WU KWONG FAT v. THE KOWLOON MOTOR BUS CO (1933) LTD

DCEC 812/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 812 OF 2014

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D E C I S I O N

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1. The applicant seeks leave to obtain further opinion from the medical experts after sight of their joint expert report. The respondent opposes.

BACKGROUND

2. The applicant claims employees’ compensation from the defendant for injury at work as a casual worker at the defendant’s bus depot.  At the material time, he suffered from vasovagal synoscope, or basically common faint.  As a result, he fell and injured his jaw, lip, teeth and chin.

3. The applicant claims that he fainted because of the adverse working environment at the time.

4. The respondent denies that the working environment of the applicant at the time was adverse; and that applicant’s injury arose out of his employment.

5. Pursuant to previous directions, the parties’ neurological experts, Dr Brian Choa for the applicant and Dr Edmund Woo for the respondent, have prepared their joint expert report dated 27 September 2014.

6. By letter dated 16 October 2014 (“the 16/10 Letter”), the applicant’s solicitors wrote to Dr Choa, seeking his further opinion.  They describe that as request for clarification of the joint expert report.  The request was unilateral, though copied to the solicitors for the respondent.

7. The respondent’s solicitors objected to that.  Correspondence ensued.  The present hearing was eventually fixed.

8. What drove the applicant’s solicitors to write to Dr Choa is obvious.  The experts in their joint report expressed the following common opinion:

“We agree with his medical attendants’ diagnosis of vasovagal syncope which is the technical term for a common faint.

It is clear from his [the applicant’s] account to us that there was nothing abnormal in the environment on the night in question. He had been in that similar environment in the Depot on numerous occasions. His sudden loss of consciousness was therefore not due to any exposure to toxins. It is a spontaneous event with no causal relationship with his working environment. There is no evidence to support the contention that the event was caused or precipitated by any adverse working condition.

There is no identifiable pre-existing medical condition that may predispose Wu to such syncope.  He stated he did not have dizziness or any other preceding aura.  No specific cause can be ascertained.  He can have another similar episode of syncope in the future but its incidence is no different from that occurring in the general population, ie he is not at any increased risk of further syncope attacks.”

9. By the 16/10 Letter, the solicitors for the applicant asked Dr Choa for the following comment:

(1) Referring to the applicant’s complaint recorded in medical note of the treating hospital about the hot environment at the scene at the material time, the applicant’s solicitors asked Dr Choa to comment if vasovagal syncope could possibly be precipitated by a hot environment.

(2) Referring to the description of the environment at the time under the ‘History’ section of the joint report, the applicant’s solicitors referred to the applicant’s instruction that there was a lot of vapour coming out of the washing facility at the depot.  The workplace was enclosed with poor ventilation.  There were at least 8 buses around with their engines turned on and exhaust gas had been continuously emitting from the engines.  The environment was humid and stuffy. The applicant found it difficult to breathe.  The applicant’s solicitors asked Dr Choa to comment whether such air quality could possibly contribute to the vasovagal syncope.

(3) The applicant’s solicitors also referred to the applicant’s instruction that he had been standing without rest for over 2 hours prior to the incident.  The applicant’s solicitors asked Dr Choa to comment whether such prolonged standing could contribute to the vasovagal syncope.

(4) Referring to the opinion of the treating doctor at the hospital expressed in his medical report in August 2013, namely, vasovagal syncope could be precipitated by warm, humid, stuffy environment, the applicant’s solicitors asked if Dr Choa would agree with that doctor.

10. As mentioned, the respondent objects to the applicant’s request for the above further opinion of Dr Choa.  There are 2 aspects of the objection, one in principle and one on merit.

IN PRINCIPLE

11. The very attempt to unilaterally seek further expert opinion of a party’s expert after the parties’ experts have given their joint report is inappropriate as a matter of principle.  In the correspondence, the applicant’s solicitors argued that Practice Direction 18.2 (“PD 18.2”) only requires the parties, insofar as is practicable, to prepare agreed instructions to the medical experts for conducting a joint examination of the claimant and preparing the joint expert report.  This the parties have done.  As to follow-up clarification of the report, PD 18.2, the applicant argues, are silent, and therefore it suffices for a party to seek unilateral clarification.  Anyway, as the other party was informed of the same; and it would be up to the other party to consider if he or she will also seeks his or her expert to comment further as well.

12. I cannot agree.  Be it clarification or fresh opinion, the further comment sought from Dr Choa arises out of the joint report and actually the common opinion of the experts. By arguing that there is no express provision in PD 18.2 requiring agreed instruction to the experts for such further comment, the applicant has lost sight of need to implement PD 18.2 in line with the underlying objectives of the rules[1]. If the instruction to the experts should as far as practicable be agreed, as provided, the request for further comment on matters covered by or arising out of the joint report and, even more so, common opinion should not be made unilaterally by either party.

13. The further opinion from Dr Choa has been withheld for now, partly because of intervening event[2]. Now the question effectively becomes whether leave should be given to obtain the further expert opinion from both experts.

MERIT

14. The applicant’ solicitors elaborated the reasons for seeking the further expert opinion in their letter dated 23 October 2014.  The 4 issues set out in paragraph 9(1) to 9(4) above would be considered in 2 groups.

15. What the applicant seeks under paragraphs 9 (1) and 9(4) above is for the experts to say whether vasovagal syncope could be precipitated by warm, humid and stuffy environment.  The applicant suggests that the experts did not mention in the joint report that they were aware of such environment when giving their opinion. Nor did the experts comment on the effect of such environment on the causation of vasovagal syncope.  Hence the need for clarification.

16. The joint instruction was sent to the experts in September 2014.  It contained[3], among other things, the following description of the applicant’s case:

(1) The incident happened near the washing and re-fuelling facilities, which were operating at busy schedule.

(2) There were buses being washed and re-fuelled.

(3) There was a lot of vapour coming out of the washing facility and strong odour of the fuel while the buses were being refuelled.  The workplace was enclosed with poor ventilation.  It was humid and stuffy.

(4) He found it difficult to breathe and lost consciousness after he had made a stretch of his body.

17. The joint instruction also contained 7 enclosures.  Enclosure 1 contained 7 items, including medical reports and notes from the treating hospital.  These medical reports and note included the ones referred to by the applicant’s solicitors in the correspondence mentioned above.  They were also supplied again to Dr Choa for the purpose of seeking his further opinion.

18. In Enclosure 2, the specific issues on which the experts were requested to give opinion were set out.  They included, among other issues,:

(1) Whether the diagnosis was compatible with the alleged cause, ie hot and stuffy environment and/or the inhalation of toxic gas[4];

(2) Whether there is any pre-existing medical condition suffered by the applicant that could have contributed to and/or increased the risk of him loosing consciousness[5]; and

(3) Whether the loss of consciousness suffered by the applicant was entirely caused by adverse working conditions as alleged by him; or whether the pre-existing condition, if any, would lead to the same symptoms even without the subject accident[6].

19. In the joint report, the experts confirmed that they have studied all the documents contained in Enclosure 1[7]. Further, in recounting the circumstances surrounding the incident under Section 2 ‘History’, the experts referred to the section of the depot where the applicant was working at the time.  Specifically they recorded:

“On carefully questioning him, he is clear that he did not feel there was anything wrong with the air. There was no abnormal smell and what he was asked to do that night was a task he had executed numerous times before. It is estimated that he was unconsciously only briefly……”

20. In their common opinion[8], the experts explained that based on the applicant’s account to them, there was nothing abnormal in the environment at the material time.  He had been in similar environment in the depot on numerous occasions.  His loss of consciousness was therefore not due to any exposure to toxins.  It was a spontaneous event with no causal relationship with his working environment.  There was no evidence to support the contention that the event was caused or precipitated by any adverse working condition.

21. Obviously the experts’ attention was always directed towards the environment of the scene at the time as suggested by the applicant, both according to the joint instruction and the applicant’s account upon the experts’ careful questioning during the joint examination.  In giving their common opinion, the experts were obviously responding to the specific issues and questions raised in Enclosure 2 of the joint instruction.  The express confirmation that all the medical reports and notes from the hospital have been considered also shuts the door for any contrary suggestion or skepticism.

22. I simply see no reasonable basis for suggesting, or even suspecting, that in coming to their common opinion, the experts were not aware of the environment of the scene of the incident prevailing at the time as suggested by the applicant.

23. As to paragraphs 9(2) and 9(3) above, the applicant’s solicitors admit that his client is seeking fresh opinion from the experts on the basis of new factual assertions.  In other words, they have never been communicated to the experts by the joint instruction or during the joint examination.

24. The first of such new assertions is that there were at least 8 buses around with their engines turned on and exhaust gas continuously emitting from the engines.  In my view, there is no reasonable basis for suggesting that this new assertion would have affected the opinion of the experts.  The reason is two-fold.

25. First, it was always the experts’ understanding that there were, according to the applicant, buses (ie, not just one bus) being operated on at the washing and re-fuelling facilities at the material time.  This is clear from the applicant’s version of the event as set out in the joint instruction mentioned above.  So is the experts’ description of the same under the section ‘History’ in their joint report as mentioned above.

26. Second, the significance of the exact number of buses being operated on at the time is secondary to the significance of the actual environment created as a result.  As to the actual environment at the material time (with however many buses) according to the applicant that the experts were given to understand, I need not repeat the discussion above.

27. Therefore I do not see that the additional fact of the number of buses at the material time warrants the engagement of the experts to provide further opinion as perceived by the applicant.

28. As to paragraph 9(4) above, the applicant seems to be suggesting a possible cause for his loss of consciousness, namely prolonged standing for over 2 hours.  The shift hours and the time of the incident, according to the applicant, were duly recorded in the joint report[9]. Therefore the experts must be taken to know the applicant’s case that it was more than 2 hours since the beginning of his shift when the incident happened.

29. By raising this issue, the applicant perceives the alleged prolonged standing as a possible cause of loss of consciousness apparently independent of the environment of the scene at the material time.  Otherwise, this should and would have formed part and parcel of the consideration of the applicant’s exposure to the environment of the scene over that period of time when he stood there.

30. There is inherent difficulty in putting such new assertion side by side with what the experts understood from the applicant.  First, the experts recorded in their joint report[10] that according to the applicant, he completed his task in 5 minutes.  He then stretched himself and took some deep breathe.  At that point, he felt nothing untoward.  He decided to walk back to the entrance of the depot.  In the course of that, he suddenly blacked out and fell.  There is no suggestion that this was an inaccurate record of what took place.

31. Second, the experts noted[11] that the applicant has no known past medical history.  In particular, he did not suffer from epilepsy and had never fainted before.  As recited above, the common opinion of the experts is that there is no identifiable pre-existing medical condition that may predispose the applicant to such syncope.  There was no dizziness or any other preceding aura.  No specific cause could be ascertained.  More importantly, the experts opined that the applicant could have another similar episode of syncope in the future but its incidence would be no different from that occurring in the general population.

32. One should bear in mind the principle that it is for the judge to adjudicate on causation as a matter of fact, which requires the exercise of certain degree of common sense in the assessment of the evidence.  The extent to which expert evidence would assist would also be gauged accordingly.  In view of the circumstances of this case and the common expert opinion mentioned above, one wonders what reasonable basis there could be for obtaining expert opinion on whether a person could faint after standing for more than 2 hours independent of the environment of the scene at the time.

CONCLUSION

33. I refuse leave to seek further expert opinion as requested by the applicant.  Costs of and occasioned by the application be to the respondent, to be taxed, if not agreed.  The applicant’s own costs shall be taxed in accordance with legal aid regulations.  Unless the parties apply within 14 days to vary, this costs order shall become absolute.