HO CHI SING v. TAM KWOK MING AND ANOTHER

HCPI 161/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 161 OF 2000

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R U L I N G

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1.  Today is the Pre-Trial Review and issues relating to the medical expert opinion are canvassed.

2.  The Plaintiff was rolled over by a taxi on his right foot and his left hand was hit by the side rear vision mirror of the taxi.

3.  On 30 November 2007, the parties appeared before Master Kwan, PI Master, for the Checklist Review and it was ordered, inter alias, that: (1) The medical expert evidence shall be limited to one neurologist and one pain expert for each party; (2)  The Plaintiff elected to nominate one expert only Dr Robert Knobler, and the expert nominate by the Defendants are Dr Yu Yuk Ling and Dr Lee Tsun Woon.

4.  Today, Mr Burke, for the Plaintiff, is asking to have another expert, a pain expert. 

5.  The Plaintiff had the accident about 11 years ago, and he is complaining of chronic pain.  He had been to the United States to consult pain experts for years, and in 2005 Dr Knobler wrote the report stating that the Plaintiff was suffering from Chronic Regional Pain Syndrome (“CRPS”).

6.  In June 2007, the Plaintiff was examined jointly by the Defendant’s experts, Dr Yu, neurologist, and Dr Lee, pain expert, in Hong Kong.  In brief, the opinion was that the Plaintiff was diagnosed with CRPS, but they were of the opinion that the Plaintiff was not suffering from chronic pain anymore, based partly on some objective criteria but mainly as they said the Plaintiff was not complaining of pain and allodynia (excessive pain to slight stimulus).

7.  It is a factual dispute as to whether the Plaintiff did or did not complain to the Defendant’s experts that he was still in pain when examined by them. 

8.  Mr Burke wanted to call a further pain expert.  Ms Remedios, for the Defendant, submitted that the Plaintiff had made the election at the Checklist Review and the case was certified to be ready for trial in November last year, and there is no reason why parties should not be kept to their original election.  As a fall back position, Ms Remedios was amenable to the suggestion of a single joint expert where the issue is that the Defendant’s experts were doubted as to the basis of their physical examination.  Mr Burke opposed the appointment of a single joint expert.

9.  Mr Burke submitted that Dr Knobler was in the main a  neurologist.  Dr Knobler’s report was mainly on the pain aspect and he did state in the report that he had expertise on pain diagnosis and treatment. The more important fact is that the Plaintiff had elected to have one expert, Dr Knobler covering to the neurological and the pain aspects.  Hence, with the identification of matter in dispute, one of fact upon the examination, I do not consider that any further expert on the learning of pain will take the matter very much further.  Hence, the order of the Master as to the calling of experts is to stand.

10.  There are other matters in the draft order to be dealt with today.  Two matters are not in dispute and I will deal with them first.  One is an updated witness statement on quantum from the Plaintiff.  It is not disputed save that the Plaintiff asked for 42 days and the Defendant said that it should be 21 days.  Mr Burke said that the case is to be put in the fixture list with 5 days reserved and the lead time for trial will be 6 to 9 months, and really that there is no urgency to restrict it to 21 days.  In the premises, I would allow the Plaintiff more time, but 42 days seems to be a long period.  So I order the supplemental witness statement is to be served within 28 days.

11.  Another aspect is the discovery as to the position of insurance of the Plaintiff as requested by the defendant.  Mr Burke said he has always been open on the point and has no problem with it, and it will be so ordered.

12.  There are other aspects of the draft order of Mr Burke which are opposed.  One is the discovery of the correspondence between the Defendants’ solicitors and the Defendants’ experts.  Mr Burke referred to the case of Chan Mun Kui v Lau Yuk Lai HCPI 301/1998.  In that case, the solicitors prepared the composite expert report from input of different doctors and the underlying medical reports were ordered to be disclosed.  Seagroatt J ruled on the basis that the use of the antecedent materials in the report was deemed to be a waiver of legal professional privilege.

13.  In this case, I do not see any waiver of professional privilege.  It is a normal case of a party’s solicitors giving instructions to obtain the expert evidence in contemplation of its use in the trial.

14.  Mr Burke sought to amend the scope of discovery by restricting to what had transpired between the lawyer and the doctors since the writing of the report.  I fail to see how this can be relevant on the basis of any antecedent materials used in the report and deemed wavier of legal professional privilege and I cannot escape the feeling that this is fishing.  I shall not order the disclosure of communication between the defendant’s solicitors and the experts.

15.  Another matter for discovery is the notes of examination of Dr Yu and Dr Lee.  In this case, I anticipate that Dr Lee, the pain expert, if not also Dr Yu, will be cross-examined as to the physical examination of the Plaintiff on the day of the joint examination.  On this basis, the notes of examination being the contemporaneous record would be helpful for the cross-examiner to find out what they actually saw on the day.  Hence, these notes are to be produced.

16.  Thirdly, Dr Yu and Dr Lee are required to answer questions as to the need of treatment by a psychologist on the basis that the Plaintiff is suffering from CRPS.  Dr Yu and Dr Lee said the Plaintiff was diagnosed with CRPS, but he was not suffering from it at time of examination.  Hence they did not recommend any requisite treatment.  Of course, if they were disbelieved, then the treatment suggested by Dr Knobler would be in place. 

17.  In the adversarial system of litigation, it is up to the Plaintiff to prove his case and I do not see that it is the duty of the Defendant’s expert to prove the case for the Plaintiff if they do not hold the same view as the Plaintiff’s experts. 

18.  As to the provision of the guidelines and medical literature on the treatment of CRPS, Ms Remedios objected to the requirement of production, but is a amendable to an order that both parties’ experts have leave to submit such materials in support of their opinions.  Hence to this limited extent I am going to grant the order sought by Mr Burke.

19.  Subject to the further materials to be filed, the case should be ready for trial without any further PTR.  I allow the cross-examination of the Defendants’ expert, and probably TV link examination of Dr Knobler, the plaintiff’s expert.  The case should be placed in the fixture list with 5 days reserved.

20.  I order the costs of PTR to be in the cause with Legal Aid taxation for the Plaintiff.