the above deadline has been complied with;

(ii)  state the name(s) of the parties’ respective orthopaedic experts;

(iii)  state the proposed date for joint medical examination by the parties’ respective orthopaedic experts, which date shall be no later than 77 days from the date hereof;

(iv)  state the proposed date for completion of the joint orthopaedic expert report, which date shall be no later than 63 days thereafter;

(v)  state the proposed date for filing the joint orthopaedic expert report, which date shall be no later than 14 days thereafter;

(vi)  seek all other necessary and appropriate case management  directions and for restoring the case;

(d)  compliance with paragraph 76 of Practice Direction 18.2 (“PD18.2”) be dispensed with for the Joint Written Application referred to in (c) above;

(e)  parties do file and exchange all witness statements as to fact, namely, the Applicant himself and Hsu Tsui Fong for the Respondent within 42 days from the date thereof;

(f)  parties do comply with paragraphs 51 to 53 of PD18.2;

(g)  subject to the aforesaid, the Application be adjourned sine die with liberty to restore.

IV.  Section 16 of the Ordinance

20.There is no dispute that :

(a)  the Respondent had already paid “advance payments” to the Applicant for 24 months since the alleged Accident on 4^th January 2007, but thereafter ceased further payment;

(b)  the Applicant was not in receipt of periodical payments at the time of the Direction Hearing on 15^th April 2009;

(c)  no assessment by the Board had been arranged;

(d)  no Form 7 or Form 9 had been issued.

21.The Respondent at first argued it had a right under section 16 of the Ordinance to require the Applicant to undergo medical examination.

22.Section 16 of the Ordinance provides inter alia as follows :

“(1)  Where an employee has given notice of an accident—

(a)  the employer may, within 7 days from the time at which the notice is given, require the employee to undergo a medical examination without expense to the employee; and
(b)  the employee shall undergo the examination.

(1A)  An employer may require an employee who is in receipt of a periodical payment under section 10 to undergo a medical examination from time to time, without expense to the employee, and the employee shall undergo the examination.”

23.In the present case, the alleged Accident happened on 4^th January 2007. Clearly, when the Respondent made the Proposal on 30^th January 2009, it was more than 7 days after notice of the alleged Accident was given to the Respondent. Hence, section 16(1) of the Ordinance is not applicable.

24.The Applicant was admittedly not in receipt of periodical payments at the time when the Proposal was made. Thus, section 16(1A) of the Ordinance is also not applicable. It is unnecessary for me to determine the nature of the “advance payments” referred to in paragraph 20(a) above.

25.Even if section 16(1) and/or (1A) of the Ordinance were applicable (which I disagree), the statutory scheme under section 16(1B) and (2) of the Ordinance requires the injured employee to be medically examined by a medical practitioner, Chinese medicine practitioner or dentist to be named by the employer at the time and place notified to the employee by the employer or by that medical practitioner, Chinese medicine practitioner or dentist (as the case may be) provided such time and place is reasonable. There is no express provision in section 16 of the Ordinance empowering the court to direct medical examination by the employee’s and employer’s single joint medical expert or to direct joint medical examination by their respective medical experts.

26.It is further doubtful whether the court can in fact direct an employee to attend a medical examination under 16(1) or (1A) of the Ordinance. First, there does not appear to be any express provision empowering the court to grant such relief. Secondly, section 16(4) of the Ordinance specifies the consequences of the employee failing to undergo a medical examination as required under section 16 of the Ordinance. It is at the very least arguable there is no basis to compel such medical examination, but if the employee defaults the statutory consequences under section 16(4) of the Ordinance will apply. However, as this point was not argued before me, I need not come to any definitive view.

27.Section 16(3A) of the Ordinance provides that as soon as reasonably practicable after an employee has undergone a medical examination required under section 16, the medical practitioner, Chinese medicine practitioner or dentist who conducts the examination shall at the employer’s expenses prepare a report on the examination setting out all findings reasonably related to the injury of the employee, and send the report to the employer. Section 16(3B) of the Ordinance enables the employee to request the employer to send to him, free of charge, a copy of such report. If the employer fails to do so within the period prescribed in section 16(3C) of the Ordinance, he commits an offence and is liable to be fined.

28.The statutory provisions in the above paragraph make clear there is no legal professional privilege attached to such report made for the purpose of and pursuant to medical examination under section 16(1) or (1A) of the Ordinance. However, it depends on the circumstances in each case as to whether any medical report prepared by a medical practitioner, Chinese medicine practitioner or dentist nominated by the employer is made under section 16 of the Ordinance or is in fact subject to legal professional privilege (see Chung Fung Chu v Secretary for Justice CACV123/2007 (unreported, 20^th October 2007).

29.In light of the above, Ms Leung, solicitor for the Respondent, confirmed at the Direction Hearing on 15^th April 2009 that she would not rely on section 16 of the Ordinance in support of the Proposal.

V.  Case management : expert medical evidence

(a)   Factual background

30.The following sick leave certificates were disclosed in the Applicant’s List of Documents filed on 17^th February 2009 :

(a)  吳寶穗跌打醫館 for the period from 5^th to 10^th January 2007;

(b)  TMH for the period from 11^th to 14^th January 2007;

(c)  Heartlink Medical Centre from 15^th January to 8^th February 2007 and 21^st February to 27^th March 2007;

(d)  TMH for the period 7^th May to 19^th November 2007;

(e)  A Top for the period from 14^th to 28^th November 2007, 6^th December 2007 to 18th February 2008 and 1^st March to 9^th April 2008;

(f)  St Teresa’s Hospital for the period from 7^th to 30^th April 2008;

(g)  A Top for the period from 1^st May to 8^th August 2008;

(h)  TMH for the period from 4^th to 10^th August 2008;

(i)  A Top for the period from 9^th to 29^th August 2008;

(j)  Tuen Mun Wu Hong Clinic for the period from 11^th August to 1^st September 2008;

(k)  Dr Lau for the period from 30^th August to 12^th September 2008 and 8^th November to 5^th December 2008.

The Applicant’s solicitors further informed the Respondent’s solicitors that the latest sick leave given by Dr Lau was up to 22^nd April 2009 (see paragraphs 14 and 17 above).

31.Notwithstanding the sick leave certificates covering a period of over 2 years, no primary medical treatment notes, records and reports of the Applicant (“Medical Records”) were available apart from the following :

(a)  MRI report of the lumbar spine dated 13^th March 2007;

(b)  TMH Occupational Therapy Department Work Capacity Evaluation Report dated 12^th July 2007;

(c)  Physiotherapy Progress Report by Cosmo Physiotherapy Centre dated 8^th March 2008;

(d)  TMH Physiotherapy Outpatient Department Physiotherapy Progress Report dated 24^th December 2008;

(e)  Centre for Health and Wellness Physiotherapy Service Progress Report dated 30^th December 2008.

All of these reports were very brief and did not contain full details of the whole course of medical treatment received by the Applicant, the medical or physiotherapy care plan, and the relevant findings, diagnosis and/or prognosis. Significantly, there was no medical report from TMH in respect of the initial findings and treatment on 10^th January 2007.

32.Further, although the most recent Physiotherapy Progress Report from Centre on Health & Wellness dated 30^th December 2008 revealed little information about the Applicant’s then orthopaedic condition, the TMH Physiotherapy Outpatient Department Physiotherapy Progress Report dated 24^th December 2008 set out the impression of the physiotherapist that the Applicant’s condition had “plateau off” and discharge from physiotherapy was suggested on “MMI [maximum medical improvement] reached”.

(b)   Respondent’s stance

33.Ms Leung claimed that for proper case management of the present proceedings the Respondent was entitled to medically examine the Applicant, and orthopaedic expert evidence was necessary, relevant and of probative value for (a) taking necessary steps to prepare and advance the Respondent’s case in this litigation, (b) facilitating expeditious resolution of the ultimate dispute for saving costs and for fair disposal of the present proceedings, and (c) ascertaining the Applicant’s medical condition to produce impartial expert medical opinion to assist the court.

34.Ms Leung further submitted that the sick leave certificates of themselves did not throw sufficient light on the Applicant’s medical condition. In the circumstances, the Applicant failed to discharge the burden of providing clear and cogent evidence to support the contention that he was not yet ready for medical assessment by any orthopaedic expert.

(c)   Applicant’s stance

35.At first, Mr Ng, solicitor for the Applicant, indicated the Proposal was premature since the Applicant’s sick leave had not expired and there was no assessment by the Board as yet. He suggested adjourning the Direction Hearing sine die with liberty to restore no later than 60 days from the date thereof to consider whether directions for obtaining expert medical evidence would be required.

36.Mr Ng responded to the criticism of sparse information on the Applicant’s medical condition and treatment by saying that it would be remedied shortly. He explained that the DLA had previously written to the relevant hospitals/doctors for the Medical Records, and he expected to receive the same soon whereupon the Applicant would promptly file and serve Supplemental List of Documents.

37.Mr Ng also informed the court that the DLA had assigned him to act for the Applicant to commence common law proceedings against the Respondent for damages for personal injuries as a result of the Accident. He anticipated that the Applicant would proceed with the pre-action protocol under PD18.1 upon receipt of the Medical Records. On hearing such submission, Ms Leung indicated it was very probable that her firm would receive instructions to act for the Respondent in the intended common law proceedings.

(d)   Discussion

38.In my view, the Respondent is not wholly unjustified in making the Proposal. After all, notwithstanding the sick leave certificates, there is paucity of primary medical information as to the Applicant’s condition, treatment, diagnosis and prognosis which leaves the Respondent quite in the dark as to the Applicant’s current medical condition. Further, notwithstanding assertions by the Applicant’s solicitors that expert medical examination was premature, there is indication from TMH that by the end of 2008 the Applicant’s condition might have stabilised and maximum medical improvement had been reached (see paragraph 32 above).

39.But a quick discussion with Mr Ng and Ms Leung at the Direction Hearing on 15^th April 2009 revealed a practical common sense solution to the dispute over the Proposal, which made it unnecessary to explore further the niceties of the timing of expert medical examination by orthopaedic expert(s).

40.First, as both Ms Leung and Mr Ng agreed, irrespective of whether medical experts were to be engaged at this stage, fairness requires the Applicant to bespeak and disclose his Medical Records to enable the Respondent to consider their position in the litigation. Naturally, if orthopaedic experts were to be engaged, they would certainly need to review such Medical Records as part of their duty in rendering expert medical opinion.

41.Secondly, once the Medical Records are available, there is no reason why orthopaedic expert reports should not be obtained under the pre-action protocol under PD18.1 given the intended common law proceedings. Indeed, Mr Ng agreed it was the Applicant’s intention to engage orthopaedic expert to compile expert report for such purpose.

42.Paragraph 22 of PD18.1 provides inter alia as follows :

“If the claimant finds it necessary to obtain medical expert report(s) before commencement of proceedings, he should consider arranging medical examination either by single joint expert(s) if agreed upon or jointly together with the expert(s) of the proposed defendant(s). A party who unreasonably fails to cooperate in instructing or arranging such expert medical examination before the commencement of proceedings will risk sanctions being imposed by the Court (see paragraphs 81 and 84 hereof) should proceedings be commenced.”

43.Under such pre-action protocol, if the Applicant is minded to commission an orthopaedic expert to prepare an expert report, he should invite the Respondent to jointly appoint a single joint orthopaedic expert for both parties or to separately appoint an orthopaedic expert to have a joint medical examination with his orthopaedic expert, which is quite similar to the Respondent’s Proposal made in the present proceedings. Ms Leung indicated her agreement to adopt such approach under the pre-action protocol in PD18.1 should her firm be instructed to act in the intended common law proceedings.

44.Given the parties’ present and common intent to bespeak joint orthopaedic expert report commenting on the Applicant’s injuries as a result of the Accident for the intended common law proceedings, which expert opinion is also relevant to the issue of quantum in the present proceedings, I do not see why I should not give directions in relation to joint orthopaedic expert report in the present proceedings notwithstanding non-expiry of the Applicant’s sick leave and/or absence of any Form 7 or Form 9. Consequently, I granted the directions set out in paragraph 19 above at the Direction Hearing on 15^th April 2009.

45.I pause here to say that practitioners should take note of the interaction between corresponding employees’ compensation proceedings and common law proceedings that involve the same parties in respect of the same accident. In such circumstances, a blinkered approach to relevant and necessary case management directions and/or case management timetable within the narrow straightjacket of either the employees’ compensation proceedings or the common law proceedings is discouraged if such approach is not in line with the underlying objectives of furthering expeditious progress of and procedural economy in the litigation. Practitioners should adopt an overall and not piecemeal approach to the timing and substance of the case management directions and/or timetable to facilitate reasonable progress of the proceedings.

46.To facilitate such purpose, legally represented parties in employees’ compensation cases are required under paragraphs 75-76 and 84-85 of Practice Direction 18.2 to provide information in respect of the following matters in Appendix D thereto to assist the court in giving directions relating to management of the case and fixing a timetable for steps to be taken :

“5.  Is there any PI Action?  If so, state in relation to such PI Action: (a) the action number, (b) the names of parties and their solicitors (if any), and (c) status / progress of such PI Action with copy of order made at the last Check List Review (“CLR”) or CMC or PTR.

6.  Where information in item 5 above has been given to the Court previously, state the current status / progress of such PI Action with copy of order made at the last CLR or CMC or PTR.”

47.Likewise in Appendix F of PD18.1, parties are required to provide information in the Questionnaire to be filed for the Check List Review as to whether there is any corresponding employees’ compensation claim or not, and if there is, to state the stage such proceedings had reached (see paragraph 107 of PD18.1).

48.Such provision of information in the two sets of legal proceedings is to encourage parties to proactively adopt a global view to the overall litigation so that the underlying objectives of (a) increasing the cost-effectiveness of any practice and procedure to be followed, (b) ensuring a case is dealt with as expeditiously as is reasonably practicable, (c) promoting a sense of reasonable proportion and procedural economy in the conduct of proceedings, (d) ensuring fairness between the parties, and (e) facilitating the settlement of disputes can be effectively achieved.

VI.  DLAapproval

49.In the present case, although the Applicant’s solicitors indicated in correspondence to the Respondent’s solicitors that (a) approval by the DLA was required for engaging medical expert, and (b) they would inform the DLA of the Proposal and revert with their instructions as soon as possible, in fact they have not informed the DLA of the Proposal or of the fact that I have directed the parties to attend a Direction Hearing on 15^th April 2009 to consider the disputed Proposal.

50.Mr Ng submitted there was no need to inform the DLA because it was his judgment that the Proposal was premature and hence it was unnecessary to seek anticipatory approval for engaging medical expert from the DLA even though such disputed issue was going to be raised for determination by the court.

51.If that were Mr Ng’s stance, I find it perplexing that the Applicant’s solicitors would have written to the Respondent’s solicitors on 2^nd and 3^rd February 2009 saying they would inform the DLA of the Proposal and revert with instructions.

52.First and foremost, practitioners should take care not to mislead in inter partes correspondence. If there was in fact no intention to inform and seek approval from the DLA, the Applicant’s solicitors should have been upfront about this so that the Respondent could come to an early decision on whether to apply to the court for directions on the Proposal instead of waiting quite hopelessly for a response and wasting unnecessary costs in further correspondence on the subject.

53.Secondly, given that I have directed the parties to attend a Direction Hearing for argument on the disputed Proposal, no matter how confident Mr Ng has been in relation to the Applicant’s stance, there must be a real possibility that I might in the exercise of my discretion agree with the Proposal and give directions for joint medical examination and joint orthopaedic expert report. The Applicant, well knowing such possibility and well knowing (as Mr Ng admitted) that time is required for the DLA to approve any engagement of medical expert, should have alerted the DLA of such possibility and seek anticipatory approval from the DLA in case the court gave directions for obtaining expert orthopaedic evidence against the Applicant’s contentions.

54.I refer to paragraph 73 of PD18.2 which provides inter alia as follows :

“Each party and his legal representatives shall give as much information (including, without limitation, information on the matters in Appendix D) and produce all such documents as the Court may reasonably require to enable the Court to give directions relating to management of the case and to fix a timetable for steps to be taken. ……”

Such provision places the duty squarely on the parties and their legal representatives to provide all relevant information and documents to facilitate the court in granting case management directions and fixing case management timetable.

55.Further, without prejudice to paragraph 73 of PD18.2 and my express paper directions of 25^th March 2009 which require the parties to address on the disputed Proposal and implicitly on directions consequent to any resolution of such dispute, paragraph 75 of PD18.2 additionally requires legally represented parties to lodge with the court and serve on the other party(ies) not less than 5 days before the Direction Hearing information specified in Appendix D of PD18.2, including where relevant :

“31.  Is expert evidence on quantum required or anticipated to be required for adducing at trial?

……

33.  In respect of expert medical evidence, will a single joint expert be instructed?  If so, state the name of such expert and his area of expertise, the date of medical examination of the injured claimant, and the date when the expert report is expected to be ready.  If not, give reasons for declining the appointment of a single joint expert.

34.  In respect of expert medical evidence, has the party appointed or will the party appoint his own expert(s)?  If so, state the name(s) of the expert(s) and his/their area(s) of expertise, the date of the joint medical examination of the injured claimant with the expert(s) of the other party or parties, and the date when the joint expert report by the parties’ respective expert(s) was ready or is expected to be ready.  If the parties do not agree to joint medical examination or joint expert report by their respective experts, give reasons and state whether invitation for the same has been made and/or declined, and the reasons therefor.

35.  If the medical experts nominated by the parties are unwilling to conduct joint medical examination of the injured claimant and/or prepare joint expert report, state whether the party has nominated other medical expert(s).  If so, state how many other medical expert(s) have been nominated by the party, and whether the medical expert(s) so nominated are willing to conduct joint medical examination of the injured claimant and/or compile joint expert report with the medical expert(s) nominated by the other party or parties.

……”

It is therefore plain that the Applicant should have been ready with such information to assist the court in the event the court considered it appropriate to commission orthopaedic expert evidence. Regrettably, the Respondent failed to comply with paragraph 75 of PD18.2. Even though the Applicant lodged information pursuant to paragraph 75 of PD18.2, all it stated was that there was no PI Action as yet and expert medical evidence was not required for the present proceedings at this stage. The fullness of the circumstances set out in paragraphs 36-37 above was not exposed.

56.It is understandable that the DLA in using public funds requires reasonable time to approve nomination of any medical expert. Thus assigned solicitors acting for legally aided clients should be astute in notifying the DLA of any anticipated or potential need for medical expert and obtain appropriate instructions from the DLA to avoid unnecessary adjournment of the Direction Hearing if the court finds it desirable to give directions for obtaining expert medical report. I am confident that the DLA will afford reasonable and prompt facility if he is applied to in good time for such approval upon proper report and advice from the assigned solicitors.

57.In the present case, I have adjourned the Direction Hearing for the Applicant’s solicitors to revert by Joint Written Application after liaising with the DLA on nomination of orthopaedic expert and ascertaining the available date for such expert for conducting joint medical examination and for completing joint orthopaedic expert report with Dr Lee. Thus, the timetable in paragraph 19(c) above is more generous than usual.

58.But in future the court may not be so accommodating. Practitioners acting for party(ies) who wish to oppose any application by the other party(ies) for obtaining expert medical evidence should be ready with the information required in paragraph 55 above (see also paragraphs 48-49 of PD18.2) so that if the court is not with them and grants leave for obtaining expert medical evidence, they will be in a position to promptly assist the court by providing the relevant information. Failure to do so may result in the court giving expert directions (if considered appropriate) straightaway and fixing case management timeline for conducting medical examination and for completing the expert report without waiting for the relevant party to seek approval from the DLA and/or to nominate any particular medical expert. Even if the court grants further accommodation, which necessarily results in delay and added costs, such further accommodation may well be given on the basis of the relevant party bearing costs thrown away by reason of the adjournment and/or suffering other sanctions.

Representation:

Mr Brian Ng of Messrs Ambrose Ng & Co for the Applicant.

Ms Noel Leung of Messrs Wan and Leung for the Respondent.