YEUNG LAI PING v. SECRETARY FOR JUSTICE

HCPI 833/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 833 OF 2002

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D E C I S I O N

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1. These proceedings concern the plaintiff who was a dental officer employed by the Department of Health since 1^st February 1997. She claims damages for personal injury suffered as a result of developing carpal tunnel syndrome on her right wrist which, she asserts, was an occupational disease that arose in the course of her employment by the Department of Health.

2. These proceedings were commenced as long ago as 2002 and relate to matters that happened in 1998.  The proceedings have had a chequered history and whilst, sadly, many cases prior to the Civil Justice Reform (“CJR”) limped along in this tardy way, there has been a sea-change since the CJR was enacted, and even before that, with the enactment of Practice Directions governing personal injury cases.

3. The specific matter before me is an appeal from the decision of Master Chow in relation to an application to adduce expert evidence from Professor Cheung Lim Kwong on issues of liability.  I think the promulgation of the CJR and its correlation with and impact on Practice Direction PD18.1 has been the subject of some confusion which, I had hoped, my decisions on the subject, particularly in relation to expert evidence in PI cases, had helped to remove or to clarify.

4. I have handed down a number of decisions in which I have emphasised the need for joint reports on quantum and for a joint approach to be taken.  I was also very careful to mark a stark dividing line between expert evidence on quantum issues and expert evidence on liability issues, but, of course, with the rider, as we are well aware, that expert evidence on liability is not often needed and that leave is often refused for such reports.

5. In my decision in Tang Tak Ping v Kai Shing Construction Company [2012] 1 HKLRD 1093, a decision I handed down on 6 February 2012, some months before the matter came before Master Chow, I clarified that - and I quote:

“9. In medical negligence cases, and in industrial accident cases where expert evidence on liability is required, sequential exchange of expert reports, as opposed to a joint approach, was and continues to be the norm (see §§ 24 to 32 of the judgment of Chu J, as she then was, in I & L & Anor [2005] 4 HKLRD 301). Indeed, §66(10) of PD 18.1 replicates its predecessor in §5.2(v) of the previous PD 18.1 in requiring the plaintiff to serve with his statement of claim “in all medical negligence cases, a copy of any expert medical report relied upon as to liability and causation". Clearly, in such cases, and in industrial accident cases where expert evidence on liability is required, the plaintiff can commission an expert report from his liability expert without leave of court and without agreement of the other party, and can do so without risking the adverse consequences set out in §70 of PD18.1, unless, of course, the circumstances of the case are exceptional and warrant a joint report on liability. I made it clear in Liu Ka Chun v. Hong Kong Airport Services Ltd & Ors (HCPI 416/2009, 11 November 2011) that, where a joint approach is taken, the parties lose their right of private access to their respective nominated experts, at least until such time as the court grants leave for the nominated experts to give oral evidence at trial, but not in cases where each nominated expert prepares his separate report. In the latter event, the parties are permitted to communicate privately with their respective experts at any time, and even if the court directs that a without prejudice meeting be held by the experts in the absence of legal representatives. Whilst there may be exceptional cases where a joint approach may be warranted, it is generally clearly right that the parties, and their legal representatives, should enjoy continuous private access to their respective nominated experts on liability.”

6. That, of course, does not mean that parties enjoy carte blanche approval to obtain reports from liability experts and to call them to give evidence because the matter is still subject to leave of court.  As I had said in §10 of my earlier decision in Fung Chun Man v Hospital Authority, HCPI 1113/2006, 24 June 2011, whilst the civil justice reforms are to be followed and applied, having regard to the substantive rights of the parties, the parties do not have a substantive legal right to call expert opinion evidence in support of their case.  They have a right to apply to court for leave to adduce expert evidence but, ultimately, the decision rests with the court whether or not to grant such leave.       

7. The court has to decide for itself whether any real assistance will be derived from such experts and it has to make that decision in the context of the requirements of CJR.  There are cases, and there will be cases, where the requirements can be said to be satisfied for the admissibility of expert evidence but where other factors lead the court to deny leave to adduce evidence from experts.

8. In this case, when an application was made for leave to call Professor Cheung, his full report had not been obtained and the application for leave to adduce expert evidence from him was based on the matters set out in a letter dated 12 April 2012 from Messrs Or & Partners who were the former solicitors of the plaintiff.

9. This was a letter addressed to the court, specifically to Master Pang, who ultimately did not hear the application for leave to adduce expert evidence from Professor Cheung, but which was dealt with by Master Chow.  So we have to understand that when she gave her decision, she did not have a full report from Professor Cheung but she was only told, in effect, in note form, of the sort of matters that he would deal with.

10. Since then, the plaintiff has obtained a full report from Professor Cheung which was dated 14 May 2014 and that explains why the appeal from Master Chow was only fixed to be heard in May this year before the Deputy High Court Judge Wilson Chan.

11. When I learned that this matter had been fixed before him, I directed the hearing to be re-fixed before me because it is the practice in the Personal Injury List for appeals from the PI master to be heard by the PI judge, unless, of course, the appeal involves a litigant in person, in which case it is preferable for a bilingual judge to hear the appeal.  So, of course, the fault for any delay from May 2014 to today rests entirely with the courts and not with the parties. 

12. Mr Simon K C Lam, in his submissions on behalf of the defendant, makes two points.  Firstly, he refers to paragraph 71 of the Practice Direction which applies to all expert evidence, be it expert evidence on quantum or expert evidence on liability, and he says that the plaintiff was in breach of this provision which states that:

“As soon as it is realised there exists a need or an anticipated need for adducing expert evidence at trial, or if parties fail to reach agreement on arranging joint examination and/or compiling joint expert report by the parties’ respective experts before or after the commencement of proceedings or if no agreement can be reached as to directions on obtaining expert evidence, and/or for permission to adduce expert evidence, a party shall apply (by inter partes summons or by restoring the case for Check List Review Hearing) or the parties shall jointly apply (by Consent Summons to expedite or restore the hearing of the Check List Review) to the PI master as soon as possible upon the commencement of or in the course of proceedings as the case may be for directions on obtaining expert evidence and/or for permission to adduce expert evidence.” [my emphasis]

13. This application to adduce evidence from Professor Cheung was made in 2012, some 10 years after proceedings were commenced and many years after the time when the parties must have realised that there was a need to call expert evidence in this case but, for reasons best known to them, did not make application to do so.  

14. Mr Lam also reminded me of the amendment to Order 58 rule 1 in relation to appeals from a master and, specifically, pointed me to Order 58 rule 1(5) which states that:

“No further evidence, other than evidence as to matters which have occurred after the date on which the judgment order of decision was given or made, may be received on the hearing of an appeal under this rule, except on special grounds.”

15. So the first point I have to deal with is the Ladd v Marshall objection (see the commentary in the 2014 Hong Kong Civil Procedure at 58/1/3), namely, that Mr Ruy Barretto SC has to satisfy me, on behalf of the plaintiff, that there are special grounds here to enable her to rely on the expert report of Professor Cheung of May 2014, which was not before Master Chow, in order to support her appeal and in order to demonstrate that Professor Cheung is a proper expert who ought to be called at the trial of these proceedings.

16. Mr Lam submits that one of the Ladd v Marshall criteria has not been satisfied in this case, namely, that the new evidence could not have been obtained with reasonable diligence for use at the hearing below. 

17. In his detailed submissions, specifically in §29 of his skeleton submissions dated 10 September 2014, and in his oral submissions, Mr Barretto seeks to persuade me that there are special reasons why Professor Cheung’s report should be admitted on the appeal.  Those special reasons dovetail with the reasons why the appeal was fixed for hearing almost two years after the actual decision. 

18. If I may quote from paragraph 34 of Mr Barretto’s submissions, he stated that it took several months for the present firm of solicitors to be given some of the papers - and I am paraphrasing what is stated there - from the previous solicitors; the case needed re-evaluation and consideration by junior and senior counsel; it was decided in August 2013 that certain steps should be taken in relation to obtaining a report from Professor Cheung and Legal Aid approval was needed for that. The court and the defendant was informed of this in September 2013 and, in conjunction with this exercise, an expert report of an ergonomist, Dr Tamara James, was made available to the defendant on 2 January 2014, and the expert report of Professor Cheung was made available in May 2014.

19. I am satisfied that no special reasons have been demonstrated to me which I could rely upon to grant leave to adduce this new material, and, may I say, very substantive new material.  As I have already explained, the protocol for obtaining expert evidence from liability experts is different from the protocol for obtaining expert evidence from quantum experts. Perhaps my decision of February 2012 should have been better publicised.  But, be that as it may, that was a clear statement of practice from the court.  So it was possible for the plaintiff to obtain a full report from Professor Cheung before making the application.  Of course, the fact that the Director of Legal Aid wanted double comfort, namely, the Director wanted the court’s approval in advance of expending funds to obtain such a report, is something that is understandable but is not, in my judgment, something that can constitute special reasons.

20. The other aspect of the case which militates against the grant of leave for additional material to be adduced is the tardiness of the whole exercise.  We have to get on with our cases.  The courts cannot have appeals from masters hanging in limbo for two years or more during which time the parties move along at their own pace to obtain further material in support of the appeal. 

21. If the court had, on its own volition, dismissed the appeal for want of prosecution, I do not think the plaintiff could really complain.  It is not necessary for me to say, and I am not saying that what was done here was an abuse of process but I certainly wish to voice my great displeasure at the lackadaisical approach that has been taken with regard to this appeal that had been lodged and left to flounder.  I do not understand why the Department of Justice did not fix a date for the hearing of the appeal instead of doing nothing about it for 2 years.

22. As I have refused to give leave to adduce additional material in support of the appeal, I have to deal with the appeal on the same materials that were before Master Chow.  Of course, I have had regard to her reasons, and those are matters that I can well take into account, but I do not lose sight of the fact that the hearing of the appeal before me is a hearing de novo.     

23. If I were driven to look at her reasons and to ask myself whether she was right or wrong, I would say that she was substantially right in her decision but that her emphasis was slightly off because, to my mind, she should have red-flagged the fact that the application had been made was very, very late in the day and all she said about it was this one sentence:  “In light of the objective of the CJR, the tardiness of the application is not justified”.  For that reason alone, I would, hearing the matter de novo, refuse leave to the plaintiff to adduce expert evidence from Professor Cheung. 

24. But there is more than that.  It is accepted that the application for leave was partly wrong-footed because - and I am now quoting from §§9 and 10 to 12 of the submissions of the plaintiff dated 15 May 2014 - it is accepted that the defendant’s objection was valid insofar as it became apparent that Professor Cheung did not have the required expertise in ergonomics which the case demanded.

25. It has also been accepted that the actual injury suffered by the plaintiff is a matter to be determined by the court on expert orthopaedic and factual evidence and, therefore, it is further accepted that Professor Cheung is not needed as an expert witness on that particular aspect of the case.  

26. In fact, I invited Mr Barretto not to pursue the appeal but to apply his full energy to advancing the application under the new summons that I have before me to adduce into evidence the expert report of Dr Tamara James together with Professor Cheung’s report of May 2014.  She is an expert in ergonomics and able to speak of the biomechanics of the practice of dentistry. However, he declined to do so and persisted in pursuing this appeal.  I may be pre-empting the further application that will be made in relation to the expert evidence of Dr Tamara James, but I understand a two-pronged approach is being followed, namely, reliance on Professor Cheung in relation to the actual work carried out by dentists and the overlay from Dr James on the ergonomic aspect of such work in order to determine whether the workload imposed on the plaintiff was safe or unsafe.  Clearly, those matters were not before the master and, in the light of my refusal to adduce additional evidence on the appeal, those matters are not before me. 

27. Nevertheless, it must be accepted that it cannot be said that the expert evidence to be adduced from Professor Cheung could not be relied on by the court in the determination of the ultimate questions posed in this case.  If the application to adduce Professor Cheung’s evidence had been made much earlier in the day, or had been made, even late in the day but before the implementation of CJR, there was clearly some likelihood of that application being allowed.  But those days are gone.

28. I now have before me a hearing de novo where I have to weigh, on the one hand, the assistance the court can get from Professor Cheung in relation to the matters highlighted by Mr Barretto in his submissions, and if specifics are needed, in §§16 and 17 of his submissions dated 10 September 2014.

29. On the one hand, I have to balance those matters, which I accept are matters of some assistance to the court, as well as the matters identified at §(b)(iii) in the letter on page 118 of the bundle; although, I think, Mr Barretto concedes that the matters set out in §7 on page 120 relate to matters that would need to be combined with the expert evidence of Dr Tamara James.

30. I have to have regard to those matters but I also have to take on board the provisions of the CJR and the many, many cases which have been handed down in the context of late applications to adduce expert evidence, including, of course, my decision in Fung Chun Man v Hospital Authority.  Having done so, I come very firmly to the view that this is not a proper case in which I should grant the plaintiff the indulgence to adduce expert evidence so late in the day.

31. The reasons for the delay advanced in his affidavit by Mr Clancey, the plaintiff’s solicitor, did not move me to exercise my discretion in the plaintiff’s favour by granting leave to adduce expert evidence from Dr Cheung.

32. To allow her do so, so late in the day, would, in my view, run a horse and carriages through all those decisions in which I have tried to set a level playing field for all parties and in which I have tried to set a standard of conduct of PI litigation which promotes justice in the sense of expedition, and proportionality, and the saving of costs.

33. For the reasons I have expressed, I dismiss the appeal from Master Chow.

[Submissions on Costs]

34. Costs of the appeal to the defendant in any event, with certificate for counsel.  The plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.