CHU SIN YUNG v. LEE HON KWONG AND ANOTHER

HCPI 191/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 191 OF 2008

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R U L I N G

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1.  A checklist review hearing of this action was set before me on 14 September 2009 for directions to have the action set down for assessment of damages.  The parties had been advised by their respective counsel that the orthopedic experts should be called to give oral evidence at the hearing.  And for the purpose of the assessment, a bundle had to be agreed.  The Plaintiff intended to include a medical report by Dr. Li Ching Fan dated 18 April 2008, which was strongly objected by the Defendant.  I directed the question on admission of Dr. Li’s report and whether the orthopedic experts should be called for cross-examination at the assessment is to be adjourned for argument on a date to be fixed with 1 hour reserved.

2.  The Plaintiff took out a summons returnable before me today, set down for 3 minutes hearing, for leave to adduce the said medical report of Dr. Li.  Counsel appeared for both parties and skeleton submission had been filed.  To save parties from coming back, I heard parties’ submission on the application for leave, and this is my ruling.

3.  Before I go into the merits of the summons, it is the preliminary objection of the Defendant that the admission of Dr. Li’s report has been adjudicated by Master Kwan on 15 July 2008, when the learned master refused leave.  The Defendant submitted that the Plaintiff should appeal against the order of Master if they are not satisfied with her ruling.

4.  Mr. Hingorani, counsel for the Plaintiff submitted that Master Kwan had not make an order that day.  He argued that the Plaintiff did not apply for leave to adduce the medical evidence of Dr. Li and the Master could not have given an order.  He further added that no sealed copy order was drawn up recording the refusal by Master Kwan and accordingly they could not take out an appeal, in accordance with the pre-CJR Rules of High Court.

5.  Mr. Lee, counsel for the Defendants, submitted that in accordance with the pre-CJR Practice Direction 18.1, at a Checklist Review hearing, the Master could give directions including limiting the expert evidence to be adduced and such order could be given at her own motion.  And from the recording, it was absolutely clear that Master Kwan had refused leave for production of Dr. Li’s medical report.

6.  I called for the audio recording of the Checklist Review hearing before Master Kwan on 15 July 2008.  I arranged the same be played in Court today.

7.  From the recording, I noticed that when coming to the end of the hearing, and after discussing with parties on various other medical reports, the Defendant brought up the issue about the pain specialist, referring to the medical report of Dr. Li.  Master Kwan responded by giving a detailed explanation on why she considered that pain specialist’s report should not be received.  And in the end, she directed that the medical report of Dr. Li shall not be adduced and alert the Plaintiff that if he was not satisfied with her ruling, he had to appeal against her order. 

8.  I agree with Mr. Lee that the Master could at a Checklist Hearing give direction on expert evidence.  It is clear from the recording that Master Kwan entered into a lengthy dialogue with both the Plaintiff’s and Defendant’s solicitors, making various directions on the expert evidence to be adduced.  As for example, just before her directions on Dr. Li’s report, there had been discussion whether psychiatric report may be adduced.  She had given directions that the psychiatric report could be produced but at the Plaintiff own risk as costs. 

9.  The question of Dr. Li’s report was brought up by the Defendant.  And it is obvious that Master Kwan in giving her direction was not making just a comment.  Master Kwan has set out the full reason for the refusal which I did not intend to repeat.  For the record of the parties, a copy of the transcript recording the oral ruling of Master Kwan would be served on the parties with my ruling herein.

10.  On the point that no sealed copy order has been drawn up, I believed it is only the Plaintiff’s solicitors who could be blamed.  If they have misunderstood the position, and failed to draw up the proper order, then they should be answerable to their client for any failure to take out the appeal in time and/or any consequence arising therefrom.

11.  I am aware of the power of this court under Order 38 rule 44 that “any direction given under this Part of this Order may on sufficient cause being shown be revoked or varied by a subsequent direction given at or before the trial of the cause or matter”.  Hence even when I conclude that the matter has been ruled by Master Kwan, I would consider if there is any new matter that call for a re-consideration of the matter. 

12.  Mr. Hingorani submitted that the report has been properly filed when the writ was issued, in accordance with Order 18 rules 12 (1A) and (1C).  I have no disagreement with that.  By the mere fact that this report has been filed does not mean it could be relied on by the Plaintiff automatically as expert evidence.  The Plaintiff would still have to apply for leave to rely on the expert report.  I don’t think Mr. Hingorani really disagree with me on this point.

13.  I believe the main argument of Mr. Hingorani is that, this report has been served with the writ.  And the report has been referred to in the joint instruction given by the solicitors representing the parties to the orthopaedic experts.  And the experts have commented on this report.  It is too late for the Defendant to object to the admission of this report for the assessment.

14.  Mr. Lee referred me to the letters between the solicitors that the agreement for a joint orthopedic expert was reached before the checklist review before Master Kwan in July 2008.  He also referred me to a letter for Messrs. Deacons, solicitors for the Defendant when they expressly objected to the inclusion of Dr. Li’s report.  He does admit that the report has been referred to the expert and he submitted that the reference to Dr. Li’s report should be expunged.

15.  The crux of the issue is still whether the report of Dr. Li should be admitted, in light of the additional fact that this report has been referred to the orthopaedic experts for reference and comment.

16.  I believe the law on admission of expert evidence is not in dispute.  The guiding criteria whether leave to adduce medical expert evidence should be allowed are necessity, relevance and probative value.  The burden rests with the party who ask to adduce the report.

17.  First, I note the comments of Master Kwan on a pain specialist.  I am also aware of an earlier decision of Master Kwan in Cheung Yuen Fan Sally v Hong Kong University of Science & Technology HCPI 106 & 107 of 2003.  At paragraph 22 of her able judgment, the learned Master ruled –

“22. Even if a “pain specialist’s” report is obtained, the report cannot be used to prove that P is in fact suffering pain, or the degree of pain, and disprove malingering. “Pain” and “Suffering” are subjective.  Despite our advanced technology, no “pain thermometer” exists to take an accurate measurement of how much pain a person is suffering.  The “pain expert” draws his material from two sources, (1) from medical records, treatment records and records of drugs and medication prescribed; and (2) information gathered from the patient through questionnaires, for instance the “BAP” or Behavioral Assessment of Pain, as described in the American Journal of Pain Management (1992) Vol 2 No 4 p 181-191.  Therefore even if the trial judge is satisfied that the pain specialist’s report is unimpeachable, the issue is still whether P’s claim that she is suffering from pain is credible.  The trial judge will not need to rely on the opinion of a pain specialist to decide whether a witness is credible.  In the circumstances, as P’s claim can be brought on the basis of the government hospital reports, I rule that a report from a “pain specialist” is not necessary.”

18.  I agree with her able view.  I also refer to the judgment of R v. Turner [1975] QB 934 which set out the function of an expert –

“An expert’s opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury.  If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary[My emphasis].  In such a case if it is given dressed up in scientific jargon it may make judgment more difficult.  The fact that an expert witness has impressive scientific qualifications does not that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves; but there is a danger that they may think it does. …”

19.  If we take a closer look of the report by Dr. Li, who by qualification is an anesthetist.  He may be an expert to reduce pain of a patient, it is questionable if she could be a pain specialist in the sense that she could identify the pain suffered by the Plaintiff or give an academic measurement of the same.  I do not have to conclude whether she is qualified as an expert, as if her report is admitted, the weight to be attached shall be a matter for the trial judge.  But I shall go through the report to consider if the Plaintiff has shown prima facie evidence that the opinion stated in the report is relevant.

20.  The first major part of her report simply repeats the finding of various medical doctors whose reports have been produce to her for reference.  Such comments are not required.  The counsel for the parties could make submission on these reports at the hearing.

21.  On the cause of the pain issue, Dr. Li refers to the accident on 22 March 2005.  There is no scientific basis for this finding set out in the report and I presume she relies on the information from the Plaintiff and other reports.  It is dangerous to rely on such “conclusion”.  Anyway, this must be sufficiently covered by the evidence of the orthopaedic and psychiatric experts.

22.  On the pain finding, there is no record of any scientific method or instrument to assist Dr. Li to find the pain level of the Plaintiff.  It appears that she has to rely on the Plaintiff’s information or other medical records.  And if so, how her report could be helpful.  Again, I bear in mind the joint report of 2 orthopaedic experts which commented on the pain suffered by the Plaintiff.  And there is the further psychiatric report which would assist the Court to conclude, with evidence from Plaintiff that whether her complaint is genuine and how serious. 

23.  I also note that Part II D of Dr. Li’s report commented on the treatment received by the Plaintiff.  I believe whether the treatment received by the Plaintiff is appropriate is not in issue.  The comments on the treatment are totally irrelevant.

24.  Mr. Hingorani also submitted that the report would be relevant to the issue of future treatment reasonable required for the Plaintiff.  He also refers me to the comments by Dr. Chien (one of the orthopaedic consultants) that assessment by a pain specialist is necessary.

25.  I note that Dr. Li suggested that the Plaintiff needs continuous “therapy by pain specialist, clinical psychology, psychiatrist, rehabilitation physician, occupational therapist and physiotherapist or other specialist”.  However, it is not necessary for a pain specialist to suggest the future treatment.  I do not see any reason why the future treatment for the Plaintiff could not be commented by the other experts.

26.  In all, I found Dr. Li’s report is unnecessary. 

27.  I therefore dismiss the summons of the Plaintiff.  On the question if parts of the joint medical report should be expunged, I believe the Defendant has to identify the parts and negotiate with the Plaintiff and the experts.  If no agreement could be reached, I would deal with the matter on the adjourned Check-List hearing on 30 November 2009, when the question of calling the medical expert would be determined.

28.  On the cost of the summons, I see no reason why costs should not follow the event.  I therefore give an order nisi that the Plaintiff do pay the Defendant’s costs of the summons in any event with certificate for counsel.