SUBBA ALVIN also known as GURUNG YADAP CHANDRA v. HOUNG KEE (ASIA) LTD AND OTHERS

HCPI 154/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 154 OF 2010

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D E C I S I O N

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1.  This is an action for damages for personal injury sustained in an accident at work that occurred on 13 April 2007. The legally aided plaintiff complained of being struck on the head by a wooden board, which had been dropped negligently by his co-worker working above him, and of consequent headache and neck pain. A writ and statement of damages were served in April 2010. A statement of claim has not been served, as insurers acting for the defendants had admitted liability in May 2009. In the statement of damages, it was pleaded that the plaintiff developed back pain in 2008. Interlocutory judgment for damages to be assessed was entered on 30 September 2010. Thereafter, a number of orders were made by Master Ng in the management of this case. On 16 May 2011, she directed that the CLR be adjourned to 26 September 2011 for leave to set the case down for an assessment of damages. If leave had been given on 26 September 2011 to set the case down for assessment before a master, it is likely that the assessment would have been concluded by now. However, instead of seeking leave to set down, the plaintiff’s newly re‑assigned solicitors informed the learned master that the plaintiff wished to raise a new case that the plaintiff not only injured his neck as a result of the accident but also fell on his buttocks and sustained back injury. In consequence, further directions were made which have brought this matter before me.

2.  By his summons dated 29 November 2011, which was adjourned for argument before me, the plaintiff sought leave to serve an amended statement of damages in which it is pleaded that the wooden board fell and hit the plaintiff on his head and that “the plaintiff then collapsed and fell to the platform of the metal scaffold landing on his back”; to serve the plaintiff’s supplemental witness statement in which he stated that he “collapsed onto the platform – landing on [his] bottom, with [his] legs in front of [him]”, that “no part of [his] body came into contact with the metals of the guard rail of the platform”, that he “fell down straight on [his] buttocks”, that “the pain in the low back was not severe, and was less than for the head and neck” and that he was “sure [he] had told the doctors on the day of the accident about these problems – but it seems they were not recorded.”  

3.  By the summons, the plaintiff also sought leave for further expert medical examinations by orthopaedic experts, and by pain specialists.  The former application is part of the application for leave to raise a new case; the latter application for leave to call pain specialists is independent of the former and will be dealt with separately.  The former application was made to validate the act of plaintiff’s solicitors who obtained a further report from Professor Shekar Kumta without leave of court.  In this report dated 20 October 2011, Professor Kumta stated that the type of injury shown on the MRIs was consistent with an injury to the discs at L4-5 and L5-S1 and that the signal change at the L4-5 and L5-S1 discs was likely to be a consequence of the injury sustained when the plaintiff fell to the ground.  Mr Kamlesh Sadhwani (“Mr Sadhwani”) appeared before me on behalf of the plaintiff on these applications and Mr Michael Ozorio SC (“Mr Ozorio”), appeared for the defendants to oppose them.

Relevant Principles

4.  The new case did not raise a new cause of action but raised a further question of causation: did the admitted negligence cause not only the neck injury but also the alleged back injury?  As I have held in my recent decision in Andrew Graham Young v Ho Chun Kit Peter HCPI 583/2010, 9 May 2012, once it is admitted that there was a negligent act or omission that caused some damage, then the court can enter interlocutory judgment for damages to be assessed and the court assessing those damages would have to undertake the task of determining the extent of the loss and damage that flowed from the admitted negligent act or omission and whether or not the loss and damage actually caused or contributed by the admitted negligent act or omission exceeded the admitted damage.

5.  In every case the statement of damages must contain full particulars of the injury, loss and damage allegedly caused by the defendant’s tort.  The plaintiff must plead in the statement of damages each and every injury to his person that he alleges was caused or contributed to by the defendant’s tort and the defendant’s answer must contain a full statement of his case on the loss allegedly suffered and the cause of such loss, including whether the alleged injury is admitted or denied, and whether it is admitted or denied that the alleged injury was caused or contributed to by the alleged tort.

6.  Any new case that is sought to be raised on quantum ought to be raised by amending the statement of claim and statement of damages, and, in the absence of the former document, by amending the latter, as the plaintiff’s solicitors have sought to do in this case.  In the normal course of events, the court would usually grant leave to amend to raise the new case, to ensure justness and fairness between the parties, provided, of course, that there was no prejudice to the other side which could not be cured by a payment of costs.  In the course of argument, I had observed that where one had a case, for example, of a latent injury and a patent injury, and the Accident & Emergency Department (“A&E”) doctor missed the latent injury and which was only discovered some time later, the justice of the case would require the court to receive evidence of this newly discovered injury. 

7.  However, once a case has reached the stage of setting down, it becomes increasingly difficult for a party to raise a new case by way of amendment of pleadings and the service of additional factual and/or expert evidence.  As I observed in Gurung An Parsad v Great Wealthy Eng. Co Ltd & Anor. (Practice Note), HCPI 687/2010, 18 June 2012:

“5. Whilst parties are generally free to call factual witnesses of their choice and leave is invariably given at the checklist review hearing to the parties to serve or exchange witness statements, the court’s discretion, whether or not to accede to a party’s late application to rely on a witness statement deposing to relevant and admissible facts, must be exercised within the ambit of the court’s management powers and in the light of the objectives of the civil justice reform, including the need to ensure the cost effectiveness of the proceedings; to ensure that the case is dealt with expeditiously; to ensure reasonable proportionality having regard to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party; to ensure procedural economy in the conduct of the proceedings; and to ensure fairness between the parties.

6. Whilst the primary aim is to secure the just resolution of the dispute in accordance with the substantive rights of the parties, and which must include the right of a party to rely on admissible, relevant and probative factual evidence, the court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant for the late application. These matters have to be considered and weighed in the light of and against the underlying objectives of the civil justice reform to ensure cost effectiveness and economy, expedition, proportionality, and fairness between the parties.

7. It is not possible to lay down guidelines to cover and cater for every possible situation that may give rise to a late application for leave to rely on a witness statement; however, the court would have to carefully weigh, in each case, the relevance and probative value of such a witness statement against the potential disruption to trial, prejudice to other parties, and the objectives of civil justice reform. It must be remembered that the usual directions made at the checklist review hearings sometimes include the grant of leave to the plaintiff to file and serve a revised statement of damages, together with any further statements as to quantum and any documents in support not already disclosed. The purpose of granting leave in these terms is to enable the plaintiff to update his case on quantum. However, the grant of such leave does not permit a plaintiff to raise a new case on quantum or to raise new heads of claim. Specific leave must be sought to do so. Finally, a late application for leave to rely on additional witness statements, that is to say, an application made after the case has been, or is ready to be, set down for trial, will not be considered without signed witness statements containing a statement of truth being furnished.

8. Chung Hiu Bun, the administrator of the estate of Chung Chun Kong, deceased v. Yeung Yiu Sing and anor., HCPI 123/2012, 28 July 2011 is an example of a case where a party, after the case was set down for trial, sought to present new evidence and a new case. The plaintiff was not to blame for not adducing this evidence earlier because the new evidence had only been discovered recently and rather fortuitously. In this case, the defendants could see that the witness statements that were sought to be adduced and the amendments that were sought to be introduced were very relevant to the claim so they very sensibly consented to the plaintiff’s application. However, there are many other cases where strong opposition can be made to any such late application, particularly where the probative value of the new evidence is low and of marginal relevance. Further, the court would also be less inclined to accede to such late applications where additional witness statements are produced that speak of the same facts that have already been mentioned in previously served witness statements.

9. Very strong grounds would be required to move a court to accede to such applications if doing so would result in trial dates being vacated.”

8.  The above observations also apply when a party seeks to raise a new case by way of amendment of pleadings and/or seeks to rely on additional expert evidence.  Since the CJR, the courts have rejected a late application to amend in Star Industrial Co Ltd v Japan Home Centre (HK) Ltd, HCA 2294/2008 (where Deputy Judge Carlson commented that any injustice arising from the refusal was self inflicted), and late applications to adduce expert evidence in Chok Yick Interior Design & Eng. Co Ltd v Lau Chu Lun t/a Chi Hung Construction Eng. Co, HCA 1480/2008 and Fung Chun Man v Hospital Authority & Anor., HCPI 1113/2006.  Late applications to amend and to adduce additional evidence were allowed for exceptional reasons in Wong Sai Pong v Wong Kin Por, HCA 390/2006; because the plaintiff had a strong case that he had been defrauded in a substantial sum of money and his original case had been pleaded by less experienced counsel in Tsoi Yiu Yung v ING Life Insurance Co (Bermuda) Ltd, HCA 2447/2007; and because the amendments were minor and were a “tidying up” exercise in Wealthy Victor Ltd v Ace Cosmo Finance Ltd HCA 1910/2007.

9.  I entirely agree with observations of Master Ng in Lui Chen v Chan Poon Wing & Anor,. HCPI 779/2006 that:

“36. ... After the CJR, the court is even more jealous to ensure that the assessment of damages will proceed as scheduled, and that the hearing will not be burdened with last-minute applications that take up valuable time thereby prolonging the assessment hearing, causing an adjournment and/or increasing costs for the party(ies). To say the least, last minute applications fly in the face of the underlying objectives of reasonable expedition, procedural economy, cost-effectiveness and fairness between parties enshrined in Order 1A of the RHC.

37. In the circumstances, after the implementation of the CJR, if there is any last minute application (which necessarily must be a rare occurrence), the court will not expect anything less than what was required even prior to the CJR, namely, a full account for the lateness of the application. In addition, it is further expected that the applicant will place before the court full justification as to why the application should be entertained at all at such late stage notwithstanding the underlying objectives. Failure to do so may result in the court rejecting the application without further ado, especially if there is a history of breach of court timetables or if there is something in the conduct of the applicant that gives rise to suspicion of conscious manoeuvring.

...

56. In carrying out the balancing exercise, there is a need to strike a balance between timely progress of cases and adherence to procedural timetables on the one hand and proper adjudication of cases on the merits on the other hand to enable the real question or controversy to be determined and to achieve fairness and justice for the parties before the court and also for other litigants who have use of the court’s resources. ...

...

58. Likewise the court is unlikely to be sympathetic to any late application that has the effect of raising any new dimension or focus, especially when opportunity has been given to the applicant under previous case management directions/timetables to put forward the fullness of his case.  After all, such application when made close to or at the assessment hearing is more than likely to cause real prejudice because the other party will have to suffer shifting of the goalposts with little or no time before or at the milestone event to react or alternatively to suffer unwarranted delay and costs.”

10.  I would add to the above observations that, if possible, the court also must make a rough and ready assessment the merits of the new case being advanced.  It is the substantive right of a party to bring his full case before the court provided that he can do so without prejudice to the other party that cannot be compensated by costs, but if the new case he seeks to advance is weak or appears unlikely to succeed, then that factor must weigh in the balancing exercise between the need to ensure a just and proper adjudication of the real dispute between the parties and the need to ensure cost effectiveness and economy, expedition, proportionality, fairness between the parties, and the proper use of the court’s resources.  The Court of Appeal in Notamon Protpakon v Citibank NA [2009] 1 HKLRD 455 at p.463, §25 (a pre-CJR case) approved the observations of Staughton LJ in Kings Quality Homes v AJ Paints [1997] 3 All ER 267 at p.268, (a pre-CPR case) that the judge was entitled to have regard to the merits of the case if they were readily apparent to him, that he should not conduct a prolonged investigation into the merits but that, if he could form a rough and ready view of the merits, he should pay regard to that view.

11.  I also agree with the observations of Lewison LJ who said at §18 of his judgment in the recent UK Court of Appeal decision in Guntrip v Cheney Coaches Ltd [2012] EWCA Civ 392, 14 March 2012, that the exercise of discretion in accordance with the UK overriding objective means:

“...that a court must deal with cases justly. Justice involves justice to the defendant as well as to the claimant. It also involves saving expense, dealing with the case proportionately and ensuring that it is dealt with expeditiously. Necessarily, this means that decisions are fact sensitive and case specific.”

The same observations apply to the exercise of discretion in accordance with our CJR objectives, and I would add that justice also involves a consideration of the proper use of the court’s resources.

The Present Applications

12.  How did the current state of affairs arise in this case?  In the course of his submissions, Mr Sadhwani submitted that it was reasonable to assume that the plaintiff would fall over, after being struck on the head by a wooden board measuring some 1½ ft by 3½ ft, and sustain a back injury as a result.  This begs the question why experts of the experience and calibre of Professor Kumta and Dr Lau Hoi Kuen (“Dr Lau”) were not alive to this possibility?  The answer may well be found in the manner in which their joint medical expert report dated 10 November 2010 was produced.

13.  Apparently, they had been instructed to prepare this joint medical report at the end of 2009 and were given a number of medical records listed as No.1 to 18 in their joint report which ended with a bundle of medical sick leave certificates from 17 April 2007 to 3 November 2009.  They then examined the plaintiff on 25 January 2010.  Subsequent to that examination, they were provided with additional reports, including a copy of a medical report of Dr Steven Wong of the Department of Anaesthesiology & Orthopaedics and Traumatology (“OT”) Services of the Queen Elizabeth Hospital dated 28 April 2010, and a bundle of medical notes and records from the Physiotherapy Department of the same Hospital.  These additional documents are listed as items 19 to 37 of their report which was produced later and dated 10 November 2010. 

14.  The joint report noted that, according to the plaintiff, a piece of timber fell from the co-worker’s hand and struck his safety helmet, that he remained conscious at all times, that he had severe pain over his neck and head, and that he took a bus to attend the A&E of Queen Mary Hospital after this occurrence.  When they compiled their joint report, they did not have the films of the MRI performed on 2 October 2008, the report and films of the MRI performed on 3 June 2009, and the report and films of the MRI performed on 4 January 2010.  They had only been provided with the report of the MRI of 2 October 2008.  On p.5 of their joint report, they made reference to the medical report from the Department of Neurosurgery of Queen Elizabeth Hospital which recorded that a private MRI spine repeated in January 2010 showed desiccated L4/5, with an annulus tear (a tear in the ring surrounding a spinal disc) and disc herniation, indents onto the thecal sac, and no obvious nerve root compression.  The joint experts also referred to the medical report from the Department of Orthopaedics and Traumatology of Queen Elizabeth Hospital referring to a private MRI of the cervical and lumbosacral spine which showed a small synrix at C5/6 and desiccation of disc at L4/5 and L5/S1 with mild bulging.  The joint experts also referred to the medical report from the Pain Management Team of Queen Elizabeth Hospital.  This also contained a reference to a repeated private MRI which showed desiccated L4/5 disc with annular tear and disc disruption as well as mild L5/S1 herniation.

15.  The joint experts recorded the complaint of the plaintiff that he suffered from pain over the back of his neck and that he had “continuous pain in his low back since the accident, worse than his neck pain. The pain increased at about 1 year after the accident”.  In the course of their physical examination, they noted that he did not have any swelling of his back, that no deformity or muscle spasm was detected, but that there was tenderness over L2-L5 levels of the spine (maximum at L4, L5).  He had demonstrated Waddell’s inorganic signs for low back pain with complaint of severe back pain with vertex compression, pelvic rotation, and gentle elevation of upper and lower limbs.  His lying straight leg raising test was 30 degrees for the right leg and 10 degrees for the left leg but, when sitting, he could raise both right and left legs to 90 degrees.

16.  The review of the medical records from the Physiotherapy Department of Queen Elizabeth Hospital showed that he had repeated courses of physiotherapy for neck pain, and not for back pain or injury, in April 2007, December 2007 and March 2008.  The consultation summary of the Neurosurgical Clinic of Queen Elizabeth Hospital dated 10 November 2008 stated that the plaintiff “started to have low back pain this year”.

17.  On the basis of the above records and their examination, the joint experts concluded that the plaintiff did not suffer injury to his low back in the accident on 13 April 2007, as he had alleged at their joint examination, and that he had not complained of symptoms of his lower limbs when he attended the A&E Department, the Physiotherapy Department, the Neurosurgical Clinic and the Orthopaedic Clinic.

18.  Because many of the medical records were supplied to the joint experts after their examination, they might have missed the statement in the medical report dated 28 April 2010 prepared by Dr Steven Wong’s of the Management Team of the Department of Anaesthesiology & OT Services that the plaintiff “was hit by a piece of heavy plywood of 15 to 20 kgs on the head and then fell onto a platform while at work in April 2007”. 

19.  It is difficult to understand how there can be a gap of some 11 months between the date of the joint examination and the date of the joint report.  Such delays in the preparation of expert reports ought not to be allowed or tolerated.  If further medical reports surface after the date of a joint expert report and these medical reports show a material change in the condition of the plaintiff, then leave should be sought to obtain a supplemental note from the joint experts commenting on this new material. 

20.  I have already referred to Professor Kumta’s report dated 20 October 2011, which was obtained in breach of the protocol for obtaining further reports from joint experts, in which he stated that the type of injury shown on the MRIs which he had reviewed, namely, the herniation at L4-5 and L5-S1 was consistent with an injury to the discs at L4-5 and L5-S1 and that the signal change at L4-5 and L5-S1 discs was likely to be a consequence of the injury sustained when the plaintiff fell to the ground.  He also stated that the rest of the discs were hydrated and that there was no evidence of any underlying degeneration.

21.  Dr Lau offered his opinion on a new case in his reports dated 12 January 2012 and 31 January 2012 in which he stated that whilst they had not reviewed the MRI films, they had been provided with the MRI report of the scan done on 2 October 2008, which expressly stated that the abnormal signal at L4/5 and L5/S1 was due to dehydration or degeneration, and which noted that, at the level of L4/5, there was a circumferential disc bulge and that, at the level of L5/S1, there was degenerative disc disease.  The report ended with the comment that there was a desiccated L4/5 and L5/S1 disc with circumferential L4/5 disc bugle and L5/S1 degenerative disc disease.  Although they had not been provided with the reports of the MRIs done on 3 January 2009 and 4 January 2010, the findings of those MRIs had been recorded in the medical documents.  The report of the MRI conducted on 3 June 2009 stated that the intervertebral discs at L4/5 and L5/S levels were desiccated, that mild disc bulging was noted at those levels, indenting the thecal sac, but that no significant nerve root compression was noted.  According to Dr Lau, the MRI report of 6 January 2010, which recorded a desiccated L4/5 disc, with an annulus tear and disc herniation, indents onto the thecal sac, and no obvious nerve root compression, and a desiccated L5/S1 disc with mild disc herniation without any significant thecal sac or nerve root compression, showed an increase in the severity of the degenerative changes of L4-5 and L5-S1 discs.

22.  Dr Lau disagreed with Professor Kumta and expressed the opinion that the 3 MRIs showed degenerative changes of the L4/5 and L5/S1 discs and not compression of the nerve roots.  These degenerative changes were related to aging and distress on the lower back caused by work and daily activities.  The absence of root compression in the MRIs ruled out the possibility of radiating leg pain.  If the plaintiff had suffered back injury, as he now alleged, he would have had low back pain immediately after the fall and not much later, as recorded in the medical records and reports.

23.  An example of such a report was that of Dr Au Kin Ming, a private orthopaedic specialist consulted by the plaintiff, who recorded in his report of 2 October 2008 that the plaintiff suffered the accident in April 2007 and that his back pain started in September 2007. 

24.  There is no mention in the declaration given by the plaintiff to the occupational safety officer of the Labour Department on 5 July 2007 that he landed on his buttocks and injured his back after being struck on the head by the wooden board.  Likewise, in his statement to Messrs Cunningham & Lindsey, the loss adjusters instructed by the insurers of the defendants, dated 24 July 2007, the plaintiff stated that, after the accident, he suffered head and neck injury.  He made no mention of any back injury suffered in the accident.

25.  Mr Sadhwani rightly submitted to me that the defendants did not suffer any prejudice as a result of this late application other than delay.  However, as I had observed in Wong Shui Kee Roger v Victor Chu & Co, CACV 265/2004, 22 July 2011, [2011] 4 HKLRD 594, at §29:

“… it must not be forgotten that, in the present era, prejudice includes prejudice to the courts and the other litigants when the court’s limited resources are misused. As Lord Woolf MR noted in Arbuthnot Latham Bank Ltd. v. Trafalgar Holdings Ltd. [1998] 1 WLR 1426 at 1436D/E –F/G :

          ‘... any delay which occurs from now on will be assessed not only from the point of view of the prejudice caused to the particular litigants whose case it is, but also in relation to the effect it can have on other litigants who are wishing to have their cases heard and the prejudice which is caused to the due administration of civil justice.’ ”

26.  Mr Sadhwani sought to explain absence of any note in the earlier medical records to back injury or back pain to difficulties in communication.  The plaintiff is Nepali and is not proficient in English or in Punti.  He had attended for medical treatment either alone or sometimes with a friend as an interpreter.  The need for an interpreter was specifically noted in one of the medical reports.  Mr Sadhwani also pointed out an obvious interpretation mistake in one of the medical reports, which stated that the plaintiff suffered an injury on 13 April 2007 when he fell 1.9 metres and landed on his head.  Clearly, this was a mistake.  It is common ground that he was struck on the head by a falling wooden board.  Language difficulties notwithstanding, it is clear from my perusal of the medical records and reports that the plaintiff had given a generally consistent account of the injury that he suffered to his neck, and the consequences of that injury.  I cannot accept that the omission to record in the earlier medical reports, the statement that the plaintiff fell on his buttocks and hurt his lower back, was caused by any difficulties in communication.  It was either caused by the plaintiff’s failure to make mention of this matter or by an omission on the part of the doctors concerned to make proper record of this matter.

27.  Mr Sadhwani made the submission that the annular tear of the disc was likely to be traumatic in origin.  However, this tear was only noted in the MRI performed in January 2010.  No annular tear was seen in the MRIs performed in October 2008 or June 2009.  The annular tear could well have been produced by trauma sustained to the continually degenerating L4/5 disc after June 2009 or it could have occurred as part of the process of degeneration.  If the proper protocol had been followed and leave sought and obtained to obtain a supplemental note from the orthopaedic experts, they could have addressed this point and assisted me with their opinion on it. 

28.  It is neither my function nor my intention to conduct a mini‑trial.  However, having made a rough and ready assessment of the plaintiff’s new case, I conclude that the new case that he seeks to advance is weak and unlikely to succeed. 

29.  Justice may require that a new case be allowed to be advanced, albeit that it is weak, if the new case gives rise to a substantial claim in damages as compared with the damages that had been sought in respect of the case originally advanced.  The proportionality principle requires the court to weigh both the merit and quantum of the new case against the extra cost and time needed to advance it and the prejudice caused by advancing a new case at a late stage in the proceedings.  I would not venture to suggest, on the materials that I have reviewed, that the plaintiff’s claim for damages flowing from his neck injury is more or is less than his claim for damages flowing from the alleged injury to his back.  However, given the evidence of degeneration in his lower back, the quantum of the plaintiff’s claim for damages arising from his alleged back injury is not such an overriding factor as would compel me to allow a weak new case to be advanced at a late stage in the proceedings.

30.  I have taken into account all relevant factors, including the principle that the court should determine the real question or matter in controversy and secure the just resolution of the real dispute between the parties, the explanation offered by the plaintiff for the late application, prejudice in the form of the delay caused by it, and the need to ensure cost effectiveness and economy, expedition, proportionality, and fairness between the parties.  Taking all these matters into account, I have little hesitation in concluding that I should refuse these late applications.

31.  In so concluding, I have refrained from making any decision on the submissions that I received on the question of whether or not the plaintiff’s supplemental witness statement establishes that his original statement, and original statement of damages, contained false statements that were contrary to the statements of truth contained in those earlier documents.  I would, however, observe that, depending on contents and context, an omission can make the contents of a statement inaccurate and untruthful, but that there may be many cases where an omission does not affect the accuracy of the contents of the statement.

Pain Specialists

32.  I now deal with the application for leave to obtain expert reports from pain specialists.  Mr Sadhwani submitted that I ought to allow such reports as the plaintiff had received treatment for his neck and back pain at the Pain Clinic at Queen Elizabeth Hospital since August 2009, and that it was not the province of orthopaedic experts to give opinion on pain management treatment which is a specialised and recognized area of medical treatment.  The plaintiff has had trigger point injections since 2009, and he had 3 such injections in 2011.  Mr Ozorio SC opposed the application, pointing out that the orthopaedic experts and the neurosurgeons who had reported in this case had effectively said that the plaintiff was guilty of symptom magnification and citing my decision in Hung Sau Fung v Lai Ping Wai [2012] 1 HKLRD 1 where I had stated :

“45. The court does not usually give leave for the parties to adduce expert evidence from pain specialists, unless the difference between the parties relate to the care regime to be implemented in respect of an injured person. Pain is subjective and it is for the court to assess the evidence of the injured person and come to a finding whether or not he is indeed suffering from pain and, if so, the nature and extent of that pain. A report from the pain specialist that the injured person is suffering from pain is of no assistance to the court.”

Mr Ozorio also submitted that the orthopaedic experts were all aware that the plaintiff was being treated at the Pain Clinic of the Queen Elizabeth Hospital.  Neither expert suggested that a report from a pain specialist was required.  He also submitted that it was neither economical nor proportionate for leave to be granted for a pain specialist to give evidence in this case. 

33.  I agree with the submissions of Mr Ozorio and I decline the application for leave to the parties to adduce expert evidence from pain specialists in this case.  In a case such as the present where experts suggest that the plaintiff is guilty of symptom magnification, the court must make a finding of fact as to whether or not the plaintiff is, indeed, suffering from pain, and if so, the nature and extent of that pain.  If the court concludes on the evidence adduced that the plaintiff is, indeed, suffering from pain to the extent to which he complains or to some extent, then the court then can have regard to the medical reports or records of the treating doctors from the pain clinics that the plaintiff had attended and be guided by those medical reports and records in assessing the proper award for the future cost of reasonable pain treatment.  However, if the court concludes that it is unable, simply by looking at the reports or records of the treating doctors from the pain clinics, to make a proper assessment of this head of claim, the court can adjourn its determination of this head of claim and direct the parties to obtain the report of a pain specialist, as a single joint expert, on the future pain treatment that is recommended for the plaintiff in the light of the findings of the court, and of the cost thereof in the public and private sectors.

Conclusion

34.  The plaintiff’s applications are dismissed with costs to the defendants in any event, with certificate for counsel.  The plaintiff’s own costs are to be taxed pursuant to the Legal Aid Regulations.

35.  I further direct that a case management conference be fixed before the PI Master, to be heard within 30 days from the date of this decision, for leave to be granted to the plaintiff to set the case down for an assessment of damages before the master and for such further directions as may be required.