LIU CHEN v. CHAN POON WING AND ANOTHER

HCPI 779 /2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.  HCPI  779 of 2006

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  RULING

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1.    This ruling relates to an application by Summons dated 3 June 2008, where the Plaintiff sought leave to obtain certain medical experts’ reports.

2.    A brief summary of the background is necessary to put the application into context.

3.    This claim arises from a running down accident that occurred on 18 September 2003. On that day, the plaintiff, a civil servant visiting Hong Kong from Hubei Province was run down by a taxi driven by the 2^nd defendant.

4.   Judgment on liability against the 2^nd defendant was entered on 2 November 2006 with damages to be assessed. From the report of the Pamela Youde Nethersole Eastern Hospital dated 27 July 2005 it can be seen that the plaintiff suffered rather serious injuries, including injuries to his liver and spleen, fractured ribs, injury to the PCL of the right knee and pneumothorax. He was comatose upon his arrival at the Accident & Emergency Department.

5.   At the Check List Review on 1 February 2007, having considered the nature and type of injuries sustained by the Plaintiff as a result of the accident, the medical evidence was limited to medical experts in the specialist fields of orthopaedics, neurology and internal medicine. A decision on limitation of the types and numbers of expert medical reports is one of the standard and usual case management decisions made at Check List Review hearings. See for example the reasons given by Mr Justice Saegroatt in HCPI 763/1997, Judgment dated 21 December 1999.

6.   The Check List Review hearing was adjourned for 2 months to enable the plaintiff’s solicitors to make the necessary appointments with specialists in the fields of orthopaedics, neurology and internal medicine.

7.   The solicitors for the plaintiff and the solicitors for the 2^nd defendant obtained reports from the following single joint experts : (1) Dr Lam Kwong Chin (orthopaedics); (2) Dr Edmund Woo (neurology); and (3) Dr Chan Wai Man (gastroenterology & hepatology).

8. At the Check List Review hearing on 14 December 2007 the handling solicitor of the plaintiff applied for leave to adduce additional expert medical reports. He sought reports from (1) a psychiatrist; (2) an ENT expert (otorhinolarynolist); and (3) an ophthalmologist. I heard his application and refused on the grounds that prima facie necessity for such reports had not been shown. I explained that whether any expert medical report can or should be admitted into evidence depended on the criteria of “necessity”, “relevance” and “probative value”. See HCPI 322/2002.

9.   Mere reliance on the comments made in paragraphs 61 and 62 of the report of Dr Chan Wai Man dated 24 July 2007 was insufficient. Paragraphs 61 & 62 stated :

“Further Suggestions

61. Mr Liu was depressed during the interview. His current complaints and decreased working ability can be due to psychiatric disturbance after the accident. I am not in a position to given comment on his psychiatric state. A formal assessment by a qualified psychiatric expert is warranted.

62. Formal assessments for hearing impairment by a qualified ENT surgeon and visual impairment by a qualified ophthalmologist are warranted.”

10.  It has been settled law for many years that the burden of showing necessity that the expert medical reports the parties wish to adduce and rely upon rest upon the legal representatives of the parties, see HCPI 763/1997, paragraphs 56 to58 of the Judgment dated 21 December 1999.

11.  It was stated in the clearest possible terms in paragraph 58 of the Judgment that the legal representative had a duty to ask himself/herself “What do we really need in the way of expert evidence, and what can we ask the defendant to agree at an early stage?” It should be noted that if the legal representative of the plaintiff failed to exercise the judgment expected, the former PI Judge felt that the expenditure on unnecessary reports should be paid from the solicitor’s own costs. 

12.  No prima facie evidence had been obtained since December 2007, the plaintiff’s solicitors repeated the application for experts reports from (1) a psychiatrist; (2) an ENT expert (otorhinolarynolist); and (3) an ophthalmologist at the Check List Review on 5 June 2008.

13.  On 14 December 2007, it had been explained to the plaintiff’s solicitors that (a) the Plaintiff had to show prima facie evidence that the type of expert medical report sought was necessary; (b) no such prima facie evidence had been shown; (c) that showing such prima facie evidence need not be onerous, because a chit, report or record from a government hospital in Hong Kong or the PRC which that showed that the Plaintiff had been treated for psychiatric, sight or hearing problems after the date of the accident (indicating that the medical problems were or might have been related to the accident) would have been sufficient for the court to consider the application for ENT, psychiatric or ophthalmologist’s reports. It was also explained that a short comment from a doctor repeating the plaintiff’s complaints is not such prima facie evidence.

14.  At an assessment of damages, the trial judge is bound to cast a critical eye on whether the complaints by the plaintiff are supported by the supporting medical evidence, see for example pages 6 & 7 of the Judgment in HCPI 136/2004. If, as in that case, the trial judge comes to the conclusion that the medical reports obtained by the plaintiff were not necessary, the effect on the plaintiff’s claim will be adverse and detrimental.

15.  Another problem with that Summons was that it was purported taken out pursuant to Order 25 r8 of the rules of the High Court.  Order 25 r8 has no application in the present circumstances, procedurally this action has progressed way beyond the close of pleadings. Besides, Order 25 r8 relates to existing documents. It should not be used to enable a party to apply to the court to obtain documents.

Conclusion

16.  The application by Summons dated 3 June 2008 for additional medical experts reports is refused :

(i)    on the merits as no prima facie evidence of necessity has been shown to support the obtaining of  experts reports from (1) a psychiatrist; (2) an ENT expert (otorhinolarynolist); and (3) an ophthalmologist; and

(ii)  procedurally, as Order 25 r8 does not apply in the circumstances.

17.  The parties shall make their submissions on the costs of the Summons dated 3 June 2008 at the adjourned Check List Review.

18.  The Check List Review is adjourned to 11 August 2008 at 10:30am.

19.  There shall be liberty to apply in the interim.