HUSSAIN MAROOF v. OPP LABORATORIES LTD

HCPI 326/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 326 OF 2008

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REASONS  FOR  DECISION

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1.  There are 3 matters at this Pre-trial Review:

(1) Admission of a neurologist expert report where leave has been refused by Master Yu;

(2) Admission of the supplemental report of the Plaintiff’s orthopaedic expert;

(3) Calling of the respective orthopaedic experts notwithstanding consent by the parties before Master Yu for admission of the respective reports without oral evidence.

2.  At the hearing, I disallowed the neurological report and the supplemental orthopaedic report, ordered a joint orthopaedic report on a limited point, and fixed a 2^nd PTR.  I now give my reasons.

Background

3.  The Defendant operates a materials testing laboratory.  The Plaintiff was employed as a laboratory technician responsible for the testing.  The Plaintiff said he sprained his back while pushing a trolley of materials weighing 100 kg up a ramp on 8 July 2006.  The accident was not admitted as the Plaintiff only went to the Caritas Medical Centre on 9 July 2007.  Further, the Defendant said there was no need for the Plaintiff to push the load as there were 3 assistants to do the job.

4.  The Plaintiff’s complaint is persistent lower back pain. 

5.  The respective orthopaedic experts are Dr. Lee Wing-kin, for the Plaintiff, and Dr. Danny Tsoi, for the Defendant.  They have rendered separate reports.  They agreed that there was pre-existing degeneration of the L5/S1 disc of the spine.  Dr. Lee suggested that there was a partial annular tear caused by the accident.  He said there was evidence to show back pain, and the issue was one of extent. 

6.  Dr. Tsoi had reservation on the annular tear because such injury would have caused great pain and immobility immediately but the Plaintiff only went to the hospital the day after the alleged accident.  The Plaintiff at most has sprained his back with mild consequences. 

7.  Dr. Lee said the Plaintiff could not return to the pre-accident job, and because of his lack of qualification (Class 8 in Pakistan), he could only work manually as security guard and cleaner, etc.  Dr. Tsoi said the Plaintiff could work as lab technician even if there were some back pain.

Neurological report

8.  Incidentally, the Plaintiff was diagnosed with temporal lope epilepsy while at Caritas hospital.  Dr. Yu Yuk-ling, the Plaintiff’s neurological expert, reported on 30 August 2007 that the epilepsy was congenital and had nothing to do with the accident. 

9.  Mr. Burke, for the Plaintiff, explained that the purpose of Dr. Yu’s report was exactly to show that epilepsy had nothing to do with the accident.  He pointed out that in the Revised Answer to the Statement of Damages, the Defendant denied any accident causing back pain to the Plaintiff, and averred that the Plaintiff had pre-existing epilepsy and headache, and when the Plaintiff went to A&E Caritas on the day after the accident, he only complained about headache but not back pain.

10.  Mr. Burke pointed out that the admission notes of the ward on the same day stated lower back pain and loss of lordosis (straightening of the spinal curvature).  Hence, there is evidence to show early complaint of back pain.  The neurologist report merely completes the picture.

11.  The issue is quite clear: the Plaintiff claimed damages on the basis of persistent back pain, not any epilepsy.  The Defendant’s point on lack of early complaint of back pain (severity aside) is dealt with by the hospital notes.  Both parties agree that epilepsy has nothing to do with the accident.  There is no need for a neurologist report to prove a point that is not in issue.  Although the report also stated back pain may cause headache, that is not too difficult to appreciate even without any expert opinion.

12.  Hence, leave to adduce the neurologist report was refused. 

Supplemental report

13.  In the supplemental report, Dr. Lee suggested there need not be much force to cause an annular tear with pre-existing degeneration. 

14.  While the degree of lower back pain affecting work capability and quantum is usually the province of the trial judge, annular tear may be relevant also to causation in the context of the present case.  Unfortunately, Dr. Lee’s new point is not a matter which Dr. Tsoi has addressed. 

15.  Mr. Burke submitted that inadequacy could be remedied when the doctors are called to give oral evidence.

16.  The new Practice Direction provides for joint examination and reporting where the experts can discuss and comment directly on each other’s opinions without the serial supplemental reports.  Hopefully, the occasions where doctors will need to be called to give oral evidence could be reduced given that the joint report is to provide a comprehensive basis for the resolution of the issues by the trial judge.

17.  Mr. Burke pointed out that the Writ was issued in May 2008 and the parties did try to arrange for joint examination during the pre-action stage at the end of 2007 and early 2008, but were unable to agree on a mutually acceptable date.  The new Practice Direction also provides for that, and beckons the parties to seek directions from the Court so soon as the action is commenced.

18.  Whatever the original position, Mr. Burke should have arranged for joint examination when the need to render the supplemental report arose.  Be that as it may, I treated it as part of the learning curve and hope that the new Practice Direction be heeded.

19.  Further, Dr. Lee seems to have assumed the role of counsel in the supplemental report in dealing with inconsistencies noted by Dr. Tsoi, and ventured to proffer explanations on behalf of the Plaintiff.  Such really goes beyond the province of an expert, and is not necessary for the fair disposal of the cause or the saving of costs.

20.  Hence, I disallowed the supplemental report of Dr. Lee, and ordered that Dr. Lee and Dr. Tsoi render a joint report on the issue of the partial annular tear with pre-existing degeneration.  I so confined the issue to avoid any unnecessary digression.

21.  I also ordered that the joint report be ready by 3 months’ time.  If the respective experts are unable to commit to that date, each party is to retain alternative expert to complete the joint report on the issue.  If they encounter any difficulties, they should seek further directions from the Court as soon as possible.

22.  The 2^nd PTR shall be on 10 July 2009 at 11 am.

23.  I ordered that costs be reserved.