TANANG PADAM RAJ v. SHEK CHI YAU AND WONG CHING YI t/a PAK TSUN CO AND OTHERS

HCPI 613/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 613 OF 2011

_________________________

_________________________

___________________________

DECISION

___________________________

1.  This is a personal injury claim and the plaintiff is applying for leave to :-

(a) Engage a medical expert Dr Wong Chin Hong (“Dr Wong”) to replace the expert previously engaged, ie Dr Chan Wai Fu (“Dr Chan”), for adducing an expert report dated 18 July 2012 as a further medical report; and

(b) File his re-revised statement of damages dated 9 October 2012.

I. BACKGROUND

2.  The plaintiff initially instructed Dr Chan who performed a medical examination on the plaintiff on 16 January 2012 jointly with Dr Wong Kwok Shing Patrick, the expert instructed by the defendants.

3.  The joint expert report was issued on 8 March 2012.

4.  On 17 April 2012, the defendants’ lawyers wrote to the plaintiff’s lawyers seeking to instruct the experts to comment on an issue regarding spine degeneration which the experts had not addressed in their original report.

5.  After a chaser dated 9 May 2012, the plaintiff’s lawyers replied on 9 May 2012 stating that they now sought to appoint a new expert, Dr Wong, as “his single joint expert or his expert to conduct joint examination” (presumably a second joint examination) with the defendants’ expert.

6.  On 10 May 2012, the plaintiff’s lawyer explained that the plaintiff would not rely on Dr Chan’s opinion as stated in the joint expert report because :-

(a) There were several facts and aspects not explained in the joint report and were left unanswered;

(b) The experts’ conclusion was based on incorrect findings of facts; and

(c) The experts overlooked or ignored certain factors which would contribute to the impairment(s) of the plaintiff due to the accident.

7.  The defendants objected to this and reiterated their previous proposal.

8.  The plaintiff went ahead in any case to instruct Dr Wong with a “single expert” examination performed on 29 June 2012. Dr Wong issued his “single expert” report on 18 July 2012.

II.THE CASE FOR THE PARTIES

9.  The plaintiff’s counsel, Mr Leung, has confirmed to the court during the hearing that he was not pursuing the allegation that “the experts’ conclusion was based on incorrect findings of facts”.

10.  The plaintiff’s case, as supported by his two affirmations, was two folded.  He alleged that he was dissatisfied about:-

(a) how the joint examination was conducted, and

(b) how the joint expert report lacked explanation on various issues.

11.  With regards to his “first dissatisfaction”, the plaintiff stated that during the joint examination, he observed that the experts were very friendly to each other, that he was “mostly” asked with “leading questions” and thus felt that the experts had already “prejudged” his injuries.

12.  Secondly, the plaintiff was also dissatisfied that his translator, Mr Sun Yuk Shing, Sunny, stopped him from giving further instructions and/ or stopped interpreting his instructions on several occasions when he wished to provide further information to the experts.

13.  I would say experts “being friendly” to each other cannot be evidence that somehow, the experts were prejudiced or, worst, colluding with one another against the plaintiff.

14.  In fact, experts being friendly (or at least being socially courteous) to each other during a joint examination should be encouraged as the experts would need to engage in discussions on areas of agreement and disagreement after the examination.  Good communication skills would no doubt help this process.

15.  As for experts asking “leading questions”, I cannot see why any doctor should be restricted by courtroom procedures in eliciting a medical history from a patient.  In fact, some questions routinely asked by doctors must, in its nature, be leading, eg “Do you have diabetes?”

16.  As for the plaintiff’s alleged dissatisfaction with his translator, Mr Leung told the court that the translator was in fact instructed by the plaintiff’s own solicitors.  The defendants had nothing to do with this.

17.  I agree with the defendants’ contention that these allegations regarding the conduct of the examination were raised very late (in the plaintiff’s affirmation dated 7 November 2012). If the plaintiff really found that he could not get his message across to the experts, one would expect that he would complain immediately, perhaps stop the examination, or, at the very least, complain to his lawyers immediately after the examination.

18.  I cannot see why the plaintiff would need to wait until he could see the joint expert report before complaining if all along he knew that some information was not told to the experts. The fact that the plaintiff complained only after seeing the joint expert report instead pointed towards his desire to “shop” for a more supportive expert.

19.  I also note that the plaintiff has all along failed to identify exactly what the information was that he was “prevented” to inform the experts.

20.  I therefore seriously doubt the truthfulness of this allegation, and even if it was true, this would be entirely the fault of the plaintiff’s own lawyers for instructing such a “poor” translator as alleged.

21.  In any case, if the plaintiff really had further information for the experts, he could do so by providing such information now and commissioning a supplemental joint expert report.

22.  It is, of course, absurd to suggest that a new expert should be instructed every time the plaintiff felt that there was something he or she had not told the expert during the examination.

23.  As for the plaintiff’s “second dissatisfaction”, Mr Leung has provided the court with a list of matters discussed in the joint expert report which he alleged was inconsistent.  He further submitted that the experts had failed to explain such “inconsistencies” or such “lack of precise quantification” (eg regarding the apparent necessity, as Mr Leung suggested, for stating a precise percentage of numbness instead of just stating that it was “mild”).

24.  I have went through this list and found that I could perfectly understand the experts’ findings (including reasonable quantifications of clinical signs and symptoms), explanations and conclusions, and did not find any inconsistencies as alleged.

25.  Nevertheless, even if the plaintiff genuinely saw such “defects” in the joint expert report, the proper way forward is to write to the experts to seek clarifications and, if needed, commission a supplemental joint expert report.

26.  Again, it is absurd to suggest that a new expert should be instructed every time one party claimed to be able to detect some inconsistencies or lack of clarity in the expert report.

27.  The plaintiff also argued that, based on the above, he has lost confidence in his expert and could not rely on him for further expert opinion.

28.  I would say that the mere claim by one party of a subjective “loss of confidence” in an expert could not be, by itself, a reason for instructing a new expert.  As stated above, the plaintiff’s claim of “loss of confidence” is clearly without objective and reasonable basis.

29.  In fact, the real reason for the plaintiff’s application is stated in Mr Leung’s Skeleton Argument:-

“On or about 8 March 2012, the joint medical report was released.  Dr Chan was of his view that P can return to his pre-accident occupation as a construction site worker with “moderate reduced work efficiency and capacity”.  In addition, P was assessed with permanent loss of earning capacity of 4%, whereas P was originally assessed with 7% permanent loss of earning capacity by the Employees’ Compensation (Ordinary Assessment) Board of the Labour Department.”

30.  In other words, the plaintiff was not happy with Dr Chan’s assessment of his permanent loss of earning capacity (4%) being below that of the Medical Assessment Board (7%).  Interesting, the plaintiff’s new expert, Dr Wong, happened to come up with exactly 7% for his assessment of loss of earning capacity.

31.  In other words, this is “expert shopping” in the clearest possible sense.

32.  Mr Leung said that the plaintiff was seeking to disclose the joint medical report and, in addition, adduce the expert report of Dr Wong.

33.  The whole point of instructing experts to perform joint examinations and to write joint reports is to allow the experts to identify, very early on, the areas of agreements and disagreements.  Joint examination would help to narrow down potential disagreements because both experts could hear the same history from the plaintiff and perform the physical examination in the same setting at the same time.  This advantage is completely loss in Dr Wong’s report because he has gone ahead to perform his own examination and wrote his own report.

34.  Mr Leung then proposed that a new joint examination and joint report should be commissioned between his Dr Wong and the defendants’ expert.  In effect, this was seeking the court’s indulgence to re-start the whole process of expert instruction which, effectively, means wasting all the time and costs incurred already for the existing expert reports, and incurring further time and costs.

35.  I agree with the defendants’ concern regarding the detriment caused in case management: they have filed the Answer to Revised Statement of Damages back in 10 May 2012, so the case was very much ready to be set down almost 1 year ago.  The plaintiff chose to take out the current application on 10 October 2012.  This was more than 6 months ago.  Given that the plaintiff’s action has already caused delay for almost one year, Mr Leung’s proposals will create further and totally unjustifiable delay, and is totally against the spirit of the CJR.

III. CONCLUSION

36.  It is trite law, especially with the CJR which aims to minimize litigation costs and time, that “expert shopping” should be discouraged.  The “default position” for case management must be that any change of experts, especially at such a late stage, should be refused unless there are very good reasons.

37.  Of course, there were cases when very good reasons had been advanced, for example when substantial disputes emerged late in the proceedings in an area in which one expert had limited expertise (as in the case of Law Chung Fai v Lam Ming Kuen HCPI 96/2008).  I can also envisage other circumstances when the court may grant such indulgence, eg when an expert refused reasonable requests for clarifications of his opinion, or perhaps when an expert opinion is so unreasonable and unsatisfactory that it raises question on the credibility or, at least, the competence of the expert.

38.  However, when the alleged “defects” can be remedied by further communications with the expert (eg by providing additional evidence, seeking clarifications on matters not understood, seeking opinion on points not addressed in the original report, or, in general, by commissioning supplemental reports), then there is no good reason to seek to change the expert, especially in circumstances when the party has made no attempt to (or, as in this case, did not agree to) communicate with the experts after the original report.

39.  As such, I dismiss paragraphs 1 and 2 of the plaintiff’s summons regarding to his application to adduce Dr Wong’s expert report and his application to file and serve a re-revised statement of damages (revision of which was based on Dr Wong’s expert report).  Paragraphs 3 and 4 of the summons concern matters in the past and need not be dealt with now.

40.  I further direct that leave be granted for the parties to seek a supplemental joint expert report, if so needed, from Dr Chan and Dr Wong Kwok Shing Patrick.

IV.COSTS ISSUES

41.  I am particularly concerned that, despite two court orders dated 20 February 2012 and 18 July 2012 stating that :-

a)   The medical evidence was to be limited to one orthopaedic expert for the plaintiff….The expert nominated by the plaintiff  is Dr Chan Wai Fu….(in the earlier Order)

b)   No further or additional expert medical reports shall be obtained or adduced without leave of PI Master (in the earlier Order)

c)   No further or additional expert medical reports shall be obtained or adduced (in the later Order)

and despite not obtaining agreement from the defendants nor leave from the court, the plaintiff and those advising him went ahead to instruct an additional expert, arranged for the examination and commissioned an additional expert report. 

42.  Not only have the plaintiff and those advising him blatantly breached the court orders, they then think it proper to submit that same expert report to court to seek support for their application to adduce it.

43.  I would therefore direct the parties to provide written submissions to me within 14 days regarding costs issues, in particular, as to who (with reasons) should bear the costs of and occasioned by the plaintiff’s additional expert report, as well as the costs of and occasioned by this application.

44.  I would further direct that the respective case handlers of each party should come before me for arguments on the above matters with one hour reserved.