Lee Sau Fat v. F. H. Security Services Co Ltd
Read the full judgment text of DCEC 1720/2006 on BabelCite. This District Court judgment.
1. Madam Lee Sau Fat (“ Madam Lee ”) was employed by F H Security Services Company Limited (“ FH Security ”) as a security guard. She claimed to have suffered 3 accidents (“ Accidents ”) :
Cited by 3 cases
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DCEC1720/2006 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES' COMPENSATION CASE NO. 1720 OF 2006 ------------------------ BETWEEN
------------------------ DCEC120/2007 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES' COMPENSATION CASE NO. 120 OF 2007 ------------------------ BETWEEN
---------------------- DCPI1471/2008 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSON INJURIES ACTION NO. 1471 OF 2008 ------------------------ BETWEEN
---------------------- Coram: H H District Judge Marlene Ng in Chambers (open to the public) Dates of Hearing : 12th, 18th and 29th June, 2009 Dates of Directions : 12th, 18th and 29th June, 2009 Date of Handing Down : 6th July, 2009 ------------------------------------------------------------------------------------------------ REASONS FOR DIRECTIONS AND RULING ON COSTS ------------------------------------------------------------------------------------------------ I. Introduction 1.Madam Lee Sau Fat (“Madam Lee”) was employed by F H Security Services Company Limited (“FH Security”) as a security guard. She claimed to have suffered 3 accidents (“Accidents”) :
2.On 13th December 2006, Madam Lee by her solicitors Messrs Yeong & Co (“YC”) commenced DCEC1720/2006 to claim employee’s compensation (“EC”) in respect of the 1st Accident (“1st EC Action”). On 31st January 2007, Madam Lee by YC commenced DCEC120/2007 to claim EC in respect of the 3rd Accident (“2nd EC Action”). FH Security (represented by Messrs Leung & Lau (“LL”)) denied liability in both proceedings, and put Madam Lee to proof of her claims. 3.Madam Lee was granted legal aid in December 2007 for the 2nd EC Action and for commencement of a common law claim in respect of the 3rd Accident. On 8th July 2008, Madam Lee by YC commenced DCPI1471/2008 against FH Security to claim for common law loss and damages in respect of the 3rd Accident (“PI Action”). FH Security, again represented by LL, admitted the employment relationship but denied liability. 4.The 1st and 2nd EC Actions and the PI Action are collectively referred to as the “Actions”. To date, Madam Lee has not commenced any legal proceedings in respect of the 2nd Accident or any common law claim in respect of the 1st Accident. 5.The parties failed to restore the 1st EC Action for over 2 years and repeatedly adjourned the 2nd EC Action and PI Actions. But in the meantime they made their own arrangements for expert medical examinations/reports upon requests for deferral of the Check List Review (“CLR”) in the PI Action and without intimation to the court in the 2nd EC Action. 6.In the PI Action, the parties’ solo expert medical evidence, which is not well-favoured even before the Civil Justice Reform (“CJR”), gives cause for concern, especially when it turns out that joint reporting is in fact necessary and relevant. Such state of affairs is disquieting, and is made more so by the parties keeping the court in the 2nd EC Action ignorant about expert medical examinations/reports (ostensibly obtained for the PI Action) pursuant to anotional Chinese wall segregating the 2nd EC Action from the PI Action. Yet the parties must have known of the close interrelation between the 2nd EC and PI Actions that involve the same parties/lawyers and the same 3rd Accident, and the common relevance of such expert medical evidence to both actions. As seen below, such notional Chinese wall fails to justify non-disclosure to the court in the 2nd EC Action of the existence of the PI Action and/or developments in relation to expert medical evidence, and hinders economical, expeditious, proportional and fair progress of the litigation. Such party-driven and piecemeal approach inevitably leads to increased expense/ delay, and in this case also to expert medical evidence that is less than helpful. 7.After implementation of the CJR, paragraph 73 of Practice Direction (“PD”) 18.2 specifies that the parties and their legal representatives have a duty to provide as much information and documents as possible to enable the court to make informed case management decisions. But the parties here still did not initiate prompt and frank applications for comprehensive case management directions/ timetable. It took no less than 3 hearings to ascertain a reasonably full picture from the parties and their legal representatives, but once the picture is clear the court took robust steps to grant overall case management directions/timetable for all 3 Actions. 8.For proper understanding of my reserved reasons for directions and ruling on costs, I set out below a chronological account of the Actions. But it must be remembered that at least until mid-May 2009 the court in each case had no clue about the other 2 cases. II. Chronology of events 9.On 14th February 2007, after granting preliminary directions up to discovery I adjourned the 1st EC Action sine die with liberty to restore. No attempt was made to restore this case until this court by own motion on 18th June 2009 scheduled a Direction Hearing for 29th June 2009. 10.In the 2nd EC Action, the parties applied for preliminary directions up to discovery and to adjourn the case sine die with liberty to restore. On the following day, I granted an order in terms but required the parties to restore the case within 50 days. 11.According to a joint letter from YC and LL to the court in early May 2007, they agreed not to restore the 2nd EC Action pending assessment by the Medical Assessment Board (“MAB”) “for saving costs”. On 10th May 2007, I reminded them that EC cases should progress expeditiously, and directed the parties to restore the case within 75 days by which time they should have ascertained the status of the MAB assessment or clarified how the case should be progressed. 12.By a joint letter to the court dated 19th July 2007, YC and LL applied to adjourn the 2nd EC Action sine die with liberty to restore “to save the court’s time and the parties’ costs” as Madam Lee’s sick leave had not yet expired and the MAB assessment was still pending. On the following day, I adjourned the case for 120 days by which time the parties should have ascertained the status of Madam Lee’s sick leave and of the MAB assessment, and the court would then consider giving directions for witness statements. 13.On 12th November 2007, YC and LL jointly informed the court Madam Lee had been hospitalised from 11th October to 4th November 2007, and it was likely that her sick leave up to 27th November 2007 would be extended. Since the MAB assessment was still pending, they proposed to adjourn the 2nd EC Action sine die in order to save time and costs. On the following day, I adjourned the case sine die to be restored within 90 days. 14.By 2 letters dated 13th and 18th February 2008, YC informed the court that the MAB assessment was still pending, and proposed to adjourn the 2nd EC Action “for at least 6 months so that the parties may have sufficient time to negotiate settlement upon receipt of the outcome of the assessment”. On the following day, I required the parties to jointly write to the court between 80-90 days thereof to give information on (a) the status of Madam Lee’s sick leave and of the MAB assessment and (b) the issuance of the Certificate of Assessment (“Form 7”) and/or any appeal therefrom, and to seek directions on witness statements, expert medical evidence and all other necessary/appropriate case management matters. If expert medical evidence were required, I further directed the parties to jointly provide particulars as to the category of medical expert, whether joint or separate medical experts would be appointed, whether there would be joint expert medical examination/report, and if not, why not with details as to whether invitation for joint examination/report had been made and/or refused. 15.On 19th May 2008, YC wrote to the court for further adjournment of the 2nd EC Action “for at least 6 months …… pending the [MAB] assessment” (to which proposal LL agreed) and went on to say as follows :
16.By paper directions on 22nd May 2008, I required the parties to jointly write to the court within 21 days of the issuance of the Form 7 or within 140 days, whichever was earlier, to give information on (a) the status of Madam Lee’s sick leave and of the MAB assessment/re-assessment, and (b) the issuance of the Form 7 or the Certificate of Review Assessment (“Form 9”) and objection/appeal therefrom, and to seek directions on witness statements, expert medical evidence and all other necessary/appropriate case management matters. I further required the parties to jointly provide the following information :
and gave further directions as follows :
17.The PI Action commenced on 8th July 2008, and the Statement of Claim, Statement of Damages and Madam Lee’s Medical Reports were filed on the same day. Madam Lee’s Medical Reports were also part of the discovered documents in the 2nd EC Action. 18.On 29th July and 15th August 2008 respectively, YC invited LL for single joint or joint orthopaedic and psychiatric medical examinations, and proposed Dr Johnson Lam (“Dr Lam”) and Dr Stephen Ng (“Dr Ng”) as single joint experts or as Madam Lee’s experts for preparation of single joint or joint medical expert reports in time for the CLR on 18th November 2008 for the PI Action. 19.With no reply from LL, YC sent instructions to Dr Lam on 15th August 2008 and arranged for Madam Lee to be medically examined by Dr Lam on 2nd September 2008. Dr Lam’s solo orthopaedic expert report was completed on 8th September 2008 (“Dr Lam’s Report”). 20.In their letter of explanation to the court for the 2nd EC Action dated 10th June 2009 (“LL 10/6/09 Letter”), LL claimed that with the Form 7 pending expert medical examination was premature. But as it was Madam Lee’s choice and “she would be at her own risk for the expenses incurred”, LL did not object to her appointment of Drs Lam and Ng. 21.On 16th September 2008, FH Security filed its Defence in the PI Action. 22.By a joint letter dated 30th September 2008 to the court in the 2nd EC Action, YC and LL advised that the result of the MAB assessment scheduled on 19th November 2008 was expected to be available in a month’s time, and went on to say as follows :
On 3rd October 2008, H H Judge H C Wong granted order in terms of the proposed directions. 23.With no reply from LL, YC sent instructions to Dr Ng on 2nd October 2008 and arranged for Madam Lee to be medically examined by Dr Ng on 16th October 2008. Dr Ng’s solo psychiatric expert report was completed on 6th November 2008 (“Dr Ng’s Report”). 24.In the LL 10/6/09 Letter, LL claimed that since the Form 7 would be available a month after the MAB assessment on 19th November 2008, so “[in] order to protect [FH Security’s] position and not to delay the action further and in view of [Dr Lam’s Report], [LL] were of the view that it was appropriate for [FH Security] to obtain an orthopaedic expert report at that stage.” 25.On 10th November 2008, Madam Lee disclosed inter alia Dr Lam’s and Dr Ng’s Reports in her List of Documents in the PI Action. On 10th and 11th November 2008, YC and LL lodged their respective Checklist, which proposed directions for exchange of witness statements and adjournment of the CLR. YC’s Checklist further proposed inter alia as follows :
LL’s Checklist included inter alia the following proposed direction :
26.On 11th November 2008, LL wrote to YC to arrange for Madam Lee to be medically examined by Dr Cheng on 30th December 2008. Since Dr Cheng’s report would not be ready until end of January 2009 and “the parties would not be in a position to seek direction for medical evidence” at the CLR, YC and LL jointly wrote to the PI Master on the same day to adjourn the CLR to early February 2009. On 15th November 2008, the PI Master granted the adjournment but specified that Dr Cheng’s medical examination should not be rearranged without prior leave of the court and that FH Security should lodge Dr Cheng’s report on or before 31st January 2009. On 26th November 2009, the PI Master granted leave to expedite Dr Cheng’s medical examination to 9th December 2009. 27.The MAB assessment for the 3rd Accident took place on 19th November 2008, and the relevant Form 7 issued on 3rd December 2008 for “(1) bilateral knee injury resulting in both knees pain, right knee fracture and stiffness, (2) psychiatric impairment, depression” assessed the sick leave period to be intermittent periods between 18th March 2006 and 20th May 2008, and the loss of earning capacity to be 17.6%. 28.On 8th December 2008, LL issued instructions to Dr Cheng who medically examined Madam Lee the following day, and completed his solo orthopaedic expert report on 20th January 2009 (“Dr Cheng’s Report”). 29.It was suggested in the LL 10/6/09 Letter that FH Security all along believed that Madam Lee’s alleged injury was not substantial, so it was only after the issuance of the Form 7 (ie on 5th January 2009) that LL made arrangements for a psychiatric expert Dr Chow Lok Yee (“Dr Chow”) to medically examine Madam Lee on 21st January 2009 to protect FH Security’s position. 30.By a joint letter dated 8th January 2009 to the PI Master, YC and LL advised that Dr Chow’s report would not be available before the CLR on 9th February 2009, and applied to adjourn the CLR “to save costs and court’s time”. 31.On 20th January 2009, YC lodged their Checklist proposing directions similar those set out in paragraph 25 above save that item 5 thereof was replaced by the following :
32.On 21st January 2009, the PI Master adjourned the CLR to 2nd April 2009, and directed inter alia that Dr Chow’s medical examination should not be postponed without leave and that his report should be lodged within 45 days of such medical examination. Dr Chow medically examined Madam Lee on the same day. 33.On 16th February 2009, YC and LL jointly wrote to the PI Master for (a) time extension until 5th May 2009 for producing Dr Chow’s report since Dr Chow wished to review the psychiatric treatment notes/records, and (b) adjournment of the CLRto mid-May 2009. On 25th February 2009, the PI Master adjourned the CLR to 1st June 2009. 34.Even though the CLR on 2nd April 2009 was vacated, on 24th March 2009 YC lodged their Checklist which proposed directions similar those set out in paragraph 31 above save that item 5 thereof was replaced by the following :
35.On 27th March 2009, FH Security filed Notice of Appeal in the 2nd EC Action against the Form 7 issued on 3rd December 2008. Thereafter on 5th April 2009 Dr Chow completed his solo psychiatric expert report (“Dr Chow’s Report”). 36.The MAB assessment in respect of the 1st Accident took place on 8th April 2009. The relevant Form 7 for “sprain of back resulting in residual back pain” issued on 22nd April 2009 assessed the sick leave period to be from 7th to 10th May 2005 and the loss of earning capacity to be 0.5%. 37.On 5th May 2009, LL filed Dr Chow’s Report in the PI Action. On the same day, YC and LL jointly informed the court in the 2nd EC Action that the Form 7 was issued on 3rd December 2008 and that the parties had appointed orthopaedic and psychiatric experts to medically examine Madam Lee. As no settlement was reached between the parties, they applied for directions for exchange of witness statements, for limiting expert medical witnesses to Drs Lam, Ng, Cheng and Chow (“Experts”), and for adjourning the case for 56 days. 38.On 6th May 2009, I paper directed the parties to comply with paragraphs 85(1) and (3) of PD18.2 within 7 days. By a joint letter dated 13th May 2009 but filed on 30th May 2009, YC and LL submitted joint Appendix D information (“30/5/09 App D”) for the 2nd EC Action which revealed for the first time (a) the existence of the PI Action, (b) the CLR scheduled on 1st June 2009, (c) the solo medical examinations of Madam Leealready carried out by the Experts, and (d) their solo expert medical reports (“Reports”) which were “ready but not yet filed”. “Subject to the directions from the court, the [Reports] will be filed”, butMadam Lee preferred to await the outcome of the MAB re-assessment. Should there be any appeal against the Form 9, “[she] will call [Drs Lam and Ng] …… [FH Security] will call [Drs Cheng and Chow]”. 39.On 22nd May 2009, YC issued a summons in the PI Action for leave to file/serve a Reply within 14 days to plead that (a) Madam Lee had promptly reported the 2nd Accident to FH Security and (b) despite her request for relief from patrol duties due to her injuries as a result of the 2nd Accident she was instructed to perform such duties on the day of the 3rd Accident. 40.By their respective CLR questionnaires dated 13th May and 1st June 2009, YC and LL proposed directions for witness statements in the PI Action, and revealed for the first time to the PI Master the existence of the 2nd EC Action. They also said the Experts would be required to give oral evidence at the trial of the PI Action. YC argued the solo expert medical examinations/reports were justified in order to avoid delay to the PI Action upon LL’s failure to respond to their invitation for single joint or joint medical examination/report. On the other hand, LL pointed out they were justified in appointing Dr Cheng to medically examine Madam Lee on solo basis since Dr Lam had already medically examined her on 2nd September 2009. Further, LL argued that (a) Madam Lee’s injuries were not substantial (as evident from the medical report from Evangel Hospital dated 15th August 2007which noted decrease in pain by 70%.) and (b) there was no medical report suggestive of direct causation between Madam Lee’s injuries and her psychiatric problem (which in any event appeared remote) even though she attempted suicide on 11th October 2007. But upon disclosure of Dr Ng’s Report in November 2008 and issuance of the Form 7 on 3rd December 2008, FH Security thought it necessary to have a psychiatric expert report and consequently commissioned Dr Chow’s Report on solo basis. 41.At the CLR on 1st June 2009 in the PI Action, the PI Master inter alia :
On the same day, YC instructed Dr Lam to prepare the supplemental orthopaedic expert report as directed by the PI Master. 42.On 2nd June 2009, I granted paper directions in the 2nd EC Action for filing/exchange of witness statements and for limitingexpert medical evidence to the Experts. I further directed the parties to lodge the Reports and to attend a Direction Hearing on 12th June 2009. On 3rd and 4th June 2009, YC and LL filed/lodged the Reports in the 2nd EC Action. 43.In its letter to the court dated 5th June 2009 (“YC 5/6/09 Letter”), YC explained that the solo approach was adopted for Dr Lam’s and Dr Ng’s Reports because (a) LL failed to respond to their invitation for joint medical examinations and (b) PD18.2 (and presumably post-CJRPD18.1 too) was not yet in force at the material time. When arrangements were made for medical examinations by Drs Lam and Ng, “[Dr Lam’s and Dr Ng’s Reports were] expected to be used for the [PI Action].” It was claimed that Madam Lee did not intend to rely on or use Dr Lam’s and Dr Ng’s Reports in the 2nd EC Action as she wished to wait for the MAB assessment and then negotiate settlement of the 2nd EC Action. “If both parties could reach an amicable settlement in the EC claim, expert medical …… reports will not be necessary and costs will be saved ……” Further, had Madam Lee relied on Dr Lam’s and Dr Ng’s Reports for quantification of her claim in the 2nd EC Action without waiting for the Form 7, her “right of MAB assessment [would have been prejudiced] unless [she] agreed to waive it”. 44.So YC claimed that even though they knew of the need to seek expert directions pursuant to my order dated 19th February 2008, they acted on Madam Lee’s instructions and did not inform the court in the 2nd EC Action “about the instructions to instruct medical experts and the medical assessment reports obtained in [the PI Action]”. By the joint letter dated 30th September 2008, YC and LL informed the court in the 2nd EC Action there were “no instructions to appoint any experts to examine [Madam Lee] under the [2nd EC Action]”. YC added that “[they] have not seek the Legal [Aid] Department approval for instructing the medical experts for preparing medical assessment reports in relation to the [2nd EC Action]”. But when FH Security appealed against the Form 7 on 27th March 2009, YC considered that expert medical evidence became “unavoidable”, so to save costs and avoid delay they proposed that the Reports obtained for the PI Action be adduced in the 2nd EC Action without further joint reporting. 45.On the other hand, the LL 10/6/09 Letter stated that LL did not contest Madam Lee’s proposal for obtaining expert medical reports “as usually there may be possibility for settlement in EC case after issuance of Form 7 ……”. They therefore sought directions in the PI Action and not in the 2nd EC Action “so as to save unnecessary costs”. If no settlement was reached, LL considered it would save costs, avoid delay and not cause any prejudice if the Reports (and Dr Lam’s supplemental expert report as ordered by the PI Master on 1st June 2009) were adduced in the 2nd EC Action. 46.At the Direction Hearing for the 2nd EC Action on 12th June 2009, I granted inter alia the following directions :
47.On 12th June 2009, I also directed that the PI Action be restored for Pre-trial Review (“PTR”) before me on 18th June 2009 so as to bring the case management directions (especially in relation to expert medical evidence) in line with those in the 2nd EC Action. However, discussion with YC’s Ms Lo and LL’s Ms Ngai at the PTR on 18th June 2009 raised even more queries than answers in relation to the Actions, so I directed inter alia that :
48.The 2 Appendix D information lodged by LL on 25th June 2009 (“25/6/09 App D”) specified that for the 1st EC Action Madam Lee’s sick leave up to 6th June 2007 (save for the period from 7th to 10th May 2005) related to knee pain (which was unrelated to the 1st Accident), and for the 2nd EC Action her sick leave expired on 20th May 2008. Although YC stated in 30/5/09 App D that Madam Lee preferred to wait for the Form 9 and/or any appeal therefrom, LL stated in 25/6/09 App D that no objection was lodged against the Form 7 issued on 3rd December 2008 but appeal was made to the court in the 2nd EC Action. III. Discussion on the 1st EC Action 49.Neither party took any further step in the proceedings since the 1st EC Action was adjourned sine die in early 2007. Ms Lo submitted that the inaction was the result of Madam Lee’s instructions to wait for the MAB assessment. In my view, such procrastination is unacceptable and is in fact belied by the parties’ inaction even after the relevant Form 7 was issued on 22nd April 2009. 50.Even before the CJR, parties and their legal representatives were required to bring litigation, especially EC claims, to trial with reasonable expediency. This marries well with social intent that underlies EC legislation, which is to give employees a simple, quick and cost-effective avenue to recover no fault compensation. Even though a practitioner can exercise some discretion in running his client’s case, his duty to the court in the administration of justice requires prioritisation of procedural efficiency over strict adherence to his client’s instructions. I am afraid Ms Lo’s submissions do not offer sufficiently cogent answer for the delay. 51.That being so, there is even less justification post-CJR. The underlying objectives place emphasis on the need “to ensure that a case is dealt with as expeditiously as is reasonably practicable”, and parties and their legal representatives should assist the court to further such underlying objectives. Even consultation amongst the parties (let alone instructions from 1 party) must not delay any application to restore any EC case for Direction Hearing or Joint Written Application in accordance with the reasonable needs of the case (see paragraph 69(a) of PD18.2). The court in exercising proactive case management will no longer smile kindly on party-driven litigation or on any attempt to mandate inappropriate delay on client’s instructions. 52.I should add that the duty to assist the court in furthering the underlying objectives is not one-sided. Obviously, Madam Lee as claimant has carriage of the 1st EC Action and should proceed with due diligence, but FH Security and LL also have a duty to restore the case within a reasonable time. 53.So on 29th June 2009 this court granted directions for progressing the 1st EC Action. Bearing in mind the underlying objectives of procedural economy, cost-effectiveness and reasonably proportionality, and the common issues and witnesses for the 1st and 2nd EC Actions, it is only sensible to consolidate the 2 actions and grant consequential directions. Ms Lo and Ms Ngai readily agreed to the same. 54.However, 1 issue remains outstanding under the 1st EC Action. Although LL in 25/6/09 App D referred to an appeal against the Form 7 issued on 22nd April 2009 and suggested having Drs Lam and Cheng deal with the 1st Accident in any joint supplemental orthopaedic expert report, the parties did not clearly clarify at the hearing on 29th June 2009 whether and when such appeal has been or will be lodged in the 1st EC Action. I hereby direct the parties to jointly write to the court within 14 days to provide information on items 14-17 of Part II of Appendix D of PD18.2 and, where applicable, to state the date when the appeal or intended appeal against the Form 7 issued on 22nd April 2009 has been or will be filed/served. IV. Discussion on the PI Action (a) Undisputed background 55.When Madam Lee commenced the PI Action in July 2008, there were several undisputed features known to both parties :
(b) Joint/solo approach to expert medical evidence 56.Given YC’s invitation to LL for single joint or joint expert medical examinations/reports, Madam Lee and YC obviously thought that single joint or joint approach would be appropriate for obtaining/ presenting expert medical evidence concerning the 3rd Accident for the PI Action. But when there was no reply from LL, instead of seeking case management directions from the PI Master, YC proceeded to instruct Drs Lam and Ng to conduct solo medical examinations and to prepare solo expert medical reports. 57.However, YC must have known that permission of the court is required before expert medical evidence can be adduced in the PI Action, and to grant such permission the court must be satisfied that the expert medical evidence intended to be adduced will be reasonably required for resolving the issues before the court. Thus, “[the] Court retains the control on how expert evidence should be presented in order to attain the saving of costs and fair disposal of the cause or matter” (see Mok King Sun v Turn Round Company Limited & ors HCPI855/2007, Fung J (unreported, 25 March 2009) para.25 and my judgment in Lau Lai Shan v Hospital Authority DCEC784/2007 (unreported, 29th February 2008) para.19). 58.In Ansar Mohammad v Global Legend Transportation Limited DCEC1090/2006 (unreported, 8th May 2007) paras.41-42, which decision was handed down more than a year before YC sent instructions to Drs Lam and Ng, I discussed the court’s case management powers in relation to expert medical evidence as follows :
59.Here, YC seeks to justify adoption of the solo approach to expert medical evidence without prior intimation to the court on the basis that post-CJR PD18.1 and PD18.2 were inapplicable at the material time. 60.In fact, the pre-CJR PD18.1 plainly leaned in favour of a joint approach to obtaining expert medical evidence during the pre-action stage (ie when the parties could not yet apply to the court for case management directions) :
61.For the post-action stage when parties have ready access to the courts for directions on obtaining/presenting expert medical evidence, there is even less justification for a party or parties to choose a solo approach without express court directions. There is no stopping the party or parties from issuing a summons for such purpose or following the procedure in paragraph 10.6 of the pre-CJR PD18.1 to seek directions from the PI Master by expediting the 1st CLR shortly after close of pleadings. 62.I pause here to mention that the post-CJR PD18.1 now makes the pre- and post-action position explicitly clear :
63.But apart from PD18.1, YC and LL must have known that even before the CJR the courts have time and again endorsed the virtues of a joint approach to expert medical examinations/reports. A succinct summary can be found in para.26 of Mok King Sun as follows :
(see also my judgment in Ansar Mohammad para.46). As I have said in para.38 of my judgment in Lau Lai Shan :
64.Directions on obtaining/presenting expert medical evidence fall squarely within the realms of judicial discretion. From the above discussion, there is no material difference in the pre- and post-CJR case management approach to expert medical evidence. After the reforms, the court simply seeks to implement the above principles more consistently and robustly in order to meet the underlying objectives. 65.In my view, no sufficiently satisfactory explanation has been given as to why Madam Lee and YC failed to seek court directions on obtaining/presenting expert medical evidence when (a) YC’s overtures to LL made after commencement of the PI Action demonstrate that Madam Lee and YC favoured a joint approach and (b) there was ready post-action access to the court for directions when LL did not respond to such overtures. This amounts to a missed opportunity for narrowing issues and minimising costs/delay. Given the eventual need for joint reporting discussed below, I do not accept YC’s argument that the solo approach saves time and costs. (c) Timing for obtaining expert evidence 66.I also disagree with LL’s suggestion that their failure to reply to YC’s invitation for single joint or joint expert medical examinations/reports is justified because at the material time they believed expert medical evidence was premature. 67.There is no doubt that parties and their legal representatives should cooperate with each other in the conduct of proceedings, and any disagreement over procedural or practice matters should be resolved quickly so as not to obstruct the efficient and just determination of the substantive disputes. I am therefore unable to discern any cogent reason for FH Security and LL to lie low and not take their case management disagreement to the PI Master for determination. 68.I also do not agree that a pending MAB assessment necessarily justifies any deferral of expert medical evidence in the PI Action. First of all, any Form 7 that may be issued is not necessarily binding on the parties in a common law claim, and assessment of loss of earnings and loss of earning capacity is very much a matter for the trial judge. Secondly, Madam Lee’s sick leave in relation to the 3rd Accident expired in May 2008. The treatment medical reports disclosed in the course of discovery do not show any active orthopaedic treatment after May 2008, which circumstance is reflected in the opinion of Drs Lam and Cheng that Madam Lee’s orthopaedic condition has reached maximum medical improvement or stabilised state. Thirdly, the true considerations for deciding when to seek expert medical evidence turn on the availability of necessary and relevant information/materials for review by the medical experts and on whether the claimant’s injuries/condition is fit for expert medical assessment. (d) FH Security’s solo expert medical reports 69.From the discussions in paragraphs 56-65 above, it is also incumbent on FH Security and LL to pay heed to the pre-CJR judicial and practice guidance on the joint approach to expert medical evidence. Yet on being made aware of Dr Lam’s Report, FH Security and LL did not object to such solo report or apply to the court (even though access was readily available) for directions on how to obtain expert medical evidence. Instead, with YC’s concurrence they asked the court to defer the CLR to enable them to proceed with solo medical examination/report by Dr Cheng during the period from November 2008 to January 2009. 70.In respect of psychiatric expert evidence, by the time of the 1st CLR scheduled on 18th November 2008, Dr Ng’s Report was available and disclosed in Madam Lee’s List of Documents. YC’s and LL’s 1st Checklists filed in November 2008 revealed a dispute between the parties over whether psychiatric expert evidence was required. LL considered psychiatric expert evidence was unnecessary in view of the mild nature of Madam Lee’s injury and the lack of treatment medical evidence to demonstrate a causative link between her injury and any psychiatric symptoms. But there is no suggestion that LL raised these objections with YC and/or the court or required YC to disclose the psychiatric treatment notes/records to substantiate any reasonable basis for psychiatric expert evidence. It was only after issuance of the Form 7 on 3rd December 2008 that FH Security (noting Dr Ng’s Report and with the concurrence of YC) proceeded yet again to adjourn the CLR scheduled on 9th February and 2nd April 2009 in order to obtain a solo psychiatric expert report from Dr Chow without the benefit of directions from the court. 71.The parties wereall along in correspondence with the PI Master, and both or either of them could have easily asked for the CLR on 18th November 2008 to stand and/or for subsequent CLR(s) to be expedited in order to deal with case management over expert medical evidence. Had they done so, it would have been within the court’s discretion to require joint medical examinations/reports notwithstanding (a) LL’s failure to respond to YC’s overtures and/or (b) the solo reports obtained by Madam Lee if the court considered such approach would be conducive to the case management goals of achieving justice and encouraging fair, expeditious and cost-saving determination of claims. As it turned out (and as seen below), joint reporting is in fact necessary and relevant, and early directions would have minimised any ensuing delay and costs. So the deferral of the various CLRs represented yet further missed opportunities for proper case management. 72.LL submitted that Madam Lee would be at risk as to costs in obtaining solo expert medical reports, but such assertion is weakened by FH Security and LL proceeding to commission solo expert medical reports themselves and concurring with YC to vacate the CLRs on 18th November 2008 and on 9th February and 2nd April 2009 to accommodate Dr Cheng’s and Dr Chow’s solo medical examinations without complaint about Madam Lee’s solo approach or directions from the court. (e) Deferring expert directions until completion of the Reports 73.This court notes with particular concern that the parties have premised their repeated applications to vacate the CLR on the basis that “the parties would not be in a position to seek direction for medical evidence” (see paragraph 26 above). The fallacy of such argument has been exposed in the discussions in paragraphs 56-65 above, and is necessarily rejected. 74.It is trite that in applying for permission to adduce expert evidence parties are essentially asking the court to make a judgment on at least the following matters : (a) how cogent the proposed expert evidence will be, (b) how such evidence will be helpful in resolving any or some of the issues in the case, and (c) how in all the circumstances such expert evidence is reasonably required for the ultimate adjudication. To suggest that the parties should present the court with the fait accompli of completed expert medical reports when they seek the court’s directions on these matters is to fly against the court’s control over the use of expert evidence, and is tantamount to usurping the court’s case management function. 75.I note that the PI Master in granting adjournments of the CLR took care to ensure the CLR would be restored as soon as possible. But she was not called upon to exercise her discretion to give directions on the number and medical discipline(s) of the experts because the parties preferred to defer those matters until the Reports were to hand. I sound a note of caution here that the court’s hands (especially in the exercise of discretion in relation to expert medical evidence) will not be tied by the parties’ doings, and it is open to the court in due course to refuse leave for adducing solo expert medical reports so obtained by the parties or to direct that joint expert medical reports be obtained with costs and/or other sanctions. (f) Saving time and costs? 76.The culmination of the above is that although the PI Action was commenced on 8th July 2008, the 1st CLR did not take place until almost a year later on 1st June 2009. The repeated adjournments were made under the banner of saving time and costs, but in fact much time and costs were spent on sequential expert medical reports and persistent deferral of the CLR so that by 1st June 2009 witness statements were still not exchanged/served. I bear in mind that liability is contested in the PI Action, and early exchange of witness statements would have brought greater clarity to the disputed factual issues, and facilitated settlement or, where settlement is not possible, preparation for trial. 77.Further, as seen below, the solo expert medical examinations/reports did nothing for narrowing the medical issues. As Fung J said in Limbu Bhimraj v All Clad Asia Limited HCPI603/2007 (unreported, 4th November 2008) para.12, “[joint] reporting has the advantage of maximising agreement between the doctors and focusing on disagreement”. Without opportunity for mutual discussion and cross consideration, it is unsurprising that the parties’ recent CLR questionnaires suggested that the Experts would be required to give oral evidence at trial. Further, as seen below, the solo Reports fail to obviate the need for joint supplemental expert medical reports, and this will inevitably lead to another round of delay and costs. 78.Indeed, the displeasure of the court over the approach adopted by Madam Lee in relation to expert medical evidence is reflected in the CLR Order made on 1st June 2009 which required (a) a supplemental expert orthopaedic report by Dr Lam at Madam Lee’s costs, (b) full addresses at the next CLR with written submissions on whether to call the Experts to give oral evidence at trial, and (c) Madam Lee to bear costs of the CLR on 1st June 2009 (see paragraph 41 above). (g) Summary 79.The above comedy of case management errors led inexorably the PTR before me on 18th and 29th June 2009 and to the joint supplemental expert medical reports yet to be prepared and which I will come to below. In my view, both parties are to blame for this unfortunate state of affairs. Had either or both of them took the initiative to seek directions on expert medical examinations/reports rather than follow a party-driven approach, wastage of time and costs might have been minimised and this should be reflected in the costs order made below. V. Discussion on the 2nd EC Action (a) Background 80.Almost right from the outset (ie shortly after mutual discovery), the parties in the 2nd EC Action made repeated joint applications to the court for deferring further progress of the case (whether in relation to witness statements or expert medical evidence or otherwise) pending expiry of Madam Lee’s sick leave and the MAB assessment for the 3rd Accident under the banner of saving time and costs. (b) Proactive case management : short scheduling 81.Notwithstanding such requests by the parties, this court exercised proactive case management by adopting short-scheduling case management technique and declining to adjourn the case sine die or for extensive periods :
(c) Proactive case management : information for the court 82.As a corollary to short-scheduling, this court has also reminded the parties of their duty to provide as much information as the court may reasonably require upon each restoration of the 2nd EC Action to enable the court to make well-informed case management directions/ timetable, eg information as to the status of the MAB assessment, clarification on how the case could be properly progressed, or justification why directions for witness statements could or could not be given (see paragraphs 11-12 above). Such duty is now reflected in paragraphs 68 and 73 of PD18.2. 83.To assist the parties and their legal representatives in the discharge of such duty, this court has on 19th February and 22nd May 2008 directed the parties to provide a host of specific information to the court upon restoring the 2nd EC Action, including information as to expiry of sick leave, arrangements for the MAB assessment and/or re-assessment, issuance of the Form 7 and/or Form 9, objection to the Form 7, appeal against the Form 7 and/or Form 9, and to apply for appropriate and necessary case management directions in relation to witness statements, expert medical evidence, and all other necessary and appropriate case management matters (see paragraphs 14 and 16 above). These express court directions are now reflected in paragraphs 73, 75-79, 84-85 and 87 of PD18.2. (d) Proactive case management : expert medical evidence 84.Apart from requiring the parties to provide information which would assist the court in deciding whether and when expert medical evidence would be appropriate, this court also specifically required the parties upon restoring the 2nd EC Action to address on (a) the relevant medical discipline for any medical expert, (b) whether single joint medical expert would be appointed, (c) alternatively whether respective medical experts would be appointed to conduct joint medical examination and compile joint expert report, (d) if not, why not and whether invitation had been made for joint examination/report. Even more importantly, the parties were specifically directed not to wait for expiry of the court-imposed deadline for restoring the 2nd EC Action but to forthwith seek case management directions from the court if they were unable to reach agreement on arrangements for expert medical examination/report (see paragraphs 14 and 16 above). 85.From the above proactive case management measures, It must have been abundantly clear to the parties and their legal representatives in the 2nd EC Action that the court (a) was all along anxious to progress the 2nd EC Action as expeditiously as reasonably practicable, (b) intended to give directions on obtaining/presenting expert medical evidence, and (c) favoured a joint approach unless there was justification otherwise. So if expert medical evidence was needed or anticipated to be required for the 2nd EC Action, the parties should seek relevant case management directions and justify any preference for a solo approach. (e) Representations to the court 86.It is against the above background of proactive case management that the court accommodated the parties’ repeated requests for adjourning the 2nd EC Action. Such accommodation was also premised on the parties’ joint letter dated 19th May 2008 (see paragraph 15 above) which advised that Madam Lee had yet to seek approval from the Director of Legal Aid for appointing orthopaedic expert and that she would only seek relevant directions from the court if she were dissatisfied with the Form 9. Further, by the parties’ joint letters dated 19th May and 30th September 2008 (see paragraphs 15 and 22 above), they assured the court that “no medical expert is appointed to examine [Madam Lee] at this stage”. 87.In such circumstances, the court may be forgiven for believing that in acceding to the adjournments sought and in maintaining the 2nd EC Action in a dormant state pending the MAB assessment and the issuance of the Form 7 or Form 9 it might bring true savings in time and costs since no costs for engaging medical experts and commissioning expert medical reports would be incurred in the meantime. 88.If such representations to the court were mistaken or erroneous or misleading by what they say or do not say, the parties would be under a duty to disabuse the court of any such mistake/error/ misconception. After all, it would be difficult to envisage any real savings in time and costs in deferring the 2nd EC Action if there were concurrent active and ongoing preparation of expert medical reports in relation to the 3rd Accident (ie the subject matter of the 2nd EC Action). Indeed, it would have been most unlikely for the court to have endorsed the various adjournments sought. (f) What actually happened 89.There is no dispute that Madam Lee had already issued instructions to Drs Lam and Ng and received Dr Lam’s Report before the joint letter dated 30th September 2008 was sent to the court in the 2nd EC Action, but she did not seek any directions from such court or explained to such court why she had adopted the solo approach. In fact, Madam Lee and FH Security obtained all 4 Reports without alerting the court in the 2nd EC Action. Indeed, even as late as 5th May 2009, the joint letter from YC and LL only revealed to the court in the 2nd EC Action the parties’ nomination of the Experts (see paragraph 37 above). It was only when this court required compliance with paragraph 85(3) of PD18.2 that the Reports came to light in 30/5/09 App D. (g) Reasons for not informing the court 90.The parties’ rationale for not promptly informing the court in the 2nd EC Action about the Experts and the Reports and/or not promptly seeking directions from the court in the 2nd EC Action in relation to expert medical evidence runs as follows :
(h) Right to await the MAB assessment or re-assessment 91.I disagree with YC’s submission that Madam Lee has a right to insist on waiting for the results of the MAB assessment or re-assessment. Section 16D(4) of the Employees’ Compensation Ordinance Cap.282 provides as follows :
In fact, it is not uncommon to find EC cases without any Form 7 or Form 9, eg (a) the Commissioner for Labour may after investigation decide it is not appropriate to refer the case for any MAB assessment, (b) the MAB may decline to make any assessment, or (c) the party(ies) may ask the court to assess compensation on the strength of the treatment and/or expert medical evidence without waiting for any MAB assessment or re-assessment. In any event, progress of any litigation, including progress of any EC claim, is very much within the realms of discretion of the court and is not necessarily dictated by a single circumstance. 92.In Kan Wai Yip v Everbest Port Services Limited DCEC383/2008 (unreported, 3rd February 2009) paras.43-54, I made clear there is no absolute rule that parties to any EC case must await the issuance of the Form 7 or Form 9 before progressing the case. In that case, the parties had obtained orthopaedic and psychiatric expert reports and had set down the EC claim for trial without waiting for any MAB assessment. Subsequently, the applicant had a change of heart and applied for leave to adduce supplemental orthopaedic expert report or alternatively to adjourn the trial pending the MAB assessment and issuance of the Form 7. I refused the application and said as follows :
(j) Chinese wall between the 2nd EC and PI Actions 93.The rest of the parties’ rationale for keeping quiet about the Experts and the Reports rests on a notional Chinese wall between the 2nd EC and PI Actions. In my view, given the close interrelation between the 2 cases, such argument insofar as it relates to expert medical evidence cannot stand. 94.First, the parties and their legal representatives are the same, and Madam Lee is legally aided for both proceedings. Secondly, the two cases concern the same 3rd Accident and Madam Lee’s physical/mental injuries/impairment/disabilities must necessarily be the same. Thus, the segregation of the 2nd EC and PI Actions for the purpose of expert medical evidence defies factual logic. 95.Thirdly, the argument for such segregation can only have marginal persuasion if the parties elected to engage distinctly different set of medical experts for each case, ie nominating the Experts and using the Reports solely for the PI Action and retaining other medical experts to prepare other expert medical reports for the 2nd EC Action. But such contention has its own inherent difficulties. How can it be said that different medical experts conducting different medical examinations of the same claimant and rendering different expert medical reports for the same parties/lawyers in respect of the same complaints/injuries/ disabilities over the same accident are reasonably required in the sense of not wasting unnecessary costs and/or avoiding any possible criticism of expert shopping? YC has not explained why such approach would have found or has found favour with the Director of Legal Aid who is necessarily concerned with reasonable and prudent use of public funds. 96.But in fact, as Ms Lo and Ms Ngai frankly accepted at the Direction Hearing on 12th June 2009, the reality is that there was never any serious intention to retain different medical experts for the PI and 2nd EC Actions. Ms Lo and Ms Ngai acknowledged (and as reflected in the joint letters dated 19th May and 30th September 2008 from YC and LL to the court in the 2nd EC Action) they and their clients all along knew there was a real possibility that settlement negotiations in relation to the 2nd EC Action might not succeed and either party might appeal against any Form 7 or Form 9, in which event expert medical evidence would become “unavoidable” and they would wish to adduce the Reports commissioned for the PI Action (rather than any fresh expert medical reports from other medical experts) in the 2nd EC Action. Such anticipation or wish is also reflected in (a) the joint 30/5/09 App D which proposed that subject to the court’s directions the Reports would be filed in the 2nd EC Action, and (b) the YC 5/6/09 and LL 10/6/09 Letters which expressed similar sentiment. 97.There can be no doubt that the parties and their legal representatives at the very least (a) anticipated a probable need for expert medical evidence in the 2nd EC Action, and (b) expected to use the Reports to meet such need in due course. I am therefore unable to accept the assertion in the YC 5/6/09 Letter that Madam Lee did not intend to rely on or use Dr Lam’s and/or Dr Ng’s Reports in the 2nd EC Action. The parties and their legal representatives should have frankly disclosed the existence of the Experts and/or the Reports to the court in the 2nd EC Action so as to put the whole picture before the court to enable the court to make well-informed case management decisions. 98.In my view, the following fundamental flaw in the Chinese wall argument clearly illustrates its fallacy. On the one hand, YC and LL argue that it saved time and costs for the parties to repeatedly defer seeking directions on obtaining, presenting and/or adducing expert medical evidence in the 2nd EC Action until there was an appeal against any Form 7 or Form 9. But such adjournments in fact enabled the parties to engage the Experts and obtain the Reports unbeknownst to the court in the 2nd EC Action. On the other hand, YC and LL then argue that upon restoring the 2nd EC Action in May/June 2009, it would save time and costs to use the Reports in the 2nd EC Action. 99.To so keep the court in the 2nd EC Action ignorant of the Experts and the Reports and in due course to so present the fait accompli of the Reports to the court for endorsement is to sabotage the court’s proper case management function. It also makes a mockery of the court’s earlier directions in the 2nd EC Action which made it abundantly clear that it was for the parties to justify any solo approach to expert medical evidence and to provide full information for the court to determine how such evidence was to be obtained/presented to ensure the ensuing expert reports would be useful. Such attempt to fetter the court’s discretion cannot be redeemed by waving the banner of saving time and costs at both ends. The court’s hand will not be forced, and the notional Chinese wall between the 2nd EC and PI Actions in relation to expert medical evidence must crumble and fall. 100.Fourthly, there is in fact no real savings in time and costs by putting aside directions for obtaining expert medical evidence in the 2nd EC Action. Conversely, it adds to costs and delay by having to repeatedly write to the court to adjourn the 2nd EC Action whilst pertinent expert medical evidence was being prepared in the wings. As will be seen below, had there been early disclosure to the court in the 2nd EC Action, this court would have given directions for further discovery and for joint reporting at a much earlier stage with greater savings in time and costs. (j) Deferring directions in relation to expert medical reports 101.The parties and their legal representatives appear to be under the impression that it is appropriate to defer seeking directions in relation to expert medical reports even though they are actively obtaining them. I disagree and can only repeat what I have said in Lau Wai Ping v Hsu Tsui Fong, Hsu Jung Chiao, Hsu Chih Jen and Hsu Chih Yung trading as Yiu Fung Transportation Company DCEC563/2008 (unreported, 13th May 2009) as follows :
(k) Settlement negotiations 102.The parties and their legal representatives also appear to labour under the further impression that they can work the litigation timetable of the 2nd EC Action around their own schedule for settlement negotiations again under the banner of saving costs. 103.It is plainly evident from such party-driven approach to litigation (which the CJR seeks to overcome) that the parties have failed to heed my reminder by way of paper directions as early as in February 2008 that although the court would accommodate developments in the 2nd EC Action and allow a reasonable time for settlement negotiations, the court in granting directions would have to balance the parties’ private interest against the public interest of progressing EC cases with due expedition. Such express guidance is no different from the post-CJR duty to balance the underlying objectives of facilitating settlement of disputes and dealing with cases as expeditiously as is reasonably practicable. 104.I am not persuaded that the parties are entitled to insist on their own pace of proceedings, especially when they have failed to put the whole picture about pertinent expert medical evidence before the court in the 2nd EC Action. (l) Duty to the court 105.It needs no reminding that practitioners owe an overriding duty to the court in the administration of justice. Proper administration of justice requires practitioners to act with honesty and candour in their dealings with the court. They should be frank in their disclosure and responses to the court, and avoid any masquerade. The integrity of the court’s process must not be undermined. 106.As discussed above, Dr Lam’s Report was completed and made available to Madam Lee before the joint letter dated 30th September 2008 from YC and LL to the court in the 2nd EC Action. In that letter, not only were Madam Lee and YC not forthcoming about Drs Lam and Ng and about Dr Lam’s Report, YC went further to assure the court that “no medical expert is appointed to examine [Madam Lee] at this stage” and that they had yet to seek instructions from the Director of Legal Aid to appoint any orthopaedic expert. Such statements are disingenuous, especially as the claimed segregation between the PI and 2nd EC Actions cannot be supported. The reality is that Madam Lee already had her medical experts in place. 107.This court is also uneasy over the fact that no attempt has been made ever since to disabuse any incorrect impression presented by such letter. Even on Madam Lee’s own case, there is no reason why she and YC could not have frankly informed the court in the 2nd EC Action they had retained Dr Lam and Dr Ng for the PI Action and their Reports might be used in the 2nd EC Action, and then set out the grounds why expert directions would have been inappropriate or premature for the 2nd EC Action at that stage. The court would then have been in a position to make informed and effective case management directions. 108.PD18.1 and PD18.2 now contain provisions that will help parties and practitioners in the discharge of the above duty to the court. Paragraphs 75-76 and 84-85 of PD18.2 and items 5-6 of Appendix D of PD18.2 require the parties to disclose to the EC court information concerning the status and progress of any corresponding personal injury action. Likewise in Appendix F of PD18.2, parties are required to inform the PI Master of the status and progress of any corresponding EC claim. 109.As I explained in Lau Wai Ping at para.48, “the purpose of these provisions 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”. 110.Paragraph 68(1) of PD18.2 reminds that efficient and cost-effective resolution of EC disputes cannot be achieved without due diligence and cooperation on the part of the parties and their legal representatives. It is hoped that in future parties and practitioners will deal with the court with complete candour and will no longer intimate intention to wait for any MAB assessment or seek deferral of the EC claim without frank disclosure of the status/progress of (a) the corresponding personal injury claim or intended corresponding personal injury claim and (b) expert medical examinations/reports in relation thereto. VI. Joint supplemental expert medical reports 111.The above background cries out for an overall and comprehensive approach to case management to ensure that expert medical evidence will be necessary, relevant and of probative value to the Actions. Indeed, such approach is inevitable because of (a) the need for the medical experts to consider the impact of the 1st, 2nd and 3rd Accidents on Madam Lee’s injuries/impairment/disabilities in order to assist the court in determining the compensation/damages arising from the 1st Accident (for the 1st EC Action) and 3rd Accident (for the 2nd EC and PI Actions), and (b) the overlap of medical issues in relation to the 3rd Accident for the 2nd EC and PI Actions. Indeed, as evident from the pleadings and the treatment medical reports, the parties and their legal representatives must have been alive to the obvious issues of causation and apportionment from an early stage. 112.Unfortunately, Dr Lam’s Report (even though it is said to be obtained for the PI Action) is not even about the 3rd Accident. Although there was a brief mention of the 3rd Accident in Dr Lam’s Report as part of the history taken from Madam Lee, the index or subject accident specified in the report is the 2nd Accident for which there is no legal claim at all. Dr Lam diagnosed Madam Lee’s orthopaedic injuries to be soft tissue injury to both knees and right ankle, which he opined were consistent with the mechanism of injury described “and …… likely to be caused by the subject accident” (my emphasis). He added that although there were mild degenerative changes in the knees, Madam Lee was asymptomatic before the subject accident, and the significant soft tissue injuries caused by the injury aggravated the knee degeneration and triggered persistent symptoms. Dr Lam noted that the clinical picture from the arthroscopic operative findings showed the changes were more likely to be post-traumatic rather than degenerative in origin. “[Had] it not been for the subject accident, it is likely that Madam Lee should be able to enjoy satisfactory and painless function in both knees. The present pain, impairment and disability in both knees were likely caused by the subject accident” (my emphasis). Dr Lam premised his assessment of Madam Lee’s impairment and employability on the above, and concluded that she should not be able to return to her previous job but only to jobs that required light physical demand on the knees. 113.On the other hand, Dr Cheng’s Report was focused on the 3rd Accident but took into account the 2nd Accident. He noted from the medical reports that at Madam Lee’s medical attendance on 18th March 2006 for the 3rd Accident the doctor noted mild bruises and formed the diagnosis of “previous sprained right ankle and knee with persistent pain”, and that subsequent attendances on 21st March and 15th April 2006 were for pain resulting from the 2nd Accident. The general outpatient reports also stated Madam Lee attended for right knee and ankle pain after the 2nd Accident. The hospital surgeon stated that Madam Lee was referred for bilateral knee injuries for the 2nd Accident. Dr Cheng opined that Madam Lee was symptomatic with significant knee pain at the time of the 3rd Accident, which accident was probably a simple soft tissue sprain injury. Further, he took the view that the picture from the arthroscopy was one of degenerative arthritis of the right knee which was pre-existing and the 2nd and 3rd Accidents were at best aggravating factors. Physical examination revealed little impairment apart from symptoms of osteoarthritis of right knee. Dr Cheng concluded that the symptoms were due to the 2nd Accident and osteoarthritis of knee, and there was no added impairment arising from the simple and mild sprain from the 3rd Accidentso that Madam Lee could have resumed her previous job as a result of such accident. 114.Quite clearly, Dr Lam’s Report as it stands is unhelpful for either the 2nd EC or PI Action, which is focused on the 3rd and not the 2nd Accident. As a result of repeated adjournments of the CLR in the PI Action and the court in the 2nd EC Action being kept ignorant about expert medical evidence, this crucial problem with Dr Lam’s Report was not brought to light for 9 months until the CLR on 1st June 2009. 115.Further, there are other medical issues arising from Dr Lam’s and Dr Cheng’s Reports, eg the reference to “right knee fracture” in the Form 7 dated 3rd December 2008 not mentioned in such Reports, the post-traumatic or degenerative origin of the knee symptoms, the causation and contribution of the 2nd and 3rd Accidents to the injuries/impairment/disabilities, and the impact of such injuries/impairment/disabilities on Madam Lee’s employability, which has not received the benefit of cross-consideration by the orthopaedic experts but which may be significant in the ultimate adjudication. 116.Calling the experts to give oral evidence cannot overcome this problem because allowing Dr Lam to give fresh viva voce medical opinion at trial on the above matters and on why he agrees or disagrees with Dr Cheng, which will necessarily go beyond the scope of Dr Lam’s Report, and allowing Dr Cheng to respond to such fresh expert opinion when he gives evidence will be unfair to the parties or even to the trial judge. 117.Pursuant to Order 38 rule 38 of the Rules of the District Court, the court can direct a joint meeting of experts for them to prepare a joint statement. Such conference of experts is capable of adding to the costs of litigation, but if wisely used it can minimise costs by narrowing the range of issues in dispute or even facilitating settlement. In any event, a quick and cheap resolution of dispute must be tempered with the primary duty to ensure a just determination. 118.In my view, joint reporting is required here to ensure Drs Lam and Cheng are dealing with the same issues and, where possible, endeavouring to reach agreement that will save time and costs. It is expected that the joint supplemental orthopaedic expert report will define common positions and outline differing views, and hopefully obviate the need for serial solo supplemental reports to comment on each other’s position and/or the need for Drs Lam and Cheng to give oral evidence at trial. 119.In respect of psychiatric expert evidence, Dr Ng’s diagnosis was “major depressive episode – severe with psychotic features” and he opined that the 3rd Accident and its related stressors were the sole cause of the mental disorder. He noted Madam Lee had minimal improvement following psychiatric treatment and she continued to have persistent psychotic symptoms including auditory hallucination and persecutory delusion, which indicated that her depressive illness was severe. Poor insight and poor drug compliance also led to poor control of her depression. Dr Ng opined that Madam Lee was mentally unfit to work and her prognosis tended to be poor. Impairment levels caused by mental symptoms were marked to extreme, and impeded most of the useful functions. Dr Ng concluded Madam Lee would not be able to resume her previous work. 120.Dr Chow made reference to the 3 Accidents, and he had access to the psychiatric treatment notes/records from 2 hospitals/centres attended by Madam Lee. He pointed out that the notes/records noted no formal psychiatric diagnosis was given and no psychiatric follow up was arranged when Madam Lee was seen by the consultation liaison psychiatrist for assessment for a suicidal attempt in July 2006. Madam Lee expressed paranoid idea in September 2007 and reported persistent auditory hallucination and delusion in the absence of depressed mood since October 2007, but the notes/records on follow up consultations showed that her mood was normal, not depressed and/or euthymic. Dr Chow disagreed with Dr Ng’s diagnosis since no severe and persistent depressive symptoms were documented. In Dr Chow’s view, the absence of depressed mood argued against any assumption of gradual evolution of depressive symptoms. Although Dr Chow agreed that Madam Lee would be unable to sustain any employment, he opined that the prominence of her psychotic symptoms was unrelated to 3rd Accident. 121.Although Dr Ng attributed Madam Lee’s psychiatric symptoms to the 3rd Accident and its related stressors, there was no discussion in his Report about the impact and effect of the 2nd Accident (which occurred shortly before the 3rd Accident and which caused similar injuries as the 3rd Accident) on Madam Lee’s psychiatric symptoms/ impairment, especially when Dr Lam opined that “present pain, impairment and disability in both knees were likely caused by the subject accident [ie the 2nd Accident]” (my emphasis). More importantly, it seems that the differing views of the psychiatric experts turn in part on the psychiatric treatment notes/records reviewed by Dr Chow, but which Dr Ng did not have the benefit of seeing when he prepared his report. It is therefore unknown whether he will abide by or change his opinion if he has an opportunity to review such medical notes/records. 122.In my view, it is inappropriate to resolve the above problem by calling the psychiatric experts to give oral evidence. Dr Ng should not give expert appraisal of the psychiatric treatment notes/records for the first time only when he enters the witness box. If Dr Ng were allowed to do so, Dr Chow can only respond to Dr Ng’s fresh opinion with his own opinion when he gives evidence at trial. This will lead unfairness and difficulties at trial. At this stage, without any inkling as to what Dr Ng’s views will be upon review of the full set of psychiatric treatment notes/records, solo supplemental report is undesirable as it risks a prolonged and costly round of supplemental reports for commenting on each other’s further opinion. In the circumstances and with a view to narrow issues and hopefully to obviate the need for oral evidence altogether, joint supplemental psychiatric expert reports that encourage discussion between the experts is appropriate. 123.There is of course a further need to factor in expert orthopaedic opinion in relation to the 1st Accident. Thus, upon disclosure of the whole picture by the parties, this court had to unravel earlier directions for expert medical evidence and grant global directions for joint reporting at the hearing on 29th June 2009. 124.I pause to add here that on receipt of an expert medical expert the legal representative should review it with care having in mind possible need for clarifying issues arising from the report, for removing irrelevant observations and for correcting the expert’s understanding of the instructions or assumption of facts, and then proceed to consider whether these matters should legitimately be dealt with by free exchange with the medical expert, by liaison jointly with the other party or upon permission by the court. Failure to take such steps or failure to do so in a timely manner (as here) only adds to costs and delay. VII. Ruling on costs 125.The present system relies significantly on a sense of responsibility on the part of the parties and their legal representatives to overcome party-driven adversarialism that has the effect of prolonging the litigation and adding to costs. The power to award costs and/or to impose other sanctions is available if the parties and/or their legal representatives fail in such responsibility. 126.In respect of the costs of the hearings on 18th and 29th June 2009, I direct that there be no order as to costs in respect of the hearing on 18th June 2009 for the 2nd EC and PI Actions but costs in the cause for the hearing on 29th June 2009 for the Actions. Had the parties and their legal representatives grasped the initiative to disclose to the court the full picture of the interrelated Actions and to propose global and comprehensive directions in the spirit of the CJR, I am persuaded it would not have taken the CLR on 1st June 2009 and the 3 hearings before me to elicit the whole picture. I have debated whether I should also direct that there be no order as to costs in respect of the hearing on 29th June 2009, but have finally decided to allow costs in the cause given the more proactive attitude of the parties and the useful directions made at that hearing. 127.In respect of the expert medical reports, there is no reason why any ultimately successful party should be entitled to more than 1 set of expert medical reports. Had the parties properly reacted to each other and/or taken objection or applied to the court at any early stage for case management directions in relation to expert medical evidence to be made in line with the court’s earlier directions, the spirit of the practice direction and the general law and practice, 1 set of orthopaedic and psychiatric expert medical reports would have been prepared and it would have sufficed. The joint medical examination (if any) and the joint supplemental expert medical reports now ordered by the court are the result of the parties’ failure to meet the above values, and as such I direct that (a) Madam Lee shall not be entitled to Dr Lam’s and Dr Ng’s costs in respect of any joint medical examination of Madam Lee and their preparation and finalisation of the joint orthopaedic and psychiatric expert reports with Drs Cheng and Chow, and (b) FH Security shall not be entitled to Dr Cheng’s and Dr Chow’s costs in respect of any joint medical examination of Madam Lee and their preparation and finalisation of the joint orthopaedic and psychiatric expert reports with Drs Lam and Ng. This means that each party will have to bear his/its own costs in respect of such costs no matter who succeeds or fails in the final adjudication. 128.In Wong Cheuk v Falcon Insurance Company (Hong Kong) Limited DCEC688/2008 (unreported, 20th May 2009) paras.86-91, I raised the question of whether the court should grant directions for legal aid taxation in similar circumstances. Since the issues raised and directions made in the Actions follow closely on the heels of the decision in Wong Cheuk, I am prepared on this occasion to grant legal aid taxation of Madam Lee’s own costs in respect of the above costs in the 2nd EC and PI Actions. However, with increased familiarity with the spirit of the CJR and the provisions of PD18.1 and PD18.2, the court’s patience may run out, and the excesses demonstrated in Wong Cheuk and the Actions here will no longer be tolerated. Practitioners should take steps to review the cases they handle and advise their clients to bring forth such cases to the court for prompt and comprehensive case management directions. VIII. Miscellaneous matters 129.For convenience, the directions (with minor refinements) made on 29th June 2009 in respect of the 1st and 2nd EC Actions and the PI Action are annexed to these Reasons and Ruling. 130.Such directions had to deal with the unnecessary complexity arising from the need to unravel and put right preliminary direction as further details about the Actions unfold over the course of 3 hearings. 131.At the hearing on 29th June 2009, YC’s Ms Lo again sought leave to file and serve a Reply. In fact, Madam Lee issued a summons to seek the same relief on 22nd May 2009 (see paragraph 39 above), but such application was dismissed the PI Master at the CLR on 1st June 2009. There is no application for leave to appeal against the decision by the PI Master before me, and Ms Lo did not explain why it would be open to this court to re-consider such application in lieu of any appeal against the decision by the PI Master and in face of Ms Ngai’s objection. I therefore did not make any order in respect of such application.
Representation: Ms Y C Lo of Messrs Yeong & Co for the Applicant/Plaintiff. Ms F Ngai of Messrs Leung & Lau for the Respondent/Defendant. Annexure The 1st and 2nd EC Actions 1. The 1st and 2nd EC Actions be consolidated and tried together, and the 1st EC Action shall be the lead action. 2. Madam Lee do within 7 days from the date hereof file and serve her Consolidated Application. 3. FH Security do within 7 days thereafter file and serve its Consolidated Answer. 4. The respective Lists of Documents filed on behalf of Madam Lee and FH Security in the 1st and 2nd EC Actions do stand as their Lists of Documents in the consolidated action. 5. Paragraph 2 of the sealed copy of my order dated 2nd June 2009 in the 2nd EC Action be re-amended under the slip rule by reinstating “, within 35 days from the date of the Order to be made” and deleting “on or before 31 July 2009”. 6. Madam Lee do file and serve sealed copy of Re-Amended Order dated 2nd June 2009 within 7 days from the date hereof. 7. Paragraph 2 of the Re-Amended Order dated 2nd June 2009 be varied to the extent that the parties do on or before 31st July 2009 file and exchange witness statements as to fact in respect of the consolidated action, namely Madam Lee and Chan Ni for Madam Lee and Cheng Man Yee Amanda and Cheung Hok Kan for FH Security. 8. My order dated 12th June 2009 in the 2nd EC Action requiring Madam Lee to file and serve Supplemental List of Documents disclosing all relevant documents in respect of the alleged 1st and 2nd Accidents within 35 days from the date of such order do stand in respect of the consolidated action. 9. My order dated 12th June 2009 in the 2nd EC Action requiring FH Security to file and serve Supplemental List of Documents disclosing all relevant documents in respect of the alleged 1st Accident within 35 days from the date of such order do stand in respect of the consolidated action. 10. Expert medical evidence in the consolidated action shall be limited to 1 orthopaedic and 1 psychiatric expert for each party, namely, Drs Lam and Ng for Madam Lee, and Drs Cheng and Chow for FH Security. 11. The filing of the expert medical reports of Drs Lam and Ng respectively dated 8th September 2008 and 20th January 2009 by Madam Lee be dispensed with. 12. Leave to FH Security to file the expert medical reports of Drs Cheng and Chow respectively dated 20th January and 5th April 2009 on 3rd June 2009. 13. Madam Lee do file the joint supplemental orthopaedic expert report of Drs Lam and Cheng pursuant to :
14. Madam Lee shall file the joint supplemental orthopaedic expert report of Drs Lam and Cheng on or before 28th September 2009 (if joint medical examination is required) or 31st August 2009 (if joint medical examination is not required). 15. Parties do on or before 8th July 2009 jointly write to the court to confirm whether joint medical examination of Madam Lee by Drs Lam and Cheng scheduled on 30th July 2009 is required. 16. The joint supplemental orthopaedic expert report shall discuss :
17. My order dated 12th June 2009 in the 2nd EC Action requiring the parties to jointly instruct Drs Ng and Chow within 49 days from the date of such order so as to prepare joint supplemental psychiatric expert report and further requiring Madam Lee to file such joint supplemental psychiatric expert report within 105 days from the date of such order be varied to the extent that Madam Lee do on or before 25th September 2009 file the joint supplemental psychiatric expert report of Drs Ng and Chow pursuant to their completion of such joint report on or before 15th September 2009. 18. The joint supplemental psychiatric expert report shall discuss :
19. Without prejudice to the parties’ duty to comply with PD18.2 generally, parties do forthwith comply with paragraphs 51-54, 60 and 62 of PD18.2 in respect of the joint medical examination (if any) and joint supplemental expert medical reports referred to above. Without limiting the above, my order dated 12th June 2009 in the 2nd EC Action be varied to the extent that the parties do forthwith issue joint instructions to Drs Lam and Cheng and to Drs Ng and Chow, and shall ensure they have access to agreed bundle of documents and medical notes/records/reports that relate to all 3 alleged Accidents for their joint medical examination (if any) and for the preparation of their joint supplemental expert medical reports. 20. Parties do forthwith notify Drs Lam and Cheng and Drs Ng and Chow to comply with paragraphs 56-57 and 63-64 of PD18.2. 21. Madam Lee do forthwith withdraw or cancel the written instructions to Dr Lam dated 1st June 2009. 22. Compliance with my order dated 12th June 2009 in the 2nd EC Action requiring the parties to jointly submit Joint Written Application within 42 days of the date of such order be dispensed with. 23. The EC Application be adjourned for Direction Hearing before the EC Judge at 9:30am on 8th October 2009, and such Direction Hearing shall not be vacated without leave of the EC Judge. 24. Parties are directed to comply with paragraphs 73 and 75 of PD18.2 in respect of the Direction Hearing at 9:30am on 8th October 2009. 25. Parties are directed to strictly comply with the directions and timetable laid down above. If any application for deferring compliance is necessary, the parties shall jointly apply to the EC Judge by Joint Written Application failing which the relevant party shall apply by inter partes application to the EC Judge, and in either case the application shall be made prior to expiry of the relevant deadline in the directions and/or timetable laid down above. Parties are specifically reminded of para.94 of PD18.2. 26. Subject to the directions and timetable laid down above, the consolidated action be adjourned sine die with liberty to restore. 27. All future Direction Hearings, Joint Written Applications and/or interlocutory applications prior to trial shall be docketed to the EC Judge. 28. Liberty to apply. 29. Ruling on costs of the hearing on 18th June 2009 and of the hearing today, and costs of and occasioned by the solo expert medical reports and by the joint supplemental orthopaedic and psychiatric expert reports be reserved. 30. Issue of legal aid taxation of Madam Lee’s own costs in respect of the aforesaid costs be reserved. 31. Order to be drawn up. The PI Action 1. Paragraphs 1-2 and 6 of the Check List Review Order dated 1st June 2009 be set aside. 2. Madam Lee do on or before 17th July 2009 file and serve Supplemental List of Documents disclosing all relevant documents in respect of the alleged 1st and 2nd Accidents. 3. FH Security do on or before 17th July 2009 file and serve Supplemental List of Documents disclosing all relevant documents in respect of the alleged 1st Accident. 4. Madam Lee do lodge the joint supplemental orthopaedic expert report of Drs Lam Cheng pursuant to :
5. Madam Lee shall lodge the joint supplemental orthopaedic expert report of Drs Lam and Cheng on or before 28th September 2009 (if joint medical examination is required) or 31st August 2009 (if joint medical examination is not required). 6. Parties do on or before 8th July 2009 jointly write to the court to confirm whether joint medical examination of Madam Lee by Drs Lam and Cheng scheduled on 30th July 2009 is required. 7. The joint supplemental orthopaedic expert report shall discuss :
8. Madam Lee do on or before 25th September 2009 lodge the joint supplemental psychiatric expert report of Drs Ng and Chow pursuant to their completion of such joint report on or before 15th September 2009. 9. The joint supplemental psychiatric expert report shall discuss :
10. Without prejudice to the parties’ duty to comply with PD18.1 generally, parties do forthwith comply with paragraphs 74-77, 83 and 85 of PD18.1 in respect of the joint medical examination (if any) and joint supplemental expert medical reports referred to above. Without limiting the above, parties do forthwith issue joint instructions to Drs Lam and Cheng and to Drs Ng and Chow, and shall ensure that they have access to agreed bundle of documents and medical notes/records/reports that relate to all 3 alleged Accidents for their joint medical examination (if any) and for the preparation of their joint supplemental expert medical reports. 11. Parties do forthwith notify Drs Lam and Cheng and Drs Ng and Chow to comply with paragraphs 79-80 and 86-87 of PD18.1. 12. Madam Lee do forthwith withdraw or cancel the written instructions to Dr Lam dated 1st June 2009. 13. CLR hearing scheduled on 14th September 2009 at 10:30am at Court No.46 be vacated. 14. PTR be adjourned for hearing before the PI Judge at 9:30am on 8th October 2009. 15. Parties are directed to comply with paragraphs 128-129 and 133 of PD18.1 in respect of the PTR hearing at 9:30am on 8th October 2009. 16. Parties are directed to strictly comply with the directions and timetable laid down above. If any application for deferring compliance is necessary, the parties shall jointly apply to the PI Judge failing which the relevant party shall apply by inter partes application before the PI Judge, and in either case the application shall be made prior to expiry of the relevant deadline in the directions and/or timetable laid down above. 17. All future interlocutory applications or direction hearings prior to the PTR hearing at 9:30am on 8th October 2009 shall be docketed to the PI Judge. 18. Liberty to apply. 19. Ruling on costs of the hearing on 18th June 2009 and of the hearing today, and costs of and occasioned by the solo expert medical reports and by the joint supplemental orthopaedic and psychiatric expert reports be reserved. 20. Issue of legal aid taxation of Madam Lee’s own costs in respect of the aforesaid costs be reserved. 21. Order to be drawn up. |
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