Lau Koon Loi v. Wong Wai Sing and Another

HCPI 445/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 445 OF 2007

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Before:  Hon Fung J in Chambers

Date of Hearing:  9 July 2009

Date of Decision:  9 July 2009

Date of Reasons for Decision:  13 July 2009

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REASONS FOR DECISION

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1.This matter was referred to me for Case Management Conference.

2.There is a preliminary point on appearance of counsel at CMC in the PI List in the High Court on which I wish to clarify.

3.PD 5.2 on Case Management states that unless otherwise directed by the Court, all hearings for CMC and PTR before a judge should be attended by trial counsel (para. 45).  PD 5.2 is stated to apply to all civil actions in the Court of First Instance.  However, PD 18.1 states that subject to the provisions therein, PD 5.2 shall not apply to the PI List (para. 97).  PD 18.1 does not mandate appearance by trial counsel at CMC.  For PTR, PD 18.1 states that the solicitor with prime responsibility of handling the case or trial counsel shall attend.  In practice, counsel sometimes appears when there is an issue or argument fit for appearance by counsel.  Certificate for counsel will be given when the Court considers appropriate.  I think CMC in the PI List should be treated likewise.

4.The issues at the CMC are:

(1) Leave to file statements from additional witnessed for the Plaintiff;

(2) Non-compliance of the Master’s direction on obtaining a joint report by the respective orthopaedic experts;

(3) Calling of the respective neurological experts;

(4) Leave to adduce expert evidence from psychiatric expert(s);

(5) The Defendants be debarred from relying on the report of surveillance on the Plaintiff;

(6) Application for specific discovery by the Defendants.

5.The Plaintiff was a “air side” (or restricted area) vehicle driver at the Chek Lap Kok Airport employed by the 2^nd Defendant.  He had a head-on collision with the vehicle driven by his co-worker 1^st Defendant.  He suffered whiplash injuries to his neck and left shoulder.

6.His complaint is persistent neck pain, erectile dysfunction, and now for the first time, psychiatric illness.  The Plaintiff had resumed job as a security guard.

7.MRIs of the cervical spine showed C5/6 protrusion and small osteophytes (small bone arrows) with moderate compression, and also protrusions at C4/5 to C6/7 and T1/2.

8.The respective orthopaedic experts are Dr Danny Tsoi and Dr William Yuen.  They have rendered separate reports, and the Master has previously ordered a joint report, which has not been done.  Both doctors opined mild degeneration.  Dr Yuen considered the jerk might have caused more symptoms to appear.   Both doctors opined the return to driving, but Dr Tsoi recommended short hourly breaks and maximum 8 hours day.

9.The respective neurologist experts are Dr Clarence Leung and Dr YT Kan.  They have rendered a joint report.  They agreed on the resumption of working in most situations including driving, but advised the taking of short hourly breaks.  They agreed on the sick leave period of 1 year, which is also the recommendation of Dr Yuen.

Further witness statements

10.Further witness statements from the Plaintiff’s wife and daughter are met with consent, with right to reply by the Defendant, if any.

Neurological evidence

11.Mr Millar, for the Plaintiff, pointed out inconsistencies or ambiguities in the Joint report of Dr Leung and Dr Kan:

(1) In the previous single report of Dr Leung, he opined that given the absence of neck injury or disease, the C5/6 degeneration is highly likely to be secondary from the accident;

(2) In the joint report, the doctors opined that the C5/6 protrusion is more likely to be result of the degenerative process, but they cannot rule out further trauma on C5/6 to contribute to the current symptoms of cervical disc pain, but on the other hand the symptoms may be due to soft tissues injury (i.e. sprained muscles, ligaments and joint capsules);

(3) They said they reviewed the MRIs but had not stated expressly the observations.

12.Mr Miller also pointed out that while the doctors noted that neck pain was not brought about or aggravated by head or neck motion as demonstration at the examination, the Plaintiff contested that he did report pain at the examination.

13.Mr Mill wished to call the doctors for cross-examination.  He wanted to ask them:

(1) Whether they could state the cause of the neck pain as being:

(a)    pre-existing C5/6 protrusion only;

(b)   pre-existing non-symptomatic C5/6 protrusion with symptoms triggered by the accident;

(c)   soft tissues injury only.

(2) If there are more than one possible cause, list with differential probabilities the various causes, if possible;

(3) Whether they confirm that the Plaintiff felt no pain upon head or neck motion at the joint examination.

14.The orthopaedic issues are not complicated, but clarifications may assist the trial judge.  Ms Lau, for the Defendants, had no strong views.

15.I asked Mr Millar that credibility of the experts aside, whether his questions could not be dealt with by a further joint report.  Mr Millar could not say no. 

16.Hence, I directed that a further supplemental report be obtained from Dr Leung and Dr Kan with the specific issues drawn to their attention for their comments on the questions framed.

17.I suggest the parties issue a joint letter of instructions to the two experts, the approach countenanced by the PI Sub-Committee of the Law Society, of which Mr Millar is a member.  The parties agreed.  They may add on other relevant questions.

Orthopaedic evidence

18.Both Mr Miller and Ms Lau agreed that in this case, the problems facing the neurologists and orthopaedists are similar.  Hence, one  supplemental report is sufficient.  They agreed that a supplemental joint report from the neurologists is preferable. 

19.In the event, I revoked the previous direction for the joint orthopaedic report.

Urologist report

20.The Plaintiff has been consulting Dr Ho Yu-cheung on erectile dysfunction for some years.  Until recently, the Plaintiff was unable to obtain Dr Ho notes/report. 

21.Mr Millar complained against Dr Ho to the Medical Council.  Recently, Mr Millar was sent the medical notes and a report dated 17 April 2008 by the solicitors acting for Dr Ho.  Thereafter, Mr Millar went off to obtain a single report from Dr George Koo, urologist, without informing the Defendants.

22.Ms Lau objected to the adducing of Dr Koo’s report:

(1) Mr Miller has previously indicated that he did not want to obtain an expert urologist report;

(2) Dr Koo’s report contained misrepresentation of facts on treatment as borne out by Dr Ho’s report;

(3) The Defendant is willing to admit that the Plaintiff has erectile dysfunction as a result of post traumatic anxiety as concluded in Dr Koo’s report;

(4) Dr Koo’s suggestion to seek further psychologist’s opinion lacks prima facie support in the absence of any psychology treatment;

(5) Dr Koo’s single report was obtained without invitation to the Defendants for single joint expert or joint examination by both experts in contravention of the protocol for commissioning experts in the new Practice Direction.

23.Ms Lau’s admission on erectile dysfunction makes Dr Koo’s opinion unnecessary. 

24.What Mr Millar should have done was to invite the Defendant’s solicitors for comments upon obtaining Dr Ho’s report before obtaining Dr Koo’s single report. 

25.Mr Millar complained that the other side did not want to speak to him.  Be that as it may, he has the duty to comply with the Practice Direction.  In any case, looking at the papers and hearing submissions from the Defendants, I do not feel the Defendants’ solicitors or counsel were at all unreasonable.

26.As I have directed a single joint expert on psychiatry, anything Dr Koo might have to say beyond erectile dysfunction is also otiose.

27.Hence, I refuse to admit Dr Koo’s report.

Psychiatric evidence

28.Ms Lau’s initial objection was that there was no prima facie evidence of psychiatric illness as there was no complaints and no treatment (save for erectile dysfunction) for the 5 years after the accident.

29.Mr Millar pointed out that the witness statements just admitted speak of mood change by the Plaintiff after the accident.

30.Mr. Millar also relied on a note dated 29 June 2009 by Dr Benjamin Lai, psychiatrist in private practice, listing a series of psychiatric complaints for referral the Plaintiff to the psychiatric clinic of the Hospital Authority.

31.Ms Lau complained on the recent efforts to bolster the Plaintiff’s case, but in an admirable vein of practicality, suggested appointment of a single joint expert, in order that the matter may proceed expeditiously to trial.  In the event, the parties agreed to nominate Dr Chung See-yuen.

32.Hence, I ordered that a single joint report be obtained from Dr Chung (subject to the Director of Legal Aid’s certificate covering payment).  The committed date of delivery of the report is 8 October 2009.  Parties should so inform Dr Chung (or the DLA approved expert) of the relevant provisions in PD 18.1.

Surveillance evidence

33.Mr Millar’s objection is in form rather than substance.

34.Ms Lau conceded that the report has not been put in with the appropriate witness statement.  She was given leave to file the requisite statement.

Specific discovery

35.Upon clarification, the items sought are:

(1) A&E record on the date of the accident;

(2) Clinical records from treating physicians and hospitals;

(3) Documentary evidence relating to the Plaintiff’s hobby of game hunting.

36.Mr Millar submitted that medical reports have been written up re: (1) and (2), hence, the primary records are not necessary.  In any case, the A&E record had been destroyed, though he could not lay hand on the HA correspondence.

37.Ms Lau made submissions on motive for recent exaggeration, and submitted reference to earlier primary records are necessary.  Without referring explicitly to the materials, I can understand Ms Lau’s concern.  Hence, I ordered the Plaintiff to make discovery of the primary records, or file a statement to explain with necessary proof of the unavailability.

38.As to hunting, Mr Millar said the gun licence was produced, so as registration with the Agricultural and Fishery Department boar shooting team, with 2 photographs showing the preys.

39.I think record of frequencies of the activity (such as ammunitions records and/or AFD expedition logs) would assist the judge in assessing the quantum of the loss, if any.

40.I directed that the parties do file a PTR questionnaire reporting of the state of readiness for trial on or before 30 October 2009.  The matter could be taken further either in another PTR or by paper directions.

41.I ordered costs in the cause with Legal Aid taxation.

42.I wish to add that the costs of Dr Koo’s report be disallowed by reason of non-compliance of the protocol on commissioning experts in PD 18.1.

43.I certify fitness for Ms Lau’s appearance in any event.

Mr N Millar, of Messrs Littlewoods, assigned by the Director of Legal Aid, for the Plaintiff

Ms Selina Lau, instructed by Messrs Lau, Chan & Ko, for the Defendants