ANSAR MOHAMMAD v. GLOBAL LEGEND TRANSPORTATION LTD

HCPI 1057/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 1057 OF 2007

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J U D G M E N T

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1.  This is an appeal by the plaintiff against the order of Master Levy given on 10 September 2009 refusing leave to the plaintiff to adduce the 2^nd Supplemental report of Professor Kumta dated 1 June 2009 for use at the Assessment of Damages hearing due to resume part heard on 7 October 2009.

Background

2.  The plaintiff is a male, 30 years old at the time of the accident which happened on 2 June 2005 when the plaintiff slipped and fell during the course of his employment with the defendant whilst he was pulling tarpaulin sheets over some stacked goods, resulting in back injury.  Liability is no longer in issue, interlocutory judgment having been entered.  Only damages need to be assessed.

3.  The relevant issue in dispute between the respective orthopaedic experts falls within a very narrow compass.

4.  Professor Kumta, the plaintiff’s orthopaedic expert, in his first report dated 10 December 2007, opined that the injury from the accident precipitated a pre-existing condition in the plaintiff’s spine (which had been pain free before the accident) thereby making it symptomatic.

5.  The defendant’s expert, Dr Wong See Hoi, in his report dated 13 February 2008, opined that the plaintiff had multi-level disc degeneration which was pre-existing before the accident due to natural wear and tear.  Dr Wong believed that the accident may have triggered his back symptoms but should not have contributed much to his present complaint.

6.  In his 1^st Supplemental report which was in reply to Dr Wong, Professor Kumta agreed with Dr Wong on the following matters :

(a)  that the plaintiff did have pre-existing degeneration in the form of spondylolisthesis before the accident;

(b) the multi-level disc dessication is an age-related process, but the pain was more localized to that injured segment of the spine; and

(c) the plaintiff did have some element of symptom magnification which was not surprising because of his chronic pain;

However, Professor Kumta adhered to his earlier opinion that the fall in the accident had worsened the spondylolisthesis; but for the fall it was unlikely that the spondylolisthesis would have become symptomatic.  Professor Kumta disagreed that the multi level degeneration shown from the radiograph findings could or would indicate the likelihood of painful progression eventually as it was equally possible for the plaintiff to go through life without any back pain since the plaintiff was symptom free before the accident.

7.  On the basis of the expert evidence referred to above, the matter went before Master Levy for hearing on assessment of damages on 6 May 2009.  That assessment hearing was adjourned part heard for reasons which need not be gone into.  When it was adjourned, cross-examination of the plaintiff had been completed, but re-examination was still to come.  The assessment hearing was adjourned to resume on 7 October (with also 8 October reserved).  Both experts, Professor Kumta and Dr Wong See Hoi will be called to give oral expert evidence at the resumed hearing.

8.  There were 19 post-accident X-rays taken of the plaintiff’s spine at PMH between November 2005 and May 2006.

9.  However, due to an “oversight” by the plaintiff’s solicitor handling this matter at the time, copies or duplicates of the 19 post-accident X-rays were not obtained from PMH and therefore had not been supplied to Professor Kumta when he prepared his first report and also the 1^st Supplemental report replying to Dr Wong’s report.

10.  These 19 post-accident X-rays had also not been seen by Dr Wong when he prepared his expert report in February 2008 (but Dr Wong had taken 4 X-rays of his own when he examined the plaintiff).

11.  About a day before the commencement of the assessment hearing before Master Levy on 6 May 2009, Professor Kumta was able to access the originals of the 19 X-rays from PMH on his own and in that way had sight of those X-rays.

12.  Professor Kumta prepared his 2^nd Supplemental report which was dated 1 June 2009 after having sight of the 19 X-rays from PMH.

13.  After the assessment hearing had been adjourned part heard, the plaintiff’s solicitors requested duplicates of the 19 post-accident X-rays from PMH and received them some time in early July 2009 but it was not until 24 July that confirmation was obtained from Professor Kumta that he had seen all of the duplicate X-rays received from PMH.

14.  It was only after that confirmation from Professor Kumta that his 2^nd Supplemental report was disclosed to the defendant’s solicitors.

15.  Failing the agreement of the defendant in respect of the 2^nd Supplemental report of Professor Kumta, application was made by the plaintiff by Summons dated 8 September 2009 for leave from the court to rely on the 2^nd Supplemental report of Professor Kumta.  That application was heard by Master Levy (since she was dealing with the assessment hearing) and her refusal to grant leave to the plaintiff led to this present appeal.

Determination

16.  A number of points have been taken by both sides as to the new rules of practice under the CJR, delays and even the bona fides of each party.

17.  I should say at the outset that none of these points will likely be decisive of the matter since the paramount consideration must be the just disposal and determination by the court of issues in dispute between the parties.

18.  I should therefore focus on the inherent merits or otherwise of this appeal with a view to determining how best justice to the parties can be done at the assessment hearing.

19.  In this respect, there are a number of points to be noted.

20.  Firstly, Professor Kumta must have known of the post accident X-rays taken in PMH when he prepared his first report and the 1^st Supplemental report in December 2007 and September 2008 respectively since Professor Kumta was provided with all the medical records from PMH in which references were made of the X-rays taken.  Yet Professor Kumta had never asked for the X-rays but was content to give his opinion solely on the strength of the MRI films (with which he was provided).

21.  In like manner, Dr Wong also knew of the X-rays taken at PMH since he did make reference to same in his expert report.  Dr Wong too did not need to resort to the X-rays taken at PMH to complete his medical report, but did make reference to the MRI films and the MRI findings.

22.  Therefore both Professor Kumta and Dr Wong were content to give their opinion based on the MRI films and the MRI findings.

23.  It is also conceded by the plaintiff that the overall opinion given by Professor Kumta as contained in his initial report as well as his 1^st Supplemental report remained wholly unchanged when his 2^nd Supplemental report, the subject of this appeal, is looked at.

24.  Professor Kumta is still of the opinion that the plaintiff had a pre-existing degenerative condition of his spine and that the injury sustained by him in the accident likely precipitated that pre-existing degeneration causing it to become painful and symptomatic.

25.  What is argued by the plaintiff in so far as relevance of the 2^nd Supplemental report of Professor Kumta is concerned, is that when Professor Kumta agreed with Dr Wong that there was multi-level disc dessication as contained in paragraph 2 of Professor Kumta’s 1^st Supplemental report, that concession was made without reference to the 19 post accident X-rays.  Now that the 19 post accident X-rays are to hand, Professor Kumta is able to say (in paragraphs 2 and 3 of his 2^nd Supplemental report) that apart from the L5-S1 vertebra, there is no disc degeneration seen in the rest of the plaintiff’s lumbar spine.

26.  However, it must be borne in mind that the only relevant dispute in this litigation between the parties and also the experts is not to the extent or the excessiveness of the pre-existing degeneration in the plaintiff’s spine.  Whether there was multi-level degeneration or disc dessication is not an issue which needs to be determined or findings made by the court at the assessment hearing.  The relevant issues for the court to decide at the assessment hearing are :

(1) whether the accident triggered or precipitated the plaintiff’s pre-existing condition in his spine; and

(2) had it not been for the accident, would the plaintiff’s spine have remained symptom free or would there have been painful progression as time passed by reason of the degenerative condition alone.

27.  Furthermore, the concession (if concession it be) made by Professor Kumta in paragraph 2 of his 1^st Supplemental report was made in answer to paragraph 29 page 10 of Dr Wong’s report.  Looking at paragraph 29 of Dr Wong’s report, there can be no doubt that Dr Wong’s opinion was based on what was seen on the MRI films and with which Professor Kumta had been provided.

28.  Therefore there can be no question that whatever concession was made by Professor Kumta was properly made by him and on the same footing upon which the opinion of Dr Wong was given.

29.  Given the above, I am of the view that the 2^nd Supplemental report of Professor Kumta is only of very limited value in so far as it is sought to be used in the assessment hearing.

30.  Whilst it may be true that the hitherto missing 19 post accident X-rays complete the picture, the difference which comes from their non-inclusion in the final picture must be of minimal significance.

31.  I do not see that they can add anything which is of use and which is not already before the Master for her determining the issues before her at the assessment hearing.  A fortiori the 2^nd Supplemental report of Professor Kumta.

32.  For the reasons given, the Master was fully entitled to and cannot be faulted for having exercised her discretion in the way she did, refusing leave to the plaintiff in respect of the 2^nd Supplemental report of Professor Kumta.

33.  To give the leave sought by the plaintiff would only lead to further and unnecessary delay in the matter but without achieving any useful purpose evidence-wise in the determination of those issues.

34.  Accordingly, the appeal is dismissed.