RAI CHANDRAKUMAR v. YOUNG LIM CONSTRUCTION CO. LTD. AND OTHERS

HCPI 728/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 728 OF 2007

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R E A S O N S  F O R  D E C I S I O N

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1.  The issues at this Pre-Trial Review are:

(1)     Leave to call the respective orthopaedic experts to give oral evidence at the assessment of damages;

(2)     Leave to cross-examine the Plaintiff’s witnesses on liability at the assessment of damages;

(3)     Clarification of the standard direction at Checklist Review for the notes and record of the treatment hospitals/doctors to be adduced as “agreed evidence”.

2.  The Plaintiff was a concreter and power-drill operator.  In 2004, he slipped and fell head-over into a manhole while standing on a plank over it.  He sustained multiple abrasions on his head and thighs.  He returned to work on lighter duties, then complained of lingering back pain, pain upon exertion and walking for 30 minutes, and inability to lift weight.

3.  Liability has been admitted and the case is for assessment of damages.

4.  The joint orthopaedic report of Prof Kumta (for the Plaintiff) and Dr Henry Ho (for the Defendant) stated the Plaintiff’s symptoms appear to be mild with unlikely progressive deterioration.  He had asymptomatic degeneration of the lumbar spine due to natural aging and occupation before the accident, with symptoms precipitated but not accelerated by the accident.  The experts agreed that the Plaintiff may not be able to return to the job of concreter or heavy manual labourer given he has not received any physiotherapy or spinal rehabilitation and the spinal degenerative nature of his back.

5.  Mr Millar, for the Plaintiff, submitted that the experts have retracted from their previous positions in their separate reports, and come to agreement in the latest joint report.  He would like to put a few questions to them on the change of stance.

6.  I say it is a good thing that professional conferencing between the experts has resulted in narrowing the issues in the separate reports to an agreed opinion in the joint report (which is consistent with the objective evidence).  That is an underlying objective of the Civil Justice Reform.  There is no cause for undermining the result achieved.

7.  On a separate point, Prof Kumta and Dr Ho agreed that the Plaintiff may not be able to return to the pre-accident job because of lack of physiotherapy treatment and pre-existing degeneration. 

8.  Lack of physiotherapy treatment has noting to do with the Defendant, and it is relevant to find out what part it played in contributing to the inability to resume pre-accident work.

9.  As to the pre-existing condition, it is relevant to find out whether the Plaintiff would be unable to undertake heavy manual work regardless of the accident, and if so, the estimated time (as from the accident or examination) that he would have reached that stage, and the apportionment of causal effect vis-à-vis the lack of physiotherapy treatment, if possible.  Mr Millar adopts my suggestion and will draft the series of questions along those lines (together with Mr McDaid for the Defendant) to be answered by the experts.  This perhaps may even resolve the dispute of the case.

10.  Mr McDaid wants to cross-examine the Plaintiff’s 3 witnesses on liability to test the Plaintiff’s credibility on the extent of his injuries.  He submitted that the Plaintiff alleged injuries in his head, chest, leg and back while the his co-workers only observed him in head-over fall and injuries on the thighs.

11.  Granted that liability has been admitted, calling the witnesses on the accident on quantum will be of marginal probative value and without savings of costs:

(1)     The witnesses are speaking generally on the course of the accident rather than examination of the sites of injuries of the Plaintiff and the overall impact of the fall;

(2)     Inconsistencies as to sites of injuries may be tested against A&E records of early examination;

(3)     Granted that a fall was admitted, the main issue is the effect on the lumbar spine in the light of pre-existing degeneration.

Hence, the application to call the witnesses on liability is refused.

12.  On the subject of A&E records, Mr Miller recalled his perennial query of the standard direction by Master Kwan, PI Master (since retired) that:

“The reports of the Government hospitals as to the treatment and care of the Plaintiff are to be adduced as agreed evidence.”

13.  Mr Millar submitted there may be challenges to the notes as a complete record of the contemporaneous complaints of the Plaintiff.

14.  It has been the common practice that notes and records of A&E departments and/or public hospitals are admitted as background of the treatment of the Plaintiff.  Seldom will the contents be in issue, save per chance the treating doctors may be asked to decipher their own handwriting.  Given the rota as opposed to docket system in the public hospitals, more often than not the doctors will not have any independent recollection of the facts otherwise than those stated in the notes and records.  It will be up to the trial judge to place such weight on any matter recorded (or allegedly omitted) in the circumstances of the case.

15.  Whereas the parties’ medical experts disagree with the early opinions of the treating doctors, they usually set out their own reasons and the treating doctors are rarely called to substantiate the views on the record.

16.  Hence, the practice has been to put in the notes and record by agreement without query as to authenticity and admissibility.  It is no more and no less than what are put in the customarily termed “agreed bundle”.  It does not occur that there is any real problem with the standard direction “as agreed evidence” save perhaps with Mr Millar.

17.  As pointed out to the Law Society’s PI Committee (where Mr Millar is a member) in the letter dated 15 October 2009 by the Judges in charge of the PI Lists in the High Court and the District Court that:

“It is our common understanding (and of the Masters) that the words “as agreed evidence” in relation to medical records of the A&E department and treatment doctors mean agreement on admissibility and authenticity of the documents.  In future, the order could perhaps be made specific as to whether authenticity, admissibility, the calling of the makers and/or the contents as well are agreed.”

18.  So much for the future.  I hope this subject of “treatment records as agreed evidence” need not bother us any further.  Of course, where there are special circumstances as to admissibility of the records, some other order may be made.

19.  In the event, I granted leave for a joint supplemental report by the orthopaedic experts on the lack of physiotherapy and pre-existing degeneration to be written within 2 months from the date hereof.

20.  There shall be a further PTR on 18 March 2010 at 11 am (to be vacated upon a paper order for setting down upon satisfactory agreed directions submitted in good time beforehand).

21.  I ordered costs of the PTR be in the cause with Legal Aid taxation.