Chan Lai Ying v. A S Watson & Co Ltd

DCEC1767/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1767 OF 2006

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BETWEEN

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

Date of Hearing: 6^th July, 2009

Date of Directions: 6^th July, 2009

Date of Handing Down Reasons for Directions: 31^st July, 2009

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REASONS FOR DIRECTIONS

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I. Introduction

1.The Applicant claimed that on 1^st October 2006 she suffered personal injury as a result of a work accident arising out of and in the course of his employment with the Respondent. The Respondent denied the claim.

2.The present employees’ compensation proceedings (“EC Action”) were commenced on 22^nd December 2006. Subsequently in 2007, the Applicant commenced common law personal injuries proceedings against the Respondent (HCPI1028/2007, “PI Action”). In the circumstance, Madam Chan Lai Ying is referred to as the Applicant or the Plaintiff and A S Watson & Company Limited is referred to as the Respondent or Defendant in these Reasons.

II. EC Action

3.On 23^rd September 2008, the parties’ solicitors jointly wrote to inform the court in the EC Action that the Applicant would attend psychiatric assessment by the Medical Assessment Board (“MAB”) on 8^th December 2008. “In the premises, the parties are not in a position to obtain directions in relation to expert evidence at this stage”.

4.On the same day, I granted paper directions for the parties to file and serve witness statements, and further directed the parties to jointly write to the court (a) within 21 days of the issue of the Certificate of Assessment (“Form 7”) or (b) on or before 31^st January 2009, whichever was earlier, to state inter alia :

(a) where appropriate, whether expert medical evidence was required;

(b) if so required, the category of medical expert and whether the parties would appoint joint expert, and if not, whether the parties’ respective medical experts would carry out joint medical examination and prepare a joint report.

5.I further directed that notwithstanding the above directions, where any party wished to adduce expert medical evidence at trial, and (a) the parties were unable to agree on directions for arranging joint medical examination by the experts and/or compiling joint expert reports or (b) the party or parties wished to have separate medical examination/report by own expert, such party or parties should forthwith apply to the court to seek relevant case management and/or expert directions.

6.In the paper directions, I referred the parties to the discussions on the joint approach to expert medical evidence in various authorities, including Ansar Mohammad v Global Legend Transportation Ltd DCEC1090/2006 (unreported, 8^th May 2007) and Lau Lai Shan v Hospital Authority DCEC784/2007 (unreported, 29^th March 2008), and by analogy in the personal injuries context, the guidance in Practice Direction (“PD”) 18.1 and Lam Hing Choi v Yip King On & ors HCPI263/2006 (unreported, 20^th March 2008).

7.Hence, the parties were left in no uncertainty that if they anticipated any need for expert medical evidence or if they intended to obtain expert medical reports, they should adopt the joint approach failing which they should promptly apply to the court to justify any proposed solo approach and to seek relevant case management directions.

8.The parties filed their respective witness statements on 21^st and 18^th November 2008.

9.The Form 7 was issued on 22^nd December 2008. The Respondent lodged an appeal against the Form 7 on 9^th January 2009.

10.On 3^rd February 2009, the parties’ solicitors jointly wrote to advise the court that because an objection was lodged against the Form 7 and the MAB reassessment date was not yet available, “[the] parties would like to seek directions for expert evidence after issuance of Form 9”.

11.On the following day, I granted paper directions for the parties to jointly write to the court (a) within 21 days of the issue of the Certificate of Review Assessment (“Form 9”) or (b) on or before 15^th April 2009, whichever was earlier, to state inter alia :

(a) where appropriate, whether expert medical evidence was required;

(b) if so required, the category of medical expert and whether the parties would appoint joint expert, and if not, whether the parties’ respective medical experts would carry out joint medical examination and prepare joint report, and if so, the name(s) of the parties’ joint or respective expert(s), the date of the joint medical examination, and the date when the joint report would be ready.

12.The further directions in paragraph 5 above were repeated, and the parties were again reminded of the discussion on the joint approach to expert medical evidence in the authorities, including also Cheng Lung Fong v Mitoyo Hong Kong Limited HCPI63/2007 (unreported, 22^nd September 2008), Limbu Bhimraj v All Clad Asia Limited HCPI603&606/2007 (unreported, 22^nd September 2008), and Wong Kam Lee v Dragages et Travaux Publics (HK) Limited HCPI824/2004 (unreported, 17^th November 2008).

13.The parties must therefore have been fully aware of such reinforcement of the court’s express directions requiring a joint approach to expert medical evidence or alternatively forthwith application for directions on any solo approach.

14.On 8^th April 2009, the parties’ respective solicitors jointly wrote to inform the court that the MAB reassessment date was not yet available, and sought directions to defer seeking “further directions in relation to medical evidence and/or setting down the above case for trial if appropriate”.

15.On 14^th April 2009, H H Judge Lok by paper directions required the parties to jointly write to the court within 21 days of the receipt of the Form 9 but in any event not later than 70 days thereof to state inter alia :

(a) where appropriate, whether expert medical evidence was required;

(b) if so required, the category of medical expert and whether the parties would appoint joint expert, and if not, whether the parties’ respective medical experts would carry out joint medical examination and prepare joint report, and if not, why not and whether invitation had been made for joint examination/report or not, whether such invitation had been declined or not, and the reasons therefor.

16.The learned judge further directed that notwithstanding the above, where any party wished to adduce expert medical evidence at trial and the parties were unable to agree on directions for arranging medical examination by the experts and/or compiling expert report, the parties should forthwith apply to the court to seek relevant case management and/or expert directions.

17.Again, there is no doubt that the court favoured a joint approach to expert medical evidence and required justification for any solo approach.

18.On 23^rd June 2009, the parties’ solicitors jointly wrote to inform the court that the MAB reassessment had not yet taken place, so the Form 9 had not been issued and the case was not ready to proceed further. They proposed to defer obtaining “further instructions in relation to medical evidence and/or setting down the above case for trial if appropriate”.

19.In the joint Appendix D information annexed to the joint letter from the parties’ solicitors dated 23^rd June 2009 (“App D Info”), it was revealed for the first time to the court in the EC Action that (a) there was the PI Action, and (b) the Applicant had nominated Dr Johnson Lam and Dr Benjamin Lai and the Respondent had nominated Dr Henry Ho and Prof Lieh Mak as their respective orthopaedic and psychiatric experts. Further, it was stated in the App D Info that there was no joint examination “since the Applicant would like to have the medical opinion covered by professional privilege”.

20.The App D Info boldly went on to say that since the expert medical reports were ready and available, “they can be filed once it is confirmed that the medical experts’ evidence is required for trial”.

21.It is plain from the joint App D Info that the parties intended to adopt and adduce the solo expert medical reports obtained without leave of the court in the EC Action if expert medical evidence were required. As confirmed by Ms Chan for the Applicant and Ms Leung for the Respondent at the hearing before me on 6^th July 2009, if expert medical evidence were required for the EC Action, they expected the court in the EC Action to endorse such fait accompli notwithstanding the court’s express directions made on 23^rd September 2008, 4^th February 2009 and 14^th April 2009.

22.In a nutshell, all would be well if expert medical evidence was not required for the EC Action. But if expert medical evidence was required, the parties intended to usurp the court’s discretion expressly reserved under the directions made on 23^rd September 2008, 4^th February 2009 and 14^th April 2009 for determining how expert medical evidence should be obtained or presented, and to flout the court’s directions which expressly required the parties to promptly justify and seek leave for adopting any solo approach to expert medical evidence. In short, if expert medical evidence was required, the parties intended to force the court’s hands by presenting the court in the EC Action with solo expert medical reports obtained without prior leave.

23.It is therefore an understatement to say that the parties’ stance came as a surprise to the court in the EC Action, especially when the parties acknowledged that pending the issuance of the Form 9 there was real likelihood that expert medical evidence would be required for the EC Action. Yet, but for the requirement under paragraph 85(3) of PD18.2 to lodge the App D Info, the parties had no thought of intimating to the court in the EC Action the existence of the solo expert medical reports or of the anticipated need to adduce solo expert medical reports in the EC Action. Instead, they thought of asking the court to defer consideration of directions in this respect.

24.I therefore called for full disclosure by the parties as to how such unsatisfactory state of affairs came about, and further required the parties to attend a Direction Hearing on 6^th July 2009 to give explanation.

III. Direction Hearing on 6^th July 2009

25.At the Direction Hearing on 6^th July 2009, after hearing Ms Chan and Ms Leung, I granted the following directions :

(a) the Applicant shall not be entitled to the costs of Dr Lai’s preparation and finalisation of his supplemental expert report dated 29^th January 2009 in any event;

(b) the issues of whether the solo expert reports of Dr Ho, Dr Lam, Dr Lai and Prof Lieh Mak can be adduced and/or used in the EC Action and/or whether any further/joint supplemental reports or other expert reports are necessary be reserved;

(c) subject to (a) above, costs of and occasioned by the solo expert reports of Dr Ho, Dr Lam, Dr Lai and Prof Lieh Mak and/or other/supplemental/further expert medical reports (whether joint or solo) to be obtained, if any, be reserved;

(d) the parties do within 63 days from the date thereof or within 21 days from the date of issuance of the Form 9, whichever is earlier, jointly write to the court by Joint Written Application on the following :

(i) to give information in respect of all mandatory items 1-6 of Part I of Appendix D of PD18.2;

(ii) to give information in respect of items 15-18 of Part II of Appendix D of PD18.2;

(iii) if expert medical evidence is required, to propose directions on the number, category(ies) and name(s) of the medical expert(s);

(iv) if expert medical evidence is required, to propose directions for filing of identified expert medical reports and for obtaining further/supplemental expert medical report(s) (whether solo or joint) if any;

(v) to address on the issue of reserved costs above;

(vi) to give information and propose directions in respect of items 41-42 of Part VI of Appendix D of PD18.2;

(e) subject to the directions and timetable above, the Application be adjourned sine die with liberty to restore;

(f) all further Direction Hearings, Joint Written Applications and/or interlocutory applications prior to trial be docketed to the EC Judge;

(g) save for (h) below, the issue of whether direction for legal aid taxation ought to be granted in respect of the costs orders made herein and of any reserved costs be reserved for consideration at the same time as the Joint Written Application in (d) above;

(h) costs of the Direction Hearing on 6^th July 2009 be costs in the cause, and there be legal aid taxation of the Applicant’s own costs;

(i) order to be drawn up.

26.I have reserved my reasons for the above directions, which reasons I set out below.

IV. Orthopaedic expert evidence

27.It turns out that on 8^th March and 17^th April 2007 the Respondent’s solicitors nominated Dr Ho as the Respondent’s orthopaedic expert and invited the Applicant to participate in a joint medical examination for the purpose of the EC Action. On 30^th April 2007, the Applicant’s solicitors repliedthat the Applicant had no objection to be medically examined by Dr Ho, but was silent on the Respondent’s proposal for joint medical examination. The Respondent’s solicitors sought clarification on 17^th May 2007, but the Applicant’s solicitors declined without giving any reason. Consequently, Dr Ho completed his solo orthopaedic expert report on 11^th June 2007.

28.By making such invitation to the Applicant’s solicitors, the Respondent plainly considered a joint approach appropriate for obtaining orthopaedic expert evidence. Regrettably, when faced with the Applicant’s refusal to follow a joint approach, the parties did not apply to the court in the EC Action for directions, which they easily could have done by restoring the case for a directions hearing. As it were, the opportunity for harvesting the benefits of a joint examination/report and avoiding the ills of a solo approach was lost. Such benefits and ills are well known and oft-repeated (see Ansar Mohammad, Lau Lai Shan, Wong Cheuk v Falcon Insurance Company (Hong Kong) Limited DCEC688/2008 (unreported, 20^th May 2009) and Mok King Sun v Turn Around Company Limited & ors HCPI865/2007, Fung J (unreported, 25^th March 2009)), and I need not recite them here. Indeed, the parties were specifically referred to some of these authorities in the course of the EC Action (see paragraphs 6 and 12 above).

29.However, the reason for the Applicant’s refusal to have a joint medical examination is now clear: the joint App D Info stated that the Applicant wanted to have his own solo orthopaedic expert report covered legal professional privilege. That was why the Applicant’s solicitors arranged for the Applicant to be examined by Dr Lam on 11^th April 2008, ie a few short days before the Checklist Review (“CLR”) hearing on 16^th April 2008 (“1^st CLR”) in the PI Action. This, of course,ensured that the PI Master was presented at the 1^st CLR with the fait accompli of a solo medical examination that had already taken place. Consequently, the PI Master directed that the solo reports of Dr Ho and Dr Lam be served.

30.It will be remembered that the discussion between the parties for orthopaedic expert report(s) was made under the umbrella of the EC Action. In my view, the Applicant’s reason cannot be supported. I rely on and need not repeat here the discussions on such subject in Lau Lai Shan and Wong Cheuk. After all, the handling solicitor for the Applicant in the EC Action was also the handling solicitor for the applicants in these 2 authorities. In my view, there is little if any justification for the solo approach insisted upon by the Applicant in face of the Respondent’s willingness to adopt a joint approach.

31.Under the new PD18.2, the Applicant risks (a) refusal of leave by the court in the EC Action to adduce the solo report of Dr Lam and/or (b) inability to recover costs of such solo report and/or any further/supplemental report required as a result of having adopted a solo approach. In line with the rationale and discussion in Wong Cheuk, I have reserved the issues of costs and legal aid taxation in relation to such reports.

32.I note from the various joint letters from the parties’ solicitors dated 23^rd September 2008, 3^rd February 2009, 8^th April 2009 and 23^rd June 2009 that they appear to have laboured under the impression that the parties were unable to or it was inappropriate to seek directions in relation to expert medical reports even though they were actively obtaining or had already obtained them. Such impression is flawed (see discussion 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, 13^th May 2009) paras.44-45, and Lee Sau Fat v F H Security Services Company Limited DCEC1720/2006, DCEC120/2007 & DCPI471/2008 (unreported, 6^th July 2009) paras.56-65 and 101).

33.There can be no doubt that the court retains control on how expert evidence should be obtained and presented in order to attain the goals of saving costs and fairly disposing of the cause or matter (see Mok King Sun para.25, Ansar Mohammad para.42 and Lau Lai Shan para.57). In the EC Action, reinforcement of such principle comes in the clearest form by the court’s express directions made on 23^rd September 2008, 4^th February 2009 and 14^th April 2009.

V. Psychiatric expert evidence

34.Turning to psychiatric expert evidence, unbeknownst to the court in both the EC and PI Actions and to the Respondent/Defendant, the Plaintiff’s solicitors sent instructions to Dr Lai on 28^th March 2008 and arranged for the Plaintiff to be examined by Dr Lai on 31^st March 2008 on a solo basis. This was done shortly before 1^stCLR on 16^th April 2008 with a view to seek directions at the 1^st CLR foradducing psychiatric expert evidence on the basis of such solo report.

35.The Defendant was caught unawares since the Plaintiff’s intention to adduce psychiatric expert evidence was only revealed in the draft directions in the Plaintiff’s checklist dated 29^th March 2008 for the 1^st CLR. It transpired that the Plaintiff’s solicitors never even disclosed to the Defendant’s solicitors any treatment report showing that the Plaintiff had been receiving psychiatric treatment as a result of the accident. This means that the Defendant was not being reasonably equipped to assess whether psychiatric expert evidence was properly required or not. It goes without saying that the Plaintiff’s solicitors never let on anything about Dr Lai’s medical examination to the Defendant’s solicitors until after (a) instructions had already been despatched to Dr Lai, (b) the appointment for solo medical examination by Dr Lai had already been fixed, and (c) it was too late to object to such solo medical examination.

36.It is no wonder that the Defendant’s solicitors felt perturbed enough to immediately write to the Plaintiff’s solicitors on 31^st March 2008 to demand copies of the Plaintiff’s psychiatric treatment reports and to reserve the right to oppose psychiatric expert evidence.

37.The Plaintiff’s solicitors only disclosed the psychiatric treatment report on 9^th April 2009 by which time Dr Lai had conducted his solo medical examination of the Plaintiff, which then set in train the solo nature of psychiatric expert evidence.

38.The Defendant’s solicitors promptly responded on the same day to say that they would be prepared to instruct Prof Lieh Mak if leave were granted at the 1^stCLR for adducing psychiatric expert evidence. In the end, the PI Master did not accede to the Plaintiff’s application at the 1^stCLR, and she limited expert medical evidence to 1 orthopaedic consultant for each party.

39.However, the Plaintiff still pursued the matter of psychiatric expert evidence. Dr Lai was asked to and did complete his report on 24^th July 2008. But the Plaintiff’s solicitors chose not to disclose such report until 8^th September 2008, ie very shortly before the CLR Hearing on 20^th September 2008 (“2^nd CLR”), when theytold the Defendant’s solicitors about their intention to renew the application for leave to adduce psychiatric expert evidence.

40.Notwithstanding the Defendant’s opposition, the PI Master granted leave to adduce evidence from 1 psychiatric expert by each party at the 2^nd CLR. But as a reflection of the dim view taken by the court over the solo approach adopted by the Plaintiff, it was ordered that :

“The psychiatric expert reports are at the Plaintiff’s own risks as to costs, in accordance with the principles in HCPI1096 of 2003. In other words, if the Trial Judge finds that it is not necessary for the Plaintiff to obtain a report from a psychiatric expert, the Plaintiff may be ordered to bear the costs of her psychiatric reports, and the psychiatric reports obtained by the Defendant as well as the wasted costs of the Revised Statement of Damages and Answer thereto.”

41.The PI Master gave directions for sequential service of psychiatric expert report by Prof Lieh Mak and supplemental psychiatric expert report in reply by Dr Lai. Prof Lieh Mak medically examined the Plaintiff on 21^st October 2008 and completed her report on 9^th January 2009. Dr Lai’s supplemental report was ready on 29^th January 2009.

42.Although the above discussion in relation to psychiatric expert evidence is in the context of the PI Action, it is still relevant to the EC Action. After all, if expert medial evidence is required for the EC Action, the parties’ express intention (submitted to this court) is to rely on and adduce the various solo reports from Dr Lai and Prof Lieh Mak. In the circumstances, how psychiatric expert evidence should be obtained or presented also comes within the realm of discretion of the court in the EC Action.

43.From the above chronology, by the time the parties’ solicitors jointly wrote to the court in the EC Action on 23^rd September 2008 to defer seeking directions on expert medical evidence, the parties were well aware of the Order made on 20^th September 2008 by the PI Master at the 2^nd CLR and of the motion set in train for obtaining sequential solo psychiatric expert reports. Nevertheless, no attempt was made to inform the court in the EC Action of such fact even though (a) at that stage there was real potential likelihood of a need to adduce psychiatric expert evidence for the EC Action, and (b) the court in the EC Action had the power and duty to properly exercise its discretion to give directions on such matter.

44.More importantly, even when the court in the EC Action by express directions (not once but 3 times on 23^rd September 2008, 4^th February 2009 and 14^th April 2009) leaned in favour of a joint approach and required prompt application for directions otherwise, no attempt was made to seek the court’s directions or even to intimate to the court that the parties were in the process of obtaining solo expert medical reports which might be adduced in the EC Action in due course.

45.The court in the EC Action has exercised proactive case management by adopting short-scheduling technique and by requiring the parties to provide information and propose directions at each short-scheduled event so that the court was empowered to grant useful and comprehensive case management directions. In the absence of any attempt by the parties to provide to the court in the EC Action critical information in relation to expert medical reports obtained or to be obtained, the court may be forgiven in believing all along that no expert medical reports had yet been obtained or at the very least no solo expert medical reports had yet been obtained by either party. Regrettably, nothing was done to disabuse the court of such logical impression even after the court granted the express directions on 23^rd September 2008, 4^th February 2009 and 14^th April 2009.

46.Ms Chan and Ms Leung submitted that the rationale for not promptly informing the court in the EC Action about the solo psychiatric expert reports was because they were obtained for the purpose of the PI Action and it was as yet unknown whether they would be used in the EC Action pending the issuance of the Form 9. Such argument based on a notional Chinese wall between the EC and PI Actions was also raised by the parties in Lee Sau Fat (see para.90). For the reasons set out in Lee Sau Fat in paras.91-101, which are applicable mutatis mutandis to the present circumstances, I am unable to accept such argument.

47.Indeed, such argument suffers from a fundamental flaw. Whilst Ms Chan and Ms Leung readily acknowledged that the court in the EC Action had the power and duty to exercise discretion over how expert medical evidence should be obtained and presented in order to save costs and to fairly dispose of the cause or matter, the parties were in fact only paying lip service because the effect of their argument is that prior to the issuance of the Form 9 the court should not exercise such discretion (whilst the parties went their own ways to obtain solo reports ostensibly for the PI Action) and after the issuance of the Form 9 the court still should not exercise such discretion (but should endorse the solo reports already obtained) even if expert medical evidence is required. That such argument is mounted notwithstanding the court’s express directions requiring the parties to justify a solo approach only compounds the flaw.

48.However, the court does not grant directions in vain and its hand will not be forced, and the Chinese wall argument that cuts both ways is necessarily rejected. Apart from the costs of the supplemental report of Dr Lai (which I will come to below), in line with the rationale and discussion in Wong Cheuk, I have also reserved the issues of costs and legal aid taxation in relation to the solo psychiatric expert reports.

49.Practitioners are reminded that PD18.1 (see Appendix F) and PD18.2 (see paragraphs 75-76 and 84-85 and items 5-6 of Appendix D) now contain provisions that are targeted at breaking down Chinese walls between corresponding employees’ compensation and common law proceedings by requiring the parties to disclose to the EC court information concerning the status and progress of any corresponding personal injury action and to inform the PI Master of the status of any corresponding employees’ compensation claim. It is hoped that with proper disclosure the problems identified above will be reduced or minimised.

50.Ms Chan and Ms Leung submitted that the Form 9 should be available shortly, and hence I should defer consideration of the issue of expert medical directions. Whilst I am prepared with some reluctance to defer this issue and gave directions accordingly, I am unable to see why in all the circumstances the costs of the supplemental expert report of Dr Lai dated 29^th January 2009 should be allowed for the EC Action.

51.If expert medical evidence is not required for the EC Action, the Applicant will not be entitled to such costs anyway.

52.If expert medical evidence is required for the EC Action, such costs come within the discretion of this court. But as far as I can see, there is little justification in the first place for adopting a solo approach to obtaining Dr Lai’s original report dated 24^th July 2008, which approach flies in face of the guidance in PD18.1. It was said in the App D Info that the Plaintiff’s solicitors had explained to the Plaintiff about the guidance in PD18.1 for arranging joint report and the consequences thereof, but the Plaintiff insisted on a solo approach. Given that instructions were despatched to Dr Lai and that the appointment for medical examination by him was fixed about 2 weeks before the 1^st CLR, I do not see any reason why the Plaintiff or the parties could not have waited to seek directions from the PI Master at the 1^st CLR or applied to this court to seek appropriate case management directions. To push ahead with the solo medical examination so shortly before the 1^st CLR when there was ready access to the courts for proper case management leads to the inevitable conclusion that (as conceded by the Plaintiff) it was a step taken to ensure a solo outcome. I further note that the Plaintiff’s solicitors applied to adduce psychiatric expert evidence at the 1^st CLR even before Dr Lai’s report was available, so such solo approach was not even bolstered by any wish for legal professional privilege protection. Such bald insistence on a solo approach is not justified and must attract costs and/or other consequences.

53.As I see it, Dr Lai’s supplemental report was necessitated by essentially 2 matters, firstly a need to comment on Prof Lieh Mak’s opinion as expressed in her report dated 9^th January 2009, and secondly a need to review the psychiatric medical records from Castle Peak Hospital which Prof Lieh Mak called for when compiling her own report. In my view, had there been joint medical examination and joint report by Dr Lai and Prof Lieh Mak, Dr Lai’s supplementary report would have been unnecessary.

54.If there had been joint medial examination and joint report, Dr Lai and Prof Lieh Mak would have premised their opinion on the same interview and medical history taken from the Applicant/Plaintiff, the same mental state examination or psychiatric test, and the same medical records. Since Prof Lieh Mak wished to refer to the medical records of Castle Peak Hospital, such records obtained for Prof Lieh Mak would also have been available to Dr Lai before they compiled or finalised any joint report had the joint approach been adopted. There would have been no need for Dr Lai to render a supplemental report for the purpose of reviewing and commenting on such records.

55.Likewise, had a joint approach been adopted, Dr Lai and Prof Lieh Mak would have held a discussion to ascertain on what issues they would have reached common opinion and in respect of each such issue what that common opinion would have been, and further on what issues they would have failed to reach common opinion. They would have set out in their joint report their competing views on the issues they disagreed and the reasons for disagreeing with the opposing expert’s views on each such issue. In such case, there would not have been any need for a supplemental report from Dr Lai to comment on the opinion from Prof Lieh Mak.

56.In the circumstances, I am persuaded that even if psychiatric expert evidence is allowed for the EC Action, the Applicant should not be allowed to recover the costs of the supplemental expert report which was necessitated by her own unjustified insistence on a solo approach without leave of the court. In line with the discussions in Wong Cheuk, I reserved the issue of legal aid taxation of such costs for future consideration.

VI. Postscript

57.At the hearing before me, I canvassed with Ms Chan and Ms Leung various aspects of the solo reports by the orthopaedic and psychiatric experts. The issues in this case do not appear complicated, yet no less than 5 expert medical reports are already in place. Since I have reserved the issue of expert medical evidence for future consideration, I will not descend into detailed discussion here.

58.For orthopaedic expert evidence, Dr Ho did not have access to various updated treatment medical reports/records that were available to Dr Lam and has not had the opportunity to comment on Dr Lam’s opinion, and there are arguably some medical issues arising from their respective reports that may give rise to a need for requiring supplemental report. Such need would have been minimised had there been expert conferencing and consultation by way of joint medical examination/report.

59.For psychiatric expert evidence, notwithstanding Dr Lai’s 2 reports and Prof Lieh Mak’s report, the lack of a joint medical examination led to differences in observations of and history taking from the Applicant/Plaintiff and ininterpretation of the pain chart administered by Prof Lieh Mak (and not by Dr Lai), which in turn led to disputes in observations on behavioural aspects and to divergent positions on the conclusions drawn. Given the different bases of reliance, there is enhanced risk of having to call the psychiatric experts to give oral evidence.

60.Whilst I need not form any concluded view at this stage, I cannot help note that if expert medical evidence is required for the EC Action, the risk of incurring greater costs and time by commissioning serial supplemental reports and having the medical experts give oral evidence might have been obviated by joint examinations/reports that provide comprehensive basis for resolution of the issues by the trial judge.

61.I end by saying that this is a prime example of excessive adversarialism uncurbed even by diligent exercise of case management by the court in the EC Action. Overzealous adversarialism has a deleterious effect on overall civil justice. It is hoped that the Civil Justice Reform, PD18.1 and PD18.2 will bring about proactive change to the mindset that underpins civil litigation culture so as to facilitate the underlying objectives.

Representation:

Ms K Chan of Messrs W K To & Co for the Applicant.

Ms A Leung of Messrs Deacons for the Respondent.