CHEUNG HAY SHING v. DR. PANG KA HUNG PETER AND ANOTHER

HCPI 428/2019

[2022] HKCFI 3330

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 428 OF 2019

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D E C I S I O N

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1.  This is determination on paper of the plaintiff’s application by summons filed on 2 March 2022 for leave to obtain supplemental joint expert report.

Background

2.  This is a medical negligence case. The plaintiff claims against the 1^st defendant and the 2^nd defendant respectively as the operating surgeon and the corporate body said to be responsible for the hospital for negligence in the surgery in question, namely excision of pituitary tumor for optic chiams decompression, performed on the plaintiff on 5 December 2016. The plaintiff suffered a stroke as a result.

3.  The plaintiff commenced this action for damages in 2019. Pleadings were filed between February and July 2020. By September 2020, the witness statements of the plaintiff and his witnesses were also ready. Answer to the statement of damages and witness statements of the defendants are yet to be filed subject to further direction of the court.

4.  Pursuant to the previous direction of the court, joint neurological expert reports on the issue of quantum were obtained and filed by late 2020. The experts opined that, amongst other things, the plaintiff has reached maximal medical improvement. He would be able to walk independently using a walking stick. He should continue treatment to prevent another stroke. He has 100% loss of earning capacity. He probably has the requisite mental capacity in managing his property and affairs.

5.  In January 2021, the plaintiff was also examined and assessed by occupational therapy experts, namely, Mrs Tsang Lau Kit Ping, Alice (“Mrs Tsang”) and Mrs Shelley Chow (“Mrs Chow”) engaged by the plaintiff and the defendants respectively. They produced their joint expert report dated 25 May 2021 (“the Joint Report”).

6.  In February 2022, the plaintiff’s solicitors proposed to those acting for the defendants the need for the occupational therapy experts to render a supplemental report on the ground of substantial changes since the Joint Report that must affect their conclusions and render their recommendations outdated. The defendants disagreed. Hence the plaintiff’s summons filed on 2 March 2022 now before this court.

7.  On 7 April 2022, Hon Marlene Ng J gave directions in respect of the disposal of the summons on paper only. Pursuant to the directions, the parties have filed their respective affirmations and written submissions.

Breach of direction by the plaintiff

8.  Hon Marlene Ng J was cautious in stipulating in §7 of her direction mentioned above that the parties’ written submissions shall not exceed 8 pages, all footnotes, appendixes, enclosures and annexures included. Contrary to that, the plaintiff appended to his 8-page submission a so-called reading list which exceeds 9 pages and contains comments on specific parts of the Joint Report. This is obvious breach of the direction. The plaintiff’s submission, if succinctly presented as her Ladyship also directed, should and could have accommodated those references to the Joint Report and counsel’s comment contained in the reading list within the stipulated page limit without stress.

Discussion

9.  The applicable legal principles are trite. It has been repeated by the court that the expert evidence must be relevant, necessary and of probative value: see for instance, Ngai Ping Kwan v Choi Yat Hung, HCPI 537/2010 (15 September 2011) (at §§6-7); Lau Yuet Ming v Hung Ling Kwok & Anor, HCPI 300/2011 (7 March 2012) (at §50).

10.  It is stated on the summons that the experts would be requested to compile a supplemental joint report to set out the changes (if any) of their respective previous opinions “as a result of the changes in the plaintiff’s physical condition and his family position and circumstances since their said report dated 25 May 2021”. This is the basis of the application that the plaintiff has to substantiate.

11.  The relevance and probative value of occupational therapy expert evidence are not the concern. There is already the Joint Report. It is really the necessity for the intended supplemental opinion from the experts which calls for scrutiny. Necessity as a consideration has been emphasized, even assuming that the intended expert evidence is perceivably relevant and helpful: see Shenzhen Futaihong Precision Industry Co Ltd v BYD Co Ltd [2018] HKCA 408 (at §12).

12.  All the relevant documents and submissions considered, the plaintiff, in my view, fails to justify in terms of necessity the application for calling the intended supplemental joint occupational therapy expert report to be compiled. I shall explain.

13.  In the plaintiff’s submission, reference is made to the remark in Mrs Tsang’s opinion in the Joint Report that the daughter of the plaintiff was not interviewed for compiling the report in May 2021. That in my view has no bearing on the present consideration.

14.  First, the issue of interview of the plaintiff’s daughter was actually raised by those acting for the plaintiff back in early 2021 after the joint examination of the plaintiff by the occupational therapy experts. Whether the experts needed to have a specific interview with the daughter prior to compiling the joint report was debated by both sides by way of correspondence. Even taking the experts to be adopting different view on this issue at that time, Mrs Tsang did not indicate that without such interview with the plaintiff’s daughter, it would be practically difficult to compile the joint report that would be of assistance. The result was that the experts proceeded to compile the Joint Report. It should also be noted that the experts managed to do so because the witness statement of the plaintiff’s daughter was available and taken into consideration by them. Mrs Tsang also did not qualify the accuracy or sustainability of her opinion with specific reference to the lack of interview with the plaintiff’s daughter. The issue of interview with the daughter is spent.

15.  Second, the present application is taken out on the specific ground as set out in the summons recited above. It is essentially the change in the plaintiff’s conditions and the family circumstances since the Joint Report, which is said to impact on the conclusions and recommendations of the experts in the report. What this court needs to consider is whether or not this is the case.

16.  The change in circumstances consists of (i) the plaintiff’s wife was diagnosed with cancer in August 2021, and was no longer able to perform her role as the plaintiff’s caretaker, quasi-home physiotherapist and case manager; (ii) the plaintiff’s daughter has resumed full-time employment, and is unable to provide the assistance in the care of the plaintiff that she used to do and hope to continue to do; and (iii) the plaintiff’s condition has worsened as he has not been able to benefit from some of the therapies recommended by the experts partly for financial reasons. The change in circumstances, the plaintiff argues, entails possible alteration of the conclusions of the experts and the need for updating the recommendations in respect of the plaintiff’s needs and care regime set out in the Joint Report.

17.  I do not agree.

18.  The experts expressly stated first and foremost at the introduction of section 6 of the Joint Report that their recommendations on the needs and provisions for the plaintiff were given in view of the problems identified in the preceding sections of the report. The experts also shared the view that the provisions for the plaintiff’s future life should be comparable to his previous lifestyles with adjustments and changes. They also have to be realistic and sufficient to provide him with safety and comfort at an appropriate level.

19.  Any attempt by the plaintiff to suggest that the experts premised their assessment and recommendations on the basis of the continuous dependence on the wife and the daughter of the plaintiff in the various roles currently played by them in the plaintiff’s care regime is flatly contradicted by the report. Quite on the contrary, the experts expressed their understanding of the stress and limitation of the wife and the daughter in their current supporting roles in the plaintiff’s future care regime as well as the undesirability of continuous dependence on them, the wife in particular. Hence their recommendations on the basis of hired third party and professional help such as care assistant and domestic helpers. The experts also gave their opinion on the projected cost of such hired outside help.

20.  Specifically, Mrs Tsang recommends either engaging a health care assistant plus a domestic helper or alternatively two domestic helpers. Mrs Chow differs only in the number of domestic helper needed. Mrs Tsang also recommends the appointment of a case manager whereas Mrs Chow recommends reliance on the services provided by the Hospital Authority and community nurse.

21.  In other words, the experts are acutely aware of the limitations of the plaintiff’s wife and daughter, and considered that it would be undesirable to expect the plaintiff to depend on them for the various roles in the care regime of the plaintiff. Therefore, the fact that the circumstances surrounding the plaintiff’s wife and daughter that are said to expedite their inability to continue their current roles in the care of the plaintiff does not amount to change that has not been contemplated by the experts. Nor does that necessitate the calling of supplemental expert report in respect of the needs or care regime of the plaintiff.

22.  The same can be said about the accommodation needs of the plaintiff and his family. In the Joint Report, the experts scrutinized the current accommodation of the family and the effectiveness of the modification carried out to the accommodation subsequent to what happened to the plaintiff after the surgery in 2016. Mrs Tsang already considered the possibility of the plaintiff’s daughter staying overnight or even moving back to live with her parents to facilitate the care of the plaintiff and to assist her mother. On this basis, Mrs Tsang recommended the consequential increment in the living space necessary for the family. Mrs Chow differed only in terms of the space needed, not the need itself. As those acting for the 1^st defendant points out, this already affords the plaintiff with the basis for introducing a claim for the cost of accommodation need of the family in line with the current recommendation of Mrs Tsang. However, there is no change in circumstances necessitating supplemental expert evidence in this respect.

23.  Again, the same could be said about the transportation need of the plaintiff. The Joint Report recorded the experts’ acute awareness of the pre-accident and post-accident transportation arrangements of the plaintiff. The change in circumstances mentioned above entails the expectation that the wife and the daughter might become unable to drive to attend to the care needs of the plaintiff as much as before or even at all. However, the experts never premised their recommendations in this respect on the continuous dependence on the wife and the daughter. Quite on the contrary, Mrs Tsang recommended a driver to be engaged, which would be supplemented by taxi service on the days off of the driver. Mrs Chow differed in that she recommended reliance on wheelchair accessible taxi service but without ruling out occasional driving as the wife (and the daughter) might decide. They also gave their opinion on the projected cost of such arrangement.

24.  The same could also be said about the plaintiff’s social activities and vacations. Both experts gave their recommendations regarding recreational club, vacation and travel. The bearing of the plaintiff’s need for care during vacation and travel abroad was taken into consideration when the experts gave their recommendations in the Joint Report. Specifically, Mrs Tsang recommended that a helper should be brought along or a care-giver arranged at the destination during such vacations. Pre-arranged local transportation was also recommended. In other words, consistent with her premise in the Joint Report, Mrs Tsang gave her opinion and recommendations other than on the basis of the plaintiff’s care during such vacations and travels being dependent on his wife and daughter. Provisions for the incidental travel expenses for the family members were made in the recommendations. The experts also gave, albeit with difference, their opinion on the incidental expenses arising out of the special arrangement to accommodate the plaintiff in his condition. However, the need to now take into account the change in circumstances surrounding the plaintiff’s wife and daughter in such assessment lacks logic.

25.  Another change in circumstances is said to be the physical condition of the plaintiff. Attributing partly to the financial stress, the plaintiff is said to have failed to take the full benefit of the kinds of rehabilitation therapy recommended in the Joint Report. The physical condition of the plaintiff is said to have worsened as a result.

26.  Insofar as the physical condition of the plaintiff is said to have worsened in any manner, medical evidence of that for the purpose of the present application is not available. Insofar as this is said to be the result of financial inability to take the full benefit of the kinds of therapies recommended in the Joint Report, this court does not see how that necessitates the intended supplemental expert opinion. The fact is that Mrs Tsang set out comprehensively the recommended therapies and their cost in both the public and the private sectors. Mrs Chow differed in the recommended frequency of such therapies but not the projected cost. She also suggested the availability of service provided by non-profit organizations. It was precisely because of the concern about the plaintiff’s financial situation that the cost of the recommended therapies in both public and private sectors were set out. It is unknown what opinion may be expected from the experts to address the plaintiff’s financial stress and ability to undertake those recommended therapies, which would be of relevance and assistance to the court.

27.  What the plaintiff contends to be change in circumstances are not in fact those that have not been taken into account by the experts in compiling the Joint Report. Nor does that necessitate the intended supplemental expert evidence from the experts.

Order

28.  The application (§§1-3 of the plaintiff’s summons) is dismissed with costs, on nisi basis, to the defendants. In the absence of any application within 14 days for variation, the nisi costs order shall become absolute without further order.

29.  Upon the costs order becoming absolute, and unless the costs are agreed, the 1^st and the 2^nd defendants do submit within 7 days their respective statements of costs to the plaintiff and the court, in respect of which the plaintiff may submit his comment in writing within 7 days thereafter. Upon receipt of the comment or expiry of the time for its submission, this court will proceed to summarily assess the costs.

30.  The parties are directed to write to the court within 21 days setting out their jointly proposed directions (and in case of disagreement, explanation therefor) in respect of:

(1)  whether and, if yes, what and when further interlocutory application is proposed to be taken out;

(2)  when the answer of the 1^st and the 2^nd defendants to the revised statement of damages will be filed and served;

(3)  when counsel advice will be obtained;

(4)  when and how the trial bundle will be agreed; and

(5)  what other proposed directions will be sought before setting down of the case.

31.  The next checklist review hearing is fixed at 11 January 2023 at 10 am (1 hour reserved) before a judge.

32.  Last, this decision could have been handed down in September but for unexpected hiccup in the preparation. This court is grateful for the parties’ patience.