HUANG XING v. PAN ASIA CONSTRUCTION MACHINERY COMPANY LTD AND ANOTHER

DCEC 2427/2018

[2025] HKDC 373

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2427 OF 2018

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DECISION

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 The Summons

1.  This is the hearing of the Applicant’s summons filed on 6 November 2024 (“Summons”)  under O 38 r 4A of the Rules of the District Court (Cap 336H)  (“RDC”)  for leave to adduce a supplemental expert report from single joint expert (“SJE”)  Dr Kwok Kai Him Henry, specialist in respiratory medicine (“Dr Kwok”), on certain issues stated in the SJE report dated 10 December 2023 (“SJE Report”)  [B/76-121].

2.  The Applicant has filed an Affirmation (“A’s Affirmation”)  on the same date in support of the Summons.

3.  The 1^st and 3^rd Respondents (“R1” and “R3” respectively)  have filed an Affirmation in opposition on 13 December 2024.

4.  The Applicant has filed an Affirmation in reply on 2 January 2025.

Background

5.  The Applicant’s case is that when working in the course of his employment with R1 on 29 August 2018 and attending to some heavy tasks, he had a slip and fall accident.  He fell forward and had his right chest hit onto some tools in front of him (“Accident”).  He suffered allegedly as a result 2 medical conditions namely (i)  right chest wall contusion; and (ii)  right pneumothorax (diagnosed 5 days later on 3 September 2018).

6.  By the SJE Report, Dr Kwok concludes that the right chest wall contusion, caused by the Accident, did not show any obvious clinical signs of injury on the chest wall and was only mild. [B/90,92]  The right pneumothorax was more severe, but was a secondary spontaneous pneumothorax not related to the Accident. [B/90-92]

7.  Dr Kwok has come to these conclusions apparently based on the evidence of (i)  the Applicant’s past medical history of pulmonary tuberculosis for which he had been treated 3 years prior to the Accident; and (ii)  his heavy smoking of 40 cigarettes (2 packs)  per day for about 35 years though he had quit smoking since 2015, ie 3 years prior to the Accident.

8.  On the cause of the right pneumothorax, Dr Kwok opines that it “…could have occurred at any time due to the presence of multiple thin walled lung bullae, as evident on (the Applicant’s)  CT scan of the thorax.  The risk might be increased when there is a sudden and significant change in air pressure around (the Applicant)  … such situation might include diving, air flight, or any straining by (the Applicant)…”. [A/91-92/§10.4.3] [Emphasis added]

Misunderstanding/Inaccurate Information

9.  The Applicant submits that Dr Kwok’s above conclusions are based on some misunderstanding of the Applicant’s case or inaccurate information he obtained from the medical records.

10.  The Applicant states in A’s Affirmation that he has never had past medical history of pulmonary tuberculosis (“pTB” or “PTB” as recorded in the medical records), nor been treated for it either in Hong Kong or mainland China. [A/45/§27]

11.  Hospital records from United Christian Hospital (“UCH”)  record details such as “PTB x 4 years in China”, “PTB Tx in China 3 years ago” and “PMH:-pTB completed treatment in 2015”.

12.  Without seeking clarification from UCH what “PMH” in the record stands for, the Applicant’s solicitors made an inquiry with Princess Margaret Hospital (“PM Hospital”)  for the Applicant’s treatment records of pTB completed in 2015.  By a letter dated 24 July 2024, PM Hospital replied that no such records are available as the Applicant had not attended treatment there in 2015. [B/128]

13.  The Applicant says that such is new evidence in support of his case that he did not have pTB nor treatment for it before.

14.  R1 and R3 argue that the Applicant’s solicitors made a wrong interpretation as “PMH” in the UCH notes should mean “Previous Medical History” but not “PM Hospital”.  Such interpretation, or “Past Medical History”, is in my view more reasonable reading the overall consultation notes in context.

15.  It is nevertheless not necessary and I refrain from making a ruling on the interpretation of “PMH” in the UCH consultation notes.  I consider the proposed new evidence of the reply from PM Hospital neither here nor there.  I do not take such evidence into account in my consideration of the Summons. 

16.  The Applicant also denies that he was a heavy smoker as Dr Kwok has misunderstood and thought or read from the medical records.  He states in A’s Affirmation that he used to smoke about 1 pack of cigarettes or slightly more per day, and he had quit smoking at age 40/around 1994. [A/46/§31]

17.  The Applicant further clarifies that at the time of the Accident, he was in the course of work carrying out an exceptionally heavy manual task single-handedly of carrying some heavy tools weighing 60 to 70 kg through a distance of 15 metres and lifting them up to load them on a truck.  The weight is wrongly stated to be “70 catties” in paragraph 8 of his witness statement filed on 26 September 2022.  The Applicant explains in A’s Affirmation that the mistake was likely due to misunderstanding of his former solicitors, or due to language barrier as he speaks Punti accented with the Hoklo dialect. [A/41/§6]

18.  The above information containing clarifications or the Applicant’s present instructions (“Present Evidence”)  is different from that recorded in his witness statement and the medical records, or what he reported to Dr Kwok during examination.  It forms the basis of the Summons, and in the Applicant’s case, renders a supplemental expert report necessary.

Issues Sought to be Addressed by SJE

19.  In light of the above clarifications/the Present Evidence, the Applicant seeks leave to adduce a supplemental expert report from Dr Kwok on the following 3 issues as set out in the Summons:

“(1)  Considering the circumstances of the accident, in particular, the weight of the tools the Applicant was carrying i.e., about 60kg to 70kg, the distance of approximately 15 metres he had to walk and his attempt to lift the tools onto the truck, could these be considered as straining that might increase the risk of pneumothorax? (Issue 1)

(2)  If the Applicant did not have pulmonary tuberculosis, and he quit smoking in around 1994 (he used to smoke 1 pack or slightly more before quitting), would Dr. Kwok reach a different conclusion on whether the Applicant’s pneumothorax is or is not related to the accident and/or the task the Applicant was performing immediately before the slip and fall incident (i.e. carrying tools weighing about 60kg to 70kg by himself, walking approximately 15 metres to the truck and attempting to lift those tools onto the truck)? (Issue 2)

(3)  Assessment of the Applicant’s loss of earning capacity, impairment of whole person and reasonable period of sick leave if the Court determines that the pneumothorax resulted from the subject accident. (Issue 3)”

The Legal Principles on SJE Evidence

20.  The legal principles on SJE evidence are trite on which parties have no disagreement.  It is the burden on the Applicant seeking to adduce the further SJE evidence to persuade the court that such evidence is necessary, relevant to the issues in dispute and of probative value.

21.  In the case of Thapa Kamala v Tang Wing Kit [2021] 2 HKLRD 757, Madam Justice Marlene Ng reviewed the relevant authorities at §§57-61 and remarked at §58 that:

“Given such statutory restrictions, it is clear the court retains complete control over the use of expert evidence, the purpose of which is to limit expert evidence to what is relevant and reasonably necessary for resolving the issues for determination at trial. The exercise of discretion by the court on whether or not to grant leave for expert evidence to be adduced is within the ambit of its case management powers. The burden is on the applicant to show the proposed expert evidence is usefully required for resolving the issues in dispute.” [Emphasis added]

22.  The approach to be adopted in assessing expert evidence is helpfully explained in the judgment of DHCJ Raymond Leung SC in Wong Siu Wa v Win Sino Engineering Limited [2018] HKCFI 1663 at §154:

“154. In assessing the expert evidence, I would respectfully adopt the approach of Stuart-Smith LJ in Loveday v Renton [1989] 1 Med LR 117 (at 125), wherein it was explained that:

(a) The mere expression of opinion or belief by a witness, however eminent, does not suffice.

(b) The court has to evaluate the witness and the soundness of his opinion.

(c) Most importantly this involves an examination of the reasons given for his opinions and the extent to which they are supported by evidence.

(d) The weight to be given to the opinion of an expert depends on:

(1)  the internal consistency and logic of his evidence;

(2)  the care with which he had considered the subject and presented his evidence;

(3)  his precision and accuracy of thought as demonstrated by his answers;

(4)  how he responds to searching and informed cross-examination and in particular the extent to which a witness has conceived an opinion and is reluctant to re-examine it in light of later evidence, or demonstrates a flexibility of mind which may involving changing or modifying opinions previously held;

(5)  whether or not a witness is biased or lacks independence.”

23.  I have considered parties’ submissions and the legal principles stated in the cited authorities.

24.  I now turn to the 3 Issues on which the Applicant proposes to seek clarification or further evidence from SJE Dr Kwok.

Issues 1 & 2

25.  Issues 1 and 2 relate to the causal relationship or contributory effect, if any, of (i)  the strenuousness of the heavy manual labour engaged by the Applicant; (ii)  the medical history of pTB; and (iii)  the history of heavy smoking and the occurrence of the right pneumothorax, and can in my view be considered together.

26.  Dr Kwok opines as stated in the SJE Report that the risk of occurrence of pneumothorax might be increased by, inter alia, any straining by (the Applicant). [A/92/§10.4.3]

27.  There is no mention in the SJE Report of details of the heavy weight of tools being handled and lifted single-handedly by the Applicant at the time of the Accident.

28.  Issue 1 is the question whether the heavy manual task attended to by the Applicant at the time of the Accident (ie carrying of heavy tools weighing 60-70 kg through a distance of 15 metres single-handedly), which was in fact much heavier than the Applicant had reported/Dr Kwok understood it to be, could have increased the risk of occurrence of pneumothorax in the Applicant.

29.  Dr Kwok has given his conclusion on causation of the pneumothorax suffered by the Applicant, ie it was a secondary spontaneous pneumothorax unrelated to the Accident based on his understanding of (i)  past medical history of pTB with treatment completed in 2015 and (ii)  that the Applicant had been a heavy smoker for some 35 years until 2015 (3 years prior to the Accident).

30.  Given the Applicant has now clarified that he did not have past medical history of pTB and he was not a heavy smoker as recorded in the medical records, it would in my view be fair and reasonable to seek clarification from Dr Kwok whether the right pneumothorax suffered by the Applicant shortly after the Accident was related to it, bearing also in mind the strenuous manual task he was engaged in at the time of the Accident.

31.  Issues 1 and 2 deal with the increased risks or contributory causes, if any, of the occurrence of pneumothorax in the medical sense, of which the Court has no expertise to assess.  These are medical issues that should be addressed by Dr Kwok.

32.  R1 and R3 in opposing the Summons argue that the Present Evidence/clarifications of the Applicant regarding (i)  denial of his past medical history of pTB and (ii)  he was not a heavy smoker as that recorded and had quit smoking for more than 20 years prior to the Accident is against the evidence and not to be believed.  As regards the details of the “manual labor tasks” engaged by the Applicant at the time of the Accident, Dr Kwok has considered the work tasks and procedures in detail in the SJE Report [A/78/§1.2], and should have no doubt taken them into account in coming to the conclusions.

33.  The fact remains that Dr Kwok has not mentioned nor shown to have taken into account the alleged heavy weight of 60-70 kg being handled single-handedly by the Applicant at the time of the Accident.

34.  Questions of credibility of the Applicant and whether the Present Evidence is reasonable and should be accepted are issues of fact to be considered and decided by the trial judge upon consideration of all evidence including that of the Applicant at trial.

35.  This Court without considering all evidence is not now in a position to decide whether the Present Evidence is to be accepted or rejected.  These issues of fact should properly be reserved for the trial judge.

36.  It is appropriate in my view to seek Dr Kwok’s views on the issues of medical causation set out in Issues 1 and 2, such that his considered opinions on different premises will be available upon the court’s findings of fact one way or another at trial.

37.  It would be time and costs economical to seek further expert evidence or clarifications on Issues 1 and 2 rather than calling Dr Kwok at trial for clarification or cross-examination.  The underlying objectives of the CJR will be enhanced.

38.  I nevertheless consider that Dr Kwok should also be asked to address whether the Applicant’s Present Evidence (set out under Issues 1 and 2)  is reasonable and acceptable from a medical perspective.

Issue 3

39.  It is the Applicant’s submissions that Dr Kwok has based his assessments of permanent whole person impairment (0%), loss of earning capacity (nil)  and reasonable length of sick leave (3 September – 9 November 2018)  on the premise that the Applicant’s right pneumothorax is not related to the Accident.  It is therefore necessary to seek his supplemental opinions on these matters on the premise that the pneumothorax was resulted from the Accident (should it be so found by the court ultimately).

40.  A careful reading of the SJE Report reveals that Dr Kwok has in fact taken into account the effect and aftermath of the Applicant’s right pneumothorax in his assessments, as submitted by R1 and R3.

41.  In considering the reasonable period of sick leave, it is clearly shown in the SJE Report that Dr Kwok has taken into account the chest contusion injury and the right pneumothorax diagnosed on 3 September 2018, and gives his opinions on the basis “regardless of the cause of his medical condition and his sickness absence”.  In assessing a reasonable total sick leave period from 3 September – 9 November 2018, he has included the hospitalisation period (3 September – 19 October 2018)  plus a period of recovery for the chest drain wounds (which were required for the right pneumothorax condition, but not the mild chest contusion). [A/94/§10.10.1]

42.  In assessing permanent impairment of the whole person, Dr Kwok has considered all current residual symptoms complained of by the Applicant, including the mild right sided chest pain, and the lack of respiratory symptoms on account of the right pneumothorax.  Upon the Applicant’s report that the right sided chest wall pain was mild at 1/10 (0 being no pain, and 10 being the most severe type of pain)  and no limitation in his daily activities and not requiring any pain medications, Dr Kwok assesses permanent whole person impairment at 0%. [A/95-96/§§10.13.1-10.14.1]

43.  Following the assessment of 0% permanent whole person impairment, Dr Kwok assesses nil loss of earning capacity after the hospital discharge and wound recovery (which again were required on account of the right pneumothorax). [A/96-97/§§10.15.1-10.15.2]

44.  No clarification is therefore required on Issue 3.

Conclusion

45.  I therefore make an order granting leave to the Applicant to seek a supplemental expert report from Dr Kwok on Issues 1 and 2, but not Issue 3, added with a request for Dr Kwok’s opinion on the Present Evidence of the Applicant from a medical perspective.

Costs

46.  In reaching this decision, I should bear in mind that the court’s consideration of Dr Kwok’s opinions, should they be different on different factual footings, would ultimately turn on whether the Present Evidence of the Applicant (being different from that contained in his witness statement and the medical records)  is accepted at trial. 

47.  In the circumstances, I consider it appropriate not to make costs orders of the Summons to follow the event, pursuant to O 62 r 3(2A)  of RDC.

48.  I have heard the submissions on costs of the parties.  Parties agree that it is appropriate to reserve costs of the Summons for the consideration of the trial judge after trial.  It will then become more clear whether the Applicant’s issue of the Summons was justified, or was on the other hand unwarranted, depending on the court’s findings in the judgment.

Order

49.  It is ordered that:-

(1)  Leave be granted to the Applicant to adduce a supplemental expert report from Dr Kwok on the following issues:

(i)  Whether the heavy manual task engaged by the Applicant at the time of the Accident (ie carrying the tools weighing a total of about 60kg to 70kg through a distance of approximately 15 metres and attempting to lift them onto a truck single-handedly)  could be considered as “straining by” the Applicant (§10.4.3 of the SJE Report)  that might increase the risk of occurrence of pneumothorax;

(ii)  On the Present Evidence of the Applicant that (i)  he never suffered from pulmonary tuberculosis nor had treatment for it, and (ii)  he used to smoke 1 pack of cigarettes or slightly more per day but had quit smoking in around 1994, would Dr Kwok reach a different conclusion on whether the Applicant’s right pneumothorax diagnosed on 3 September 2018 was related to, caused or contributed to by the Accident, also taking into account the heavy manual task engaged by him at the time of the Accident; and

(iii)  Whether the Present Evidence set out under issue (ii)  above is reasonable and acceptable from a medical perspective.

(2)  By consent, costs of the Summons be reserved and dealt with by the trial judge after trial; and

(3)  The Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

50.  Lastly, I thank the solicitors for the parties for their assistance.