COLIN DAVID JONES v. ROTARY INTERNATIONAL LTD AND OTHERS

HCPI 856/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 856 OF 1999

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REASONS  FOR  DECISION

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1.  There are several matters at this 2^nd Pre-Trial Review:

(1)     The 2^nd and 3^rd Defendants’ summons to set aside my Order dated 7 December 2009 allowing extension of time for the Plaintiff to file the Revised Statement of Damages (“RSD”);

(2)     The Plaintiff’s application to adduce evidence from an employment expert in England;

(3)     Whether to call to the orthopaedic experts to give oral evidence;

(4)     Further witness statements;

(5)     Mediation.

2.  The 1^st Defendant and 2^nd and 3^rd Defendants are separately represented by solicitors, but they instruct the same counsel.

3.  I made my ruling at the hearing, and now give my reasons.

Background

4.  The Plaintiff was a site engineer with the new airport project.  He had an accident in February 1998 when traveling on board a van which collided with a mini bus.  The 1^st Defendant was the owner of the van, and the 2^nd and 3^rd Defendants were the driver and owner of the bus.

5.  The Plaintiff had knee injury and complained of persisting pain affecting full motion and employability.  His loss of earnings claim is based on pain and difficulties in long walking, squatting and climbing ladders, etc, such that he could only take the lesser paid job of a desk engineer as opposed to a site engineer.

6.  The action was commenced in August 1999, and interlocutory judgment on liability has been entered against all 3 Defendants in January 2000.

7.  The Plaintiff has since returned to live and work in England, and the respective orthopaedic experts were engaged in England.

8.  The case took some turns as the Plaintiff’s original orthopaedic expert (Mr Evans) had passed away, and he was not happy with his 2^nd expert (Mr Blackburn), and in 2007, substitution by the present expert, Mr Foy, was allowed.

9.  The 1^st PTR was conducted before Saunders J on 29 May 2007.  He ordered the Plaintiff to serve a RSD within 14 days of receipt of the Plaintiff’s solo orthopaedic expert report, and the 2^nd PTR to take place on 26 October 2007.

10.  On 11 October 2007, the parties applied by joint letter for adjournment and the 2^nd PTR was adjourned to 28 January 2008.

11.  On 18 January 2008, Mr Foy’s report was available.

12.  On 24 January 2008, the parties applied by joint letter for adjournment for the Defendants to consider Mr Foy’s report and to file their report in reply, and the PTR was adjourned sine die.

13.  On 27 January 2009, the Defendant’s orthopaedic expert, Mr Ransford, gave his solo report.

14.  In February 2009, the draft RSD was sent to the Plaintiff for comment.

15.  On 30 June 2009, the Plaintiff applied for restoration of the 2^nd PTR, and proposed joint examination by the orthopaedic experts.

16.  On 8 July 2009, the Plaintiff’s solicitors wrote to the Court stating that the parties agreed to joint examination and it was not necessary to have the PTR.  I directed the parties to submit a timetable for management of the case.

17.  On 10 July 2009, the parties wrote by joint letter and agreed to a series of directions including an unless order for the Plaintiff to serve the RSD within 28 days upon receipt of the joint orthopaedic report sanctioned by the debarring of filing upon non-compliance.

18.  The joint report was received on 3 September 2009, hence, the unless order should expire on 1 October 2009.

19.  On 24 November 2009, solicitors for the Defendants wrote to the Court pointing out that the unless order had expired and filing of the RSD was debarred.

20.  On 4 December 2009, the Plaintiff’s solicitors wrote to the Court stating, inter alia, that the draft RSD had been sent to the Plaintiff for comment, and would be finalized upon receipt of the updated report from the employment expert, and asked for filing of the RSD within 21 days of receipt of the updated report of the employment expert.

21.  It transpired that the Plaintiff has engaged an employment expert in England, Mr Carter, without leave of the Court.  His first report of March 2006 was disclosed to the Defendants.

22.  On 7 December 2009, I ordered, inter alia, filing of the RSD with 42 days, and consequentially the Revised Answer by the Defendants.  I made the order without hearing the Defendants.

23.  On 17 December 2009, the Defendants wrote to ask the Court to disallow the RSD by reason of non-compliance of the unless order.  Hence, I called this PTR hearing.

RSD and employment expert

24.  The RSD and the employment expert are inter-related, as the RSD was based on the reports of the employment expert, and had noting to do with the joint orthopaedic report which time was extended for.

25.  In gist, the RSD increased the loss of earnings claim between a desk engineer and site engineer from about £15,000 to about £22,000 per year.

26.  Mr Carter’s report referred to annual pay statistics of desk engineers and site engineers, differential pays between desk engineers and site engineers engaged by the Plaintiff’s ex-employer, and taking into account the Plaintiff’s personal circumstances, an opinion as to loss of earnings of the Plaintiff.

27.  Mr Sakhrani, for the Defendants, objected to both the RSD and the employment expert.  On the RSD:

(1)     It was made without hearing the Defendants;

(2)     The Plaintiff should apply by inter partes summons within 14 days of the expiry of the unless order under O.2, r.4 of RHC;

(3)     The Plaintiff’s ex parte letter dated 4 December 2009 failed to mention the unless order or the breach thereof;

(4)     The Plaintiff failed to explain the delay of 2 months in filing the RSD, and the delay in seeking extension of time;

(5)     The delay of the RSD was apparently to wait for the updated report of the employment expert, which was not sanctioned by leave in the first place.

28.  On the employment expert:

(1)     The Defendants do not object to the admission of industry based statistics referred to in Mr Carter’s report(s);

(2)     The Defendants do not object to the pay scale of the Plaintiff’s ex-employer in England provided they be allowed to adduce the pay scale of the Plaintiff’s ex-employer in Hong Kong;

(3)     Mr Cater mentioned the recent recession in England but failed to assess its impact on the Plaintiff notwithstanding the Plaintiff’s own evidence that he was affected by the recession;

(4)     Mr Carter’s opinion was biased towards accommodating the Plaintiff’s versions of facts;

(5)     There is no need for an expert to say what the Plaintiff is capable of earning.

29.  Mr Sakhrani submitted that the breach of the unless order was intentional and contumelious:

(1)     The application ex parte by letter circumvented the application inter partes by summons;

(2)     There was material non-disclosure in failing to mention the unless order and breach by 2 months in the letter;

(3)     Any possible explanation of delay was based on the employment expert report without leave and was based on a wrong foundation.

30.  Be that as it may, Mr Sakhrani was prepared to treat the original Statement of Damages as a claim for continuing loss of earnings, but the updated expenses claim should be debarred.

31.  On RSD, Mr Burke, for the Plaintiff, submitted that:

(1)     The letter dated 24 November 2009 by the Defendants’ solicitors had already allured the Court to the Plaintiff’s non-compliance of the unless order;

(2)     The Plaintiff’s letter dated 4 December 2009 did state there was non-compliance by all parties;

(3)     The delay was partly caused by the death of the Plaintiff’s original expert (Mr Evans) and the Plaintiff being laid off in January 2009.

32.  On employment expert, Mr Burke frankly admitted that he would not have engaged an employment expert and would be content to rely on the Government statistics if the case were a local one. 

33.  However, Mr Burke said he did not know where to look for the relevant statistics in England.  He said Mr Carter is fair and not biased as he revised downwards the highest range pay by the Plaintiff’s ex-employer.  Granted that no leave was granted, the report had been disclosed since March 2006 and the Defendants never objected to it until recently.

34.  Mr Sakhrani replied that the so-called non-compliance by the Defendants was that 2^nd and 3^rd Defendants filed their Revised Answer to the Statement of Damages 2 days out of time where the Court had ordered it regardless of whether the Plaintiff had filed any RSD.  As to Mr Carter’s reports, the Plaintiff disclosed it without stating whether they would seek leave to adduce it and the Defendants saw no cause to act as there was no application nor invitation on production, not until the Plaintiff indicated application to adduce them recently.  And the Plaintiff had not been laid off: he has been in employment for 9 years after the accident, and his contract ended in December 2008, then he said could not get another job.

35.  I made the order of 7 December 2009 without hearing the Defendants, and it should and could only have taken effect as an order nisi even if not expressly stated.

36.  Had the application to file the RSD out of time been made ex partes, I would not have overlooked the breach of an unless order, and that the employment expert was engaged without to leave.  The intimation that that there had been non-compliance by all parties without mentioning the fact and nature of the Plaintiff’s breach of an unless order could not have made things better for the Plaintiff.

37.  I do not see any justification for delay by the Plaintiff.  He should have more time to deal with the case if he was unemployed.  The RSD had nothing to do with the joint orthopaedic report.  Extension of time was sought on the pretext of updated medical evidence, but in fact the revision was based entirely on the wage figures.  The picture did not become clear until the RSD was filed.  The engagement of an expert without leave is against the rules.  With respect, Mr Burke’s backdoor approach to expert evidence and pleadings is simply to add insult to injury.

38.  The expert’s opinion as to the Plaintiff’s employment is not necessary for the fair disposal of the cause or saving of costs.  There is one thing to ask for the relevant statistics, and another to get an opinion of earning capacity based on the Plaintiff’ conditions.  It is for the judge to hear all the evidence (including the medical evidence) and to decide on the impact on the Plaintiff’s employability, given there is a recession in England (which has been spoken of in the Plaintiff’s witness statement), and to assess any loss by reference to the available wage figures (which is admissible by consent).  There is no need for someone to consider the Plaintiff’s case and to give an opinion.

39.  In the event, I refused to make absolute the order nisi of 7 December 2009 to file the RSD out of time, or I set it aside if that order were absolute.  Leave to admit the expert reports of Mr Carter was refused.  Not withstanding that, by consent, the Plaintiff would be entitled to claim continuing loss of earnings by temporal projection based on the original Statement of Damages.  Updated expenses claim would be debarred as a sanction of breach of the unless order.

40.  In restoring the PTR, I ordered that subject to the outcome of the summons, the Defendants should file their Revised Answers to the RSD.  I so ordered in order to save time in the event that I should affirm the RSD.  Now that the Defendants have pleaded to the disallowed RSD, they should be allowed to plead to the original Statement of Damages (taken as a continuing claim), and are given 21 days to do so.

Joint orthopaedic report

41.  The current experts, Mr Foy (for the Plaintiff) and Mr Ransford (for the Defendants) agreed the accident would have caused an impact on the Plaintiff’s left knee, triggering slow asymptomatic progressive degeneration requiring arthroscopic surgery.  However, they disagreed on the causation of the tear of the meniscus (knee cartilage).  Mr Ransford did not believe that a tear would develop on a pristine knee given the impact of the accident.  He said if there were a pre-existing tear, the accident would not be responsible for the totality of the injuries.

42.  Notwithstanding that the experts disagreed on whether there is an pre-existing condition, they should, on the assumption that there is one, give their opinions in accordance with the three scenarios in Chan Kan-hoi v Dragages et Travaux Publics CACV 58/1997 (11 November 1998) (para. 9):

“When considering the effect of a pre-existing condition on an award of damages there are three possible scenarios. The first is where the Plaintiff was almost certain to have gone through life unaffected by the condition. The second is where there is a strong possibility that some other event, or natural progression of the condition, would have brought about the Plaintiff's present state. The third is where this would certainly have occurred at some stage in any event. In the first, the Defendant would be liable for all damage caused. In the second it would be necessary to assess the degree of the possibility in deciding what reduction is appropriate, as in assessing the effect of other vicissitudes of life. In the third, clearly an allowance has to be made, the extent of which depends on the evidence as to when the precipitating event would have occurred.”

43.  The parties agreed that the orthopaedic experts should give a supplemental report on the above scenarios within 2 months.

Witness statements

44.  The Plaintiff has served updated witness statements, and did not object to the Defendants’ witness statements in reply.  56 days are allowed as the Defendant’s witnesses are in England and Dubai.

Mediation

45.  The Plaintiff has served a Mediation Notice.  The Defendants had not responded to it.  Mr Sakhrani submitted that he would advise his client upon the receipt of the supplemental joint orthopaedic report.

46.  Very often, parties indicated amenability to mediation upon enquiry by the Court.  However, sometimes they remained only in words, not writing or deeds.  Such lip service would hardly constitute minimum level of participation in order to protect against any adverse costs order.

47.  In this case, the Plaintiff has served a Mediation Notice.  Under the Practice Direction, the Defendant is obliged to serve a Mediation Response.  Taking into account the preparation of the case, I allowed the Defendants 72 days to file the Mediation Response.

Costs

48.  I made the order that the Plaintiff should bear the costs of the summons on the RSD and the application on employment expert, and the costs of the remaining PTR be in the cause.  I apportioned 1 3/4 hours of the hearing for the former, and summarily assessed the costs of $36,000 ($30,000 for counsel and $3,000 for each solicitor), and as the PTR (15 minutes) could have been dealt with by solicitors, I assessed $2,500 as the costs qua solicitor to follow the event.

49.  I also allowed the Defendants’ wasted costs of the Revised Answer in reply to the disallowed RSD.

50.  I direct a 3^rd PTR on 22 June 2010 at 11 am.  I encourage parties to agree all remaining directions before setting down if the case has to go to trial so that can be vacated.