Ip Kam Chung Kenneth v. Kwo Siu Kit and Another

DCEC 797 / 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION NO. 797 OF 2009

------------------------

BETWEEN

------------------------

Coram: Deputy District Judge Clement Lee in Chambers

Date of Hearing: 20^th September 2010

Date of Handing Down Reasons for Directions: 20^th September 2010

----------------------------------------

REASONS FOR DIRECTIONS

----------------------------------------

A.    INTRODUCTION 

2.I said that the Post-CJR statements were in flagrant breach because (i) each statement comprises of one page document without stating the qualifications and analysis of the psychiatrist as to how he arrived at 50% (later increased to 60%) of loss of earning capacity and 10% impairment of the whole person; (ii) they have not been verified by the statement of truth pursuant to O.41A of the Rules of the District Court (“RDC”); (iii) the said statements do not contain a declaration that the proposed expert was supplied with a copy of the code of conduct and agrees to be bound by it, in addition to a declaration that he understands his duty to the Court as stipulated under O.38 rule 37A of the RDC. There are 3 more statements prepared by the same Dr. Yu dated 4^th January 2008, 10^th March 2008 and 25^th November 2008. These Pre-CJR statements are treating doctor’s notes in nature.

3.It must be noted that the Applicant hinges his claim on the proposed expert evidence because Dr. Yu opined that the Applicant’s current mental condition (as at 21^st April 2010) is largely attributed to the incident on 2^nd January 2008 and he estimated the Applicant’s loss of earning capacity as 60%, in addition to 10% impairment of the whole person.  However, the Employees’ Compensation (Ordinary Assessment) Board assessed the Applicant on 19^th February 2010.  The conclusion is 2% of loss of earning capacity permanently caused by the injury “threatened resulting in depressed mood, poor concentration and sleep disturbance”, subject to the question of liability.

B.    THE CLAIM

4.Suitable expert directions can only be made by referring to the background of this case.  This claim concerns Mr. Ip Kam Chung Kenneth’s (“Mr. Ip”) application for compensation under section 10 of the Employees Compensation Ordinance (Cap 282).   The alleged accident took place on 2^nd January 2008.  Mr. Ip said that on that date, he expressed his intention to resign but the employer blackmailed him and unreasonably asked for compensation in the sum of HK$600,000.  The employer also coerced him to borrow money from his old aged mother to repay the compensation, otherwise, the employer would summon police to arrest him or get a lawyer to sue him.  He thus attempted suicide.  He said that upon consultation with psychiatrist, he was assessed to have (i) loss of 50% of earning capacity because of depression and (ii) loss of 10% earning capacity because of panic disorder.  His wife also divorced from him as a result.

C.   DEFENCE

5.The 1^st and 2^nd Respondents each filed their statement of defence.  They both denied the serious allegations.  The 1^st Respondent stated that in or about November 2007, the Applicant said that he was in poverty and begged her husband to employ him.  The Applicant appeared to her to be mentally unstable and seemed to be drug abuser, she asked her husband not to employ him.  However, out of kindness, the 2^nd Respondent permitted the Applicant to join De Cut Salon in November 2007.    On or about 2^nd January 2008, the Applicant told the 1^st Respondent that he wanted to quit the job. The 1^st Respondent asked him to discuss the issue with the 2^nd Respondent later.  The Applicant then called the media and pretended to commit suicide.  On 8^th January 2008, he repeated the trick again and called Apply Daily before attempted suicide. 

6.The 2^nd Respondent gave similar statement.  He added that soon after the incident on 2^nd January 2008, the Applicant was found working in other salon on 3^rd January 2008.  That was admitted in a hearing held in the Labour Tribunal.  De Cut Salon also ceased conducting business in May 2008 because the Applicant procured his camp of staffs left De Cut Salon shortly before the lunar New Year in 2008, hence severely damaged the business.  In a statement dated 3^rd June 2010, the Respondents referred to the medical statements of Dr. Peter W.T. Yu and Dr. Ng Man Hon.  In about 2002, Dr. Yu diagnosed the Applicant of suffering from insomnia and panic disorder.  Dr. Ng has been providing treatment to the Applicant since 2005.    In short, the Respondents contended that the Applicant’s mental problem, if any, was pre-existing and was not caused by the incident on 2^nd January 2008. 

D.   DISCUSSION

7.The Employees’ Compensation (Ordinary Assessment) Board assessed the Applicant on 19^th February 2010.  The conclusion is 2% of loss of earning capacity permanently caused by the injury “threatened resulting in depressed mood, poor concentration and sleep disturbance.”  The concluding remarks in the certificate states clearly that “This Board only assesses the quantum of loss caused by the injury and does not arbitrate any dispute about liability for compensation. 

8.By a statement dated 19^th May 2010, Dr. Yu opined that the Applicant’s current mental condition is largely attributed to the incident on 2^nd January 2008 and he estimated the loss of earning capacity as 60%. 

9.The Applicant once filed a claim against the Respondents in the Labour Tribunal and the case was concluded by settlement on 18^th April 2008. 

10.From what appears from the parties’ statements and documents, it is common ground that the Applicant was employed by the Respondents before 2^nd January 2008. The ultimate questions for trial are whether the Applicant left the Respondent’s employment on or about 2^nd January 2008,  whether the mental problem of the Applicant as alleged was pre-existing.        

11.In Siu Fook Cheong v Siu Kwok Fai and others HCPI 768 of 2009 dated 27^th January 2010, the learned Master Ms. Marlene Ng has propounded a succinct approach in obtaining medical expert evidence.

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.”

12.While the Court may deal with litigant in person with laxity, failure to comply with the statutory requirements cause substantive injustice to the Respondents who  are entitled to expect the Applicant and his expert to comply with the rules.   The relevant proposed expert should have known his duty owed to the Court (see O.38, r.35A), including the requirement to make a statement of truth (see O.38, r.37A).  The rules also impose a duty on a litigant to provide his expert with a copy of the code of conduct (see O.38, r.37B of the RDC). 

13.In Leung Wai Kee v Tam Yuet Sheung [2009] HKEC 776, the court held that if either expert fails to comply with the Order, the party on whose behalf the expert’s earlier report was filed shall be barred from adducing the expert report and will not be allowed to adduce any further expert report without the leave of the court.  The court also warned the parties that any further non-compliance with the Order will result in the party having to bear the consequences of non-compliance and breach of order, including the payment into court of money as security (see also Hong Kong Civil Procedure 2010 edition, Vol. 1, para. 38/35A/3.)

14.I will adopt the similar approach.  In light of the flagrant breach of the above rules and practice directions, including PD 5.2 (case management) section F and PD 18.2 (employees’ compensation list) section G that represents the core values and the underlying objectives of the Civil Justice Reform, I shall make the directions as follows:-

(1)Unless the Applicant do file and serve the statement of truth and the declaration of compliance with the code of conduct of Dr. Peter W. T. Yu regarding Dr. Yu’s statements of opinion dated 22^nd July 2009 and 19^th May 2010 by 4:00 pm, 4^th October 2010, the said statements be expunged from the Court’s file without further order and the Applicant is barred from adducing further expert evidence at trial. 

(2)The trial bundle prepared by the Applicant was confused, untidy and incomplete.  The pre-trial review be adjourned to 6^th October 2010 at 3:30 pm Court No.4 Lands Tribunal (1 hour reserved) so as to confirm with the parties the trial bundle to be prepared by the Court.

(3)Cost of this pre-trial review hearing be in the cause and assessed summarily in the sum of $400. 

(4)Court’s clerk do draw up this order in Chinese, file and serve the same.

15.I decided not to call for a report of a single joint expert because firstly, the Applicant has obtained statements of his proposed expert, secondly,  trial dates have been fixed and it is going to start shortly.

Note: This judgment is pronounced in Punti.  Any party wishes to have the Chinese translation of the written judgment must apply in writing on or before 27th September 2010.

注意: 此判決是以本地話宣讀。如訴訟一方欲索取書面判決中文譯本，必須於2010年9月27日前的以書面申請。

The Applicant appears in person.

The Respondents appear in person.