NG WING MAN v. EVERBEST PORT SERVICES LTD

HCPI 780/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

PERSONAL INJURIES ACTION NO. 780 OF 2012

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REASONS FOR DECISION

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1. On 26 November 2012, the plaintiff’s solicitors issued a summons for leave to obtain expert reports from a number of different disciplines including occupational therapy, physiotherapy, speech therapy and cardiology.  On 13 December 2012, Master Li granted leave to the parties to proceed with the joint examinations of the plaintiff by the parties’ nominated experts in the fields of neurology, orthopaedics, urology and psychiatry.  He did not refuse to grant leave to the plaintiff to obtain reports from experts in the other disciplines but adjourned the plaintiff’s summons for leave to rely on the other experts to be heard together with the adjourned checklist review hearing which was fixed to be heard on 14 May 2013.  The plaintiff appealed against that adjournment order and sought leave from me to proceed with the examination of the plaintiff by their nominated experts in occupational therapy, physiotherapy, speech therapy and cardiology.  On 18 February 2013, I allowed the appeal against the adjournment order, but only to the extent that I granted leave to the plaintiff to obtain a report from an occupational therapist and rehabilitation consultant, and I directed the parties to instruct their nominated experts to jointly examine the plaintiff in order to review his domestic situation and his accommodation needs, and to prepare a joint report on his current and future needs.  These are my reasons for making that decision.

Appeal from Case Management Decisions

2. Courts are reluctant to intervene with case management decisions made below.  The Court of Appeal will not intervene unless it can be shown that the decision of the judge was founded on some error of principle or was clearly wrong.  Recently, Kwan JA reiterated the principles relating to appeals to the Court of Appeal from case management decisions in Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887.  She said, at p.897:

“31. … Case management decisions are only subject to appeal in rare circumstances.  The appellant faces a “very high hurdle” and must show that the Judge “has gone clearly wrong and made orders which will clearly involve an injustice or an inability for the trial court to carry out its task” (1), or if the Judge “erred in principle or the order was irrational having regard to the issues that had to be resolved” (2).  It need hardly be emphasized that generally, an appellate court will not interfere with a judge’s exercise of discretion unless the Judge has misunderstood the law or the evidence or the exercise of his discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible (3).

(1) Lee Tak Yee v Chen Park Kuen [2001] 1 HKLRD 401, 403E-H.

(2) Kam Miu Wah v Aeroflot Russian International Airlines (unrep., CACV 142/2006, [2006] HKEC 1658), para.11; Chan Wing Cheung v Ho Shu Yee (unrep., CACV 393/2004, [2005] HKEC 41), para.8.

(3) Cheung Kam Wah v Cheung Hon Wah [2005] 1 HKC 136, 142F-G para.17; Carlos Manuel Kwong v Lo Kam Wing (unrep., CACV 128/2005, [2005] HKEC 1764), para.28 (concerning an order on specific discovery).”

3. Although an appeal from a master to a judge in chambers is a hearing de novo, a cogent argument could be advanced that, just as a judge in chambers should not allow an appeal against the costs order made by a master unless it was unreasonable or erred in law, likewise, a judge in chambers ought not to allow an appeal against a case management decision of the master (Hoddle v CCF Construction Ltd [1992] 2 All ER 550 at 550H-551A; Li Kai Yin v Atta-Trans Ltd and Anor, HCPI 196/2009, 18 July 2011 at §10). 

4. However, I do not need to decide this point.  The present appeal comes before me as the judge in charge of the Personal Injuries List.  By O.72, r.2(3) of the Rules of the High Court (“RHC”), control of proceedings in the Personal Injuries List is vested in me.  The rule provides:

“(3) The judge shall have control of the proceedings in his particular list and, subject to the provisions of this Order and to any directions of the judge, the powers of a judge in chambers (including those exercisable by the Registrar) shall, in relation to any proceedings in such an action (including any appeal from any judgment, order or decision of the Registrar, given or made prior to the transfer of the action or proceedings to the relevant list) be exercisable by the judge.”

5. The explanatory note in the Hong Kong Civil Procedure 2013 states, at marginal note 72/2/4:

“Powers of the Registrar and masters in the specialist lists – It is important to bear in mind for the specialist lists that it is the judge who is in control of the proceedings: r.2(3). For matters heard in chambers in these lists (unlike in other proceedings in the Court of First Instance), unless otherwise directed, it is the judge who exercises the powers in chambers and not the Registrar or masters. However, by practice directions issued for particular lists pursuant to O.72, r.2(3), the Registrar and masters have been expressly empowered to deal with certain matters …”

6. §11 of Practice Direction 18.1 specifically provides that, pursuant to RHC, O.72, r.2(3), “the PI Judge herein directs that, unless otherwise stated hereof or unless otherwise ordered, masters may continue to deal with and hear interlocutory applications in cases in the PI List”.

7. Although masters are expressly empowered by this provision to deal with interlocutory applications, the overall control of proceedings in the Personal Injuries List is vested in the judge in charge of the list. 

8. Accordingly, I shall deal with this appeal as a hearing de novo, notwithstanding that it is an appeal from a case management decision of the master.  However, I give notice that I will not lightly interfere with the case management decision of a master in a case in the Personal Injuries List, and that I will only do so for good reason.

The present proceedings

9. The plaintiff sustained multiple injuries when he fell from a height on 25 November 2010.  I set out below the particulars of injuries that appear in his statement of damages dated 26 November 2012:

“1. Immediately after the accident the Plaintiff was rendered unconscious and was admitted to the Accident & Emergency Department of Princess Margaret Hospital (“PMH”).  The admission Glasgow Coma Score was 6/15 with lower limbs paraplegia and trauma call was elicited.  He was then admitted to Intensive Care Unit of PMH for further management.  He was diagnosed to have suffered from bilateral subarachnoid haemorrhage and subdural haematoma, fracture dislocation at T11/12 level with cord transaction, pseudoaneurysm of aortic arch just distal to left subclavian artery origin, fractured left T12 rib, pneumomediastinum, small mediastinal haematoma and contusion of bilateral lungs.

2. The Plaintiff was admitted to the Department of Neurosurgery on 26^th November 2010, where emergency surgery, burr hole for intracranial pressure monitoring was done on the same day.

3. Posterior spinal fusion with instrumentation and tracheostomy for respiratory failure were performed on 30^th November 2010 for the Plaintiff’s spinal fracture.  Endovascular stenting of thoracic aortic aneurysm and vascular shunt/bypass was performed by vascular surgeon on 7^th December 2010.

4. Since December 2010, the Plaintiff’s wife noticed personality change of the Plaintiff.  He was assessed by psychiatrist at PMH to have suffered from organic brain syndrome.  Neuropsychiatric assessment was performed by clinical psychologist on 31^st December 2010 which revealed impaired concentration, retrograde and anterograde amnesia towards the injury, dysexecutive syndrome including perseveration, intrusion errors and poor initiation on the part of the Plaintiff.

5. The Plaintiff was then taken over by the Department of Orthopaedics on 4^th January 2011.  His back wound of the spinal operation became infected and gapped open.  Debridements of the back wound were performed on 8^th January 2011 and 27^th January 2011.

6. The Plaintiff was transferred to Tai Po Hospital for rehabilitation on 7^th April 2011.  He remained a paraplegia at T11 level and double incontinent.  He was on intermittent catherization.  He was given and completed ADL, transfer and wheelchair training.  He was discharged on 15^th May 2011 to New Page Inn for in patient rehabilitation until present.

7. The Plaintiff also attended West Kowloon Psychiatric Centre since 21^st November 2011, he was diagnosed to have suffered from organic personality disorder with impaired memory.

8. The Plaintiff remains a paraplegic with double incontinence.  He is wheelchair-bound and is dependent in all activities of daily living.  He requires care and attention on 24-hour basis.  His wife is his major carer.

9. Dr. Ho Pang Nin Peter certified that the Plaintiff is incapable of managing and administering his property and affairs.”

10. The heads of claim advanced in the statement of damages include the cost of future nursing and medical care, the cost of carers, the cost of aids and equipment, the cost of consumables and miscellaneous future recurrent expenses, and a claim for alternative accommodation and related expenses.  No particulars were provided in respect of these claims, the word “to be advised” appearing against these heads of claim in various parts of the statement of damages.

11. The plaintiff has been diagnosed with organic brain syndrome and suffers from cognitive impairments such that he is a mentally incapacitated person and sues by his wife and next friend.  He is paraplegic, doubly incontinent, and reliant on a catheter. 

12. The plaintiff was admitted to SAHK Jockey Club New Page Inn, a centre for the rehabilitation of tetraplegics, on 16 May 2011 and resides there up till the present moment.  He may soon be discharged from this institution.  At the rehabilitation centre, he was provided with strengthening exercises for upper limbs, training on right hand function, activities of daily life (“ADL”) training, cognitive training, and power wheelchair manoeuvring skill training.  He was also provided with a seat cushion, a power wheelchair, and a manual wheelchair.  The following appears from the report of Mr Cheng Tsz Chun, a registered occupational therapist, dated 29 June 2012:

“Progress and observation (on 30/5/2012)

Mr Ng showed improvement in his mental state. His orientation to time was satisfactory while orientation to place was still poor. Mr Ng showed improvement of controlling giggling. He could stop self giggling independently without verbal prompts.

Improvements in upper limb strength, grip and pinch strengths and activity endurance were observed. His left grip strength increased from 16 to 27kg while right grip from 8kg to 19kg. The left pinch strength increased from 4kg to 5kg and from 2.5kg to 4kg in the right.

Mr Ng managed to manoeuvre a power wheelchair independently for indoor and outdoor activities but supervision was needed in accessing unfamiliar locality and public transport.

Mr Ng could perform most parts of bathing and toileting on a commode chair independently, but mild assistance was needed to clean his back and dressing/undressing lower garment.  Mild assistance with verbal prompting was needed to perform bed-chair and chair-to-chair transfer.”

13. Although expert evidence can only be adduced with the leave of court, and although the court must ensure that such evidence is admitted only if it is likely to be of real assistance to the determination of the issues and that it is adduced in the most efficient and economic way consistent with the objectives of the CJR, it cannot be denied that, in a case such as the present, the court would need the assistance of the opinion of an expert occupational therapist and rehabilitation consultant who can advise on the therapy that the plaintiff needs to increase his strength and dexterity to perform, as much as possible, the activities of daily living; advise on the care regime, if any, needed by the plaintiff; advise on the aids and equipment, and other consumables required by him; and advise on the accommodation needs of the plaintiff including whether his current residential accommodation is suitable for him or not.  I wholeheartedly agree with the lament of Seagroatt J in Wong Hin Pui v Mok Ying Kit and Anor, HCPI 763/1997, 21 December 1999 at §56 that there has been “excessive, expensive and wholly unjustified use of occupational therapists in personal injury cases”.  However, in cases where the plaintiff is paraplegic or tetraplegic or where his mobility is severely compromised, a court cannot properly assess the quantum of damages without the expert assistance of an occupational therapist and rehabilitation consultant.  It cannot be doubted that this is such a case.

14. The next question that logically arises is whether the most effective and economic way of adducing this evidence requires that it be obtained at an initial stage in the proceedings or whether it should be obtained after the other expert evidence, including the reports of the neurologist and the psychiatrist, is at hand.  In cases such as the present, where the case cannot progress to trial, or to an assessment of damages without the expert evidence of the occupational therapist and rehabilitation consultant, an order deferring the grant of leave to obtain such evidence can only have the effect of prolonging the proceedings and, thereby, adding to its costs.  It takes time for the single joint expert or the nominated joint experts to arrange and conduct an examination or joint examination and to prepare a report following the examination.  In cases such as the present, leave to obtain an expert report from an occupational therapist and rehabilitation consultant should be granted at the outset so as to enable the parties to prepare their case, to advance their claims in this regard, and to defend such claims, expeditiously and without delay.  His neurological and orthopaedic condition is sufficiently documented in the medical records and reports to enable the nominated experts, Mrs Alice Tsang and Mrs Shelley M. Chow, to proceed to examine the plaintiff and report on his needs.  It is for this reason that I allowed the appeal to the limited extent of granting leave to the parties to instruct their respective occupational therapist and rehabilitation consultant to jointly examine the plaintiff and to prepare a joint report on his needs, including, his accommodation needs.  I understand that the examination will take place on 19 April 2013 and that the joint report is expected on 3 July 2013. 

15. I dismiss the appeal against the order adjourning the plaintiff’s summons for leave to obtain expert evidence from a physiotherapist, speech therapist, and a cardiologist, to be dealt with at the adjourned checklist hearing that has been fixed to be heard on 14 May 2013.  Even if the need for expert evidence from these disciplines was reasonably required, a matter on which I express no opinion and which I leave to be determined by the master at the adjourned checklist review hearing, it was not demonstrated to my satisfaction that leave for such evidence ought to be granted now, rather than at a later stage in the proceedings. 

16. The plaintiff’s solicitors brought to my attention a letter they had written to the defendant’s solicitors dated 18 December 2012 in which they offered to withdraw the appeal if the defendant’s solicitors agreed to proceed to a joint examination by an occupational therapist.  There was no reply to this sensible proposal.  Notwithstanding that the proposal was reasonable and sensible, the fact that the defendant did not respond to it does not justify the appeal launched by the plaintiff against the case management decision of the master in respect of the plaintiff’s application for leave to obtain expert evidence in the other disciplines.  The plaintiff succeeded partially on the appeal.  The defendant also succeeded partially on the appeal in resisting the plaintiff’s appeal for leave to adduce expert evidence in the other disciplines at this stage of the proceedings.  The proper order to make in this case is no order as to costs.  As I have not awarded any costs to any party, I need not make a summary assessment of the costs incurred by the parties on this appeal.  I do not disturb the order as to costs made by the master below.  I also direct that the plaintiff’s own costs to be taxed pursuant to the Legal Aid Regulations and, for that purpose, I grant certificate for counsel.