YU TAN LEE v. CHEUNG KWOK CHOI

HCPI 595/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 595 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 defendant against the decision of Master Kwan given on 2 June whereby she ordered that :

“… the parties shall not instruct their medical experts to comment on the surveillance tapes, see HCPI 323 of 2004.”

2. The order was made because in the aforesaid case Suffiad J said :

“13.  I have no difficulty in recognizing and accepting the position that very often a defendant would engage private investigators to conduct surveillance of a plaintiff in a personal injury case to ensure that a plaintiff has not exaggerated his complaints and/or disabilities arising from his injuries suffered in the accident.

14.    Such surveillance would almost invariably be conducted in a covert manner else the exercise would be futile.

15.    A defendant therefore cannot be criticized therefore for not having forewarned the plaintiff or his legal advisers of such covert surveillance.  The lack of forewarning therefore played no part in my awarding costs to the plaintiff for the supplemental report of Dr Lam, no matter how distasteful or offended the plaintiff or his legal advisers may have felt at the plaintiff being the target of such surveillance.

16.    The fault of the defendant or his legal advisers was to have gotten its expert to comment on the surveillance tape without the leave of the Master, or even any indication that it would be doing so which resulted in the further supplemental report from Dr Lam which was wholly unnecessary.

17.    I say unnecessary because in the majority of cases, where orthopaedic experts have already given their opinions as to the extent of the disabilities of a plaintiff, it would not be necessary for them to have to comment in a separate report of what is seen of a plaintiff on surveillance tapes.  That is an exercise that a court will be well equipped to do and to compare what can be seen of a plaintiff with the opinions already expressed by the experts in their reports, and then to decide whether or not the plaintiff is exaggerating or malingering.  Usually that should not involve any expertise to make that comparison where the experts’ opinions have already been given in earlier reports.”

18.    Such a practice of obtaining a separate report from a medical expert only for him to comment on surveillance tape is not a practice that should be encouraged, and in the exceptional case where there may be good reasons or grounds for doing so, leave could and should be obtained before it is done, by putting forward the grounds or reason why it should be done.

19.    In the present case, in the absence of any such good reasons or grounds for taking it out of the general rule, the cost order was made against the defendant in respect of the further supplemental report by Dr Lam.”  [Emphasis added]

3. In other words, Suffiad J’s decision was in the peculiar situation of that case and ratio decidendi of his decision is that leave should be obtained in the first place for further expert evidence to comment on the surveillance tapes.  It is not a matter of a right in such an application.  Good reasons or grounds should be disclosed.  Thus, it is not a general principle that further experts or medical reports should not be sought after the surveillance tapes have been obtained by a private investigator. 

4. In fact, the authorities cited by Mr Shum, counsel for the defendant, supported the position that experts are invariably asked to comment on surveillance tapes obtained and that is the Protocol for the Instruction of Experts to give Evidence in Civil Claims, paragraph 15 which is an amendment of the report and that is, I think, the CJR report in England.  It is found also in Brennan & others: Personal Injury Handbook (1^st Edition), paragraphs 25–31 at pp. 333–334.  Further it was decided in the case of Libby-Mills v. Commissioner of Police for the Metropolis [1995] PIQR P325. 

5. In fact, Her Honour Judge Barnes, as she then was, on 1 June 2004 decided in Wu Choi Lan v. Tonge (Hong Kong) Limited & Another (unreported), DCPI 634/2003, that :

“It is unfortunate that neither the Plaintiff nor the Defence (particularly the Plaintiff, who bears the onus of proof) do not see fit to have any of the medical expert evidence reviewed in light of the tape!  I do not know, for instance, the diagnosis of ‘frozen shoulder’ would still stand had the doctors seen how she was able to utilize her left hand and arm.”

6. Both sides agreed that good grounds have already been shown that further medical opinion should be obtained in light of the surveillance reports.  By consent I allow the appeal and order in terms of paragraphs 1 and 3 of the Notice of Appeal with no order as to costs.  

7. In respect of paragraph 2 concerning the admission of the surveillance reports without calling the maker thereof, Mr Shum, as I understand, is not pursuing that.  It will be produced by the investigators or dealt with separately.  Eventually both parties may come to an agreement that it may be adduced without calling the investigators.