LEE SAU FAT v. F. H. SECURITY SERVICES CO LTD

DCEC1720/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 1720 OF 2006

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REASONS FOR DIRECTIONS AND RULING ON COSTS

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I.  Introduction

1.  Madam Lee Sau Fat (“Madam Lee”) was employed by F H Security Services Company Limited (“FH Security”) as a security guard. She claimed to have suffered 3 accidents (“Accidents”) :

(a)  On 7^th May 2005, whilst on duty she slipped and fell from a stool and injured her right wrist and loin (“1^st Accident”).

(b)  On 15^th February 2006, she sustained right knee injury in a slip and fall accident as she hurried to report for duty with complaint of right ankle pain the following day (“2^nd Accident”).

(c)  On 17^th March 2006, whilst on duty she twisted her right leg when walking downstairs from the 16^th to 17^th floor (“3^rd Accident”).

2.  On 13^th December 2006, Madam Lee by her solicitors Messrs Yeong & Co (“YC”) commenced DCEC1720/2006 to claim employee’s compensation (“EC”) in respect of the 1^st Accident (“1^st EC Action”). On 31^st January 2007, Madam Lee by YC commenced DCEC120/2007 to claim EC in respect of the 3^rd Accident (“2^nd EC Action”). FH Security (represented by Messrs Leung & Lau (“LL”)) denied liability in both proceedings, and put Madam Lee to proof of her claims.

3.  Madam Lee was granted legal aid in December 2007 for the 2^nd EC Action and for commencement of a common law claim in respect of the 3^rd Accident. On 8^th July 2008, Madam Lee by YC commenced DCPI1471/2008 against FH Security to claim for common law loss and damages in respect of the 3^rd Accident (“PI Action”). FH Security, again represented by LL, admitted the employment relationship but denied liability.

4.  The 1^st and 2^nd EC Actions and the PI Action are collectively referred to as the “Actions”. To date, Madam Lee has not commenced any legal proceedings in respect of the 2^nd Accident or any common law claim in respect of the 1^st Accident.

5.  The parties failed to restore the 1^st EC Action for over 2 years and repeatedly adjourned the 2^nd EC Action and PI Actions. But in the meantime they made their own arrangements for expert medical examinations/reports upon requests for deferral of the Check List Review (“CLR”) in the PI Action and without intimation to the court in the 2^nd EC Action.

6.  In the PI Action, the parties’ solo expert medical evidence, which is not well-favoured even before the Civil Justice Reform (“CJR”), gives cause for concern, especially when it turns out that joint reporting is in fact necessary and relevant. Such state of affairs is disquieting, and is made more so by the parties keeping the court in the 2^nd EC Action ignorant about expert medical examinations/reports (ostensibly obtained for the PI Action) pursuant to anotional Chinese wall segregating the 2^nd EC Action from the PI Action. Yet the parties must have known of the close interrelation between the 2^nd EC and PI Actions that involve the same parties/lawyers and the same 3^rd Accident, and the common relevance of such expert medical evidence to both actions. As seen below, such notional Chinese wall fails to justify non-disclosure to the court in the 2^nd EC Action of the existence of the PI Action and/or developments in relation to expert medical evidence, and hinders economical, expeditious, proportional and fair progress of the litigation. Such party-driven and piecemeal approach inevitably leads to increased expense/ delay, and in this case also to expert medical evidence that is less than helpful. 

7.  After implementation of the CJR, paragraph 73 of Practice Direction (“PD”) 18.2 specifies that the parties and their legal representatives have a duty to provide as much information and documents as possible to enable the court to make informed case management decisions. But the parties here still did not initiate prompt and frank applications for comprehensive case management directions/ timetable. It took no less than 3 hearings to ascertain a reasonably full picture from the parties and their legal representatives, but once the picture is clear the court took robust steps to grant overall case management directions/timetable for all 3 Actions.

8.  For proper understanding of my reserved reasons for directions and ruling on costs, I set out below a chronological account of the Actions. But it must be remembered that at least until mid-May 2009 the court in each case had no clue about the other 2 cases.

II.  Chronology of events

9.  On 14^th February 2007, after granting preliminary directions up to discovery I adjourned the 1^st EC Action sine die with liberty to restore. No attempt was made to restore this case until this court by own motion on 18^th June 2009 scheduled a Direction Hearing for 29^th June 2009.

10.  In the 2^nd EC Action, the parties applied for preliminary directions up to discovery and to adjourn the case sine die with liberty to restore. On the following day, I granted an order in terms but required the parties to restore the case within 50 days.

11.  According to a joint letter from YC and LL to the court in early May 2007, they agreed not to restore the 2^nd EC Action pending assessment by the Medical Assessment Board (“MAB”) “for saving costs”. On 10^th May 2007, I reminded them that EC cases should progress expeditiously, and directed the parties to restore the case within 75 days by which time they should have ascertained the status of the MAB assessment or clarified how the case should be progressed.

12.  By a joint letter to the court dated 19^th July 2007, YC and LL applied to adjourn the 2^nd EC Action sine die with liberty to restore “to save the court’s time and the parties’ costs” as Madam Lee’s sick leave had not yet expired and the MAB assessment was still pending. On the following day, I adjourned the case for 120 days by which time the parties should have ascertained the status of Madam Lee’s sick leave and of the MAB assessment, and the court would then consider giving directions for witness statements.

13.  On 12^th November 2007, YC and LL jointly informed the court Madam Lee had been hospitalised from 11^th October to 4^th November 2007, and it was likely that her sick leave up to 27^th November 2007 would be extended. Since the MAB assessment was still pending, they proposed to adjourn the 2^nd EC Action sine die in order to save time and costs. On the following day, I adjourned the case sine die to be restored within 90 days.

14.  By 2 letters dated 13^th and 18^th February 2008, YC informed the court that the MAB assessment was still pending, and proposed to adjourn the 2^nd EC Action “for at least 6 months so that the parties may have sufficient time to negotiate settlement upon receipt of the outcome of the assessment”. On the following day, I required the parties to jointly write to the court between 80-90 days thereof to give information on (a) the status of Madam Lee’s sick leave and of the MAB assessment and (b) the issuance of the Certificate of Assessment (“Form 7”) and/or any appeal therefrom, and to seek directions on witness statements, expert medical evidence and all other necessary/appropriate case management matters. If expert medical evidence were required, I further directed the parties to jointly provide particulars as to the category of medical expert, whether joint or separate medical experts would be appointed, whether there would be joint expert medical examination/report, and if not, why not with details as to whether invitation for joint examination/report had been made and/or refused.

15.  On 19^th May 2008, YC wrote to the court for further adjournment of the 2^nd EC Action “for at least 6 months …… pending the [MAB] assessment” (to which proposal LL agreed) and went on to say as follows :

“……When the assessment taken place and the outcome thereof is available, we have instructions to negotiate settlement with [FH Security] accordingly.

As to the appointment of experts, [Madam Lee] decided withholding the matter pending the outcome of the said assessment. Should she satisfies the outcome of the assessment, she will not appoint any orthoapedics to examine on her for saving costs; if not, she still has a chance to have a review assessment performed by the MAB. Provided that she does not accept the outcome of the reassessment (if any), we are instructed to write to the Legal Aid Department to seek an orthopaedics expert to quantify her injuries and seek relevant directions from the court accordingly. Therefore, no medical expert is appointed to examine [Madam Lee] at this stage, In order to save costs, we are instructed not to exchange witness statement at this stage. ……”

16.  By paper directions on 22^nd May 2008, I required the parties to jointly write to the court within 21 days of the issuance of the Form 7 or within 140 days, whichever was earlier, to give information on (a) the status of Madam Lee’s sick leave and of the MAB assessment/re-assessment, and (b) the issuance of the Form 7 or the Certificate of Review Assessment (“Form 9”) and objection/appeal therefrom, and to seek directions on witness statements, expert medical evidence and all other necessary/appropriate case management matters. I further required the parties to jointly provide the following information :

“if [expert medical evidence is] required, state the category of medical expert and whether the parties will appoint joint expert. If not, state whether the parties’ respective medical experts will carry out joint medical examination and prepare joint report. If not, justify why not and state whether invitation has been made for joint examination/report or not, whether such invitation has been declined or not and the reasons therefor;”

and gave further directions as follows :

“Notwithstanding the above, where any party wishes to adduce expert medical evidence at trial and parties are unable to agree on directions for arranging medical examination by the parties and/or compiling expert reports, parties should forthwith jointly write to the court to seek relevant case management directions.”

17.  The PI Action commenced on 8^th July 2008, and the Statement of Claim, Statement of Damages and Madam Lee’s Medical Reports were filed on the same day. Madam Lee’s Medical Reports were also part of the discovered documents in the 2^nd EC Action.

18.  On 29^th July and 15^th August 2008 respectively, YC invited LL for single joint or joint orthopaedic and psychiatric medical examinations, and proposed Dr Johnson Lam (“Dr Lam”) and Dr Stephen Ng (“Dr Ng”) as single joint experts or as Madam Lee’s experts for preparation of single joint or joint medical expert reports in time for the CLR on 18^th November 2008 for the PI Action.

19.  With no reply from LL, YC sent instructions to Dr Lam on 15^th August 2008 and arranged for Madam Lee to be medically examined by Dr Lam on 2^nd September 2008. Dr Lam’s solo orthopaedic expert report was completed on 8^th September 2008 (“Dr Lam’s Report”).

20.  In their letter of explanation to the court for the 2^nd EC Action dated 10^th June 2009 (“LL 10/6/09 Letter”), LL claimed that with the Form 7 pending expert medical examination was premature. But as it was Madam Lee’s choice and “she would be at her own risk for the expenses incurred”, LL did not object to her appointment of Drs Lam and Ng.

21.  On 16^th September 2008, FH Security filed its Defence in the PI Action.

22.  By a joint letter dated 30^th September 2008 to the court in the 2^nd EC Action, YC and LL advised that the result of the MAB assessment scheduled on 19^th November 2008 was expected to be available in a month’s time, and went on to say as follows :

“In order to save the parties’ costs, we agree trying to negotiate settlement upon receipt the result from the MAB if [Madam Lee] satisfies the outcome. If not, she still has a chance to have a review assessment performed by the MAB. As such, we have no instructions to appoint any orthopaedics expert to examine on her at this stage. Provided that she does not accept the outcome of the reassessment (if any), we are instructed to write to the Legal Aid Department to seek an orthopaedics expert to quantify her injuries and seek relevant directions from the court accordingly. Therefore, no medical expert is appointed to examine [Madam Lee] at this stage. In order to save costs, we are instructed not to exchange witness statement at this stage.” (my emphasis)

On 3^rd October 2008, H H Judge H C Wong granted order in terms of the proposed directions.

23.  With no reply from LL, YC sent instructions to Dr Ng on 2^nd October 2008 and arranged for Madam Lee to be medically examined by Dr Ng on 16^th October 2008. Dr Ng’s solo psychiatric expert report was completed on 6^th November 2008 (“Dr Ng’s Report”).

24.  In the LL 10/6/09 Letter, LL claimed that since the Form 7 would be available a month after the MAB assessment on 19^th November 2008, so “[in] order to protect [FH Security’s] position and not to delay the action further and in view of [Dr Lam’s Report], [LL] were of the view that it was appropriate for [FH Security] to obtain an orthopaedic expert report at that stage.”

25.  On 10^th November 2008, Madam Lee disclosed inter alia Dr Lam’s and Dr Ng’s Reports in her List of Documents in the PI Action. On 10^th and 11^th November 2008, YC and LL lodged their respective Checklist, which proposed directions for exchange of witness statements and adjournment of the CLR. YC’s Checklist further proposed inter alia as follows :

“1.  [Madam Lee] do leave to file and serve her reply within 7 days from the date of the Order to be made ……

4.  The medical evidence is to be limited to one orthopaedic consultant and one psychiatric consultant for each party, namely [Drs Lam and Ng] for [Madam Lee] and Dr ____________ and Dr ____________ for [FH Security].

5.  [FH Security] shall ensure that the medical reports prepared by Dr _______________ and Dr _____________ be ready within 60 days from the date of the medical examination which is scheduled to take place on _______________. The medical examination date shall not be changed without the approval of the court.……”

LL’s Checklist included inter alia the following proposed direction :

“3.  The medical evidence is to be limited to one orthopaedic expert for each party, namely, [Dr Lam] for [Madam Lee] and Dr. ____________ for [FH Security]; ……”

26.  On 11^th November 2008, LL wrote to YC to arrange for Madam Lee to be medically examined by Dr Cheng on 30^th December 2008. Since Dr Cheng’s report would not be ready until end of January 2009 and “the parties would not be in a position to seek direction for medical evidence” at the CLR, YC and LL jointly wrote to the PI Master on the same day to adjourn the CLR to early February 2009. On 15^th November 2008, the PI Master granted the adjournment but specified that Dr Cheng’s medical examination should not be rearranged without prior leave of the court and that FH Security should lodge Dr Cheng’s report on or before 31^st January 2009. On 26^th November 2009, the PI Master granted leave to expedite Dr Cheng’s medical examination to 9^th December 2009.

27.  The MAB assessment for the 3^rd Accident took place on 19^th November 2008, and the relevant Form 7 issued on 3^rd December 2008 for “(1) bilateral knee injury resulting in both knees pain, right knee fracture and stiffness, (2) psychiatric impairment, depression” assessed the sick leave period to be intermittent periods between 18^th March 2006 and 20^th May 2008, and the loss of earning capacity to be 17.6%.

28.  On 8^th December 2008, LL issued instructions to Dr Cheng who medically examined Madam Lee the following day, and completed his solo orthopaedic expert report on 20^th January 2009 (“Dr Cheng’s Report”).

29.  It was suggested in the LL 10/6/09 Letter that FH Security all along believed that Madam Lee’s alleged injury was not substantial, so it was only after the issuance of the Form 7 (ie on 5^th January 2009) that LL made arrangements for a psychiatric expert Dr Chow Lok Yee (“Dr Chow”) to medically examine Madam Lee on 21^st January 2009 to protect FH Security’s position.

30.  By a joint letter dated 8^th January 2009 to the PI Master, YC and LL advised that Dr Chow’s report would not be available before the CLR on 9^th February 2009, and applied to adjourn the CLR “to save costs and court’s time”.

31.  On 20^th January 2009, YC lodged their Checklist proposing directions similar those set out in paragraph 25 above save that item 5 thereof was replaced by the following :

“5.  [FH Security] shall ensure that the medical reports prepared by [Drs Cheng and Chow] be ready and served on [Madam Lee] within 21 days from the date of the Order to be made (i.e. on or before 2 March 2009). ……”

32.  On 21^st January 2009, the PI Master adjourned the CLR to 2^nd April 2009, and directed inter alia that Dr Chow’s medical examination should not be postponed without leave and that his report should be lodged within 45 days of such medical examination. Dr Chow medically examined Madam Lee on the same day.

33.  On 16^th February 2009, YC and LL jointly wrote to the PI Master for (a) time extension until 5^th May 2009 for producing Dr Chow’s report since Dr Chow wished to review the psychiatric treatment notes/records, and (b) adjournment of the CLRto mid-May 2009. On 25^th February 2009, the PI Master adjourned the CLR to 1^st June 2009.

34.  Even though the CLR on 2^nd April 2009 was vacated, on 24^th March 2009 YC lodged their Checklist which proposed directions similar those set out in paragraph 31 above save that item 5 thereof was replaced by the following :

“5.  [FH Security] shall ensure that [Dr Chow’s report] be ready and served on [Madam Lee] within 14 days from the date of the Order to be made (i.e. on or before 16 April 2009). ……”

35.  On 27^th March 2009, FH Security filed Notice of Appeal in the 2^nd EC Action against the Form 7 issued on 3^rd December 2008. Thereafter on 5^th April 2009 Dr Chow completed his solo psychiatric expert report (“Dr Chow’s Report”).

36.  The MAB assessment in respect of the 1^st Accident took place on 8^th April 2009. The relevant Form 7 for “sprain of back resulting in residual back pain” issued on 22^nd April 2009 assessed the sick leave period to be from 7^th to 10^th May 2005 and the loss of earning capacity to be 0.5%.

37.  On 5^th May 2009, LL filed Dr Chow’s Report in the PI Action. On the same day, YC and LL jointly informed the court in the 2^nd EC Action that the Form 7 was issued on 3^rd December 2008 and that the parties had appointed orthopaedic and psychiatric experts to medically examine Madam Lee. As no settlement was reached between the parties, they applied for directions for exchange of witness statements, for limiting expert medical witnesses to Drs Lam, Ng, Cheng and Chow (“Experts”), and for adjourning the case for 56 days.

38.  On 6^th May 2009, I paper directed the parties to comply with paragraphs 85(1) and (3) of PD18.2 within 7 days. By a joint letter dated 13^th May 2009 but filed on 30^th May 2009, YC and LL submitted joint Appendix D information (“30/5/09 App D”) for the 2^nd EC Action which revealed for the first time (a) the existence of the PI Action, (b) the CLR scheduled on 1^st June 2009, (c) the solo medical examinations of Madam Leealready carried out by the Experts, and (d) their solo expert medical reports (“Reports”) which were “ready but not yet filed”. “Subject to the directions from the court, the [Reports] will be filed”, butMadam Lee preferred to await the outcome of the MAB re-assessment. Should there be any appeal against the Form 9, “[she] will call [Drs Lam and Ng] …… [FH Security] will call [Drs Cheng and Chow]”. 

39.  On 22^nd May 2009, YC issued a summons in the PI Action for leave to file/serve a Reply within 14 days to plead that (a) Madam Lee had promptly reported the 2^nd Accident to FH Security and (b) despite her request for relief from patrol duties due to her injuries as a result of the 2^nd Accident she was instructed to perform such duties on the day of the 3^rd Accident.

40.  By their respective CLR questionnaires dated 13^th May and 1^st June 2009, YC and LL proposed directions for witness statements in the PI Action, and revealed for the first time to the PI Master the existence of the 2^nd EC Action. They also said the Experts would be required to give oral evidence at the trial of the PI Action. YC argued the solo expert medical examinations/reports were justified in order to avoid delay to the PI Action upon LL’s failure to respond to their invitation for single joint or joint medical examination/report. On the other hand, LL pointed out they were justified in appointing Dr Cheng to medically examine Madam Lee on solo basis since Dr Lam had already medically examined her on 2^nd September 2009. Further, LL argued that (a) Madam Lee’s injuries were not substantial (as evident from the medical report from Evangel Hospital dated 15^th August 2007which noted decrease in pain by 70%.) and (b) there was no medical report suggestive of direct causation between Madam Lee’s injuries and her psychiatric problem (which in any event appeared remote) even though she attempted suicide on 11^th October 2007. But upon disclosure of Dr Ng’s Report in November 2008 and issuance of the Form 7 on 3^rd December 2008, FH Security thought it necessary to have a psychiatric expert report and consequently commissioned Dr Chow’s Report on solo basis.

41.  At the CLR on 1^st June 2009 in the PI Action, the PI Master inter alia :

(a)  refused leave for Madam Lee to file/serve Reply with costs to FH Security;

(b)  permitted Madam Lee to obtain Dr Lam’s supplemental orthopaedic expert report “solely to clarify whether he is aware of the [2^nd Accident] and secondly whether he has fresh view on the assessment of damages of the causation of the [3^rd Accident] within 30 days from the date hereof (i.e. on or before 30 June 2009)” and to bear the costs of such supplemental report in any event;

(c)  directed the parties to exchange witness statements as to fact within 28 days;

(d)  limited expert medical witnesses to the Experts;

(e)  directed “[both] parties to write to the court the disputed/ agreed views by table/submission in comparison with [Dr Ng’s and Dr Chow’s Reports] at the next [CLR] hearing for the court to consider whether or not to call [Drs Ng and Chow] as witnesses at the trial, and such table/submission to be served on the other side and to be lodged with the court at least 7 days before the next [CLR] hearing”;

(f)  adjourned the CLR to 14^th September 2009;

(g)  granted costs of the CLR on 1^st June 2009 in favour of FH Security against Madam Lee.

On the same day, YC instructed Dr Lam to prepare the supplemental orthopaedic expert report as directed by the PI Master.

42.  On 2^nd June 2009, I granted paper directions in the 2^nd EC Action for filing/exchange of witness statements and for limitingexpert medical evidence to the Experts. I further directed the parties to lodge the Reports and to attend a Direction Hearing on 12^th June 2009. On 3^rd and 4^th June 2009, YC and LL filed/lodged the Reports in the 2^nd EC Action. 

43.  In its letter to the court dated 5^th June 2009 (“YC 5/6/09 Letter”), YC explained that the solo approach was adopted for Dr Lam’s and Dr Ng’s Reports because (a) LL failed to respond to their invitation for joint medical examinations and (b) PD18.2 (and presumably post-CJRPD18.1 too) was not yet in force at the material time. When arrangements were made for medical examinations by Drs Lam and Ng, “[Dr Lam’s and Dr Ng’s Reports were] expected to be used for the [PI Action].” It was claimed that Madam Lee did not intend to rely on or use Dr Lam’s and Dr Ng’s Reports in the 2^nd EC Action as she wished to wait for the MAB assessment and then negotiate settlement of the 2^nd EC Action. “If both parties could reach an amicable settlement in the EC claim, expert medical …… reports will not be necessary and costs will be saved ……” Further, had Madam Lee relied on Dr Lam’s and Dr Ng’s Reports for quantification of her claim in the 2^nd EC Action without waiting for the Form 7, her “right of MAB assessment [would have been prejudiced] unless [she] agreed to waive it”. 

44.  So YC claimed that even though they knew of the need to seek expert directions pursuant to my order dated 19^th February 2008, they acted on Madam Lee’s instructions and did not inform the court in the 2^nd EC Action “about the instructions to instruct medical experts and the medical assessment reports obtained in [the PI Action]”. By the joint letter dated 30^th September 2008, YC and LL informed the court in the 2^nd EC Action there were “no instructions to appoint any experts to examine [Madam Lee] under the [2^nd EC Action]”. YC added that “[they] have not seek the Legal [Aid] Department approval for instructing the medical experts for preparing medical assessment reports in relation to the [2^nd EC Action]”. But when FH Security appealed against the Form 7 on 27^th March 2009, YC considered that expert medical evidence became “unavoidable”, so to save costs and avoid delay they proposed that the Reports obtained for the PI Action be adduced in the 2^nd EC Action without further joint reporting.

45.  On the other hand, the LL 10/6/09 Letter stated that LL did not contest Madam Lee’s proposal for obtaining expert medical reports “as usually there may be possibility for settlement in EC case after issuance of Form 7 ……”. They therefore sought directions in the PI Action and not in the 2^nd EC Action “so as to save unnecessary costs”. If no settlement was reached, LL considered it would save costs, avoid delay and not cause any prejudice if the Reports (and Dr Lam’s supplemental expert report as ordered by the PI Master on 1^st June 2009) were adduced in the 2^nd EC Action.

46.  At the Direction Hearing for the 2^nd EC Action on 12^th June 2009, I granted inter alia the following directions :

(a)  Madam Lee and FH Security do within 35 days from the date thereof file/serve Supplemental List of Documents disclosing all relevant documents in respect of (i) the 1^st and 2^nd Accidents and (ii) the 1^st Accident respectively;

(b)  my order dated 2^nd June 2006 be varied to the extent that witness statements be filed and exchanged on or before 31^st July 2009;

(c)  paragraph 2 of the sealed copy of my order dated 2^nd June 2009 be amended under the slip rule to strictly reflect my paper directions, and Madam Lee do file and serve the Amended Order within 7 days;

(d)  parties do within 49 days from the date thereof jointly instruct Drs Ng and Chow to prepare a joint supplemental psychiatric expert report to be completed within 105 days of the date of the order;

(e)  parties do submit Joint Written Application within 42 days from the date thereof on whether Drs Lam and Cheng would require a joint medical examination of Madam Lee which should be scheduled within 63 days from the date thereof in order to prepare a joint supplemental orthopaedic expert report within 56 days thereafter (if joint medical examination was required) or within 77 days from the date of the order (if joint medical examination was not required);

(f)  parties do jointly instruct the Experts to prepare joint supplemental orthopaedic and psychiatric expert reports that comply with paragraphs 56-57 and 63-64 of PD18.2 on the basis of agreed bundle of documents including the further discovery in (a) above;

(g)  parties do within 14 days jointly write to the court on the particulars and status/progress of any EC claim for the 1^st Accident and of the 1^st EC Action, and on whether the 1^st and 2^nd EC Actions should be consolidated and/or heard together with appropriate adjustment to the above case management directions;

(h)  costs of the hearing be costs in the cause; and

(i)  costs of the supplemental expert medical reports be reserved for consideration at the next Direction Hearing;

47.  On 12^th June 2009, I also directed that the PI Action be restored for Pre-trial Review (“PTR”) before me on 18^th June 2009 so as to bring the case management directions (especially in relation to expert medical evidence) in line with those in the 2^nd EC Action. However, discussion with YC’s Ms Lo and LL’s Ms Ngai at the PTR on 18^th June 2009 raised even more queries than answers in relation to the Actions, so I directed inter alia that :

(a)  the 1^st and 2^nd EC Actions be restored for Direction Hearing and the PTR in the PI Action be adjourned for hearing before me on 29^th June 2009 with agreed hearing bundle and proposed case management directions lodged on or before 25^th June 2009;

(b)  costs of the PTR hearing on 18^th June 2009 be reserved.

48.  The 2 Appendix D information lodged by LL on 25^th June 2009 (“25/6/09 App D”) specified that for the 1^st EC Action Madam Lee’s sick leave up to 6^th June 2007 (save for the period from 7^th to 10^th May 2005) related to knee pain (which was unrelated to the 1^st Accident), and for the 2^nd EC Action her sick leave expired on 20^th May 2008. Although YC stated in 30/5/09 App D that Madam Lee preferred to wait for the Form 9 and/or any appeal therefrom, LL stated in 25/6/09 App D that no objection was lodged against the Form 7 issued on 3^rd December 2008 but appeal was made to the court in the 2^nd EC Action.

III.  Discussion on the 1^st EC Action

49.  Neither party took any further step in the proceedings since the 1^st EC Action was adjourned sine die in early 2007. Ms Lo submitted that the inaction was the result of Madam Lee’s instructions to wait for the MAB assessment. In my view, such procrastination is unacceptable and is in fact belied by the parties’ inaction even after the relevant Form 7 was issued on 22^nd April 2009.

50.  Even before the CJR, parties and their legal representatives were required to bring litigation, especially EC claims, to trial with reasonable expediency. This marries well with social intent that underlies EC legislation, which is to give employees a simple, quick and cost-effective avenue to recover no fault compensation. Even though a practitioner can exercise some discretion in running his client’s case, his duty to the court in the administration of justice requires prioritisation of procedural efficiency over strict adherence to his client’s instructions. I am afraid Ms Lo’s submissions do not offer sufficiently cogent answer for the delay.

51.  That being so, there is even less justification post-CJR. The underlying objectives place emphasis on the need “to ensure that a case is dealt with as expeditiously as is reasonably practicable”, and parties and their legal representatives should assist the court to further such underlying objectives. Even consultation amongst the parties (let alone instructions from 1 party) must not delay any application to restore any EC case for Direction Hearing or Joint Written Application in accordance with the reasonable needs of the case (see paragraph 69(a) of PD18.2). The court in exercising proactive case management will no longer smile kindly on party-driven litigation or on any attempt to mandate inappropriate delay on client’s instructions.

52.  I should add that the duty to assist the court in furthering the underlying objectives is not one-sided. Obviously, Madam Lee as claimant has carriage of the 1^st EC Action and should proceed with due diligence, but FH Security and LL also have a duty to restore the case within a reasonable time.

53.  So on 29^th June 2009 this court granted directions for progressing the 1^st EC Action. Bearing in mind the underlying objectives of procedural economy, cost-effectiveness and reasonably proportionality, and the common issues and witnesses for the 1^st and 2^nd EC Actions, it is only sensible to consolidate the 2 actions and grant consequential directions. Ms Lo and Ms Ngai readily agreed to the same.

54.  However, 1 issue remains outstanding under the 1^st EC Action. Although LL in 25/6/09 App D referred to an appeal against the Form 7 issued on 22^nd April 2009 and suggested having Drs Lam and Cheng deal with the 1^st Accident in any joint supplemental orthopaedic expert report, the parties did not clearly clarify at the hearing on 29^th June 2009 whether and when such appeal has been or will be lodged in the 1^st EC Action. I hereby direct the parties to jointly write to the court within 14 days to provide information on items 14-17 of Part II of Appendix D of PD18.2 and, where applicable, to state the date when the appeal or intended appeal against the Form 7 issued on 22^nd April 2009 has been or will be filed/served.

IV.  Discussion on the PI Action

(a)  Undisputed background

55.  When Madam Lee commenced the PI Action in July 2008, there were several undisputed features known to both parties :

(a)  By that time Madam Lee had already commenced the 1^st and 2^nd EC Actions, so both parties knew there were an ongoing EC claim in relation to the 1^st Accident and another ongoing and corresponding EC claim in relation to the 3^rd Accident.

(b)  The parties and their legal representatives in the Actions were the same.

(c)  Madam Lee’s complaints in relation to her injuries/ impairment/disabilities were necessarily the same in the 2^nd EC Action and the PI Action, and she relied on the same treatment medical reports for both cases.

(d)  As evident from the Statement of Claim in the PI Action, the parties knew of the 2^nd Accident.

(e)  Even though the 2^nd Accident was not the subject of any legal claim, Madam Lee’s Medical Reports and her pleas in the Statement of Damages as to inter alia bilateral knee pain, her right ankle pain, and her consequent physical/mental impairment plainly put in issue the interrelation and/or apportionment between the 2^nd and 3^rd Accidents.

(f)  No expert medical evidence had been obtained for any of the Actions as yet.

(b)  Joint/solo approach to expert medical evidence

56.  Given YC’s invitation to LL for single joint or joint expert medical examinations/reports, Madam Lee and YC obviously thought that single joint or joint approach would be appropriate for obtaining/ presenting expert medical evidence concerning the 3^rd Accident for the PI Action. But when there was no reply from LL, instead of seeking case management directions from the PI Master, YC proceeded to instruct Drs Lam and Ng to conduct solo medical examinations and to prepare solo expert medical reports.

57.  However, YC must have known that permission of the court is required before expert medical evidence can be adduced in the PI Action, and to grant such permission the court must be satisfied that the expert medical evidence intended to be adduced will be reasonably required for resolving the issues before the court. Thus, “[the] Court retains the control on how expert evidence should be presented in order to attain the saving of costs and fair disposal of the cause or matter” (see Mok King Sun v Turn Round Company Limited & ors HCPI855/2007, Fung J (unreported, 25 March 2009) para.25 and my judgment in Lau Lai Shan v Hospital Authority DCEC784/2007 (unreported, 29^th February 2008) para.19).

58.  In Ansar Mohammad v Global Legend Transportation Limited DCEC1090/2006 (unreported, 8^th May 2007) paras.41-42, which decision was handed down more than a year before YC sent instructions to Drs Lam and Ng, I discussed the court’s case management powers in relation to expert medical evidence as follows :

“41.  On the other hand, even though the [CJR] is still in the wings, it is plain that active case management is already an integral part of the civil courts. The court can ameliorate some of the aforesaid ills of the adversarial system by exercising its inherent case management powers. 

42.  In respect of expert medical evidence, the primary goal of case management is to encourage useful, proportionate and cost-effective expert medical evidence/reports, to reduce delay and cost, to narrow the issues and reduce the scope of the evidence, and to enable just and efficient resolution of the real issues. Close scrutiny of the preparation of expert medical reports and early adoption of effective procedural measures can help ensure that expert medical evidence in each case will be in the most appropriate form, will not stray from the identified issues and will be made available in a timely fashion for doing justice between the parties.

……

44.  In the area of personal injuries litigation, the shift towards tighter control by judges and masters on the progress and carriage of such litigation was spearheaded by Seagroatt J whose trenchant remarks on case management serve as useful reminders to litigants and their legal representatives to take all necessary steps to minimise delay/costs, facilitate early settlement of cases and improve decision-making in the course of the proceedings. ……” (my emphasis)

59.  Here, YC seeks to justify adoption of the solo approach to expert medical evidence without prior intimation to the court on the basis that post-CJR PD18.1 and PD18.2 were inapplicable at the material time.

60.  In fact, the pre-CJR PD18.1 plainly leaned in favour of a joint approach to obtaining expert medical evidence during the pre-action stage (ie when the parties could not yet apply to the court for case management directions) :

“…… What [the practitioners] should be doing …… is to invite the Defendants to take part in a joint examination by respective experts, or in a joint instruction to an agreed expert. Failure to do so is likely to result in the Plaintiff's’ practitioners not recovering such costs from Defendants in the event of a settlement or a judgment against the Plaintiff.

The Court will be alert to prevent, when it can, practitioners from recovering such costs from the Plaintiff or out of the Plaintiff’s damages.”

61.  For the post-action stage when parties have ready access to the courts for directions on obtaining/presenting expert medical evidence, there is even less justification for a party or parties to choose a solo approach without express court directions. There is no stopping the party or parties from issuing a summons for such purpose or following the procedure in paragraph 10.6 of the pre-CJR PD18.1 to seek directions from the PI Master by expediting the 1^st CLR shortly after close of pleadings.

62.  I pause here to mention that the post-CJR PD18.1 now makes the pre- and post-action position explicitly clear :

“22.  If the claimant finds it necessary to obtain medical expert report(s) before commencement of proceedings, he should consider arranging medical examination either by single joint expert(s) if agreed upon or jointly together with the expert(s) of the proposed defendant(s).  A party who unreasonably fails to cooperate in instructing or arranging such expert medical examination before the commencement of proceedings will risk sanctions being imposed by the Court (see paragraphs 81 and 84 hereof) should proceedings be commenced.” (my emphasis)

“71.  As soon as it is realized there exists a need or an anticipated need for adducing expert evidence at trial or if parties failed to reach agreement on arranging joint examination and / or compiling joint expert report by the parties' respective experts before or after the commencement of proceedings or if no agreement can be reached as to directions on obtaining expert evidence and / or for permission to adduce expert evidence, a party shall apply (by inter partes summons or by restoring the case for Check List Review Hearing) or the parties shall jointly apply (by Consent Summons to expedite or restore the hearing of the Check List Review) to the PI Master as soon as possible upon the commencement of or in the course of proceedings, as the case may be, for directions on obtaining expert evidence and / or for permission to adduce expert evidence.” (my emphasis)

63.  But apart from PD18.1, YC and LL must have known that even before the CJR the courts have time and again endorsed the virtues of a joint approach to expert medical examinations/reports. A succinct summary can be found in para.26 of Mok King Sun as follows :

“(1)  avoidance of different observations on different occasions, or disputes on observations under single examination;

(2)  discussions amongst the experts to narrow down the issues;

(3)  specifying matters agreed and matters not agreed and the reasons for any non-agreement;

(4)  avoidance of numerous supplemental reports commenting on the reports of the other side;

(5)  minimizing the need to call the experts to deal with matters which could have been dealt with under (1) to (4) above.”

 (see also my judgment in Ansar Mohammad para.46). As I have said in para.38 of my judgment in Lau Lai Shan :

“In personal injuries and employees’ compensation litigation, where medical expert evidence is often used, the significant advantages of joint medical examination and joint expert report discussed above are such that the court should be satisfied there are cogent and compelling reasons to decline following such approach. It is not enough for a party to insist on separate medical examination and separate expert report provided he or she is willing to bear the costs consequences.” (my emphasis)

64.  Directions on obtaining/presenting expert medical evidence fall squarely within the realms of judicial discretion. From the above discussion, there is no material difference in the pre- and post-CJR case management approach to expert medical evidence. After the reforms, the court simply seeks to implement the above principles more consistently and robustly in order to meet the underlying objectives.

65.  In my view, no sufficiently satisfactory explanation has been given as to why Madam Lee and YC failed to seek court directions on obtaining/presenting expert medical evidence when (a) YC’s overtures to LL made after commencement of the PI Action demonstrate that Madam Lee and YC favoured a joint approach and (b) there was ready post-action access to the court for directions when LL did not respond to such overtures. This amounts to a missed opportunity for narrowing issues and minimising costs/delay. Given the eventual need for joint reporting discussed below, I do not accept YC’s argument that the solo approach saves time and costs.

(c)  Timing for obtaining expert evidence

66.  I also disagree with LL’s suggestion that their failure to reply to YC’s invitation for single joint or joint expert medical examinations/reports is justified because at the material time they believed expert medical evidence was premature.

67.  There is no doubt that parties and their legal representatives should cooperate with each other in the conduct of proceedings, and any disagreement over procedural or practice matters should be resolved quickly so as not to obstruct the efficient and just determination of the substantive disputes. I am therefore unable to discern any cogent reason for FH Security and LL to lie low and not take their case management disagreement to the PI Master for determination.

68.  I also do not agree that a pending MAB assessment necessarily justifies any deferral of expert medical evidence in the PI Action. First of all, any Form 7 that may be issued is not necessarily binding on the parties in a common law claim, and assessment of loss of earnings and loss of earning capacity is very much a matter for the trial judge. Secondly, Madam Lee’s sick leave in relation to the 3^rd Accident expired in May 2008. The treatment medical reports disclosed in the course of discovery do not show any active orthopaedic treatment after May 2008, which circumstance is reflected in the opinion of Drs Lam and Cheng that Madam Lee’s orthopaedic condition has reached maximum medical improvement or stabilised state. Thirdly, the true considerations for deciding when to seek expert medical evidence turn on the availability of necessary and relevant information/materials for review by the medical experts and on whether the claimant’s injuries/condition is fit for expert medical assessment. 

(d)  FH Security’s solo expert medical reports

69.  From the discussions in paragraphs 56-65 above, it is also incumbent on FH Security and LL to pay heed to the pre-CJR judicial and practice guidance on the joint approach to expert medical evidence. Yet on being made aware of Dr Lam’s Report, FH Security and LL did not object to such solo report or apply to the court (even though access was readily available) for directions on how to obtain expert medical evidence. Instead, with YC’s concurrence they asked the court to defer the CLR to enable them to proceed with solo medical examination/report by Dr Cheng during the period from November 2008 to January 2009.

70.  In respect of psychiatric expert evidence, by the time of the 1^st CLR scheduled on 18^th November 2008, Dr Ng’s Report was available and disclosed in Madam Lee’s List of Documents. YC’s and LL’s 1^st Checklists filed in November 2008 revealed a dispute between the parties over whether psychiatric expert evidence was required. LL considered psychiatric expert evidence was unnecessary in view of the mild nature of Madam Lee’s injury and the lack of treatment medical evidence to demonstrate a causative link between her injury and any psychiatric symptoms. But there is no suggestion that LL raised these objections with YC and/or the court or required YC to disclose the psychiatric treatment notes/records to substantiate any reasonable basis for psychiatric expert evidence. It was only after issuance of the Form 7 on 3^rd December 2008 that FH Security (noting Dr Ng’s Report and with the concurrence of YC) proceeded yet again to adjourn the CLR scheduled on 9^th February and 2^nd April 2009 in order to obtain a solo psychiatric expert report from Dr Chow without the benefit of directions from the court.

71.  The parties wereall along in correspondence with the PI Master, and both or either of them could have easily asked for the CLR on 18^th November 2008 to stand and/or for subsequent CLR(s) to be expedited in order to deal with case management over expert medical evidence. Had they done so, it would have been within the court’s discretion to require joint medical examinations/reports notwithstanding (a) LL’s failure to respond to YC’s overtures and/or (b) the solo reports obtained by Madam Lee if the court considered such approach would be conducive to the case management goals of achieving justice and encouraging fair, expeditious and cost-saving determination of claims. As it turned out (and as seen below), joint reporting is in fact necessary and relevant, and early directions would have minimised any ensuing delay and costs. So the deferral of the various CLRs represented yet further missed opportunities for proper case management.

72.  LL submitted that Madam Lee would be at risk as to costs in obtaining solo expert medical reports, but such assertion is weakened by FH Security and LL proceeding to commission solo expert medical reports themselves and concurring with YC to vacate the CLRs on 18^th November 2008 and on 9^th February and 2^nd April 2009 to accommodate Dr Cheng’s and Dr Chow’s solo medical examinations without complaint about Madam Lee’s solo approach or directions from the court.

(e)  Deferring expert directions until completion of the Reports

73.  This court notes with particular concern that the parties have premised their repeated applications to vacate the CLR on the basis that “the parties would not be in a position to seek direction for medical evidence” (see paragraph 26 above). The fallacy of such argument has been exposed in the discussions in paragraphs 56-65 above, and is necessarily rejected.

74.  It is trite that in applying for permission to adduce expert evidence parties are essentially asking the court to make a judgment on at least the following matters : (a) how cogent the proposed expert evidence will be, (b) how such evidence will be helpful in resolving any or some of the issues in the case, and (c) how in all the circumstances such expert evidence is reasonably required for the ultimate adjudication. To suggest that the parties should present the court with the fait accompli of completed expert medical reports when they seek the court’s directions on these matters is to fly against the court’s control over the use of expert evidence, and is tantamount to usurping the court’s case management function.

75.  I note that the PI Master in granting adjournments of the CLR took care to ensure the CLR would be restored as soon as possible. But she was not called upon to exercise her discretion to give directions on the number and medical discipline(s) of the experts because the parties preferred to defer those matters until the Reports were to hand. I sound a note of caution here that the court’s hands (especially in the exercise of discretion in relation to expert medical evidence) will not be tied by the parties’ doings, and it is open to the court in due course to refuse leave for adducing solo expert medical reports so obtained by the parties or to direct that joint expert medical reports be obtained with costs and/or other sanctions.

(f)  Saving time and costs?

76.  The culmination of the above is that although the PI Action was commenced on 8^th July 2008, the 1^st CLR did not take place until almost a year later on 1^st June 2009. The repeated adjournments were made under the banner of saving time and costs, but in fact much time and costs were spent on sequential expert medical reports and persistent deferral of the CLR so that by 1^st June 2009 witness statements were still not exchanged/served. I bear in mind that liability is contested in the PI Action, and early exchange of witness statements would have brought greater clarity to the disputed factual issues, and facilitated settlement or, where settlement is not possible, preparation for trial.

77.  Further, as seen below, the solo expert medical examinations/reports did nothing for narrowing the medical issues. As Fung J said in Limbu Bhimraj v All Clad Asia Limited HCPI603/2007 (unreported, 4^th November 2008) para.12, “[joint] reporting has the advantage of maximising agreement between the doctors and focusing on disagreement”. Without opportunity for mutual discussion and cross consideration, it is unsurprising that the parties’ recent CLR questionnaires suggested that the Experts would be required to give oral evidence at trial. Further, as seen below, the solo Reports fail to obviate the need for joint supplemental expert medical reports, and this will inevitably lead to another round of delay and costs.

78.  Indeed, the displeasure of the court over the approach adopted by Madam Lee in relation to expert medical evidence is reflected in the CLR Order made on 1^st June 2009 which required (a) a supplemental expert orthopaedic report by Dr Lam at Madam Lee’s costs, (b) full addresses at the next CLR with written submissions on whether to call the Experts to give oral evidence at trial, and (c) Madam Lee to bear costs of the CLR on 1^st June 2009 (see paragraph 41 above).

(g)  Summary

79.  The above comedy of case management errors led inexorably the PTR before me on 18^th and 29^th June 2009 and to the joint supplemental expert medical reports yet to be prepared and which I will come to below. In my view, both parties are to blame for this unfortunate state of affairs. Had either or both of them took the initiative to seek directions on expert medical examinations/reports rather than follow a party-driven approach, wastage of time and costs might have been minimised and this should be reflected in the costs order made below.

V.   Discussion on the 2^nd EC Action

(a)  Background

80.  Almost right from the outset (ie shortly after mutual discovery), the parties in the 2^nd EC Action made repeated joint applications to the court for deferring further progress of the case (whether in relation to witness statements or expert medical evidence or otherwise) pending expiry of Madam Lee’s sick leave and the MAB assessment for the 3^rd Accident under the banner of saving time and costs.

(b)  Proactive case management : short scheduling

81.  Notwithstanding such requests by the parties, this court exercised proactive case management by adopting short-scheduling case management technique and declining to adjourn the case sine die or for extensive periods :

(a)  As early as in May 2007, this court has reminded the parties of the need to progress EC cases with reasonable expedition (see paragraph 11 above).

(b)  The court has all along insisted on short-scheduling deadlines for restoring the 2^nd EC Action (see paragraphs 11-16 above) in accordance with the reasonable needs of the case.

(c)  The court refused the parties’ requests to adjourn the 2^nd EC Action for “at least 6 months” on 2 occasions and to adjourn sine die on 1 occasion (see paragraphs 13-16 above).

(c)  Proactive case management : information for the court

82.  As a corollary to short-scheduling, this court has also reminded the parties of their duty to provide as much information as the court may reasonably require upon each restoration of the 2^nd EC Action to enable the court to make well-informed case management directions/ timetable, eg information as to the status of the MAB assessment, clarification on how the case could be properly progressed, or justification why directions for witness statements could or could not be given (see paragraphs 11-12 above). Such duty is now reflected in paragraphs 68 and 73 of PD18.2.

83.  To assist the parties and their legal representatives in the discharge of such duty, this court has on 19^th February and 22^nd May 2008 directed the parties to provide a host of specific information to the court upon restoring the 2^nd EC Action, including information as to expiry of sick leave, arrangements for the MAB assessment and/or re-assessment, issuance of the Form 7 and/or Form 9, objection to the Form 7, appeal against the Form 7 and/or Form 9, and to apply for appropriate and necessary case management directions in relation to witness statements, expert medical evidence, and all other necessary and appropriate case management matters (see paragraphs 14 and 16 above). These express court directions are now reflected in paragraphs 73, 75-79, 84-85 and 87 of PD18.2.

(d)  Proactive case management : expert medical evidence

84.  Apart from requiring the parties to provide information which would assist the court in deciding whether and when expert medical evidence would be appropriate, this court also specifically required the parties upon restoring the 2^nd EC Action to address on (a) the relevant medical discipline for any medical expert, (b) whether single joint medical expert would be appointed, (c) alternatively whether respective medical experts would be appointed to conduct joint medical examination and compile joint expert report, (d) if not, why not and whether invitation had been made for joint examination/report. Even more importantly, the parties were specifically directed not to wait for expiry of the court-imposed deadline for restoring the 2^nd EC Action but to forthwith seek case management directions from the court if they were unable to reach agreement on arrangements for expert medical examination/report (see paragraphs 14 and 16 above).

85.  From the above proactive case management measures, It must have been abundantly clear to the parties and their legal representatives in the 2^nd EC Action that the court (a) was all along anxious to progress the 2^nd EC Action as expeditiously as reasonably practicable, (b) intended to give directions on obtaining/presenting expert medical evidence, and (c) favoured a joint approach unless there was justification otherwise. So if expert medical evidence was needed or anticipated to be required for the 2^nd EC Action, the parties should seek relevant case management directions and justify any preference for a solo approach.

(e)  Representations to the court

86.  It is against the above background of proactive case management that the court accommodated the parties’ repeated requests for adjourning the 2^nd EC Action. Such accommodation was also premised on the parties’ joint letter dated 19^th May 2008 (see paragraph 15 above) which advised that Madam Lee had yet to seek approval from the Director of Legal Aid for appointing orthopaedic expert and that she would only seek relevant directions from the court if she were dissatisfied with the Form 9. Further, by the parties’ joint letters dated 19^th May and 30^th September 2008 (see paragraphs 15 and 22 above), they assured the court that “no medical expert is appointed to examine [Madam Lee] at this stage”.

87.  In such circumstances, the court may be forgiven for believing that in acceding to the adjournments sought and in maintaining the 2^nd EC Action in a dormant state pending the MAB assessment and the issuance of the Form 7 or Form 9 it might bring true savings in time and costs since no costs for engaging medical experts and commissioning expert medical reports would be incurred in the meantime.

88.  If such representations to the court were mistaken or erroneous or misleading by what they say or do not say, the parties would be under a duty to disabuse the court of any such mistake/error/ misconception. After all, it would be difficult to envisage any real savings in time and costs in deferring the 2^nd EC Action if there were concurrent active and ongoing preparation of expert medical reports in relation to the 3^rd Accident (ie the subject matter of the 2^nd EC Action). Indeed, it would have been most unlikely for the court to have endorsed the various adjournments sought.

(f)  What actually happened

89.  There is no dispute that Madam Lee had already issued instructions to Drs Lam and Ng and received Dr Lam’s Report before the joint letter dated 30^th September 2008 was sent to the court in the 2^nd EC Action, but she did not seek any directions from such court or explained to such court why she had adopted the solo approach. In fact, Madam Lee and FH Security obtained all 4 Reports without alerting the court in the 2^nd EC Action. Indeed, even as late as 5^th May 2009, the joint letter from YC and LL only revealed to the court in the 2^nd EC Action the parties’ nomination of the Experts (see paragraph 37 above). It was only when this court required compliance with paragraph 85(3) of PD18.2 that the Reports came to light in 30/5/09 App D.

(g)  Reasons for not informing the court

90.  The parties’ rationale for not promptly informing the court in the 2^nd EC Action about the Experts and the Reports and/or not promptly seeking directions from the court in the 2^nd EC Action in relation to expert medical evidence runs as follows :

(a)  The Experts were engaged and the Reports were compiled for the PI Action and not the 2^nd EC Action.

(b)  For the 2^nd EC Action, the parties preferred to wait for the MAB assessment and the Form 7, and then negotiate for settlement on such basis.

(c)  If such negotiations were unsuccessful and objection was lodged against the Form 7, the parties would prefer to wait for the MAB re-assessment and the Form 9, and then negotiate on such basis.

(d)  Unless she chose to waive it, Madam Lee was entitled to insist on her right to the MAB assessment or re-assessment.

(e)  The parties would consider expert medical evidence for the 2^nd EC Action only if eventually there was appeal against Form 7 or Form 9, whichever was later.

(a)  Because of the possibility of settlement, the aforesaid approach would save unnecessary time and costs.

(b)  All along YC acted on Madam Lee’s instructions that she did not intend to rely on Dr Lam’s and Dr Ng’s Reports, so YC did not inform the court in the 2^nd EC Action about the Experts and the Reports.

(c)  Expert medical evidence only became “unavoidable” when FH Security appealed against the Form 7 on 27^th March 2009.

(d)  In such circumstances, to save costs and/or avoid delay the Reports should be adduced as expert medical evidence in the 2^nd EC Action.

(h)  Right to await the MAB assessment or re-assessment

91.  I disagree with YC’s submission that Madam Lee has a right to insist on waiting for the results of the MAB assessment or re-assessment. Section 16D(4) of the Employees’ Compensation Ordinance Cap.282 provides as follows :

“The Commissioner may refer to an Ordinary Assessment Board any claim for compensation for an injury to an employee of which he has notice if in the opinion of the Commissioner such injury is likely to result in permanent total or partial incapacity.” (my emphasis)

In fact, it is not uncommon to find EC cases without any Form 7 or Form 9, eg (a) the Commissioner for Labour may after investigation decide it is not appropriate to refer the case for any MAB assessment, (b) the MAB may decline to make any assessment, or (c) the party(ies) may ask the court to assess compensation on the strength of the treatment and/or expert medical evidence without waiting for any MAB assessment or re-assessment. In any event, progress of any litigation, including progress of any EC claim, is very much within the realms of discretion of the court and is not necessarily dictated by a single circumstance.

92.  In Kan Wai Yip v Everbest Port Services Limited DCEC383/2008 (unreported, 3^rd February 2009) paras.43-54, I made clear there is no absolute rule that parties to any EC case must await the issuance of the Form 7 or Form 9 before progressing the case. In that case, the parties had obtained orthopaedic and psychiatric expert reports and had set down the EC claim for trial without waiting for any MAB assessment. Subsequently, the applicant had a change of heart and applied for leave to adduce supplemental orthopaedic expert report or alternatively to adjourn the trial pending the MAB assessment and issuance of the Form 7. I refused the application and said as follows :

“53.  …… Since the trial judge can come to his own assessment of the LOEC from a range of evidence from lay witnesses, medical documents and medical experts, there is no need to await any MAB assessment or Form 7 particularly as both orthopaedic experts have opined that the Applicant has reached MMI in relation to his orthopaedic condition. In my view, it is not unjust to dismiss the Summons.

54.  The above conclusion does not in any way diminish the general usefulness and importance of the MAB assessment and/or the Form 7 (or Form 9) for assessment of compensation in employees’ compensation cases. This statutory mechanism for assessment of the percentage of LOEC and the period for which the employee is absent from work as a result of his injury is a simple, cost-saving and helpful way for employers and employees to have an independently assessed basis for calculating the amount of compensation. Parties to employees’ compensation litigation often take advantage of such statutory mechanism and withhold efforts to obtain expert medical opinion in order to save costs in the event that the assessments in the Form 7 or Form 9 are acceptable. Such approach, which is in line with social intent of employees’ compensation legislation to give employees a practical and non-technical avenue to recover compensation (see Lam Kin Man v Kowloon-Canton Railway Corporation DCEC412/1997, H H Judge To (unreported, 29^th October 1998), is encouraged by the court.

55.  But there may be salutary reasons why parties do not wish to await the assessment by the MAB and/or the issuance of the Form 7 or Form 9. For example, where there is corresponding personal injury litigation, both parties may find it useful to obtain relevant expert medical evidence at an early stage, and once such expert opinion is available such parties may consider that even without the MAB assessment or the Form 7 there is sufficient evidence for progressing the employees’ compensation proceedings to trial. As a further example, both parties may agree to arrange a joint medical examination of the employee by their single joint expert or respective medical experts without finalising the joint expert medical report pending the MAB assessment or the Form 7. This flexible approach may be useful in saving time and costs of preparing supplemental expert medical report after issuance of the Form 7, but it also enables the parties to liaise with their expert(s) for preliminary views on the physical and/or medical condition of the employee to facilitate preparation of the case or negotiation for settlement. In the present case, both parties agree to obtain expert medical evidence, and the court will not stand in the way of such common intent and effort for expeditious resolution for the employees’ compensation claim. The above examples are not exhaustive of the flexible ways by which parties to employees’ compensation proceedings can obtain useful, effective and cost-saving expert medical opinion at an opportune stage of the proceedings, and the appropriate approach turns on the circumstances of each case.”

(j)  Chinese wall between the 2^nd EC and PI Actions

93.  The rest of the parties’ rationale for keeping quiet about the Experts and the Reports rests on a notional Chinese wall between the 2^nd EC and PI Actions. In my view, given the close interrelation between the 2 cases, such argument insofar as it relates to expert medical evidence cannot stand. 

94.  First, the parties and their legal representatives are the same, and Madam Lee is legally aided for both proceedings. Secondly, the two cases concern the same 3^rd Accident and Madam Lee’s physical/mental injuries/impairment/disabilities must necessarily be the same. Thus, the segregation of the 2^nd EC and PI Actions for the purpose of expert medical evidence defies factual logic.

95.  Thirdly, the argument for such segregation can only have marginal persuasion if the parties elected to engage distinctly different set of medical experts for each case, ie nominating the Experts and using the Reports solely for the PI Action and retaining other medical experts to prepare other expert medical reports for the 2^nd EC Action. But such contention has its own inherent difficulties. How can it be said that different medical experts conducting different medical examinations of the same claimant and rendering different expert medical reports for the same parties/lawyers in respect of the same complaints/injuries/ disabilities over the same accident are reasonably required in the sense of not wasting unnecessary costs and/or avoiding any possible criticism of expert shopping? YC has not explained why such approach would have found or has found favour with the Director of Legal Aid who is necessarily concerned with reasonable and prudent use of public funds.

96.  But in fact, as Ms Lo and Ms Ngai frankly accepted at the Direction Hearing on 12^th June 2009, the reality is that there was never any serious intention to retain different medical experts for the PI and 2^nd EC Actions. Ms Lo and Ms Ngai acknowledged (and as reflected in the joint letters dated 19^th May and 30^th September 2008 from YC and LL to the court in the 2^nd EC Action) they and their clients all along knew there was a real possibility that settlement negotiations in relation to the 2^nd EC Action might not succeed and either party might appeal against any Form 7 or Form 9, in which event expert medical evidence would become “unavoidable” and they would wish to adduce the Reports commissioned for the PI Action (rather than any fresh expert medical reports from other medical experts) in the 2^nd EC Action. Such anticipation or wish is also reflected in (a) the joint 30/5/09 App D which proposed that subject to the court’s directions the Reports would be filed in the 2^nd EC Action, and (b) the YC 5/6/09 and LL 10/6/09 Letters which expressed similar sentiment.

97.  There can be no doubt that the parties and their legal representatives at the very least (a) anticipated a probable need for expert medical evidence in the 2^nd EC Action, and (b) expected to use the Reports to meet such need in due course. I am therefore unable to accept the assertion in the YC 5/6/09 Letter that Madam Lee did not intend to rely on or use Dr Lam’s and/or Dr Ng’s Reports in the 2^nd EC Action. The parties and their legal representatives should have frankly disclosed the existence of the Experts and/or the Reports to the court in the 2^nd EC Action so as to put the whole picture before the court to enable the court to make well-informed case management decisions.

98.  In my view, the following fundamental flaw in the Chinese wall argument clearly illustrates its fallacy. On the one hand, YC and LL argue that it saved time and costs for the parties to repeatedly defer seeking directions on obtaining, presenting and/or adducing expert medical evidence in the 2^nd EC Action until there was an appeal against any Form 7 or Form 9. But such adjournments in fact enabled the parties to engage the Experts and obtain the Reports unbeknownst to the court in the 2^nd EC Action. On the other hand, YC and LL then argue that upon restoring the 2^nd EC Action in May/June 2009, it would save time and costs to use the Reports in the 2^nd EC Action. 

99.  To so keep the court in the 2^nd EC Action ignorant of the Experts and the Reports and in due course to so present the fait accompli of the Reports to the court for endorsement is to sabotage the court’s proper case management function. It also makes a mockery of the court’s earlier directions in the 2^nd EC Action which made it abundantly clear that it was for the parties to justify any solo approach to expert medical evidence and to provide full information for the court to determine how such evidence was to be obtained/presented to ensure the ensuing expert reports would be useful. Such attempt to fetter the court’s discretion cannot be redeemed by waving the banner of saving time and costs at both ends. The court’s hand will not be forced, and the notional Chinese wall between the 2^nd EC and PI Actions in relation to expert medical evidence must crumble and fall.

100.  Fourthly, there is in fact no real savings in time and costs by putting aside directions for obtaining expert medical evidence in the 2^nd EC Action. Conversely, it adds to costs and delay by having to repeatedly write to the court to adjourn the 2^nd EC Action whilst pertinent expert medical evidence was being prepared in the wings. As will be seen below, had there been early disclosure to the court in the 2^nd EC Action, this court would have given directions for further discovery and for joint reporting at a much earlier stage with greater savings in time and costs.

(j)  Deferring directions in relation to expert medical reports

101.  The parties and their legal representatives appear to be under the impression that it is appropriate to defer seeking directions in relation to expert medical reports even though they are actively obtaining them. I disagree and can only repeat what I have said in Lau Wai Ping v Hsu Tsui Fong, Hsu Jung Chiao, Hsu Chih Jen and Hsu Chih Yung trading as Yiu Fung Transportation Company DCEC563/2008 (unreported, 13^th May 2009) as follows :

“44.  Given the parties’ present and common intent to bespeak joint orthopaedic expert report commenting on the Applicant’s injuries as a result of the Accident for the intended common law proceedings, which expert opinion is also relevant to the issue of quantum in the present proceedings, I do not see why I should not give directions in relation to joint orthopaedic expert report in the present proceedings notwithstanding non-expiry of the Applicant’s sick leave and/or absence of any Form 7 or Form 9. Consequently, I granted the directions set out in paragraph 19 above at the Direction Hearing on 15^th April 2009.

45.  I pause here to say that practitioners should take note of the interaction between corresponding employees’ compensation proceedings and common law proceedings that involve the same parties in respect of the same accident. In such circumstances, a blinkered approach to relevant and necessary case management directions and/or case management timetable within the narrow straightjacket of either the employees’ compensation proceedings or the common law proceedings is discouraged if such approach is not in line with the underlying objectives of furthering expeditious progress of and procedural economy in the litigation. Practitioners should adopt an overall and not piecemeal approach to the timing and substance of the case management directions and/or timetable to facilitate reasonable progress of the proceedings.”

(k)  Settlement negotiations

102.  The parties and their legal representatives also appear to labour under the further impression that they can work the litigation timetable of the 2^nd EC Action around their own schedule for settlement negotiations again under the banner of saving costs.

103.  It is plainly evident from such party-driven approach to litigation (which the CJR seeks to overcome) that the parties have failed to heed my reminder by way of paper directions as early as in February 2008 that although the court would accommodate developments in the 2^nd EC Action and allow a reasonable time for settlement negotiations, the court in granting directions would have to balance the parties’ private interest against the public interest of progressing EC cases with due expedition. Such express guidance is no different from the post-CJR duty to balance the underlying objectives of facilitating settlement of disputes and dealing with cases as expeditiously as is reasonably practicable.

104.  I am not persuaded that the parties are entitled to insist on their own pace of proceedings, especially when they have failed to put the whole picture about pertinent expert medical evidence before the court in the 2^nd EC Action.

(l)  Duty to the court

105.  It needs no reminding that practitioners owe an overriding duty to the court in the administration of justice. Proper administration of justice requires practitioners to act with honesty and candour in their dealings with the court. They should be frank in their disclosure and responses to the court, and avoid any masquerade. The integrity of the court’s process must not be undermined.

106.  As discussed above, Dr Lam’s Report was completed and made available to Madam Lee before the joint letter dated 30^th September 2008 from YC and LL to the court in the 2^nd EC Action. In that letter, not only were Madam Lee and YC not forthcoming about Drs Lam and Ng and about Dr Lam’s Report, YC went further to assure the court that “no medical expert is appointed to examine [Madam Lee] at this stage” and that they had yet to seek instructions from the Director of Legal Aid to appoint any orthopaedic expert. Such statements are disingenuous, especially as the claimed segregation between the PI and 2^nd EC Actions cannot be supported. The reality is that Madam Lee already had her medical experts in place.

107.  This court is also uneasy over the fact that no attempt has been made ever since to disabuse any incorrect impression presented by such letter. Even on Madam Lee’s own case, there is no reason why she and YC could not have frankly informed the court in the 2^nd EC Action they had retained Dr Lam and Dr Ng for the PI Action and their Reports might be used in the 2^nd EC Action, and then set out the grounds why expert directions would have been inappropriate or premature for the 2^nd EC Action at that stage. The court would then have been in a position to make informed and effective case management directions.

108.  PD18.1 and PD18.2 now contain provisions that will help parties and practitioners in the discharge of the above duty to the court. Paragraphs 75-76 and 84-85 of PD18.2 and items 5-6 of Appendix D of PD18.2 require the parties to disclose to the EC court information concerning the status and progress of any corresponding personal injury action. Likewise in Appendix F of PD18.2, parties are required to inform the PI Master of the status and progress of any corresponding EC claim.

109.  As I explained in Lau Wai Ping at para.48, “the purpose of these provisions is to encourage parties to proactively adopt a global view to the overall litigation so that the underlying objectives of (a) increasing the cost-effectiveness of any practice and procedure to be followed, (b) ensuring a case is dealt with as expeditiously as is reasonably practicable, (c) promoting a sense of reasonable proportion and procedural economy in the conduct of proceedings, (d) ensuring fairness between the parties, and (e) facilitating the settlement of disputes can be effectively achieved”.

110.  Paragraph 68(1) of PD18.2 reminds that efficient and cost-effective resolution of EC disputes cannot be achieved without due diligence and cooperation on the part of the parties and their legal representatives. It is hoped that in future parties and practitioners will deal with the court with complete candour and will no longer intimate intention to wait for any MAB assessment or seek deferral of the EC claim without frank disclosure of the status/progress of (a) the corresponding personal injury claim or intended corresponding personal injury claim and (b) expert medical examinations/reports in relation thereto.

VI.  Joint supplemental expert medical reports

111.  The above background cries out for an overall and comprehensive approach to case management to ensure that expert medical evidence will be necessary, relevant and of probative value to the Actions. Indeed, such approach is inevitable because of (a) the need for the medical experts to consider the impact of the 1^st, 2^nd and 3^rd Accidents on Madam Lee’s injuries/impairment/disabilities in order to assist the court in determining the compensation/damages arising from the 1^st Accident (for the 1^st EC Action) and 3^rd Accident (for the 2^nd EC and PI Actions), and (b) the overlap of medical issues in relation to the 3^rd Accident for the 2^nd EC and PI Actions. Indeed, as evident from the pleadings and the treatment medical reports, the parties and their legal representatives must have been alive to the obvious issues of causation and apportionment from an early stage.

112.  Unfortunately, Dr Lam’s Report (even though it is said to be obtained for the PI Action) is not even about the 3^rd Accident. Although there was a brief mention of the 3^rd Accident in Dr Lam’s Report as part of the history taken from Madam Lee, the index or subject accident specified in the report is the 2^nd Accident for which there is no legal claim at all. Dr Lam diagnosed Madam Lee’s orthopaedic injuries to be soft tissue injury to both knees and right ankle, which he opined were consistent with the mechanism of injury described “and …… likely to be caused by the subject accident” (my emphasis). He added that although there were mild degenerative changes in the knees, Madam Lee was asymptomatic before the subject accident, and the significant soft tissue injuries caused by the injury aggravated the knee degeneration and triggered persistent symptoms. Dr Lam noted that the clinical picture from the arthroscopic operative findings showed the changes were more likely to be post-traumatic rather than degenerative in origin. “[Had] it not been for the subject accident, it is likely that Madam Lee should be able to enjoy satisfactory and painless function in both knees. The present pain, impairment and disability in both knees were likely caused by the subject accident” (my emphasis). Dr Lam premised his assessment of Madam Lee’s impairment and employability on the above, and concluded that she should not be able to return to her previous job but only to jobs that required light physical demand on the knees.

113.  On the other hand, Dr Cheng’s Report was focused on the 3^rd Accident but took into account the 2^nd Accident. He noted from the medical reports that at Madam Lee’s medical attendance on 18^th March 2006 for the 3^rd Accident the doctor noted mild bruises and formed the diagnosis of “previous sprained right ankle and knee with persistent pain”, and that subsequent attendances on 21^st March and 15^th April 2006 were for pain resulting from the 2^nd Accident. The general outpatient reports also stated Madam Lee attended for right knee and ankle pain after the 2^nd Accident. The hospital surgeon stated that Madam Lee was referred for bilateral knee injuries for the 2^nd Accident. Dr Cheng opined that Madam Lee was symptomatic with significant knee pain at the time of the 3^rd Accident, which accident was probably a simple soft tissue sprain injury. Further, he took the view that the picture from the arthroscopy was one of degenerative arthritis of the right knee which was pre-existing and the 2^nd and 3^rd Accidents were at best aggravating factors. Physical examination revealed little impairment apart from symptoms of osteoarthritis of right knee. Dr Cheng concluded that the symptoms were due to the 2^nd Accident and osteoarthritis of knee, and there was no added impairment arising from the simple and mild sprain from the 3^rd Accidentso that Madam Lee could have resumed her previous job as a result of such accident.

114.  Quite clearly, Dr Lam’s Report as it stands is unhelpful for either the 2^nd EC or PI Action, which is focused on the 3^rd and not the 2^nd Accident. As a result of repeated adjournments of the CLR in the PI Action and the court in the 2^nd EC Action being kept ignorant about expert medical evidence, this crucial problem with Dr Lam’s Report was not brought to light for 9 months until the CLR on 1^st June 2009.

115.  Further, there are other medical issues arising from Dr Lam’s and Dr Cheng’s Reports, eg the reference to “right knee fracture” in the Form 7 dated 3^rd December 2008 not mentioned in such Reports, the post-traumatic or degenerative origin of the knee symptoms, the causation and contribution of the 2^nd and 3^rd Accidents to the injuries/impairment/disabilities, and the impact of such injuries/impairment/disabilities on Madam Lee’s employability, which has not received the benefit of cross-consideration by the orthopaedic experts but which may be significant in the ultimate adjudication. 

116.  Calling the experts to give oral evidence cannot overcome this problem because allowing Dr Lam to give fresh viva voce medical opinion at trial on the above matters and on why he agrees or disagrees with Dr Cheng, which will necessarily go beyond the scope of Dr Lam’s Report, and allowing Dr Cheng to respond to such fresh expert opinion when he gives evidence will be unfair to the parties or even to the trial judge.

117.  Pursuant to Order 38 rule 38 of the Rules of the District Court, the court can direct a joint meeting of experts for them to prepare a joint statement. Such conference of experts is capable of adding to the costs of litigation, but if wisely used it can minimise costs by narrowing the range of issues in dispute or even facilitating settlement. In any event, a quick and cheap resolution of dispute must be tempered with the primary duty to ensure a just determination.

118.  In my view, joint reporting is required here to ensure Drs Lam and Cheng are dealing with the same issues and, where possible, endeavouring to reach agreement that will save time and costs. It is expected that the joint supplemental orthopaedic expert report will define common positions and outline differing views, and hopefully obviate the need for serial solo supplemental reports to comment on each other’s position and/or the need for Drs Lam and Cheng to give oral evidence at trial.

119.  In respect of psychiatric expert evidence, Dr Ng’s diagnosis was “major depressive episode – severe with psychotic features” and he opined that the 3^rd Accident and its related stressors were the sole cause of the mental disorder. He noted Madam Lee had minimal improvement following psychiatric treatment and she continued to have persistent psychotic symptoms including auditory hallucination and persecutory delusion, which indicated that her depressive illness was severe. Poor insight and poor drug compliance also led to poor control of her depression. Dr Ng opined that Madam Lee was mentally unfit to work and her prognosis tended to be poor. Impairment levels caused by mental symptoms were marked to extreme, and impeded most of the useful functions. Dr Ng concluded Madam Lee would not be able to resume her previous work.

120.  Dr Chow made reference to the 3 Accidents, and he had access to the psychiatric treatment notes/records from 2 hospitals/centres attended by Madam Lee. He pointed out that the notes/records noted no formal psychiatric diagnosis was given and no psychiatric follow up was arranged when Madam Lee was seen by the consultation liaison psychiatrist for assessment for a suicidal attempt in July 2006. Madam Lee expressed paranoid idea in September 2007 and reported persistent auditory hallucination and delusion in the absence of depressed mood since October 2007, but the notes/records on follow up consultations showed that her mood was normal, not depressed and/or euthymic. Dr Chow disagreed with Dr Ng’s diagnosis since no severe and persistent depressive symptoms were documented. In Dr Chow’s view, the absence of depressed mood argued against any assumption of gradual evolution of depressive symptoms. Although Dr Chow agreed that Madam Lee would be unable to sustain any employment, he opined that the prominence of her psychotic symptoms was unrelated to 3^rd Accident.

121.  Although Dr Ng attributed Madam Lee’s psychiatric symptoms to the 3^rd Accident and its related stressors, there was no discussion in his Report about the impact and effect of the 2^nd Accident (which occurred shortly before the 3^rd Accident and which caused similar injuries as the 3^rd Accident) on Madam Lee’s psychiatric symptoms/ impairment, especially when Dr Lam opined that “present pain, impairment and disability in both knees were likely caused by the subject accident [ie the 2^nd Accident]” (my emphasis). More importantly, it seems that the differing views of the psychiatric experts turn in part on the psychiatric treatment notes/records reviewed by Dr Chow, but which Dr Ng did not have the benefit of seeing when he prepared his report. It is therefore unknown whether he will abide by or change his opinion if he has an opportunity to review such medical notes/records.

122.  In my view, it is inappropriate to resolve the above problem by calling the psychiatric experts to give oral evidence. Dr Ng should not give expert appraisal of the psychiatric treatment notes/records for the first time only when he enters the witness box. If Dr Ng were allowed to do so, Dr Chow can only respond to Dr Ng’s fresh opinion with his own opinion when he gives evidence at trial. This will lead unfairness and difficulties at trial.  At this stage, without any inkling as to what Dr Ng’s views will be upon review of the full set of psychiatric treatment notes/records, solo supplemental report is undesirable as it risks a prolonged and costly round of supplemental reports for commenting on each other’s further opinion. In the circumstances and with a view to narrow issues and hopefully to obviate the need for oral evidence altogether, joint supplemental psychiatric expert reports that encourage discussion between the experts is appropriate.

123.  There is of course a further need to factor in expert orthopaedic opinion in relation to the 1^st Accident. Thus, upon disclosure of the whole picture by the parties, this court had to unravel earlier directions for expert medical evidence and grant global directions for joint reporting at the hearing on 29^th June 2009.

124.  I pause to add here that on receipt of an expert medical expert the legal representative should review it with care having in mind possible need for clarifying issues arising from the report, for removing irrelevant observations and for correcting the expert’s understanding of the instructions or assumption of facts, and then proceed to consider whether these matters should legitimately be dealt with by free exchange with the medical expert, by liaison jointly with the other party or upon permission by the court. Failure to take such steps or failure to do so in a timely manner (as here) only adds to costs and delay.

VII.  Ruling on costs

125.  The present system relies significantly on a sense of responsibility on the part of the parties and their legal representatives to overcome party-driven adversarialism that has the effect of prolonging the litigation and adding to costs. The power to award costs and/or to impose other sanctions is available if the parties and/or their legal representatives fail in such responsibility.

126.  In respect of the costs of the hearings on 18^th and 29^th June 2009, I direct that there be no order as to costs in respect of the hearing on 18^th June 2009 for the 2^nd EC and PI Actions but costs in the cause for the hearing on 29^th June 2009 for the Actions. Had the parties and their legal representatives grasped the initiative to disclose to the court the full picture of the interrelated Actions and to propose global and comprehensive directions in the spirit of the CJR, I am persuaded it would not have taken the CLR on 1^st June 2009 and the 3 hearings before me to elicit the whole picture. I have debated whether I should also direct that there be no order as to costs in respect of the hearing on 29^th June 2009, but have finally decided to allow costs in the cause given the more proactive attitude of the parties and the useful directions made at that hearing.

127.  In respect of the expert medical reports, there is no reason why any ultimately successful party should be entitled to more than 1 set of expert medical reports. Had the parties properly reacted to each other and/or taken objection or applied to the court at any early stage for case management directions in relation to expert medical evidence to be made in line with the court’s earlier directions, the spirit of the practice direction and the general law and practice, 1 set of orthopaedic and psychiatric expert medical reports would have been prepared and it would have sufficed. The joint medical examination (if any) and the joint supplemental expert medical reports now ordered by the court are the result of the parties’ failure to meet the above values, and as such I direct that (a) Madam Lee shall not be entitled to Dr Lam’s and Dr Ng’s costs in respect of any joint medical examination of Madam Lee and their preparation and finalisation of the joint orthopaedic and psychiatric expert reports with Drs Cheng and Chow, and (b) FH Security shall not be entitled to Dr Cheng’s and Dr Chow’s costs in respect of any joint medical examination of Madam Lee and their preparation and finalisation of the joint orthopaedic and psychiatric expert reports with Drs Lam and Ng. This means that each party will have to bear his/its own costs in respect of such costs no matter who succeeds or fails in the final adjudication.

128.  In Wong Cheuk v Falcon Insurance Company (Hong Kong) Limited DCEC688/2008 (unreported, 20^th May 2009) paras.86-91, I raised the question of whether the court should grant directions for legal aid taxation in similar circumstances. Since the issues raised and directions made in the Actions follow closely on the heels of the decision in Wong Cheuk, I am prepared on this occasion to grant legal aid taxation of Madam Lee’s own costs in respect of the above costs in the 2^nd EC and PI Actions. However, with increased familiarity with the spirit of the CJR and the provisions of PD18.1 and PD18.2, the court’s patience may run out, and the excesses demonstrated in Wong Cheuk and the Actions here will no longer be tolerated. Practitioners should take steps to review the cases they handle and advise their clients to bring forth such cases to the court for prompt and comprehensive case management directions.

VIII.  Miscellaneous matters

129.  For convenience, the directions (with minor refinements) made on 29^th June 2009 in respect of the 1^st and 2^nd EC Actions and the PI Action are annexed to these Reasons and Ruling.

130.  Such directions had to deal with the unnecessary complexity arising from the need to unravel and put right preliminary direction as further details about the Actions unfold over the course of 3 hearings.

131.  At the hearing on 29^th June 2009, YC’s Ms Lo again sought leave to file and serve a Reply. In fact, Madam Lee issued a summons to seek the same relief on 22^nd May 2009 (see paragraph 39 above), but such application was dismissed the PI Master at the CLR on 1^st June 2009. There is no application for leave to appeal against the decision by the PI Master before me, and Ms Lo did not explain why it would be open to this court to re-consider such application in lieu of any appeal against the decision by the PI Master and in face of Ms Ngai’s objection. I therefore did not make any order in respect of such application.

Annexure

The 1^st and 2^nd EC Actions

1. The 1^st and 2^nd EC Actions be consolidated and tried together, and the 1^st EC Action shall be the lead action.

2. Madam Lee do within 7 days from the date hereof file and serve her Consolidated Application.

3. FH Security do within 7 days thereafter file and serve its Consolidated Answer.

4. The respective Lists of Documents filed on behalf of Madam Lee and FH Security in the 1^st and 2^nd EC Actions do stand as their Lists of Documents in the consolidated action.

5. Paragraph 2 of the sealed copy of my order dated 2^nd June 2009 in the 2^nd EC Action be re-amended under the slip rule by reinstating “, within 35 days from the date of the Order to be made” and deleting “on or before 31 July 2009”.

6. Madam Lee do file and serve sealed copy of Re-Amended Order dated 2^nd June 2009 within 7 days from the date hereof.

7. Paragraph 2 of the Re-Amended Order dated 2^nd June 2009 be varied to the extent that the parties do on or before 31^st July 2009 file and exchange witness statements as to fact in respect of the consolidated action, namely Madam Lee and Chan Ni for Madam Lee and Cheng Man Yee Amanda and Cheung Hok Kan for FH Security.

8. My order dated 12^th June 2009 in the 2^nd EC Action requiring Madam Lee to file and serve Supplemental List of Documents disclosing all relevant documents in respect of the alleged 1^st and 2^nd Accidents within 35 days from the date of such order do stand in respect of the consolidated action.

9. My order dated 12^th June 2009 in the 2^nd EC Action requiring FH Security to file and serve Supplemental List of Documents disclosing all relevant documents in respect of the alleged 1^st Accident within 35 days from the date of such order do stand in respect of the consolidated action.

10.   Expert medical evidence in the consolidated action shall be limited to 1 orthopaedic and 1 psychiatric expert for each party, namely, Drs Lam and Ng for Madam Lee, and Drs Cheng and Chow for FH Security.

11.   The filing of the expert medical reports of Drs Lam and Ng respectively dated 8^th September 2008 and 20^th January 2009 by Madam Lee be dispensed with.

12.   Leave to FH Security to file the expert medical reports of Drs Cheng and Chow respectively dated 20^th January and 5^th April 2009 on 3^rd June 2009.

13.   Madam Lee do file the joint supplemental orthopaedic expert report of Drs Lam and Cheng pursuant to :

(a)     if Dr Lam and/or Dr Cheng so require, their joint medical examination of Madam Lee scheduled on 30^th July 2009; and

(b)    their completion of the joint supplemental orthopaedic expert report on or before 24^th September 2009 (if joint medical examination is required) or 30^th August 2009 (if joint medical examination is not required).

14.   Madam Lee shall file the joint supplemental orthopaedic expert report of Drs Lam and Cheng on or before 28^th September 2009 (if joint medical examination is required) or 31^st August 2009 (if joint medical examination is not required).

15.   Parties do on or before 8^th July 2009 jointly write to the court to confirm whether joint medical examination of Madam Lee by Drs Lam and Cheng scheduled on 30^th July 2009 is required.

16.   The joint supplemental orthopaedic expert report shall discuss :

(a)     what injuries and/or disabilities and/or loss of work ability and/or sick leave were attributable to the alleged 1^st, 2^nd and 3^rd Accidents;

(b)    whether Madam Lee’s condition from the alleged 2^nd Accident which pre-dates the alleged 3^rd Accident caused or contributed to the alleged 3^rd Accident and/or her condition, disabilities and/or sick leave after 17^th March 2006;

(c)     whether in light of the alleged 1^st and 2^nd Accidents which pre-date the alleged 3^rd Accident, it will be appropriate to make any apportionment of damages;

(d)    whether there is any pre-existing degeneration, and if so whether it will be appropriate to make reduction in relation to PSLA and loss of earnings in respect of the PI Action.

17.   My order dated 12^th June 2009 in the 2^nd EC Action requiring the parties to jointly instruct Drs Ng and Chow within 49 days from the date of such order so as to prepare joint supplemental psychiatric expert report and further requiring Madam Lee to file such joint supplemental psychiatric expert report within 105 days from the date of such order be varied to the extent that Madam Lee do on or before 25^th September 2009 file the joint supplemental psychiatric expert report of Drs Ng and Chow pursuant to their completion of such joint report on or before 15^th September 2009.

18.   The joint supplemental psychiatric expert report shall discuss :

(a)     what psychiatric injuries and/or disabilities and/or loss of work ability and/or sick leave (if any) were attributable to the alleged 2^nd and 3^rd Accidents;

(b)    whether Madam Lee’s condition from the alleged 2^nd Accident which pre-dates the alleged 3^rd Accident caused or contributed to Madam Lee’s mental condition, disabilities and/or sick leave after 17^th March 2006;

(c)     whether in light of the alleged 2^nd Accident which pre-dates the alleged 3^rd Accident, it will be appropriate to make any apportionment of damages;

(d)    whether there are any pre-existing or non-accident related mental condition and/or stressors, and if so whether it will be appropriate to make reduction in relation to PSLA and loss of earnings in respect of the PI Action.

19.   Without prejudice to the parties’ duty to comply with PD18.2 generally, parties do forthwith comply with paragraphs 51-54, 60 and 62 of PD18.2 in respect of the joint medical examination (if any) and joint supplemental expert medical reports referred to above. Without limiting the above, my order dated 12^th June 2009 in the 2^nd EC Action be varied to the extent that the parties do forthwith issue joint instructions to Drs Lam and Cheng and to Drs Ng and Chow, and shall ensure they have access to agreed bundle of documents and medical notes/records/reports that relate to all 3 alleged Accidents for their joint medical examination (if any) and for the preparation of their joint supplemental expert medical reports.

20.   Parties do forthwith notify Drs Lam and Cheng and Drs Ng and Chow to comply with paragraphs 56-57 and 63-64 of PD18.2.

21.   Madam Lee do forthwith withdraw or cancel the written instructions to Dr Lam dated 1^st June 2009.

22.   Compliance with my order dated 12^th June 2009 in the 2^nd EC Action requiring the parties to jointly submit Joint Written Application within 42 days of the date of such order be dispensed with.

23.   The EC Application be adjourned for Direction Hearing before the EC Judge at 9:30am on 8^th October 2009, and such Direction Hearing shall not be vacated without leave of the EC Judge.

24.   Parties are directed to comply with paragraphs 73 and 75 of PD18.2 in respect of the Direction Hearing at 9:30am on 8^th October 2009.

25.   Parties are directed to strictly comply with the directions and timetable laid down above. If any application for deferring compliance is necessary, the parties shall jointly apply to the EC Judge by Joint Written Application failing which the relevant party shall apply by inter partes application to the EC Judge, and in either case the application shall be made prior to expiry of the relevant deadline in the directions and/or timetable laid down above. Parties are specifically reminded of para.94 of PD18.2.

26.   Subject to the directions and timetable laid down above, the consolidated action be adjourned sine die with liberty to restore.

27.   All future Direction Hearings, Joint Written Applications and/or interlocutory applications prior to trial shall be docketed to the EC Judge.

28.   Liberty to apply.

29.   Ruling on costs of the hearing on 18^th June 2009 and of the hearing today, and costs of and occasioned by the solo expert medical reports and by the joint supplemental orthopaedic and psychiatric expert reports be reserved.

30.   Issue of legal aid taxation of Madam Lee’s own costs in respect of the aforesaid costs be reserved.

31.   Order to be drawn up.

The PI Action

1. Paragraphs 1-2 and 6 of the Check List Review Order dated 1^st June 2009 be set aside.

2. Madam Lee do on or before 17^th July 2009 file and serve Supplemental List of Documents disclosing all relevant documents in respect of the alleged 1^st and 2^nd Accidents.

3. FH Security do on or before 17^th July 2009 file and serve Supplemental List of Documents disclosing all relevant documents in respect of the alleged 1^st Accident.

4. Madam Lee do lodge the joint supplemental orthopaedic expert report of Drs Lam Cheng pursuant to :

(a)     if Dr Lam and/or Dr Cheng so require, their joint medical examination of Madam Lee scheduled on 30^th July 2009; and

(b)    their completion of the joint supplemental orthopaedic expert report on or before 24^th September 2009 (if joint medical examination is required) or 30^th August 2009 (if joint medical examination is not required).

5. Madam Lee shall lodge the joint supplemental orthopaedic expert report of Drs Lam and Cheng on or before 28^th September 2009 (if joint medical examination is required) or 31^st August 2009 (if joint medical examination is not required).

6. Parties do on or before 8^th July 2009 jointly write to the court to confirm whether joint medical examination of Madam Lee by Drs Lam and Cheng scheduled on 30^th July 2009 is required.

7. The joint supplemental orthopaedic expert report shall discuss :

(a)     what injuries and/or disabilities and/or loss of work ability and/or sick leave were attributable to the alleged 1^st, 2^nd and 3^rd Accidents;

(b)    whether Madam Lee’s condition from the alleged 2^nd Accident which pre-dates the alleged 3^rd Accident caused or contributed to the alleged 3^rd Accident and/or her condition, disabilities and/or sick leave after 17^th March 2006;

(c)     whether in light of the alleged 1^st and 2^nd Accidents which pre-date the alleged 3^rd Accident, it will be appropriate to make any apportionment of damages;

(d)    whether there is any pre-existing degeneration, and if so whether it will be appropriate to make reduction in relation to PSLA and loss of earnings in respect of the PI Action.

8. Madam Lee do on or before 25^th September 2009 lodge the joint supplemental psychiatric expert report of Drs Ng and Chow pursuant to their completion of such joint report on or before 15^th September 2009.

9. The joint supplemental psychiatric expert report shall discuss :

(a)     what psychiatric injuries and/or disabilities and/or loss of work ability and/or sick leave (if any) were attributable to the alleged 2^nd and 3^rd Accidents;

(b)    whether Madam Lee’s condition from the alleged 2^nd Accident which pre-dates the alleged 3^rd Accident caused or contributed to Madam Lee’s mental condition, disabilities and/or sick leave after 17^th March 2006;

(c)     whether in light of the alleged 2^nd Accident which pre-dates the alleged 3^rd Accident, it will be appropriate to make any apportionment of damages;

(d)    whether there are any pre-existing or non-accident related mental condition and/or stressors, and if so whether it will be appropriate to make reduction in relation to PSLA and loss of earnings in respect of the PI Action.

10.   Without prejudice to the parties’ duty to comply with PD18.1 generally, parties do forthwith comply with paragraphs 74-77, 83 and 85 of PD18.1 in respect of the joint medical examination (if any) and joint supplemental expert medical reports referred to above. Without limiting the above, parties do forthwith issue joint instructions to Drs Lam and Cheng and to Drs Ng and Chow, and shall ensure that they have access to agreed bundle of documents and medical notes/records/reports that relate to all 3 alleged Accidents for their joint medical examination (if any) and for the preparation of their joint supplemental expert medical reports.

11.   Parties do forthwith notify Drs Lam and Cheng and Drs Ng and Chow to comply with paragraphs 79-80 and 86-87 of PD18.1.

12.   Madam Lee do forthwith withdraw or cancel the written instructions to Dr Lam dated 1^st June 2009.

13.   CLR hearing scheduled on 14^th September 2009 at 10:30am at Court No.46 be vacated.

14.   PTR be adjourned for hearing before the PI Judge at 9:30am on 8^th October 2009.

15.   Parties are directed to comply with paragraphs 128-129 and 133 of PD18.1 in respect of the PTR hearing at 9:30am on 8^th October 2009.

16.   Parties are directed to strictly comply with the directions and timetable laid down above. If any application for deferring compliance is necessary, the parties shall jointly apply to the PI Judge failing which the relevant party shall apply by inter partes application before the PI Judge, and in either case the application shall be made prior to expiry of the relevant deadline in the directions and/or timetable laid down above.

17.   All future interlocutory applications or direction hearings prior to the PTR hearing at 9:30am on 8^th October 2009 shall be docketed to the PI Judge.

18.   Liberty to apply.

19.   Ruling on costs of the hearing on 18^th June 2009 and of the hearing today, and costs of and occasioned by the solo expert medical reports and by the joint supplemental orthopaedic and psychiatric expert reports be reserved.

20.   Issue of legal aid taxation of Madam Lee’s own costs in respect of the aforesaid costs be reserved.

21.   Order to be drawn up.