KHAN SHIRAZ v. YEE LEE SEA-LAND FORWARDING CO LTD

HCPI 323/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 323 OF 2004

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REASONS  FOR  RULING

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1. This matter was referred to me by the PI Master to deal with the question of costs relating to a further supplemental report of Dr Johnson Lam dated 17 May 2006, when at the CLR hearing on 28 April 2006, the Master felt that she was forced by the circumstances pertaining in the matter to grant leave to the plaintiff to obtain the said further supplemental report of Dr Lam.

2. After hearing the parties on the matter, I made the order that the cost of the said supplemental report of Dr Lam be borne by the defendant in any event and indicated that I will give my reasons in writing at a later date, which I now do.

Background

3. This is a personal injuries claim brought by the plaintiff against the defendant in respect of an accident in the course of the plaintiff’s employment which occurred on 9 March 2003, when, working as a slinger on board a lighter, the plaintiff’s head was hit by a sling.

4. As a result of that accident, the plaintiff claims to have suffered head and shoulder injuries.

5. The injuries being orthopaedic injuries, the plaintiff instructed an orthopaedic medical expert in the matter, namely, Dr Johnson Lam.

6. Likewise the defendant also engaged an orthopaedic medical expert, being Dr Lau Hoi Kuen.

7. At a CLR hearing on 7 November 2005, the PI Master gave leave to the plaintiff to obtain a supplemental report from his expert, Dr Johnson Lam to comment on the report of Dr Lau Hoi Kuen.  Leave was also given to the defendant for Dr Lau Hoi Kuen to make further comment thereafter.  The CLR was then adjourned to 28 April 2006.

8. Unknown to all concerned at the time of the CLR in November, except possibly the defendant and its solicitors, investigators were commissioned to conduct surveillance of the plaintiff on 24 November 2005 and on 16 February 2006 and such surveillance of the plaintiff were recorded on visual tapes by the investigators.  A surveillance report was also prepared by the investigators dated 27 February 2006.

9. The video tapes of the surveillance were then provided to the defendant’s medical expert for him to make comments on what was shown on the video tapes recording the plaintiff’s actions.  That was done without the prior leave of the PI Master.

10. When the supplemental report of the defendant’s medical expert were served on the plaintiff and because the defendant’s expert, in that supplemental report has already commented on the actions of the plaintiff as shown on the video tapes taken during the surveillance, the PI Master, at the CLR hearing on 28 April 2006, felt constrained to allow the plaintiff’s medical expert to prepare yet a further report giving his comments on the contents of the surveillance tapes.  However, in doing so, the PI Master was of the view that it was quite unnecessary for the experts to comment on what was shown on the surveillance tape since both experts have already given their opinions as to the plaintiff’s residual disabilities and complaints as to his condition arising from his injuries from the accident.

11. The plaintiff therefore asked that the defendant bears the cost of Dr Lam’s further supplemental report dated 17 May 2006 in any event because it was unnecessary in the first place, had it not been for the defendant getting its expert to comment on the surveillance tapes.

12. It was on this limited issue that the PI Master referred the matter to me.

Decision

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.