Rafique Muhammad v. Hsin Chong Interiors (Hong Kong) Ltd and Another

HCPI 675/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 675 OF 2013

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BETWEEN

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R U L I N G

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1.Parties have obtained a joint medical report from the orthopaedic experts nominated by the plaintiff and the defendants respectively.  On 25 February 2014, Mr Burke, solicitors for the plaintiff, wrote to me as PI Master reporting that the parties have discussion on obtaining a supplemental report from the orthopaedic experts.  6 questions have been suggested by Mr Burke and for the first 4 questions, parties agree to seek clarification/further opinion from the experts.  For questions 5 and 6, Messrs Tsang Chan & Wong, solicitors for the defendants, objected.

2.Application by summons has been taken out by the plaintiff and by agreement of the parties, I set down the argument for paper disposal.  Mr Burke relies on his said letter as his submission.  Messrs Tsang Chan & Wong lodge their written submission on 26 March 2014 and Mr Burke lodges his submission in reply by letter dated 28 March 2014.

3.On legal principle on when expert evidence should be admitted, the defendants first refer me to the judgment of Deputy Judge Marlene Ng given in Bai Siba Kumar v Nishimatrsu Construction Company Limited and another HCPI 883/2012, when the Honourable Deputy Judge said

“expert medical evidence must be relevant, necessary and of probative value, i.e. it is likely to be of real assistance to the determination of the issues or, to put it in another way, it must be reasonably required to enable the court to resolve the issues in dispute.”

4.I believe there is no disagreement on this principle.  I would also refer to a ruling by Mr Justice Bharwaney given in Chan Yuet Keung v Harmony (International) Knitting Factory Limited HCPI 144/2009

“53. The basic principles regarding the admissibility of expert evidence are reasonably clear. To be admissible, the opinion evidence must qualify as “expert evidence” for the purpose of section 58 of the Evidence Ordinance, Cap. 8, and it must be relevant in the sense that it is helpful to the court in arriving at its decision on one or more of the issues to be resolved. If the court is able arrive at its own decision on the issue, by applying its own knowledge and experience to the facts proved in evidence, expert opinion on the same matter may be excluded on the ground that it is not helpful to the court.” [My emphasis]

5.It is important to remember that if the court is able to reach a decision without the opinion, that the opinion would not be admitted as it is not helpful.  Expert evidence is only to assist the court to a fair and just decision and the finding is a judicial determination by the Trial Judge. 

6.I now proceed to consider the argument.  For record, questions 5 and 6 as drafted by Mr Burke reads as follows –

Comments in the Joint Report	Page/Para of Joint Report	Questions
Work ability Dr. Chiang – might be mild reduction in efficiency	26	1. What does this mean? 2. Does it affect (and if so – to what extent) (a) Number of hours can work per day (b) Ability to do overtime work (c) Number of days can work per week/month (d) The type of duties he can perform
Work ability Dr. Li – bound to be degree of compromise in maximum weight that he is competent to handle without difficulty	27	1. What does this mean? 2. By reference to job duties set out (page 2-3): (a) Are any of those duties affected (b) If so – to what extent · Would he have to use lighter equipment – e.g. drills · Would he need assistance of  a co-worker · Would he need to take longer time - to do the task · Would he have to break loads down into lower weight · Would he have to use …

7.It is the case of the plaintiff that the opinion expressed by both experts is a general comment. He asks them to apply the general comment to the actual work that the plaintiff could do.  Mr Burke submits that this would assist the Court in making decision.

8.The comments quoted above are taken out from 2 separate paragraphs in the joint medical report.  One has to look at the whole paragraph to properly understand the comment/opinion expressed.  I set out herein the relevant paragraphs at pages 26 and 27 of the joint medical report –

“Page 26

Dr. Chiang opines that, basing on the current examination findings, and the progress noted in the records, by September 2012, the left thumb revealed good range of movement, and that by about the orthopaedic follow-up on 6 December 2012, the range of movement of the right knee had reached a satisfactory range. This would have suggested that, by the end of sick leave in May 2013, Mr. Rafique should have a satisfactory capacity in working in the pre-injury job. There might be a mild reduction in efficiency.

Page 27

Mr Rafique stands good chance of acquiring further improvement if he carries on practicing strengthening exercises by his own efforts regularly.  By the time he achieves the best possible recovery, there is good prospect for him to be able to resume working with heavy duty, but most probably when compared with his pre-injury physical state, there is bound to be certain degree of compromise in the maximum weight that he is competent to handle without difficulty.”

9.I first deal with question 5.  In relation to the comments by Dr Chiang at page 26, the defendant submits that Dr Chiang (jointly with Dr Li) stated in pages 5-12 of the joint report the physical conditions of the plaintiff, including range of motion, gripping power, pinch strength of the thumbs and range of motion, muscle power of knees.  And for the comments at page 26 by Dr Chiang, he has adequately commented and elaborated on the issue of the plaintiff’s mild reduction in efficiency.  Hence the first question, asking Dr Chiang what he meant by the phase, is not necessary in line with the legal principle set out above.

10.I have been provided with a copy of the joint medical report.  I agree with the defendants that reference to the physical condition of the plaintiff have been made in the report.  And upon reading the whole paragraph, the opinion given in the phase in paragraph 26 as mentioned above is clear.  No clarification is required.  I suspect the main concern of Mr Burke is to ask the expert to comment on the effect of the mild reduction in efficiency on the working ability of the plaintiff, which is the 2^nd question (or set of questions) to be put to Dr Chiang.

11.On the 2^nd question (or set of questions), the defendants submit that the comments are not within the expertise of Dr Chiang.  The defendants refer me to the judgment of the Court of Appeal given in Tang Shau Tsan v Wealthy Construction Company Limited CACV 58/2000 and submit that issues such as number of working hours, working days per week and the ability to do overtime job can only be determined with reference to other evidence and are ultimately questions for the Trial Judge.

12.In Tang Shau Tsan’s case, the Court of Appeal was concerned with expert reports giving the opinion that the plaintiff has suffered a 10% loss of earning capacity.  Rogers JA, as he then was, said:

“ 11. An expert witness can give evidence as to the nature of the plaintiff’s injuries, what effect that has on the plaintiff physically and what lasting effect that is likely to have. Statements of opinion in relation to earning capacity are, in my view, inadmissible, either from a doctor or even from an occupational therapist. Indeed, to a large extent, they seem to me to be confusing, at best, and meaningless at worst. The expression of the earning capacity in percentage terms is particularly unhelpful and indeed confusing because it is imprecise.

12. On a practical level, it could be said that insofar as Alice Tsang’s report, based upon results of tests, concluded that the plaintiff was capable of limited lighter jobs in carpentry or that he had limited capability for lifting heavy items, that is useful material for the judge.  Insofar as there is speculation as to whether fellow workers could perform the task of moving heavy items or additional staff could be employed or whether the plaintiff could work as a sub-contractor and what effect that his long experience in the field would have on his ability to do so, those, in my view, constitute inadmissible statements.  It is for the court to draw its own conclusions as regards those matters from the evidence before it.  All the more so, it is for the court to draw its own conclusions as to the earning capacity of the plaintiff. [My emphasis]”

13.Mayo VP also commented in his judgment that:

“ 24. I also find myself in agreement with the observations made concerning the evidence given by Dr Mao and Ms Alice Tsang. Clearly any expert evidence given by them should have been confined to the Plaintiff’s medical condition. It was not permissible for them to venture to give opinions relating to the labour market a subject upon which they were not competent to express an opinion. [My emphasis]

25. It is however clear from the judgment that the Judge reached the conclusions he did by making his own assessment of the position.  His task was not a simple one by virtue of the Plaintiff making no real attempt to rejoin the labour market as a skilled carpenter.  The Judge was in my view fully entitled to find that having regard to the extent of his incapacity he would have been able to continue working as a carpenter even though he may not have been able to lift heavy weights.  In my view the Judge may have erred on the side of generosity in the amount of sick leave he allowed and in allowing a 10% loss of earning capacity.”

14.Mr Burke has no disagreement with the principle.  But he submits that the judgment is not applicable to the situation here as the supplemental opinion is not to comment on the loss of earning capacity.

15.I believe the principle should not be limited to expert opinion on loss of earning capacity. It sets out the general guideline that expert evidence should not be allowed, if the matter would be a conclusion to be drawn by the Court from the evidence before it (including the expert evidence).  This able judgment has been analysed by Mr Justice Bharwaney in Chan Yuet Keung’s case, when His Lordship agrees with the able judgment.  There are further points raised by Mr Justice Bharwaney which are important.  I refer –

“ 61. However, the exclusion of expert opinion on the percentage of loss of earning capacity in common law cases should not include, with it, the exclusion of the expert’s opinion on the type of work the injured person can perform after his recovery.  In Li Wan Choi v Choi Wan Hing & Anor, CACV182/2000, 15 November 2000, Rogers VP and Le Pichon JA reiterated that statements of percentages of loss of earning capacity were of little assistance to the Court.  Nevertheless, they accepted and had regard to the evidence of the expert as to the type of work the plaintiff could perform after the accident (see §§ 7, 22 and 24 of the Judgment).  The court can often apply its own knowledge and experience of different job requirements to come to a view of what type of work an injured person can perform after the accident. [My emphasis] Such opinion evidence coming from the expert falls within that type of opinion that Mr Albert Yau in his helpful submissions, which I accept, classified as “extend[ing] to matters which the Court, in full command of its judicial experience and common sense, may come to an almost instant impression that it will be in just as good a position as the expert in coming to its own conclusion.”  However, Mr Yau cautioned against the outright rejection of such opinion evidence in every case.  I agree.  Whilst the matter may ultimately be for the trial judge, such opinion evidence is helpful to the parties and conducive to enabling the parties to negotiate a settlement of the case.  The exclusion of such evidence from the joint report of the expert(s) may result in increased controversy and drive the parties to require adjudication of the issue by the court instead of resolving the dispute by negotiation or mediation. ”

16.This passage from the able judgment of Mr Justice Bharwaney explains further that, while opinion on the kind of job that the injured plaintiff could do may be allowed, at the end it is for the Court to determine with its own knowledge and experience of different job requirement to come to a conclusion of what type of work an injured plaintiff can perform after the accident.  Some comments from the expert on the type of work that the injured plaintiff would be sufficient to assist the Court in determining the job that the plaintiff could return. 

17.Mr Burke submits that he is asking for elaboration on what the limited work capacity is.  But reading the opinion again, Dr Chiang stated in paragraph 26 of his opinion that the plaintiff should have a satisfactory capacity to work in the pre-injury job.  The statement that there might be a mild reduction is a qualification to the comment.  As to the exact effect on the details of the reduction of his ability, if any, when the plaintiff returns to his pre-injury work, this must be matter for the final determination and ruling of the Trial Judge after hearing the evidence.

18.Taking the first question suggested by Mr Burke, “does it affect the number of hours [the plaintiff] can work per day”, this would be a determination by the Trial Judge with the expert opinion, and the evidence of the plaintiff.  It is not necessary to post additional question to the experts.  I see no reason why this is not a question that could be answered with the experience and knowledge of this Court.

19.I make the same finding for question 2 (b) and (c) for Dr Chiang.  And for question 2(d), Dr Chiang has stated the job the plaintiff could handle and this is redundant.

20.I do not approve question 5.

21.Moving on to question 6, these are clarification for Dr Li.  The first question is objected by Messrs Tsang Chan and Wong.  They submit that Dr Li has made observation on the weight bearing capacity of the plaintiff in pages 5-12 of the joint medical report.  Dr Li had reviewed the medical history of the plaintiff and commented on his medical condition in pages 12-21 of the joint medical report.  He further provided his opinions on the impacts of the plaintiff’s medical conditions on his work ability in pages 24-26.  As an example of the observation and opinion, at page 25 of the report, Dr Li said –

“Based on the physical findings obtained in the present joint examination, it is potentially possible for him to resume working as a construction site heavy labourer eventually if he carries on self-training in these ways regularly; however we cannot predict with precision when he can accomplish such goal. In the meantime, he is unlikely to be able to handle the heaviest duties that he needed to engage in the pre-accident job yet, for instance the heavy bags of cement that weigh 45 kg each and the loaded 6-wheeled trolleys which were used to deliver a total weight about 180 kg at least; …”

22.Messrs Tsang Chan & Wong submits that the clarification suggested by Mr. Burke is not necessary.

23.I agree that the opinion should be read in line with the overall comment on the plaintiff in the report by Dr Li, and also by reading the whole paragraph in page 27 as set out above.  The opinion is clear.  I agree that question 1 is not necessary.  I believe the comment is again a reservation to the opinion expressed by Dr Li in the above paragraph in page 26 which leading to the 2^nd question for Dr Li 

24.As for the 2^nd question for Dr Li, or the 2^nd set of questions, Messrs Tsang Chan & Wong raised the same argument that this is not within the expertise of Dr Li and also relies on Tang Shau Tsan’s case.  I do not intend to repeat my analysis of the law set out above.

25.Mr Burke repeats his argument.

26.Dr Li was asked if the job duties of the Plaintiff are affected and if so, to what extent.  The question is on how the degree of compromise would affect the plaintiff to perform his duty, including whether he has to have lighter equipment, or any form of assistance.  I do not repeat the question. Having considered the question, and the submission of the parties, I do not agree that this is matter that could not be sufficiently determined by the Trial Judge with the joint report adduced, and the evidence of witness including that of the plaintiff.  I found that this set of questions is not necessary and therefore do not approve the questions be put to the experts for supplemental report.

27.Mr Burke also submitted that if the experts are not in a position to comment, he would say so.  We could leave it to the experts.  While there is a duty on the experts to limit his opinion on matter that he could comment, in directing expert evidence, this court has to set out the issues to be put. While I do not doubt the experience of the experts, if an issue does not justify expert opinion, it should not be sent to the experts in the first place.

28.I bear in mind that the comment by Mr Justice Bharwaney that some opinion may be helpful to negotiation for settlement.  The joint report has set out sufficient details.  I do not see this set of question would offer any additional assistance for settlement or mediation.  In conclusion, I dismiss the application of the plaintiff and give an order nisi that the defendants do have the costs of this application to be taxed if not agreed.  The plaintiff’s own costs shall be taxed according to Legal Aid Regulations.

29.In respect of the 4 agreed issues, parties shall liaise with the experts and report within 14 days when the supplemental report would be made available.

Mr Burke, of Burke & Company, for the plaintiff

Ms Tse, of Tsang, Chan & Wong, for the 1^st and 2^nd defendants