Zou Xixiang v. Johnson Cleaning Services Co Ltd

DCEC1286/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1286 OF 2010

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BETWEEN

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Before: Deputy District Judge Thomas Lee in Chambers (Open to the public)

Date of Hearing: 29 June 2011

Date of Decision: 29 June 2011

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D E C I S I O N

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1.Before me is an application on the part of the applicant in these proceedings for leave to adduce a medical report on neurological matters prepared by Dr Yu Yuk-ling dated 6 May 2011 as expert opinion evidence. In effect, as the submissions of Mr Ashok Sakhrani appearing on behalf of the applicant make clear, it is an application for the substitution of the report of Dr Yu for expert opinion evidence that has been prepared on behalf of the applicant (albeit jointly) earlier in this case.

2.I can state the background briefly.  It is not controversial.  An accident occurred on 18 December 2008.  The applicant was employed by the respondent as a street cleaner.  The applicant and his colleagues were cleaning a rear lane in Shau Kei Wan.  They were using a high-pressure water jet connected to a water supply truck.  The accident happened when another vehicle drove along the street near which they were working, catching the water hose under its wheel, causing it to retract suddenly and in the process hitting the applicant.  The applicant sustained head injuries as a result.

3.The principal issue separating the parties is whether the application amounts to a permissible change in expert evidence in this case.  The questions I must ask myself are, first, whether a prima facie case has been made out for the substitution of expert evidence and, if so, whether I should then exercise my discretion in all the circumstances of the case to allow that substitution.

4.The application for employee’s compensation was commenced on 27 October 2010.  By order dated 10 January 2011 of his Honour Judge Lok, medical evidence in this case was to be limited to one orthopaedic expert for each party and one neurological expert for each party.  In the case of the latter, Dr Edmund Woo was appointed on behalf of the respondent and Dr Kan Yiu-ting was appointed on behalf of the applicant.  On 12 January 2011, a joint neurological examination was conducted by Dr Woo and Dr Kan.  On 28 January 2011, a joint neurological report was finalised and endorsed.  I should add for completeness that, in the time since the accident occurred, an entire range of medical examinations involving different specialties was conducted of the applicant.  What then happened is that, following review of the joint neurological report, the applicant’s solicitors instructed Dr Yu to prepare a further neurological report acting alone.  Dr Yu conducted his own examination of the applicant on 22 March 2011 and prepared a report dated 6 May 2011.  It is this further neurological report which is the subject of the present application.

5.The relevant principles for the substitution of expert evidence has been recently summarised by Bharwaney J in Law Chung Fai v Lam Ming Kuen [2010] HKCFI 762. I have had careful regard to the summary set out in that judgment at paragraph 9.

6.In particular, I have had regard to the matters set out at para. 9(g) which states that, if I am satisfied that there are relevant matters canvassed by the substitute expert which may be important to the just resolution of the dispute which was omitted from the report of the original expert or which was outside the expertise of the original expert, a prima facie case is made for the admission of the substitute expert report in the interests of the just resolution of the dispute.

7.I have also had regard to para. 9(h) where it is stated that I am also required to have regard to other relevant circumstances such as the potential disruption to trial, prejudice to the other parties and the explanation offered for the change.  All of these matters have to be considered and weighed in the light of and against the underlying objectives of the civil justice reform: to ensure cost-effectiveness and economy, expedition, proportionality and fairness between the parties.

8.In this case, Dr Woo, Dr Kan and Dr Yu all have the same expertise as specialists in neurology.  Dr Yu’s report deals with certain matters that were not addressed in the joint report prepared by Dr Woo and Dr Kan.  These pertain to the results of an MRI scan and of (recently commissioned) video surveillance reports.  Mr Sakhrani also urged on me that Dr Yu’s report contains a more complete consideration of certain unusual features of the applicant’s presentation.  In particular, Mr Sakhrani invites me to conclude, following a comparison of both the joint report as well as Dr Yu’s report, that the former does not address some of the real issues arising on the presentation of the applicant.  In short, Mr Sakhrani says, the joint experts concluded that the applicant was a malingerer, but in doing so, did not engage fully with the range of medical reports, from different disciplines, of the applicant.  For example, the view was expressed by the occupational therapist that there was genuine cognitive dysfunction.  It so happens that Dr Yu, upon reviewing the medical history of the applicant and following an examination of him, concluded that some of the inconsistencies in his presentation could be reconciled.  It also so happens that the conclusions expressed by Dr Yu regarding the applicant’s work capacity, the reasonable period of sick leave to which he would be entitled, and his loss of earning capacity were all more favourable to the applicant than the views on those matters expressed in the joint report.  

9.In view of these matters, Mr Sakhrani says the preferable course is to make directions allowing Dr Yu’s report to be adduced in evidence.  He also said that Dr Woo and Dr Yu should meet again and prepare a further joint report to consider the new and/or additional matters raised by Dr Yu.

10.The case law establishes that I have the power in an appropriate case to order the substitution of expert opinion evidence.  In this case, I accept (without the slightest criticism of the joint report) that there is a prima facie case made for the admission of the substitute expert report of Dr Yu.  Some of the matters dealt with by Dr Yu are relevant, it seems to me, and were not dealt with by Dr Kan and Dr Woo.

11.But having careful regard to all the circumstances, I am not prepared to exercise my discretion to allow, in effect, a substitution in order to admit Dr Yu’s report.  I do so for the following principal reasons. 

12.First, the joint report has reviewed in some detail the medical history of the applicant.  Both Dr Kan and Dr Woo were freely chosen and, if there were grounds on which to object to either or both of them in advance, these could have been made before the joint expert report was prepared.  It seems to me that the applicant was perfectly entitled to seek further advice, to help him and his advisers interpret the joint report and to offer a second opinion on the condition of the applicant as a whole.  But it is a significant further step to seek effectively to substitute that report for opinions which have already been expressed and put before the court in compliance with court order.

13.Second, it seems to me that some (and perhaps many) of the points highlighted by Mr Sakhrani in comparing the joint report with the report of Dr Yu are in the nature of matters which are more appropriately explored at trial.  

14.Third, doing in this case as the applicant seeks would lead to a proliferation of expert opinion and would contravene the objectives of civil procedure reform, in particular, cost-effectiveness, economy, expedition, proportionality and fairness.

15.Having said the foregoing, I am in this case nevertheless prepared to make directions for a supplemental joint report to be prepared by Dr Kan and Dr Woo. Such supplemental report would address the matter of the MRI scan and the video surveillance and could also address any further matters which the applicant, having the benefit of a second opinion, would wish the joint experts specifically to consider.  I am not, however, prepared in all the circumstances of the case to allow the applicant to adduce the second opinion that he has obtained.

(Discussion re medical reports and deadlines)

16.The orders which I will make are as follows. 

(1) The applicant’s application to substitute expert neurological reports be dismissed.

(2) The parties be at liberty to seek a supplemental expert neurological joint report from Dr Kan Yiu-ting and Dr Edmund Woo (and for this purpose, to be at liberty to disclose to Dr Kan and Dr Woo the report of Dr Yu Yuk-ling dated 6 May 2011).

(3) The questions to be addressed in such supplemental report to be agreed within 28 days of today, failing which the parties shall submit their own individual questions to Dr Kan and Dr Woo to be set out in joint instructions in a joint letter.

(4) The parties do jointly report to the court by way of joint written application and appendix D within 42 days of today.

(Discussion re costs)

17.In the circumstances of this case, I am going to reserve costs.

(Discussion re costs for single report of Dr Yu Yuk-ling)

18.I decline to disallow the costs the costs of this report at this stage.

(Discussion re certificate for counsel)

19.I will allow certificate for counsel.

Mr Ashok Sakhrani, instructed by Szwina Pang, Edward Li & Co., for the Applicant

Mr Toby Jenkyn-Jones, instructed by, and Mr Derek Lee of, Messrs Mayer Brown JSM, for the Respondent