LAW KWONG KEUNG v. CHENG CHUNG HANG

DCPI 1160/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1160 OF 2012

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DECISION

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INTRODUCTION

1. On 29 May 2013, I dismissed the defendant’s application to adduce further evidence in the plaintiff’s appeal against the master’s decision and said that the reasons would be given.  I also reserved my decision on the plaintiff’s appeal and said that I would hand down my decision as soon as possible.  This I now do. 

2. The case arose from a traffic accident occurred on 16 May 2011 in which the private car driven by the plaintiff was rammed into from the rear by the private car driven by the defendant.  As a result, the plaintiff sustained injuries and he received treatment from the Prince of Wales Hospital, the Union Hospital, private orthopaedic specialists and a physiotherapist.  The injuries that the plaintiff was said to have sustained were as follows:

(i) neck sprain (cervical spine sprain/whiplash injury);

(ii) right foot sprain/right foot 1^st metatarsophalangeal joint contusion); and

(iii) chest contusion.

3. The plaintiff by the present action seeks damages from the defendant.  The defendant has admitted liability and the judgment was entered by consent.  The outstanding issue is about the assessment of damages.  For that purpose, the plaintiff sought leave to adduce expert evidence in the form of a joint orthopaedic report.  The defendant objected to that application.  On 26 April 2013, the master who heard the application found in favour of the defendant and dismissed the plaintiff’s application.  It is from that decision of the master that the present appeal arises.

THE HEARING BEFORE THE MASTER

4. In the statement of damages, the plaintiff claims, insofar as relevant to the present appeal, damages for pain, suffering and loss of amenities (“PSLA”), future loss of earnings and loss of earning capacity.  The plaintiff sought leave from the master to adduce expert evidence on the basis that the medical records and reports of the plaintiff’s treating doctors (“the existing reports”) were not adequate for the assessment of the damages and that the proposed joint orthopaedic report would assist the court in that regard. 

5. On the day of the hearing of the plaintiff’s leave application, the defendant sought to adduce evidence, in the form of an affirmation of the defendant’s handling solicitor (“the Defence Solicitor’s Affirmation”), in opposition to the plaintiff’s leave application.  The Defence Solicitor’s Affirmation contained as an exhibit a printout from the plaintiff’s website which purported to show that the plaintiff had participated in the Standard Chartered Hong Kong Marathon 2013 and managed to finish the 10 km run just under an hour.  Upon the plaintiff’s objection to the late production of the said affirmation, the defendant withdrew his application to adduce the Defence Solicitor’s Affirmation as evidence in the leave application. 

6. After hearing submissions from both sides, the master dismissed the plaintiff’s leave application on the grounds that:

(a) there was nothing in the existing reports to suggest that the plaintiff had suffered any permanent impairment;

(b) on the other hand, the existing reports suggested that he had recovered from the injury; and

(c) the existing reports showed no residual injuries or problems and were sufficient for the assessment of the damages. 

D’S APPLICATION TO ADDUCE EVIDENCE ON APPEAL

7. On 7 May 2013, the plaintiff filed his notice of appeal against the master’s decision and Mr Kwok, counsel for the plaintiff, filed his skeleton argument for the appeal on 23 May 2013.  On the following day, ie, 24 May 2013, the defendant’s solicitors took out a summons to seek leave to adduce the Defence Solicitor’s Affirmation as further evidence on appeal.  That move of the defendant resulted in the objection of the plaintiff and written submissions being filed from the parties on the admissibility of the Defence Solicitor’s Affirmation. 

REASONS FOR DISMISSING D’S APPLICATION

8. Order 58, r1(4) of the Rules of the District Court provides that:

“No further evidence (other than evidence as to matters which have occurred after the date on which the judgment, order or decision was given or made) may be received on the hearing of an appeal under this rule except on special grounds.”

9. The phrase “special grounds” requires the well-known conditions laid down in Ladd v Marshall [1954] 1 WLR 1489 to be satisfied, namely:

(a) that the evidence could not have been obtained with reasonable diligence for use at the hearing below;

(b) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and

(c) the evidence must be such as is presumably to be believed.

10. I note that there are case authorities to be the effect that the application of the above conditions and perhaps the conditions themselves will require some modifications and that a relaxed approach towards the admission of new evidence may be taken when there has not been a decision on the merits.  On the other hand, I bear in mind that Order 58, Rule 1(4) was introduced to curb the undesirable practice before the Civil Justice Reform when parties sought to adduce a further round of evidence on appeal after an unfavourable decision from a master.  The rule aims at effecting a change of litigation culture so that parties should prepare their application properly at the earliest possible opportunity and lay all cards on the table prior to the hearing before a master.  The spirit of this rule will be defeated if a party is allowed to revert to the pre-CJR practice: see Bank of China (Hong Kong) Limited v Certain Aim Limited, HCMP 1272/2007 (unreported), at §17 of the judgment; and generally Hong Kong Civil Procedure 2013, §58/1/3. 

11. Having heard Mr Lai, counsel for the defendant and Mr Kwok for the plaintiff, I ruled against the defendant.  My reasons are as follows:

(i) the printout was available before the hearing of the master and therefore condition (a) above had not been met;

(ii) Mr Lai fairly accepted that the previous decision to withdraw the Defence Solicitor’s Affirmation was informed one.  As such, the defendant must be taken to have formed the view that the said affirmation was not necessary for the consideration of the master;

(iii) in view of (ii) above, no reasonable explanation has been given as to why there was a change of mind of the defendant or why the summons had not been taken out earlier;

(iv) it would be unfair to the plaintiff if leave were granted for the defendant to adduce the Defence Solicitor’s Affirmation without similarly granting the plaintiff leave to file an affirmation in reply.  However, that would inevitably lead to further delay and costs; and

(v) as regards condition (b) above, the printout, considered in isolation, could be misleading and its evidential importance could not be assessed without other information like the plaintiff’s past records and performance on similar events, whether he had taken pain killers before the race in question and his physical conditions after the race. 

12. In the circumstances, I am of the view that it would be neither appropriate nor just that the defendant should be given leave to adduce the printout in question for the purpose of the present appeal.  I therefore dismissed the defendant’s application.  I awarded costs to the plaintiff in relation to the defendant’s application, to be taxed if not agreed.  As both sides had engaged counsel to argue the matter and filed substantial written submissions together with case authorities, I also allowed certificate of counsel.

THE APPEAL

Submissions of counsel

13. Mr Kwok submitted that there is a distinction between treating doctors whose primary concern was about treatment of patients and an expert whose duty was to assess impairment and/or disability, review past treatment and recommend future treatment, if any.  Mr Kwok submitted that the court would be assisted by the expert orthopaedic evidence when it came to assessment of damages for PSLA, future loss of income and loss of earning capacity, as the plaintiff has suffered injury with a lasting effect on him. 

14. On the other hand, Mr Lai submitted that the existing reports do not indicate the existence of any residual injuries.  It was further submitted that even if there were such injuries, the likely difference that a joint expert report might make in the award of damages would be disproportionate to the costs of obtaining the expert evidence.

Relevant legal principles

15. An appeal from a master’s decision to a judge in chambers is dealt with by way of rehearing.  The judge is to treat the matter as though it comes before him or her for the first time.  The judge will give weight it deserves to the previous decision of the matter, but he or she is no way bound by it: Hong Kong Civil Procedure 2013, §58/1/2.

16. There is little dispute between the parties that the burden is on the party who seeks to adduce the proposed expert evidence to show that it is relevant, necessary and probative.  The expert evidence in question is relevant if it is helpful to the court in arriving its decision on one or more issues to be resolved.  In Wong Hoi Fung v American International Assurance Co (Bermuda) Ltd[2004] 4 HKC 225, Chu J (as she then was) says:

“11. Modern judicial authorities recognize that the court has inherent power to rule on the admissibility of expert evidence at a pre-trial stage: Woodford and Ackfroyd v. Burgess [2000] CP report 79, Ko Chi Keung v. Lee Ping Yan Andrew [2001] 2 HKC 63 and Annabell Kin Yee Lee & Anor v Lee Wing Kim (May Lee) & Anor (unreported), HCA 9522/1997. Where the proposed expert evidence is plainly inadmissible or irrelevant, the court ought to exercise its discretion to refuse the admission of such evidence. But where the court cannot form a clear view on the relevance of the proposed expert evidence or where it considers that the proposed evidence is clearly relevant, then it should grant leave for the evidence to be adduced at the trial: Ko Chi Keung v. Lee Ping Yan Andrew (supra), at p. 67 and Annabell Kin Yee Lee & Others v. Lee Wing Kim (May Lee) & Anor (supra), at p. 15.

12. In deciding whether certain expert evidence should be received, the relevant test has been stated to be a two-stage one.  Firstly, the evidence has to be admissible ‘as expert evidence’ for the purpose of section 58 of the Evidence Ordinance, Cap. 8.  Secondly, the evidence 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:  Barings plc (in Liquidation) & Anor v. Coppers and Lybrand & Ors, Lexis Transcript, 9 February 2001, Evans-Lombe J at paras 44-45.”

17. However, if the court can make an informed decision on or resolve the issue in the case justly without the aid of such expert evidence, then it will not be considered necessary.  The relevance, necessity and probative value of the proposed expert evidence are not to be dictated by the pleadings.  The pleadings provide at best a starting point and the Court should also consider the evidence including witness statements and medical/documentary evidence before coming to a decision:  Wan Yin Sheung v Wan Yiu Kan, HCPI 288/2009 (unreported), at §37.

18. In the present case, whether to permit expert evidence to be adduced is a matter of the court’s discretion and pertinent considerations include: (a) the nature and complexity of the issues; (b) how helpful the proposed expert evidence may be in resolving the issues in the case; (c) how cogent the proposed expert evidence will be; (d) how much it is likely to cost and whether it is proportional to the sum at stake; (e) whether it may be conducive to the expedient disposal or settlement of the case; and (f) the fairness between the parties: seeOrder 38, Rule 36, RDC; Fung Chun Man v Hospital Authority & Anor, HCPI 1113/2006 (unreported), at §§9-16; Chan Yuet Keung v Harmony (International) Knitting Factory Ltd [2010] 5 HKLRD 599, at §61; and Wan Ying Sheung v Wan Yiu Kan, supra, at §32.

Relevancy 

19. As a starting point, the proposed expert evidence is relevant to the claims of loss of future earning and loss of earning capacity if there is evidence which suggests that the plaintiff has sustained injuries which have a lasting effect on him.  If there is no such evidence, then the relevancy of the proposed expert evidence will be greatly reduced. 

20. In this regard, I remind myself that whether the plaintiff has in fact sustained such injuries is a matter for the trial judge.  It suffices for the present purpose if there is sufficient evidence on paper to raise the issue for the consideration of the trial judge. I understand that Mr Kwok and Mr Lai do not disagree to this approach.  It is the position of Mr Kwok that there was such evidence.  Mr Lai holds the contrary position.

21. In my judgment, there is sufficient evidence in the present case to raise the issue that the plaintiff has sustained injuries from the accident which have a lasting effect on him:

(a) In his witness statement, the plaintiff says that prior to the accident, he enjoyed participating in dragon boat, trailwalker and marathon races, but he “could no longer play or fully enjoy such activities now”.  He also says that he suffers from “neck, chest, right leg and headache and insomnia injuries”;

(b) The plaintiff also says, in his witness statement, that he suffers disadvantage at the labour market because of the accident.  He says that he is a full time District Councilor member and his term of office will expire on 31 December 2015.  He says he may need to look for alternative job thereafter and his injuries and disabilities will cause disadvantage to him;

(c) In the affirmation which the plaintiff prepared for the purpose of the hearing before the master, the plaintiff says that he is still suffering from residual effects of the accident including pain over the right toe and foot; pain over the shoulder and pain at his chest; and

(d) Although the physiotherapist’s report says that the plaintiff “recovered after fifteen sessions of physiotherapy” the last one of which being on 18 July 2011, according to the medical report of Dr Au, the treating specialist on orthopaedics & traumatology, on 15 August 2011 the plaintiff was still complaining of neck pain and right foot pain.  Dr Au recommended a short course of physiotherapy. The plaintiff did not consult Dr Au after 15 August 2011. 

22. I am unable to accept Mr Lai’s submission that the plaintiff’s witness statement contains no evidence of any residual injuries.  In my view, a natural and plain reading of the plaintiff’s witness statement shows that the plaintiff is complaining about conditions resulting from the accident which still bear on his activities.  I note also that, apart from the physiotherapist’s report, there are no medical records or reports which say that the plaintiff has recovered from the traffic accident. However, what the physiotherapist said is apparently inconsistent with that of the treating orthopaedic doctor.  Whilst it may be said that the plaintiff’s assertions of residual injuries do not have much support by medical evidence, that cannot, in my view, afford a reason for not allowing the proposing expert evidence.  That would, to borrow from the submission of Mr Kwok, to put the cart before the horse. 

23. Mr Lai invited me to draw the inference that the plaintiff has fully recovered from the apparent lack of complaints to the doctor at the Family Clinic of Prince of Wales Hospital about any residual injuries after 16 February 2012.  However, in my judgment, I would be usurping the function of the trial judge if I did so. 

Necessity

24. Mr Lai further submitted that the existing reports are sufficient for the purpose of assessment damages and therefore the proposed expert evidence is not necessary.  With respect, I do not agree with this submission.

25. I agree with the submission of Mr Kwok about the distinction between treating doctors and medical experts.  In Wong Cheuk v Falcon Insurance Co (HK) Ltd, DCEC 688/2008, HH J Marlene Ng distinguishes the difference between a treating doctor and a medical expert witness as follows:

“45. A treating doctor renders his medical report and/or testify in court as a professional witness on observed facts (eg what the patient told him, what symptoms were reported, what investigation/examination was undertaken, what medical advice/treatment was given, etc) rather than offer expert medical opinion (eg opinion on the causation, aetiology, diagnosis and/or prognosis etc of the injuries). Thus, information from the treating doctor is normally non-controversial, and his medical reports/records are usually admitted without calling him to testify in court.

46. On the other hand, an expert doctor is qualified by his experience and expertise in a medical specialty, and usually has no prior therapeutic involvement with the injured party. He is expected to give impartial opinion on particular medical issue(s) to assist the court on the basis of assumptions of fact provided to him in written or other form and/or his own examination of the injured party. His opinion/report is for the benefit of the court and independent of such party. Permission of the court is generally required for adducing such expert opinion evidence at trial.”

26. It is of course not necessary to have evidence from medical experts for every case of personal injuries.  In many cases, the evidence of the treating doctors will be sufficient, especially when the injuries concerned are minor and do not have a lasting effect on the claimant.  However, in the present case in my view the trial judge will be hampered in the assessment of damages by the absence of an expert report:

(a) there is a whiplash injury which is said to have resulted in lasting effects on the plaintiff.  The existing reports contain no comments on whether this is or is not the case;

(b) the existing reports also contain no discussion on causation, prognosis, impairment or disability, all of these are important to the assessment of damages; and

(c) the plaintiff is known to have a pre-existing heart condition and is implanted with a pace-maker.  That, apparently, is the reason why he visits the Family Clinic of the Prince of Wales Hospital regularly.  The brief consultation summaries of the Family Clinic, which were prepared for a different purpose, understandably contain no information as to the cause of the plaintiff’s alleged chest pain. 

27. In my view, the proposed expert evidence will also be important in assisting the court to decide whether the plaintiff’s pre-existing condition has any bearing on the plaintiff’s alleged injuries and if so, to what extent.

Cogency

28. Mr Lai submits that as the traffic accident had happened two year ago, the experts can only based his opinion on the existing reports and what the plaintiff tells us. 

29. With respect, I am unable to accept this argument.  The experts will no doubt conduct their own examinations on the plaintiff.  With their expertise and experience, the experts should be able to inform the court as to whether the plaintiff is suffering from any injuries, if so, whether it has anything to do with the accident and whether there is likely to be any exaggeration. 

Cost-effectiveness and other considerations

30. Mr Lai submits that the proposed expert evidence, if adduced, is unlikely to result in a big difference in the amount of damages which may be awarded and the difference is likely to be disproportionate to the costs in obtaining the evidence. 

31. There is no evidence before me as to the likely costs in obtaining the expert evidence, although both Mr Kwok and Mr Lai each provided me with some figures from the bar table.  I note that the figures provided by counsel do not differ significantly.  Counsel also provided me with their respective estimates to the likely amount of damages to be awarded.

32. Instead of engaging in speculation as to what the difference in damages is likely to be and what the costs of obtaining the expert evidence are, I note that the proposed expert evidence relates to three heads of claim, namely PSLA, loss of future earning and loss of earning capacity.  I also note that Mr Lai premised his submission in this aspect on the assumption that the damages for loss of future earning and loss of earning capacity will be minimal.  This in turn is based on the observation that the plaintiff is apparently able to discharge his present duty as a full time District Councilor.  However, it has been held that if an employee who receives a fixed salary can return to his pre-accident employment without suffering any change in that salary, it does not necessarily mean that there is no loss of earning capacity: see Mallarievelyn Acosta v Chan Ka Po, DCEC 337/2002 (unreported).  By the same token, I do not think that it is right to assume that the plaintiff has suffered no loss of earning capacity simply because he is able to discharge his duty as a full time District Councilor after the accident.  Moreover, no one knows whether he will be re-elected after the present term and for how long he will remain in that position.  The plaintiff is now aged 52 and there is still a long time before he reaches the retirement age which is normally taken as 65.  The possibility cannot be ruled out that the plaintiff will need to look for another career in the future. 

33. Besides, I also agree with Mr Kwok’s submission that the proposed expert report will be conducive to the negotiation between the parties as to an amicable settlement.  As Bharwaney J observes in Chan Yuet Keung v Harmony (International) Knitting Factory Ltd [2010] 5 HKLRD 599, at §61 of the judgment,

“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 [2000] 4 HKC 549, Rogers V-P 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 paras.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. 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.”

34. In short, I see no valid reasons in the present case to refuse leave on the ground that the costs of obtain the expert evidence will be disproportionate to the likely amount at stake.

CONCLUSION

35. By way of a re-hearing, I come to a different conclusion than that of the master.  I am satisfied that this is a suitable case to grant leave to the parties to adduce the proposed expert evidence.  Therefore, I allow the plaintiff’s appeal and set aside the order made by the master. 

36. I make the following order:

(1) leave be granted to the parties to adduce orthopaedic medical expert evidence at the trial; and

(2) the joint orthopaedic medical expert report prepared by the plaintiff’s nominated expert Dr Peter Tio and the defendant’s nominated expert shall be available within 63 days from the date of this Order. 

37. Ialso make an order nisi that the plaintiff’s costs of the hearing before the master and of this appeal be paid by the defendant, to be taxed if not agreed.  There be counsel certificate for the hearing of this appeal.