Siu Fook Cheong v. Siu Kwok Fai and Another

HCPI 768/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 768 OF 2009

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Coram : Before Master Marlene Ng in Chambers (open to the public)

Date of Hearing :   27 January 2010

Date of Directions :   27 January 2010

Date of Handing Down Reasons for Directions  : 2 February 2010

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REASONS FOR DIRECTIONS

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I.  Introduction

1.In the present proceedings the Plaintiff claimed against the Defendants for damages for personal injuries and other loss and damages arising from multiple injuries (including fractured ribs, degloved injury to the left elbow and facture right knee tibial plateau) suffered as a result of a road traffic accident on 21 December 2006.  The Plaintiff claimed that the accident was caused by the negligence of the 1^st Defendant for which the 2^ndDefendant was vicariously liable.

2.On 12 January 2009, the Plaintiff issued an inter partes summons seeking directions for single joint or joint medical examination by the parties’ respective orthopaedic experts in order to compile his/their single joint or joint orthopaedic expert report (“Summons”).

3.At the hearing of the Summons before me on 27 January 2009, Mr Yeung, solicitor for the Plaintiff, and Mr Lui, solicitor for the Defendants, agreed to arrange a joint medical examination of the Plaintiff by Dr Lee Po Chin (“Dr Lee”) for the Defendants and an orthopaedic expert nominated for the Plaintiff.  The remaining disputed issues before me were (a) whether the Plaintiff was entitled to instruct Dr Danny Tsoi (“Dr Tsoi”) as his orthopaedic expert, and (b) how the costs of and occasioned by the solo expert report dated 21 October 2009 compiled by Dr Tsoi on instructions from the Plaintiff’s solicitors (“Report”) be provided for.

4.I granted the following directions at the hearing:

(a)  the orthopaedic expert nominated by the Defendants is Dr Lee;

(b) subject to (c) below, the Plaintiff is entitled to nominate Dr Tsoi as his orthopaedic expert;

(c)  within 7 days thereof, ie on or before 3 February 2010, the Plaintiff is to serve supplemental letter from Dr Tsoi verifying the Report by statement of truth in compliance with Order 38 rule 37A and Order 41A rules 2 and 5 of the Rules of the High Court (“RHC”) and declaring compliance with the Code of Conduct in Appendix D of the RHC (“Code”) in compliance with Order 38 rule 37C of the RHC;

(d) parties do within 14 days from the date thereof, ie on or before 10 February 2010, jointly write to the Personal Injuries Master (“PI Master”) on the following:

(i)    the date of the joint medical examination of the Plaintiff by the parties’ respective orthopaedic experts, which date shall be no later than 63 days from the date thereof;

(ii)  the date of completion of the joint orthopaedic expert report by the parties’ respective orthopaedic experts, which date shall be no later than 42 days thereafter;

(e)  the parties’ respective orthopaedic experts, ie Dr Tsoi for the Plaintiff and Dr Lee for the Defendants, shall after the aforesaid joint medical examination compile the aforesaid joint expert report.  In the joint report, the experts shall have regard to paragraphs 86-87 of Practice Direction 18.1 (“PD18.1”) and shall state (i) all the issues upon which they have reached common opinion and (ii) all the issues upon which they have failed to reach common opinion, and to further state (iii) their competing view on each and every such issue and (iv) the reasons for their disagreement with the opposing view. If any divergence of opinion relates to a prophylactic work issue, this must be fully addressed;

(f)   such joint orthopaedic expert report shall be accompanied by its statement of truth;

(g)  Check List Review (“CLR”) hearing scheduled on 13 May 2010 at 10:30am be vacated and adjourned to a date in early June 2010, and the Plaintiff’s solicitors shall fix a date with the Listing Clerk within 14 days;

(h)  PI Master shall be notified at once and in any event within 3 days if any of the above dates or directions are not met;

(i)    there shall be no order as to costs of and occasioned by the Report;

(j)    costs of and occasioned by the letter from the Defendants’ solicitors to the PI Master dated 5 January 2010 be paid by the Plaintiff to the Defendants;

(k)  costs of the Summons and half of the costs of the hearing before me be paid by the Plaintiff to the Defendants;

(l)    half of the costs of the hearing before me be costs in the cause;

(m)   the costs orders in (j)-(l) above to be taxed if not agreed;

(n)  the above order be drawn up pursuant to paragraphs 203-204 of PD18.1.

5.Since the above directions touch on the operation of certain provisions concerning expert evidence in PD18.1 not found in the pre-CJR Practice Direction 18.1, I have reserved my reasons for the above directions for discussion of such provisions, which reasons I now hand down.  To facilitate better understanding of such discussion, I first turn to the background facts.

II.  Background

6.After the accident, the Plaintiff was hospitalised at Queen Mary Hospital (“QMH”) and Maclehose Medical Rehabilitation Centre (“MMRC”). The treatment medical reports revealed that the Plaintiff’s solicitors became involved in this matter at the latest in August 2009.  Indeed, on 9 and 10 August 2009, the Plaintiff’s solicitors wrote to MMRC and QMH respectively for medical reports on the Plaintiff, and such reports were supplied on 26 August and 21 September 2009 respectively.

7.Mr Yeung confirmed that it was in late September 2009 that the Plaintiff’s solicitors sent instructions to Dr Tsoi to medically examine the Plaintiff and to compile an orthopaedic expert report.

8.Pursuant to the pre-action protocol under Part B of PD18.1, the Plaintiff’s solicitors issued pre-action letters dated 19 October 2009 to the 1^st and 2^nd Defendants respectively, and invited constructive reply within 1 month.

9.On 12 October 2009, Dr Tsoi medically examined the Plaintiff. On 21 October 2009, he completed the Report.

10.The Defendants’ solicitors came into the picture and on 5 December 2009 wrote to the Plaintiff’s solicitors inter alia to express their concern over the Plaintiff obtaining a solo orthopaedic expert report without inviting their client(s) to participate in any joint medical examination and to propose a joint medical examination of the Plaintiff by the Defendants’ orthopaedic expert Dr Lee and an orthopaedic expert (other than Dr Tsoi) to be nominated by the Plaintiff.

11.On 9 December 2009, the Plaintiff’s solicitors issued the Writ of Summons in the present proceedings.

12.On 18 December 2009, the Defendants’ solicitors wrote to the Plaintiff’s solicitors to follow up on their proposal for joint expert medical examination of the Plaintiff. On 21 December 2009, the Plaintiff’s solicitors replied to say that the Plaintiff would not object to attending medical examination by Dr Lee. 

13.On the following day, the Defendants’ solicitors replied by referring to the provisions in PD18.1 on single joint or joint approach to expert medical evidence and expressing concern over the implicit suggestion that Dr Lee should proceed with solo expert medical examination of the Plaintiff.  They invited the Plaintiff’s solicitors (a) to jointly apply to the court to expedite the CLR hearing scheduled for 13 May 2010 so that the PI Master could give directions on expert medical evidence or (b) to alternatively consider their proposal for joint medical examination of the Plaintiff by the parties’ respective orthopaedic experts. 

14.On the same day, the Defendants’ solicitors wrote to the PI Master to seek an expedited CLR hearing.  By my order dated 7 January 2010, I directed the Defendants to issue an inter partes summons pursuant to paragraph 71 of PD18.1 within 7 days from the date thereof returnable before me for canvassing all matters in relation to expert medical evidence.  I further informed the parties that since the present action was still in its infancy, it would be inappropriate to expedite the CLR hearing. 

15.On 12 January 2010, the Defendants’ solicitors issued the Summons.  On 15 January 2010, the Plaintiff filed his Statement of Claim, Statement of Damages and Medical Reports pursuant to Order 18 rule 12(1A)(a) of the RHC.

16.On 20 January 2010, the Plaintiff’s solicitors wrote to inform the Defendants’ solicitors that the Plaintiff had no objection to joint medical examination by Dr Lee and the Plaintiff’s orthopaedic expert.

17.On 23 January 2010, the Defendants’ solicitors reiterated their objection to Dr Tsoi to act as the Plaintiff’s medical expert.

18.On 25 January 2010, the Plaintiff’s solicitors insisted that Dr Tsoi was a suitable expert, and further suggested that costs of the Report be reserved for consideration at the CLR hearing.

19.Eventually, as discussed above, the Summons came before me on 27 January 2010.

III.  Approach to obtaining expert medical evidence

20.The underlying objectives in Order 1A of the RHC place emphasis on the need “to ensure that a case is dealt with as expeditiously as is reasonably practicable”, “to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings” and “to ensure fairness between the parties”.  The parties and their legal representatives should assist the court to further such underlying objectives.

21.Even before the implementation of the CJR, the court has encouraged the parties and their legal representatives to adopt a joint approach to obtaining expert medical evidence by (a) arranging joint medical examination of the injured person by the parties’ respective medical experts and (b) compiling joint expert medical report that set out the matters on which they agreed and/or disagreed and the reasons for non-agreement.

22.In Ansar Mohammad v Global Legend Transportation Limited DCEC1090/2006 (unreported, 8 May 2007), I have set out some of the advantages of such joint approach:

“ (a) to prevent confusion and time-wasting when it is discovered at an advanced stage of the legal proceedings that the parties’ respective medical experts are proceeding on different medical background of the party to be examined, different complaints by such party, and/or different findings from the physical examination/other investigation;

(b) to identify at an early stage the medical issues, the relative merits of the claim and the areas in which the parties may reach agreement;

(c) to facilitate settlement or (if settlement cannot be achieved) facilitate preparation for trial that will be focused on the issues in dispute”.  (paragraph 46)

23.In Lau Lai Shan v Hospital Authority DCEC784/2007 (unreported, 29 February 2008), I have expanded on the above observations as follows:

“ 31.    I have in paragraphs 46-47 of my decision in Ansar Mohammad set out the case management objectives and advantages in requiring parties in employees’ compensation cases to produce joint expert medical reports pursuant to a joint medical examination by their respective medical experts in order to identify the agreed matters and to identify/reduce the areas of dispute thereby minimising time and costs of litigation.  Early focus on the real medical issues to be resolved is plainly a laudable case management objective in any personal injuries litigation.

32.    A joint medical examination also alleviates the risk of dispute on history taking and on observations (which may include objective or subjective signs, eg in the orthopaedic context, muscle wasting, muscle guarding/spasm, Waddell’s signs) during physical examination by competing medical experts.  This is of some moment because disputes on such matters go to the underlying assumptions that form the basis of expert opinion and such disputes compound the court’s difficulty in assessing competing medical opinion and in answering the ultimate medical issues.  By capturing such information and observations in a single medical examination, areas of dispute over expert opinion will obviously be reduced.

33.    A joint expert report requires the medical experts to confer, which has the advantage of minimising extreme views. When a medical expert has to justify his opinion to a fellow professional, partisan opinion tends to become more balanced and/or moderated.  The discussion between experts may also reveal relevant facts or information that are not appreciated by one of them and may help in identifying and putting aside peripheral issues.  The joint discussion and the exercise of drafting the joint report can lead to greater focus on narrowing the medical issues and expert opinion, and on defining significant areas of disagreement, which coincide with the fundamental purpose of case management. …… such approach should facilitate reasonable and honest settlement, and even if it does not result in settlement, it will ensure efficiency of the trial by bringing the essential issues into sharper relief.  All this translates into savings in time and costs.  To harness the advantages discussed above, it is essential for the medical experts to confer at the earliest stage to ensure they consider the same primary information, address the same issues and give opinion on the same medical questions.”

24.The above approach in relation to employees’ compensation cases echoes the guidance in the Guidance Note to the pre-CJR Practice Direction 18.1 for personal injuries cases.  Such guidance laid emphasis on the objective of fair and expeditious determination of claims and the need to avoid proliferation of expert evidence:

“Paragraph 2

Many practitioners obtain reports in every conceivable medical or quasi-medical discipline before they establish sensible contact with the insurance company concerned or their solicitors e.g. orthopaedic, neurological, urological and psychiatric reports, and reports from an occupational therapist, physiotherapist, rehabilitation consultant, surveyor etc.  What they should be doing instead of this ‘front-loading’ exercise on costs is to invite the Defendants to take part in a joint examination by respective experts, or in a joint instruction to an agreed expert.  Failure to do so is likely to result in the Plaintiff's’ practitioners not recovering such costs from Defendants in the event of a settlement or a judgement against the Plaintiff.

The Court will be alert to prevent, when it can, practitioners from recovering such costs from the Plaintiff or out of the Plaintiff’s damages.”

25.As Fung J said in Limbu Bhimraj v All Clad Asia Limited HCPI603/2007 (unreported, 4 November 2008), “[joint] reporting has the advantage of maximizing agreement between the doctors and focusing on disagreement” (paragraph 12).  Without the opportunity for mutual discussion and cross consideration between the medical experts, there is real risk that following his/their solo report(s) further joint supplemental report may be necessary and/or they may be required to give oral evidence at trial.  This will inevitably lead to delay and/or increase in costs.

26.In his decision in Mok King Sun v Turn Around Company Limited & ors HCPI865/2007 (unreported, 25 March 2009) delivered on the eve of the implementation of CJR, Fung J referred to the virtues of a joint approach to expert medical examination/report as follows:

“26. Whilst I am not deciding on whether to order a joint examination and report (especially in psychiatry), I think some general observations on the benefits of joint examination and reporting is helpful:

(1) avoidance of different observations on different occasions, or disputes on observations under single examination;

(2) discussions amongst the experts to narrow down the issues;

(3) specifying matters agreed and matters not agreed and the reasons for any non-agreement;

(4) avoidance of numerous supplemental reports commenting on the reports of the other side;

(5) minimizing the need to call the experts to deal with matters which could have been dealt with under (1) to (4) above.”

27.The post-CJR PD18.1 captures the above benefits of the joint approach to expert medical evidence in its provisions on the form of expert reports as follows:

“87. Without prejudice to the generality of paragraph 8 of RHC, Appendix D, and in addition to the provisions in paragraph 86 hereof, the parties’ respective experts when preparing joint expert report should be asked to adopt and specify in such report the common parameters upon which their opinions are based, and they should be asked to specify in the joint expert report:

(1) if different parameters have been used, the parameters upon which each expert’s opinion is based and the reasons for adopting different parameters;

(2) the issues on which the experts have reached a common opinion and in respect of each such issue what that common opinion is;

(3) the issues on which the experts have failed to reach a common opinion and their competing views on each such issue; and

(4) the reasons for a given expert's disagreement with any opposing expert’s views on each such issue.”

28.Bearing in mind the above-discussed benefits of a joint approach to expert medical evidence and the court’s encouragement to adopt such approach, I now turn to the relevant procedural provisions in PD18.1 that (a) facilitate parties in harnessing such benefits and (b) underline the court’s favour of such approach.

IV.  PD18.1

29.Part B of PD18.1 establishes a pre-action protocol for personal injuries litigation, which intended plaintiffs and intended defendants should comply.  Paragraph 22 of PD18.1 provides a regime for obtaining expert medical reports prior to the commencement of legal proceedings under the pre-action protocol:

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

30.Paragraphs 81 and 84 of PD18.1 referred to above provide as follows:

“ 81.    Where each party instructs his own medical expert, arrangements should be made for joint examination of the injured person, and the respective medical experts should prepare a joint expert report and/or joint supplemental expert report(s) pertaining thereto for or with a view for disclosure in the proceedings (see also paragraph 22 hereof).

84.    A party who unreasonably fails to cooperate in instructing or arranging joint examination of the injured person and/or in instructing or preparing joint expert report will risk sanctions being imposed by the Court as it deems fit, which may include refusal of leave by the Court to adduce expert report prepared singly by such party’s own medical expert and/or refusal by the Court to allow costs for obtaining such report.”

31.If the intended plaintiff and the intended defendant are unable to agree on arranging joint medical examination and/or compiling joint expert medical report by their respective experts before the commencement of proceedings, paragraph 71 of PD18.1 gives guidance on the steps to be taken in such circumstances:

“As soon as it is realised there exists a need or an anticipated need for adducing expert evidence at trial or if parties failed to reach agreement on arranging joint examination and/or compiling joint expert report by the parties' respective experts before or after the commencement of proceedings or if no agreement can be reached as to directions on obtaining expert evidence and/or for permission to adduce expert evidence, a party shall apply (by inter partes summons or by restoring the case for Check List Review Hearing) or the parties shall jointly apply (by Consent Summons to expedite or restore the hearing of the Check List Review) to the PI Master as soon as possible upon the commencement of or in the course of proceedings, as the case may be, for directions on obtaining expert evidence and/or for permission to adduce expert evidence.” (my emphasis)

32.The consequences of failure to seek leave under paragraph 71 of PD18.1 are set out in paragraph 70 of PD18.1:

“A party who obtains expert evidence before obtaining leave, other than from a single joint expert or pursuant to joint examination and joint expert report with the expert(s) of the other party or parties, does so at his own risk as to costs and/or eventual refusal of leave to adduce such expert evidence.”

33.Paragraph 9 of PD18.1 also sets out the consequences of non-compliance with PD18.1:

“Non-compliance with this Practice Direction and the Pre-Action Protocol herein without good reason may lead to adverse costs consequences and/or sanctions including but not limited to those provided in RHC, Order 62, rule 8 (wasted costs order) and exercise of the Court's power to stay proceedings.”

34.The above provisions in PD18.1 establish the post-CJR regime for expert medical evidence.  In most cases, it will be apparent even at pre-action stage that expert medical evidence will be required for the intended personal injuries claim.  If so, either the intended plaintiff or the intended defendant can invite the other party to proceed with single joint or joint medical examination of the injured person by their respective medical expert(s) for the purpose of compiling single joint or joint expert medical report.  This will enable the parties to have early access to expert medical opinion to (a) facilitate negotiations for settlement and/or (b) provide material for constructive consideration of the option of ADR/mediation, which may in turn obviate the need for legal proceedings.  Even if the matter proceeds to litigation, time will be saved and there will be substantial progress of the case by the time of the first CLR hearing.

35.However, if efforts to arrange single joint or joint expert medical examination at the pre-action stage are unsuccessful and there is no constructive reply from the intended defendant within 1 month of service of the pre-action letter, the intended plaintiff is entitled to commence legal proceedings forthwith without risk as to costs arising out of non-compliance of paragraph 19 of PD18.1.  After the commencement of legal proceedings, either party “shall” as soon as possible apply by inter partes summons to the PI Master to seek directions for obtaining expert medical evidence.

36.If efforts to arrange single joint or joint expert medical examination are initially unsuccessful but there is constructive reply from the intended defendant pursuant to paragraph 19 of PD18.1, the parties should in the next 3 months communicate constructively and provide mutual disclosure of information and documents with respect to the issues of liability and quantum as are reasonably required not only for attempting to settle the claim in whole or in part but also for revisiting proposal(s) for arranging medical examination of the injured person by medical expert(s) (see paragraph 19 of PD18.1).

37.Paragraph 19 of PD18.1 therefore recognises the possibility that parties may not be able to commit to single joint or joint medical examination of the injured person for the purpose of compiling single joint or joint expert medical report at the pre-action stage (though good reasons have to be shown to justify the deferral of such arrangement).  For example, if the injured person is expected to shortly undergo further surgery as a result of injuries from the alleged accident, it may not be cost-saving to obtain a expert medical report when his condition is not yet stabilised and when further report to comment on the injured person’s condition after recovery from the surgery will inevitably be required.  In such circumstances, if there is constructive reply from the intended defendant, PD18.1 encourages the parties to progress constructive communications within the next 3 months by sharing information and documents to see if the matter can be settled or if issues can be narrowed or whether ADR/mediation be explored with a view to save costs.

38.If 3 months of constructive communications do not result in settlement of the claim in whole or in part and/or in arrangements for single joint or joint expert medical examination/report, the intended plaintiff is entitled to commence legal proceedings without risk as to costs and either party “shall” as soon as possible after the commencement of the proceedings issue inter partes summons returnable before the PI Master or both parties “shall” apply for the CLR hearing to be expedited in order to seek directions on obtaining expert medical evidence.

39.Where the end of the limitation period is so imminent that it falls within the timescale set out in paragraph 19 of PD18.1, then the intended plaintiff should commence legal proceedings but is expected to comply with the spirit of paragraphs 15 and 19 of PD18.1 and further progress in the action should be delayed for such purpose save in cases of emergency (see paragraph 21 of PD18.1).

40.The above discussion shows that the provisions in PD18.1 cater for and provide helpful guidance on the way forward under different scenarios.  Given the underlying objectives of such provisions which marry well with the underlying objectives in Order 1A of the RHC, failure to follow the pre-action protocol or to cooperate in arranging single joint or joint medical examination/report without good and cogent reasons may attract court sanctions (eg refusal of leave to adduce any solo expert medical report obtained in breach of PD18.1) and/or cost penalties (eg costs against the defaulting party in respect of such solo medical expert report).

41.I now turn to the present case.

V.  Discussion

42.There is no dispute that the Plaintiff obtained the solo Report at the pre-action stage without inviting the Defendants to participate in any expert medical examination of the Plaintiff.  But the Plaintiff is now willing to participate in joint medical examination by the parties’ respective orthopaedic experts.  In the circumstances, the Plaintiff obviously does not have any fundamental objection to joint expert medical examination. I have read the Report and see nothing in there that mandates a solo approach. Indeed, a quick review of the available treatment medical reports and the Report suggest that a joint approach is entirely suitable.

43.So why did the Plaintiff proceed on a solo and not joint basis at the pre-action stage given that his solicitors must have been well aware of the relevant provisions in PD18.1 that lean in favour of a joint approach?  Mr Yeung did not offer any reason save to say that “[the Plaintiff’s] instructions to sue without legal aid assistance came very late and close to the relevant limitation period”.  I am afraid I do not find this to be an acceptable excuse.

44.First of all, I do not see the relevance of the availability or non-availability of legal aid assistance. PD18.1 applies equally to legal aided and non-legally aided cases.  Secondly, the Plaintiff’s instructions to his solicitors did not come in late as alleged.  As explained in paragraph 6 above, the Plaintiff’s solicitors came into the picture in August 2009, which was about 4 months prior to expiry of the limitation period.  Thirdly, even before Dr Tsoi completed his report on 21 October 2009, the Plaintiff’s solicitors had already issued the pre-action letters to the Defendants (see paragraph 8 above), so the Plaintiff must already have litigation in mind when Dr Tsoi was instructed. In such circumstances, there is little reason for non-compliance with the pre-action protocol under PD18.1.  Fourthly, PD18.1 has come into effect for more than half a year by October 2009. I have no doubt that the Plaintiff’s solicitors were well aware of the provisions of PD18.1 and would have advised the Plaintiff of the effect and consequences of the same.  In my view, the Plaintiff’s non-compliance with paragraph 22 of PD18.1 (ie failing to invite the Defendants to participate in joint expert medical examination/report and proceeding to obtain the solo Report) was unjustified.

45.Even if instructions from the Plaintiff truly came close to the expiry of the limitation period, he could have commenced the proceedings, but he “will nonetheless be expected to comply with the spirit of paragraphs 15 and 19 hereof [ie the pre-action protocol in PD18.1] and further progress of the action should be delayed, save in cases of urgency ……” (see paragraph 21 of PD18.1).  Since the parties did not arrange joint expert medical examination/report, then under paragraph 71 of PD18.1 the Plaintiff should apply by inter partes summons or the parties should jointly apply by consent summons to expedite the CLR hearing to seek directions on obtaining expert evidence as soon as possible after the commencement of the present proceedings.  So even on his own case the solo approach adopted by the Plaintiff in obtaining the Report without leave is unjustified.

46.In my view, the Defendants are fully entitled to issue the Summons for seeking directions from the court on obtaining expert medical evidence and in not acceding to the implicit suggestion by the Plaintiff’s solicitors in correspondence that Dr Lee should proceed with solo medical examination of the Plaintiff (presumably with a view to prepare a solo expert medical report).

47.Having obtained the solo Report without justifiable reason, the Plaintiff faces the potential consequences referred to in paragraphs 9, 22 and 84 of PD18.1, ie possible refusal by the court to grant leave for adducing the Report as expert medical evidence in the present proceedings and/or possible costs sanctions against the Plaintiff in respect of such report.

48.Eventually, the Plaintiff acceded to the Defendants’ request for joint medical examination/report by the parties’ respective orthopaedic experts, and such joint medical examination is expected to take place shortly (ie just a few months after Dr Tsoi’s solo medical examination of the Plaintiff in October 2009).  In my view, given the imminent availability of the joint orthopaedic expert report by Dr Tsoi and Dr Lee, the costs incurred in preparing the Report are quite unnecessary.  Had the Plaintiff invited the Defendants to adopt a joint approach to expert medical evidence under the pre-action protocol, not only would the Report have been unnecessary, the parties would already have had the joint report to hand by now and they would have been able to get on with the litigation or with constructive consideration of sanctioned offer/payment, settlement and/or ADR/ mediation much more expeditiously.  In my view, there is no reason why the Defendants should be put to risk on costs in respect of costs of and occasioned by the Report in addition to the Plaintiff’s costs of the joint report for the present proceedings.  So at the hearing, I ordered that there be no order as to costs of and occasioned by the Report.

49.Although the Plaintiff has waived privilege and disclosed the Report as part of the Plaintiff’s Medical Reports under Order 18 rule 12(1A)(a) of the RHC, he still risks refusal of leave by the court to adduce the solo Report as expert evidence at trial as a result of non-compliance with the guidance in PD18.1. 

50.Since the parties have now agreed to proceed with a joint medical examination of the Plaintiff by the parties’ respective orthopaedic experts for the purpose of preparing a joint expert report, the question therefore boils down to whether the Plaintiff is entitled to nominate Dr Tsoi as his orthopaedic expert for the purpose of the joint medical examination/report.

51.If such question is answered in the negative and the Plaintiff consequently nominates another orthopaedic expert, then it will not be appropriate for the Plaintiff to adduce the Report at trial otherwise the Plaintiff will have orthopaedic expert opinion from 2 experts whilst the Defendants will be limited to orthoapedic expert opinion from a single expert.  This will be unfair, and the Defendants will have a justifiable sense of grievance.  So the parties should not show the Report to their respective orthopaedic experts lest their opinion be coloured by inadmissible opinion expressed in the Report.

52.But if such question is answered in the affirmative, then it is open for the Plaintiff to seek the court’s leave to adduce the Report at trial in addition to the joint report by Dr Tsoi and Dr Lee to be compiled after their joint medical examination of the Plaintiff.  Whether such leave will be granted should be reserved for consideration at the adjourned CLR hearing when the joint report of Dr Tsoi and Dr Lee will be available and the court is in a better position to determine the necessity, relevance and probative value of the entirety of the orthopaedic expert evidence in the report(s).

53.In coming to the above view, I bear in mind that if the Plaintiff is entitled to nominate Dr Tsoi as his orthopaedic expert, Dr Tsoi has an overriding duty to help the court impartially and independently on matters relevant to his area of expertise and he should not merely be an advocate for the Plaintiff (see the Code in Appendix D of the RHC).  As part of such duty, Dr Tsoi should give details of all materials he has relied on in arriving at his balanced expert medical opinion, and state the facts and assumptions on which it is based.  He must be accurate and not misleading, ie he must not leave out relevant information.  This means that if on any material matter he has previously held a particular view and he has subsequently changed his view, he should disclose the same.  Given such duties (see also paragraph 8 of the Code in Appendix D of the RHC and paragraph 86 of PD18.1), there is a possibility that Dr Tsoi may need to bring his knowledge from his physical examination findings and/or his earlier opinion in the Report to bear on the joint orthopaedic expert report.

54.Mr Lui specifically disavowed any suggestion that Dr Tsoi was incompetent or partisan as an orthopaedic expert for the Plaintiff.  Mr Lui’s essential complaint was against Dr Tsoi’s perceived advantage in having previously physically examined the Plaintiff when Dr Lee did not have such opportunity.  Mr Lui also expressed concern that (a) the undisclosed letter of instructions from the Plaintiff’s solicitors to Dr Tsoi “might contain matters prejudicial to [the Defendants] as opposed to joint instructions letter (the contents of which are agreed to by the parties) for joint medical examination”, and (b) Dr Tsoi having already formulated his opinion as contained in the Report might find it awkward to change his opinion.

55.Whilst it is true that Dr Lee did not have the chance to physically examine the Plaintiff in October 2009, the lapse of time between the examination by Dr Tsoi in October 2009 and the joint examination to be carried out by Dr Tsoi and Dr Lee shortly is not substantial.  Upon reviewing the history of the Plaintiff’s medical treatment in the available hospital reports and the physical examination findings in the Report, I am not persuaded that the lost opportunity to physically examine the Plaintiff in October 2009 constituted any material forensic disadvantage in the circumstances of the present case, especially when Dr Lee will be able to view the x-rays taken for the purpose of preparing the Report.

56.As regards the undisclosed letter of instructions to Dr Tsoi in late September 2009, it is speculative to suggest that such letter may contain matters prejudicial to the Defendants.  I accept that paragraph 83 of PD18.1 provides that “[insofar] as is practicable, parties should prepare agreed instructions to the medical experts for conducting a joint examination of the injured person and preparing a joint expert report”.  But even though joint instructions to medical experts are encouraged and solo instructions are discouraged in order to minimise future disagreement over the scope of the instructions, joint instructions are not mandatory.  Without more, it does not follow from the mere absence of joint instructions that there must have been something sinister in the solo instructions. I do not accept such objection in the context of the present case.

57.But I pause to remind parties and practitioners that the court generally expects joint instructions to medical experts, and if solo instructions result in unnecessary future dispute on the scope of instructions leading to any supplemental expert medical report or any need to call the medical experts to give oral evidence, the party insisting on solo instructions may be at risk as to costs.

58.I also find little support for the Defendants’ perception that Dr Tsoi will be reluctant to change the opinion he expressed in the Report if change is called for.  At the hearing before me, Mr Yeung agreed to have Dr Tsoi verify the Report by statement of truth and by declaration that he has read, understood and complied with and will continue to comply with the Code in Appendix D of the RHC (see paragraph 4(c) above).  The medical expert’s overriding duty to help the court impartially and independently must include an obligation to ensure that those instructing him, the opposing party and the court are made aware of any change of his view on any material matter.  Indeed, paragraphs 9-11 of the Code in Appendix D of the RHC provide as follows:

“ 9.  If an expert witness who prepares a report believes that it may be incomplete or inaccurate without some qualification, that qualification must be stated in the report.

10.    If an expert witness considers that his opinion is not a concluded opinion because of insufficient research or insufficient data or for any other reason, this must be stated when the opinion is expressed.

11.    An expert witness who, after communicating an opinion to the party instructing him (or that party’s legal representative), changes his opinion on a material matter shall forthwith provide the party (or that party’s legal representative) with a supplementary report to that effect which must contain such of the information referred to in section 8(b), (c), (d), (e) and (f) as is appropriate.”

59.Thus, I do not see sufficient justification in the present case for debarring the Plaintiff from instructing Dr Tsoi as his orthopaedic expert.  I therefore granted the case management directions in paragraph 4 above.

60.In respect of the issue of costs, since the letter from the Defendants’ solicitors to the PI Master dated 5 January 2010 was necessitated by the Plaintiff’s failure to consider the joint approach to expert medical evidence favoured by PD18.1, there is no reason why the Plaintiff should not bear costs of and occasioned by the same. Indeed, Mr Yeung did not seek to oppose such costs order.

61.As regards the costs of the Summons, the Defendants succeeded in their contention that there be joint examination/report by the parties’ respective orthoapedic experts.  Even though they were ultimately unsuccessful in their argument that Dr Tsoi be disallowed to act as the Plaintiff’s orthopaedic expert, I am persuaded that this is a case management matter and the Defendants were reasonably entitled to come to court to test this as a result of the Plaintiff’s failure to adopt a joint approach to expert medical evidence.  Consequently, I awarded costs of the Summons and half of the costs of the hearing before me to the Plaintiff and further directed that half of the costs of the hearing before me to be costs in the cause.

VI.  Postscript

62.Before concluding, I should remind practitioners to fully familarise themselves with the provisions in PD18.1 that concern expert medical evidence and in particular the rationale behind these provisions as discussed in these Reasons.  In future, parties (and where appropriate their legal representatives) who fail to follow the joint approach to expert medical evidence set out in PD18.1 without good and sufficient reasons may not be able to adduce in evidence any solo expert medical report so obtained and may have to bear the wasted costs of such solo expert report.

63.Permission in the present case for the Plaintiff to continue to retain Dr Tsoi as his orthoapedic expert and in due course to seek leave to adduce the Report in addition to any joint report by Dr Tsoi and Dr Lee is granted on exercise of discretion on the facts and circumstances of this case, and such permission does not set any precedent.  Where there is risk of prejudice to the opposing party and/or where there is concern that any solo report is an attempt to overreach or to gain forensic advantage, the court in exercising control on how expert evidence should be obtained and presented in order to attain the goal of fairly disposing of the cause or matter will not hesitate to refuse leave for adducing any such solo report.  Parties and/or practitioners should not expect the court to smile kindly on any unjustified attempt to sabotage the system of case management envisaged under PD18.1.

Representation:

Mr Victor Yeung of Messrs Tso Au Yim & Yeung for the Plaintiff.

Mr Jonathan Lui of Messrs T S Tong for the 1^st and 2^nd Defendants.