HO KA WA, an infant suing by his mother and next friend, CHAU SUET HEUNG v. TSE CHUNG MING

HCPI 661/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 661 OF 2012

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D E C I S I O N

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1.  This is an application by the defendant by summons dated 30 September 2014 for an order that the parties do have leave to obtain a joint supplemental clinical psychological expert report from Dr Anita Chan, instructed by the plaintiff, and Dr Calais Chan, instructed by the defendant, within 56 days from the date of the order to be made herein.

2.  The history of the matter is this.  Some five years ago, in January 2009, the plaintiff, who was then a minor but who is now of full age, suffered very substantial injuries as a result of a traffic accident.  He was near death and it was the intensive efforts of the treating doctors that saved him. 

3.  The picture that was presented in the early days of his long process of recovery was quite frightening, but there is no greater miracle than the resilience of youth and, some five years later, one can breathe a huge sigh of relief when one sees that he has made substantial recovery from his very serious injuries. 

4.  The joint neurological report of Dr Huang Chen Ya, whose evidence is readily and very happily received in these courts, and of Dr Edmund Woo, show hardly any difference of opinion, save as regards their reference to different medical literature on the risks of late-life dementia and the risks of post-traumatic epilepsy.  They both agree that Master Ho, as he then was, had a severe head injury at the time of the traffic accident. He had loss of consciousness for weeks. There was radiological evidence of skull fracture, cerebral contusion and intra-cranial haemorrhage. He required neurosurgical intervention, intensive care, a tracheostomy and mechanically assisted ventilation.

5.  According to Dr Huang, Master Ho has mainly cognitive impairment with executive dysfunction and significant slowing in mental processing.  According to Dr Woo, as a result of the head injury, he has residual executive dysfunction with slow responses.  They are both agreed that there is no limitation in his daily activities but, given the fact that he has had cranioplasty, he should refrain from vigorous contact sports to minimise the risk of another injury to the skull.

6.  Master Ho also suffered injuries to his hearing faculties. He suffered trauma to his left temporal region with resulting fracture and impaired left hearing function and meningocele. The ENT specialists, Dr Chan Tak-ming and Dr Au Wing‑wah, are agreed that he suffered a 1.6 percent permanent impairment of binaural hearing.  He also suffered from tinnitus, which was serious until his hearing impairments and disabilities were medically treated.  The extent to which that has affected his schooling is likely to be the subject of some enquiry at the trial of this action; but the problems of the past appear to be on the decrease.  The difference, in the impairment assessment of the two doctors, turns on the continuing impact of the tinnitus.  Dr Chan is of the opinion that he suffers a 5 percent impairment, which translates to a whole person impairment of 2 percent.  Dr Au is of the view that the impact of the tinnitus in future is nil to negligible. 

7.  It would appear from my reading of these reports that the medical opinions expressed in them can be received by the trial judge without the need to call the makers. 

8.  The greater focus of the trial is likely to be on the claim for future loss of earnings.  The re-re-revised statement of damages, which has recently been produced, presents a claim in excess of $15 million for future loss of earnings.  It must be in the context of this very substantial claim that one turns to the joint psychological report of Dr Anita Leung and Dr Calais Chan.  This is a very substantial report addressing the various tests that were performed, and containing the expert opinion of these two well recognised psychologists whose evidence has also been readily received by the courts. 

9.  The report was produced in November 2013 and, at that time, the psychologists had the benefit of the school reports up to 2013. In 2014, Master Ho completed his secondary school final examinations which are known as the Diploma of Secondary Education, DSE for short, and these results became available some time in 2014.  There was some exchange of correspondence to obtain a supplemental report from the psychologists and to obtain their views on these latest school results. The upshot of all that was the solicitors for the defendants went on their own to instruct Dr Calais Chan to produce a report on the matter.  He produced one in July 2014, but that report has since been replaced by a report dated 4 September 2014.  The application for leave to adduce as expert evidence in court has been made in respect of this later report, but that application has since been withdrawn and replaced by an application that the parties have leave to obtain a joint supplemental expert report.

10.  I think it is timely to remind the practitioners of the protocol for obtaining a joint expert report and to remind them, specifically, that parties should not unilaterally obtain their own expert report on quantum.  The cases on the subject include Fung Chun Man v Hospital Authority, HCPI 1113/2006, 24 June 2011, and Tang Tak Ping v Kai Shing Construction Company [2012] 1 HKLRD 1093.

11.  What does the court do when this protocol has been breached?  Ultimately, in every case the court has to ascertain the real issues in dispute in the case and the extent to which the expert evidence will be of assistance to the court on those issues. 

12.  Mr Matthew Tse, who appears on behalf of the plaintiff, conceded, after some dialogue with the bench, that had the defendants applied initially for a joint supplemental report without obtaining their own unilateral report, then, perhaps, the resistance to such application would not have been as strenuous. 

13.  In his written submissions to oppose the application, Mr Tse sought to make the point that the court did not need the assistance of the expert opinion of the psychologist on the latest school results which were consistent with the school results Master Ho had achieved in the past.  Whilst I think that this submission may be readily accepted in the run of the mill case, here we are looking at a claim in excess of $15 million; and, the further point to be made is that underpinning this substantial claim is the issue of the future employability of the plaintiff and, in that regard, I reminded Mr Tse of my judgment in Chan Yuet Keung v Harmony International Knitting Factory Limited [2010] 5 HKLRD 599 at page 625, paragraph 61, where I said that:

“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 & Anor, CACV182/2000, 15 November 2000, Rogers VP 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 §§ 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.”

14.  I also remind practitioners of what I said in Liu Ka Chun v Hong Airport Services Limited, HCPI 416/2009, 11 November 2011, that, when they wish to seek clarification from experts who have already prepared a joint report, they should follow the protocol I had previously introduced in my decision in Chan Yuet Keung v Harmony International Knitting Factory Limited. Again, it would be useful if I repeat what I said in paragraphs 47 to 50 of that judgment:

“47. Where there is a dispute as to the factual requirements of the pre-accident employment, the joint instructions to the single joint expert, or to the experts appointed to prepare a joint report, should outline the different factual versions to the expert(s) concerned and his or their expert opinion should be sought on each separate version. The provisions contained in §87 of PD18.1 address and contemplate a situation where the joint report contains opinions, based on common parameters as well as on different parameters. Where those parameters can only be known after an exercise of fact finding by the trial judge, an expert should not himself embark on any fact finding exercise but should offer his opinion based on one version and his different opinion, if, indeed, it be different, based on the other version(s).

48. That did not happen in the present case and Dr Lam offered his opinion based on the plaintiff’s version of his pre-accident work requirements. In this situation the other party, receiving the joint report and seeing that it contained opinion based on disputed facts, should seek the expert’s opinion based on that party’s version of the disputed facts. Obviously, it is wrong for a party to approach the maker(s) of a joint report without informing the other side. I agree with Mr Lim that in a situation such as the present, or when clarification is sought from the maker(s) of a joint report, the proper procedure should be:

(a) The party raising any question for clarification should in the first instance write to the other party and seek his consent for the question to be put to be expert(s).

(b) If the other party does not agree to the question raised, he may propose a different question for the consideration of the party that raised the matter.

(c) If consensus cannot be reached between the parties then the party that wishes to seek clarification should take out a summons before the PI Master to determine the matter.

49. In resolving the dispute the PI Master would no doubt be guided by §84 of PD18.1 and impose sanctions on the party acting unreasonably in the matter by raising matters which went beyond clarification or by unreasonably refusing to agree to proper questions being put to the expert(s) to clarify genuine issues.

50.     The guidance offered above should not be construed as a carte blanche to seek clarification.  Parties should take care to compose joint instructions which deal with all relevant matters. In the normal course of events, there should be no need for a joint report to be amplified or tested by cross-examination.”

15.  How do we make matters right where one side has unilaterally sought to obtain a further report from his own expert, after a joint report has already been produced?  The need to restore a level playing field and the need for fairness may, I think, in many cases require the court, in the event that the court accepts such additional expert evidence, to come to the conclusion that the joint exercise must come to an end, and to allow the parties to obtain their own solo reports and, perhaps, make a direction for a without-prejudice meeting between the two experts, and for them to produce a statement of agreements and disagreements. 

16.  In this case, however, I am persuaded by Mr Sakhrani, who appears for the defendant, and, I think, Mr Tse accepts that as well, that this is a case where, notwithstanding the fact that the defendant has obtained its own solo report, the parties can still remain on track with the joint approach.  Accordingly, Mr Tse has no objection to an order in terms of the summons that there be leave to obtain a joint supplemental clinical psychologist expert report from the two experts.  Dr Anita Leung must, of course, be shown and have access to the report of Dr Calais Chan of 4 September 2014 as well as his earlier report of July 2014. 

17.  When the supplemental joint report is available, I will schedule another checklist review and, on that occasion, give leave for the report to be adduced; and it will be on that occasion that we will need to critically assess whether or not oral evidence from the psychologists would be required at trial. 

18.  Nevertheless, notwithstanding that one can return to a joint approach, the displeasure of the court must be expressed; and I would express that by making an order that the costs of today be paid to the plaintiff in any event and be taxed on an indemnity basis.  To further restore a level playing field, and fair play, I must also direct that the letter of instruction that was sent to Dr Calais Chan be disclosed to the plaintiff’s solicitors and, of course, be made available to Dr Anita Leung so that she and Dr Calais Chan can complete their supplemental report with all cards on the table.

19.  I also direct that the plaintiff’s own costs to be taxed on Legal Aid Regulations.