Tsang Siu Kui v. Gallantly Ltd

HCPI 308/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 308 OF 2009

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BETWEEN

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Coram : Before Master Roy Yu in Chambers

Date of Hearing: 18 September 2009

Date of Further Written Submission: 19 October 2009

Date of Judgment: 28 October 2009

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R U L I N G

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The Application

1.This is an application by the Defendant for leave to adduce medical evidence by a neurologist. As a matter of fact, direction for expert evidence has been given by Master Ho. According to his Order dated 2 October 2009, medical evidence is limited to one orthopaedic expert, one urologist, one psychiatrist, and one occupational therapist.

2.Defendant submitted that when Master Ho gave the said order, he was aware that the Defendant would apply for leave to adduce neurologist expert report.

The Law

3.The application is made by summons under Order 38 rule 4. The application is opposed by the Plaintiff. The legal principle in admission of expert evidence is not really in dispute. The guiding criteria whether leave to adduce medical expert evidence should be allowed are necessity, relevance and probative value.

4.And for an applicant to persuade this Court to admit medical expert evidence, as stated by Mr. Justice Fung in Farman Khan v. Lau Kai Hong and another HCPI 850/2008, “an application to adduce expert evidence must be supported by prima facie evidence of relevance.”

The Defendant’s case

5.In support of the application, the Defendant filed the Affidavit of Fung Oi Kwan. It is stated that the Plaintiff claims, inter alia, future loss of earning with a multiplier of 11, and future medical and care expenses with a multiplier of 20. In assessing the appropriate multiplier, the future life expectancy of the Plaintiff is a relevant consideration.

6.It is not disputed that the Plaintiff has injury to the S1 to S5 nerve root bilaterally. Again, it is not disputed that the Plaintiff has not received any treatment by neurologist.

7.Ms. Fung produced a letter from Dr. Edmund Woo, who is a neurologist, stating that “for a patient at the age of 50 who had a lower spinal injury and who has a residual Frankel Grade D disability (Grade D disability referring to the preservation of functional ability [such as walking] below the level of the lesion), the remaining life expectancy is about 82% of the normal population.” Dr. Woo also referred to other studies which all indicate that spinal injury would lead to lower expectancy of life.

8.Dr. Woo has been referred to the other experts’ opinions on the Plaintiff which is adduced with leave of Court. He commented that “[the Plaintiff] has weakness in both lower limbs and double incontinence which are likely to reduce his remaining life expectancy. The most significant cause of death is expected to be urinary tract dysfunction and renal failure.” Dr. Woo said he could not conclude the loss of life expectancy for the Plaintiff without examining him.

9.Pausing here, it appears the main purpose of this report is to comment whether the Plaintiff suffers any reduction in life expectancy by the injury.

10.Ms. Fung, solicitor for the Defendant submitted that assessment of continuing future expenses is normally based on life expectancy. The Plaintiff’s post-accident life expectancy is taken as the yardstick for determining the multiplier for future continuing expenses. And in many cases involving spinal injury, neurological experts were allowed to give expert opinion on the effect of the spinal injury on loss of expectancy of life. A number of judgments are cited in her written submission which I need notrepeat.

The Plaintiff’s Objection

11.The Plaintiff filed an Affidavit of Lee Ka Chun Peter. He stated that the injury suffered by the Plaintiff does not necessarily indicate the Plaintiff suffered any neurological disability. He has not been treated by neurologist. And none of the experts who examined the Plaintiff suggests the Plaintiff has to be assessed by neurologist.

12.The Plaintiff also obtained a short report from another expert, Dr. Gardian Fong, whose report is exhibited to the said Affidavit of Lee Ka Chun Peter. Dr. Fong agreed with the opinion of Dr. Woo that there would be reduced life expectancy for the Plaintiff. He added that the actual life span might be variable by the medical treatments and cares that the Plaintiff has received or going to receive.

13.Ms. Yang, counsel for the Plaintiff submitted that in determining the proper multiplier, the approach of the Court in recent cases is to rely on previously decided cases.

14.Ms. Yang referred me to the case of Cunningham v. Camberwell Health Authority [1990] 2 Med L R 49 cited by Mr. Justice Suffiad in Lee Suk Yi v. National Insurance Co. Ltd. HCPI 439 of 2000. Mustill LJ in Cunningham’s case said –

“What happens in practice is that the judge adopts an intuitive process buttressed by reference to previously decided cases.  These cases partly operate as reference point whose features are compared with those of the case under consideration and partly from the basis of a general climate of opinion on the proper multiplier in a particular type of case with which a judge of long experience in the field will be entirely familiar.  But it must be observed that these previous cases themselves must ultimately be intuitive in origin.”

15.The case was indeed adopted by the Court of Appeal in Chan Pui Ki v. Leung On and another [1996] 2 HKLR 401 at 421. Mr. Justice Litton VP (as he then was) said in his Judgment –

“For many years the conventional method of assessing the appropriate lump sum to compensate for loss of future earnings has been to use the multiplier/multiplicand approach.  As described in Kemp and Kemp Vol. 1 paragraph 6-005 (August 1995 update):

‘This is a crude way of taking into account the relevant contingencies such as mortality and the receipt of a lump sum as compensation for a stream of future losses.  But it is the practice almost universally adopted by the court.  A vital ingredient in this approach is the discount rate on which the multipliers currently used by the court are based.’

Crude though the method may be, it is nevertheless a realistic acknowledgement of the inherent limitations of the whole exercise.  It is based upon the applied wisdom of the courts over many years.  In selecting a particular multiplier, the court would be able to make comparisons with multipliers used in similar cases.  As Diplock LJ observed in Every v. Miles (1964 CA No. 261, unreported, quoted in Kemp and Kemp at para 7-001), ‘these standards have evolved from such current consensus of damage - awarding tribunals as is manifested by the amounts they have in fact awarded in broadly comparable cases’.  The ‘consensus’ in Hong Kong is formed of course by the awards made by the Masters in chambers and High Court judges in court over the years.

It would be wise to bear in mind that the assessment of damages for future pecuniary loss can never be a mere matter of mathematics…..”

16.Ms. Yang submitted that the report from the neurologist does not assist the Court in coming to a decision on the appropriate multiplier to be used, and should not be allowed.

Discussion

17.Having considered all the judgments referred to me by the parties, I agree with Ms. Yang that in determining the proper multiplier, that involves a comparison of multipliers used in similar cases. The judge would be in the best position to have regard to the physical condition and the degree of recovery of the Plaintiff to consider if there should be, say, further discount be given to the multiplier used in a similar case.

18.If the Plaintiff has suffered from neurological injury with residual disability therefrom, I agree that the neurologist report would be relevant in commenting on his life expectancy.

19.It is the Plaintiff’s case on 19 October 2006, in the process of dismantling a container rack, one of the side panels loosened and fell onto him. As a result of the accident, the Plaintiff suffered serious injuries to his body, including abrasions at left lower chest wall and back of both elbows, severe pelvic fracture involving the lower nerve canal, fracture L5 lumbar vertebrae, avulsed bladder with urethral injury representing severe injury of lower urinary tract and small amount of haemoperitoneum.

20.Currently, the Plaintiff is wheelchair-bound most of the time. He is able to stand with support of walking frame and could go to toilet with the help of a walking frame and a helper. He suffers from impaired sensation from waist downwards. He has pain over lower back, pelvic and lower limbs particularly left leg associated with poor weather, walking with crutches, exertion or sitting and/or standing over one hour.

21.It is not suggested by any of the experts who have examined the Plaintiff that he suffered from any neurological injury or that the condition of the Plaintiff should be assessed by a neurologist. There is no evidence before me that suggests the Plaintiff suffered any disability from the spinal injury.

22.I am aware of the cases that neurologist reports were produced in Court to comment on the loss of life expectancy.

23.But if a person is wheelchair bound because he lost both legs in an accident, he may equally has a shorter life expectancy due to his lower limb weakness, as he would have problems such as back sore, urinary tract dysfunction. He may have reports from orthopaedic expert and rehabilitation expert. But I fail to see the basis for calling a neurologist to examine him if he does not suffer any residual neurological defects.

24.Ms. Fung suggested that in all cases for loss of life expectancy, it has to be commented by the neurologist. I doubt the correctness of this statement. I am sure the trial judge/master could base on similar cases, and relevant medical evidence on the residual disability of the claimant to assess the proper multiplier.

25.I note the comments of Dr. Woo are based on the assumption that residual disability from the injury to the nerve root would create loss of life expectancy. But the medical evidence in respect of the Plaintiff does not show any residual disability. As for the further point of Dr. Woo that the most significant cause of death is expected to be urinary tract dysfunction and renal failure, I fail to see why this could not be commented by the urologist.

Ruling

26.In summing up, I found that the Defendant fails to show a prima facie case that the neurologist report is relevant or necessary. The application should be dismissed.

27.I dismiss the summons and I see no reason why the Plaintiff should not have costs. I give an order nisi that the Plaintiff do have costs of this summons with certificate for counsel, such order to become absolute within 14 days. Upon order absolute, the Plaintiff should fix a short hearing before me as I intend to assess the costs instead of taxation.

Ms. E. Yang, instructed by Messrs. Au Yeung, Cheng, Ho & Tin for the Plaintiff.

Ms. M. Fung of Messrs. JSM for the Defendant.