YU WAI YIN v. BALS HONG KONG LTD

HCPI 643/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 643 OF 2011

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BETWEEN

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D E C I S I O N

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INTRODUCTION

1.  The plaintiff applies for leave to substitute her orthopaedic expert, Dr Lung Ting Kwan Peter with Dr Wong See Hoi.

2.  The plaintiff injured her back at work on 3 November 2008.  She was employed by the defendant as a senior sales advisor working in a furniture shop in a shopping mall. At time of the accident, the plaintiff was standing and facing a display table, four of her colleagues were moving a heavy display shelf at a short distance behind her.  A piece of cardboard was placed beneath the display shelf for easy maneuvering. Suddenly, the display shelf pressed onto the plaintiff’s back, she was unable to move. At the same time, the plaintiff stepped onto the cardboard which has been placed beneath the display shelf. Whilst her colleagues attempted to lift the display shelf off the plaintiff, the cardboard was also being pulled away from her, such force made the plaintiff fell onto the ground.  She suffered injuries (“the Accident”).

EVENTS LEADING TO THE PLAINTIFF’S APPLICATION

3.  The plaintiff’s employees’ compensation claim was settled on 3 October 2011; the present common law personal injuries claim, at time of hearing the plaintiff’s summons, has reached a stage that the plaintiff is to file a Revised Statement of Damages.

4.  Directions for adducing medical expert evidence has been given in the Order dated 27 February 2012, amongst others, in paragraph 4,

“The orthopadeics [sic] expert report prepared by Dr. Lung Ting Kwan Peter dated 5^th April 2011 (“Dr. Lung’s Report’) and the orthopadeics [sic] report prepared by Dr. Peter Ko dated 15^th May 2010 (“Dr. Ko’s Report”) be adduced without oral evidence.”.

5.  Both Dr Ko and Dr Lung are parties’ medical experts in the employees’ compensation proceedings.  Dr Ko was appointed by the insurer of the defendant, he had first examined the plaintiff on 10 May 2010; Dr Lung, the plaintiff’s expert, examined the plaintiff on 25 February 2011.

6.  At time of the examinations, the plaintiff complained of lower back pain.

7.  After some 13 months from Dr Lung’s examination, on 13 March 2012, the plaintiff underwent an MRI examination on her lumbar spine in Ruttonjee & Tang Shiu Kin Hospital, she was found to suffer from nerve root compression. The plaintiff relayed the MRI report to Dr Lung with a view to obtain further opinion. Dr Lung indicated verbally he has “nothing to add” after reviewing the MRI report. The plaintiff wrote to the defendant to seek consent to have Dr Lung replaced.  The defendant refused.  The defendant in turn suggested that should there be a necessity for a joint supplementary orthopaedic report for comments on the MRI report, parties should invite both Dr Lung and Dr Ko to do it. The plaintiff disagreed.

8.  Without leave of the court, the plaintiff sought a brief report with her newexpert, Dr Wong See Hoi, the purpose of the brief report (which turned out to be 18 pages, no different from a usual one) was meant to support her argument to replace Dr Lung.  Dr Wong examined the plaintiff on 9 May 2012, the report was finalized on 17 May 2012 (“Dr Wong’s Report”).  Dr Wong concluded the plaintiff’s present complaint of lower back pain was consistent with the MRI results, but in absence of neurological deficit, he ended the report by saying it was a “controversial case”.

9.  The plaintiff accordingly seeks leave from court to adduce a joint orthopaedic report with Dr Wong and Dr Ko, instead of Dr Lung.

10.  The defendant maintained its stance that a supplementary orthopaedic report should be sought from Dr Ko and Dr Lung for further comments on the MRI Report.

BRIEF SUMMARY OF ALL RELEVANT REPORTS

11.  Both Dr Ko and Dr Lung gave similar opinion in absence of the MRI results, only Dr Wong’s opined differently with the benefit of considering it.  I shall briefly set out the salient points in those reports:

Dr Ko’s Report

(i)  Dr Ko examined the plaintiff on 10 May 2010 (1½ years from the Accident).  He performed various teston the plaintiff. Dr Ko opined the plaintiff had suffered minor sprain/contusion injury on her back.  He said the plaintiff’s present complaint of lower back pain was “completely out of proportion to the magnitude of the energy of the injury which should be a low energy with minor sprain / contusion injury”.

(ii)  Dr Ko further analysed his observation in light of various reports from the plaintiff’s of treatment and care doctors. He concluded the plaintiff has reached maximal medical improvement, she should not be benefit from further treatment and investigation.

Dr Lung’s Report

(iii)  Dr Lung examined the plaintiff on 25 February 2011 (2¼ years from the Accident). Dr Lung performed various test with the plaintiff, with a result of an “abundance of positive functional signs during the assessment which indicates a possibility of exaggeration or presence of psychological factors”.  The plaintiff was not under any physical treatment save and except being administered with analgesics and local injections from pain specialist.  The prognosis was good and there should not be further deterioration.  Dr Lung said the plaintiff has reached maximal medical improvement, further treatment, including operation and/or physiotherapy will not result in any significant improvement.  There was an absence of neurologic deficit, MRI scan will unlikely find any major abnormality that will affect management.

The MRI Report

(iv)  The plaintiff managed to obtain an MRI report 13 months after being examined with Dr. Lung, it revealed,

“(1) Large L5/S1 PID with focal & severe anterior thecal sac compression & touching or compression of bilateral S1 and S2 nerves;

  (2) L4/5 bulging disc with mild thecal sac compression.”

Dr Wong’s Report

(v) Dr Wong perused all relevant medical reports, including but not limited to Dr Ko’s Report and Dr Lung’s Report.  He performed various tests with the plaintiff with positive results:

(a) back: no deformity; tenderness from lumbosacral junction to sacroiliac joints (SIJ) and no muscle spasm;

(b) range of movement was not abnormal;

(c) lower limbs neurological deficit detected;

(d) muscle power of lower limb were normal;

(e) sensation to touch of lower limbs were normal; knee jerks appeared to be sluggish, ankle jerks absent and no clonus found.

(f) simulation tests with negative results;

(g) test with chest and right lower ribs with normal result.

(vi) The plaintiff claimed she has suffered pain radiating from her back to right thigh at time of the Accident.  Dr Wong said,

“I am of the view that her early complaint of back pain with radiating pain to right thigh is likely an indication of disc prolapsed causing referral pain or nerve root irritation…. I opine her compliant of back pain with radiating pain to right thigh is compatible with the MRI finding of L5/S1 PID causing nerve root irritation”.

(vii)             Dr Wong made a remark,

“I agree that examination of her back did not reveal any definite sign of neurological deficit such as muscle wasting or weakness or sensory deficit that corresponds to the myotomal or dermatomal distribution. However, her bilateral ankle jerk was lost and her bilateral knee jerk was sluggish. I opined this is a controversial case. MRI examination therefore comes in useful for an objective diagnosis. As detailed under paragraph 1 of this section, the MRI examination confirms PID over L5/S1 causing nerve root irritation.”

LEGAL PRINCIPLES

12.  In the context of personal injuries cases, Bharwaney J revisited the legal principles on change of experts in Law Chung Fai by his next friend Luk Siu Mui v Lam Ming Kuen, HCPI 96 of 2008, where he considered Chinachem Charitable Foundation Ltd. v Chan Chun Chuen and Anor [2009] 5 HKC 190, he summarized the principles as follows at page 7 of the Decision on the issue:

“(a) The court’s discretion, whether or not to allow a party to change his expert, is exercised within the ambit of the court’s management powers. These powers must be exercised in the light of underlying objectives of the recent civil justice reform, including the need to ensure the cost effectiveness of the proceedings; to ensure that the case is dealt with expeditiously; to ensure reasonable proportionality having regard to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party; to ensure procedural economy in the conduct of the proceeding; and to ensure fairness between the parties.

(b) In the exercise of its powers of case management, the court recognizes that the primary aim is to secure the just resolution of the dispute in accordance with the substantive rights of the parties.

(c) Expert shopping is undesirable and, whenever possible, the court will use its powers to prevent it. It can lead to potential unfairness between those who can afford to shop around for the opinions of more than one expert and those who cannot. Expert shopping is not conducive to cost effectiveness of proceedings and the expeditious disposal of a case.

(d) The disclosure of the original expert’s report, and the waiver of the privilege that would normally be attached to it, would usually be imposed as a condition for granting permission to call a substitute expert. However, the disclosure of the original expert’s report per se does not guarantee that the court would permit a substitute expert to be called.

(e) To curtail expert shopping, the court may refuse to grant leave if the only reason for calling a substitute expert is that his opinion is more favourable to the party calling him than the opinion of the original expert.

(f) However, it the court is satisfied that the just resolution of a dispute requires leave to be granted for a substitute expert to be called, it should not refuse leave simply because the opinion of the substitute expert is more favourable than that of the original expert.

(g) In every case, the court should examine the grounds put forward by the substitute expert and make a preliminary assessment of the cogency of those grounds as compared with those set out in the report of the original expert and the report of the expert engaged by the other side. If the court is satisfied that there are relevant matters canvassed by the substitute expert which may be important to the just resolution of the dispute which was omitted from the reports of the original expert, or which was outside the expertise of the original expert, a prima facie case would be made up for the admission of the substitute expert report in the interests of the just resolution of the dispute.

(h) In every case, however, the court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant for the change of experts. All these matters have to be considered and weighed in the light of and against the underlying objectives of the civil justice reform: to ensure cost effectiveness and economy, expedition, proportionality and fairness between the parties.

(i) It is not possible to lay down definitive and exhaustive guidelines to cover and cater for every possible situation that may rise and which prompts an application by a party to change its expert.

(j) Ultimately, the court strives to do justice between the parties and, in cases where the court permits the parties to call expert evidence, the court strives to ensure a level playing field with fair access to proper experts for all parties.”

THE ISSUE

13.  This is a case the plaintiff challenged Dr Lung, her own expert.  The paramount requirement is whether the plaintiff can demonstrate a just resolutioncan be achieved if leave be granted to replace him.  

ANALYSIS

Conduct of the plaintiff

14.  Ms Lau, counsel for the plaintiff submitted, the plaintiff had informed Dr Lung that at time of the examination, she was expecting an MRI examinationon her lumbar spine which could have assisted Dr Lung in compiling the report.  Dr Lung did not wait for the MRI results but proceeded to compile the report.

15.  After the MRI report surfaced, Dr Lung refused to revise his opinion.  Apparently, the plaintiff lost confidence with Dr Lung. She then sought opinion from Dr Wong, her new expert. She managed to secure  favourable opinion from Dr Wong, that form the basis of her application.  The plaintiff found Dr Lung refused to “admit his mistake”, relying on his opinion would not be in the interests of the just resolution of the dispute.

16.  I am not persuaded. At the beginning, the plaintiff sensibly attempted to seek a supplementary report from Dr Lung to comment on the MRI results.  Her solicitors gave Dr Lung the MRI Report for preliminary comment.  In their letter dated 18 April 2012, her legal representatives requested Dr Lung to discuss certain issues with them and not to compile a supplementary expert report without leave of the court.  Dr Lung reverted through his nurse that ‘it was very difficult for him to comment and he had nothing special to write.  He had no further comment to add’[1].  Notwithstanding this, the plaintiff’s solicitors sought quotation of compiling a supplementary report from Dr Lung, she was told the fees for a joint supplementary report would be $5,000 and if consultation is necessary, he would charge the plaintiff $13,000.

17.  As seen from Dr Lung’s reply, he was willing to compile a joint orthopaedic expert report for the plaintiff, only that he has given a preliminary view on the MRI results contrary to the plaintiff’s expectation.  It is understandable, having two existing expert reports with similar conclusions (amongst others things, that she had attained maximal medical improvement and had exaggerated her symptoms),   the MRI results would have provided her an opportunity to overturn those findings. Nevertheless, to the plaintiff’s disappointment, Dr Lung’s preliminary view was unhelpful.

18.  Mr Sakhrani has correctly pointed out, the court should not rely on the plaintiff’s belief, from a layman’s point of view saying the opinion of her own expert is wrong.  Even if we put her case to the highest, Dr Wong merely formed a view that the plaintiff’s case is a controversial one. The plaintiff’s conduct affiliated to one of forum shopping. As laid down in Law Chung Fai, this is undesirable and the court is reluctant to grant leave in the circumstance.Nevertheless, to achieve a fair disposal of this matter, it is incumbent for the court to canvass the analysis of various experts.

How did the experts arrive at their conclusions?

19.  The plaintiff alleged Dr Lung’s opinion was wrong.  

20.  Mr Sakhranisubmitted, the application was found on the mistaken assumption that the MRI results contradict the opinion of Dr Ko and Dr Lung.  It is plain that having considered the medical reports of treatment and care doctors, Dr Ko and Dr Lung did not find any clinical symptoms to suggest nerve root irritation and thus an MRI examination is unnecessary.

21.  Dr Wong has benefit to consider relevant medical evidence and the MRI Report, his opinion stands out from all the other reports, including those from the treatment and care doctors.  Both Dr Ko and Dr Lung said the plaintiff had suffered from low back pain but have already attained maximal medical improvement.  Dr Wong’s opinion diverted tangentially by saying, the MRI results of nerve root irritation supports the plaintiff’s present complaint of continuing pain over her lower back.

22.  Unbeknown to a reader, Dr Wong accepts the plaintiff has neurological deficit as the plaintiff claimed having radiating pain to her right thighafter the Accident.  In fact, the plaintiff’s complaint of radiating pain was not supported by medical evidence.  In the A&E report, it recorded tenderness over right buttock and right thigh pain after fall only[2].

23.  There was a 13 months lapse from Dr Lung’s examination with the MRI test.  Dr. Wong did not address the cause of the nerve root compression, by ending the report that the plaintiff’s case is “controversial” prompted room for debate.  To any reader’s disappointment, Dr Wong did not visit the “controversial” issue and gave objective reasons, precisely how the positive results of those tests could come in line with his conclusion.

24.  I am of the view that even if Dr Wong’s opinion is more preferred by the plaintiff, he failed to analyse the crux of the issue. Having compared old reports with the new one, I failed to see the plaintiff can demonstrate she has sufficient and cogent reasons to substitute her expert.  I do not find the old report has omitted vital or relevant matters which may not reach a just resolution between the parties.  The plaintiff’s application warrants a classic case of forum shopping and I am not satisfied that the plaintiff shall have a second chance to seek favourable opinion to substantiate her case.

CONCLUSION

25.  The plaintiff’s application to change her own orthopaedic expert be refused. Paragraphs 1 to 3 of the plaintiff’s summons be dismissed.   The parties are directed to seek consequential case management directions with regard to paragraphs 4 and 5 of the plaintiff’s summons in the next Checklist Review hearing.

26.  I make a costs order nisi that the costs of the plaintiff’s summons be to the defendant, with certificate of counsel, taxed if not agreed.  The costs order nisi be made absolute after 14 days.