LAI CHUN WAI v. SWIRE COCA-COLA LTD trading as SWIRE COCA-COLA HK

DCPI 3699/2022

[2025] HKDC 1590

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 3699 OF 2022

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DECISION

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Introduction

1.  The Plaintiff (“the P”) applies for leave to adduce supplemental expert report from the parties’ single joint orthopaedic expert, Dr. Lam Yan Kit (“Dr. Lam”) or alternatively, leave to call Dr. Lam to give oral evidence at trial.

Factual background

2.  The P worked as a delivery worker for the Defendant (“the D”). On 14 November 2019 the P sustained a sprained back injury from an accident at work while he was transferring and delivering a heavy syrup-filled cylinder to the D’s client (“the Accident”). On the same day, the P was taken to the Accident & Emergency Department of Princess Margaret Hospital for treatment without being admitted. On examination, the P complained of back pain radiating down to his right leg, doctors diagnosed a moderate decrease in spinal flexion movement, X-ray showed no bone injury.

3.  The P maintained the same complaint during follow up treatments in the Orthopaedic Clinic of Prince of Wales Hospital since 4 December 2019. In a MRI scan done on 7 December 2019, it showed mild spondylosis and mild scoliosis, mild retrolisthesis of L5 vertebra on S1 vertabra and mild bilateral exit foraminal narrowing at L5/S1 level. There was no significant lateral recess narrowing or compression of the descending nerve root. The P was then referred to physiotherapy treatments.

4.  In between the time from 2 January 2020 to 21 September 2020, the P attended treatments with Physiotherapy Department of Caritas Medical Centre (“CMC”). It was stated in the medical report of CMC dated 13 April 2021 that the P further complained of back pain because he sprained his back again after carrying his children on 19 November 2019.

5.  On 4 June 2020, the P has resumed his pre-accident job with the D. He was initially given light duties but according to the P, contrary to medical advice to lift objects less than 10kgs, he was later instructed to to deliver carbon dioxide gas cylinder weighed approximately 20 kg. This has caused his lower back residual pain worsened and intensified (“the Subsequent Incident”). Finally, he ended work on 22 June 2020.

6.  On 23 June 2020, the P visited Dr. Lee Chee Yuen and was given anti-inflammatory and analgesic medication.

7.  On 4 July 2020, the P visited Dr. Poon Tak Lun (“Dr. Poon”). He was diagnosed to have suffered from lumbar spine injury with annulus tear and prolapsed intervertebral disc at L5/S1. The P experienced persistent numbness extending to his right foot toes and occasional left leg numbness.

8.  In another MRI scan taken on 20 July 2020, it showed intervertebral disc desiccation at L5/S1 disc with signal suggestive of small annular fissures, mild right paracentral broad-based disc protrusion without significant nerve compression.

9.  In addition, the P developed sleep and mood problems. He pursued therapeutic treatments at Queen Elizabeth Hospital. He has further received various treatment sessions from a Chinese herbalist and a Chinese bonesetter.

10.  Of the treatments mentioned above, the P was granted sick leave for two substantive periods: (i) from the date of the Accident until 3 June 2020, which was time prior to the resumption of pre-accident job and (ii) from 24 June 2020 until 2 July 2021 which was after the Subsequent Incident.

11.  In a series of surveillance footage recorded on 10 June 2021, 27 June 2021 and 11 July 2021, the P was appeared to walk normally for a considerable period of time without walking aids. He could also able to walk up and down stairs normally for over one flight in various occasions.

The parties’ pleaded case

12.  At this point, it is worth mentioning that the P has pleaded both the Accident and the Subsequent Incident in his Statement of Damages. It is always the P’s case that the injury sustained arises from both the Accident and the Subsequent Incident. The D, on the other hand, denied the P’s pleaded case in its Defence and put the P to strict proof. The D also pleaded the P was contributorily negligent in performing such duties.

13.  The D’s evidence of assigning light duties to the P after resumption of work on 3 June 2020 only appears in the witness statement of Chan Hiu Fung[1] that the P was assigned light duties until 22 June 2020, including standby duties, attending training programs, cleaning vehicles and carrying load less than 10 kgs.

14.  In other words, the occurrence of both the Accident and the Subsequent Incident are both live issues at trial.

Joint orthopaedic expert report

15.  In accordance with the Order of Master Stanley Ho dated 30 January 2024, leave was granted to parties by consent to adduce a single joint orthopaedic expert report by Dr. Lam, a Court-selected expert.

16.  Dr. Lam examined the P on 11 April 2024, which was more than 4 years after the Accident and the report was commissioned on 11 May 2024 (“the Expert Report”).

17.  Unknown to Dr. Lam and the P, the D took another surveillance footage on 11 April 2024 (the day of examination) (“the 2^nd Surveillance Footage”) but the same was not provided to Dr. Lam for consideration.

18.  Dr. Lam, having considered all the above (except the 2^nd Surveillance Footage) gave an opinion, inter alia, that:-

(i)  The diagnosis of soft tissue sprain on lower back was consistent with the occurrence of the Accident.

(ii)  The admission of the P regarding carrying his children on 19 November 2019 led to left paraspinal muscle spasm.

(iii)  During physical examination by Dr Lam, X-rays of the thoracic and lumbar spine taken at the time of assessment revealed minor degenerative changes.

(iv)  When the P was assessed 4 years after the Accident, those pain reported by the P is very unusual following soft tissue injury without fracture or major structural damage.

(v)  There was no objective neurological signs or MRI findings to suggest nerve compression due to lower back injury, it might have caused by neurological disease which are unrelated to the Accident.

(vi)  The surveillance footage taken in 2021 showing the P’s daily activities does not align with the P’s complaints.

(vii)  Considering the unusual prolonged disabling pain, including pain leads to the P to waking up at night, symptom magnification is likely to be the present case.

(viii)  The P has achieved maximum medical improvement.

(ix)  Dr Lam assessed that the P suffered from 2% loss of whole person and 3% loss of earning capacity.

(x)  Sick leave period endorsed by Ordinary Assessment Board (Form 7 and Form 9) is reasonable.

(xi)  The P could return to his pre-accident job after his sick leave which ended on 3 June 2020. Work rehabilitation for 3 months with modified duty involved carrying a reduced weight would assist complete transition back to full normal duty.

(xii)  The P is not expected to have difficulty in engaging usual social activities.

(xiii)  The P does not need to be assessed by other specialty.

The P’s application – 4 Questions to be addressed

19.  Upon receiving the Expert Report, the P was dissatisfied because Dr. Lam has omitted to address the impact on him over the Subsequent Incident, he therefore formulated 4 questions hereinbelow for Dr. Lam to clarify by way of a supplemental report.

Question 1

20.  After the P’s resumption of work for the period from 4 June 2020 until 22 June 2020, the Plaintiff’s lower back condition worsened because the tasks given to him by his supervisors were against the remarks of the P’s treating doctors being “not to lift objects heavier than 10 kgs”. The P was granted further sick leave until 2 July 2020 by Dr. Poon as a result of further sprained back occurred during this time.

21.  Dr. Lam only states sick leave period granted under Form 7 and Form 9 are reasonable[2].

22.  The P requested Dr. Lam to comment on the reasonableness of the sick leave period from 23 June 2020 to 2 July 2021.

Question 2

23.  Dr. Lam opined briefly in paragraph 85 of the Expert Report that the injury sustained from the Accident should not have prevented the P from returning to the pre-accident job with light duties for the initial 3 months and then complete resumption.

24.  Dr. Lam stopped there without giving his opinion as per the P’s version that he had further sprained his back after resumption of work.

25.  The P requested Dr. Lam to account for the impact on him after the Subsequent Incident before concluding the P’s suitability of full resumption of the pre-accident job.

Question 3

26.  Dr. Lam opined in paragraph 80 – 81 of the Expert Report that “symptom magnification is likely to be the present case” after considering, inter alia, the surveillance footages on 10 June 2021, 27 June 2021 and 11 July 2021 but not the 2^nd Surveillance Footage.

27.  The P requested Dr. Lam to consider the 2^nd Surveillance Footage and to come up with his opinion again.

Question 4

28.  The P seeks Dr. Lam to revise his opinion whether there should be any adjustment on the assessment on loss of whole person impairment and loss of earning capacity.

The D’s opposition

29.  The D opposed by saying Dr. Lam has made his comment unequivocally clear upon consideration of all information made available to him, he came to a view that the P was exaggerating his symptoms based on medical evidence of MRI scan and physical examination. Therefore, a supplemental report is unnecessary and for the same reason, Dr. Lam should not be called to give oral evidence at trial of this action.

Legal principles

30.  The guidelines on how a single joint expert report should be called for was stated in Chan Yuet Keung v Harmony (International) Knitting Factory Ltd [2010] 5 HKLRD 599 by Bharwaney J in paragraph 47. Generally, the parties will state their respective factual versions and the expert opinion they wish to obtain. The expert shall give his opinion (not fact finding exercise) premised on different versions :-

“47. Where there is a dispute as to the factual requirements of the pre-accident employment, the joint instructions to the single joint expert, or to the experts appointed to prepare a joint report, should outline the different factual versions to the expert(s) concerned and his or their expert opinion should be sought on each separate version. The provisions contained in §87 of PD18.1 address and contemplate a situation where the joint report contains opinions, based on common parameters as well as on different parameters. Where those parameters can only be known after an exercise of fact finding by the trial judge, an expert should not himself embark on any fact finding exercise but should offer his opinion based on one version and his different opinion, if, indeed, it be different, based on the other version(s).”

31.  Then, in the event the opinion is ambiguous or there is matter needs clarification, the proper procedure in seeking leave to obtain a supplemental expert report is well laid down in paragraphs 48 – 49, -

“48. …

(a) The party raising any question for clarification should in the first instance write to the other party and seek his consent for the question to be put to be expert(s).

(b) If the other party does not agree to the question raised, he may propose a different question for the consideration of the party that raised the matter.

(c) If consensus cannot be reached between the parties then the party that wishes to seek clarification should take out a summons before the PI Master to determine the matter.

49. In resolving the dispute the PI Master would no doubt be guided by §84 of PD18.1 and impose sanctions on the party acting unreasonably in the matter by raising matters which went beyond clarification or by unreasonably refusing to agree to proper questions being put to the expert(s) to clarify genuine issues.”

32.  And finally, the remarks that usually, a single joint expert shall not be called to testify, see paragraph 50 of Chan Yuet Keung (supra):

“50. The guidance offered above should not be construed as a carte blanche to seek clarification. Parties should take care to compose joint instructions which deal with all relevant matters. In the normal course of events, there should be no need for a joint report to be amplified or tested by cross-examination. As Lord Woolf LCJ said in §28 of his judgment in Peet v Mid-Kent Healthcare Trust [2002] 1 WLR 210:

“If it needs amplification, or if it should be subject to cross-examination, the court has a discretion to allow that to happen. The court may permit that to happen either prior to the hearing or at the hearing. But the assumption should be that the single joint expert’s report is the evidence. Any amplification or any cross examination should be restricted as far as possible.””

Analysis

33.  Applying Chan Yuet Keung, Dr. Lam shall give his opinion, as opposed to fact finding, of whether the injury sustained is consistent with (i) the Accident and also (ii) both the Accident and the Subsequent Incident. After this, an assessment on the reasonableness of the P’s sick leave, further medical needs, capability of returning to the pre-accident job, loss of impairment of whole person, loss of earning capacity would normally follow.

34.  I would say Dr. Lam has clearly omitted giving his opinion regarding the Subsequent Incident in his report. Premised on medical evidence, Dr. Lam’s opinion ceased upon saying the P’s injury did not seemed to be consistent with the consequence of the Accident. He immediately rounded up the P’s symptoms are magnified.

35.  In the joint instruction letter dated 10 April 2024 (“the Letter”), the parties have explicitly stated the P’s version. Paragraphs 9(a) to 9(j) therein briefly recorded a summary of the P’s case including both the Accident and the Subsequent Incident. Nevertheless, the D did not state its disputed case in the Letter by outlining its factual versions, that being denial of instructing the P after 3 June 2020 to lift heavy objects and more probably asking the P to be a stand by worker, to attend trainings, to clean vehicles and to lift light objects or at all.[3] By the end of the paragraph 9, there was only a general statement as follows:-

“(The Defendant makes no admission to the Plaintiff’s injuries and residual disabilities allegedly suffered as a result of the alleged accident and the extent thereof, the appropriateness of the sick leave granted to him. The Plaintiff is put to strict proof thereof.)”

36.  Although the D’s version did not appear in the Letter, Dr. Lam should have given his opinion on the injury or worsening of the P’s injury allegedly occurred after his resumption of duty after 3 June 2020. Such omission warrants calling for a supplemental expert report for clarification.

37.  Specifically, in answering Question 1, the P was quite right to say it is utterly inadequate for Dr. Lam to comment only the sick leave period between the Accident and resumption of work on 3 June 2020 is reasonable. He should have considered all information provided and to give his opinion of sick leave period after the Subsequent Incident as well. The P is not asking Dr. Lam to comment on each and every piece of sick leave certificate but to comment on the two substantial period as a whole.

38.  The D argued one should read Dr. Lam’s opinion in context. I cannot agree with this argument, as a lack of opinion regarding reasonableness of sick leave period after the Subsequent Incident would definitely cause the trial judge difficulty to resolve issues at trial. If the trial judge comes to a finding that the Subsequent Incident had occurred, he will be left without expert evidence to assess whether sick leave granted after the Subsequent Incident is reasonable.

39.  In absence of this, I have no hesitation to conclude, it is pertinent for Dr. Lam to give his opinion as to whether the sick leave period from 23 June 2020 until 2 July 2021 is reasonable should the P’s factual version is adopted.

40.  For Question 2, Dr. Lam said the P’s physical injury on his lower back sustained in the Accident itself is not expected to prevent P from resuming his pre-accident job with “work rehabilitation for 3 months with modified duty”. The Plaintiff submitted Dr. Lam shall consider the practical reality whether the D as an employer would be prepared to cater for the P’s residual lower back condition by providing “modified duty” for a 3-month period. I believe this is fact finding exercise in which a medical expert shall clearly refrain from making any statement. The matter serves as evidence and should be resolved by the trial judge.

41.  That said, Dr. Lam did not consider or to say anything about the aftermath of the P’s resumption of pre-accident job without modified duty, as complained by the P. As I have mentioned above, when there are disputed facts, an expert is expected to comment on whether the injury sustained is consistent with the parameters of each of the disputed case. The omission here is obvious. Dr. Lam should reconsider and give his opinion whether the P after the Subsequent Incident is able to return to the pre-accident job.

42.  For Question 3, I am aware that the 2^nd Surveillance Footage differed significantly from the one which has been provided to Dr. Lam. It did not depict the P climbing any flight of steps, but instead taking another route to return home by walking down a pedestrian flyover while using an umbrella as a walking aid. It is not in dispute that the 2^nd Surveillance Footage forms part of the evidence of this action.

43.  The D argued the trial judge is able to resolve all issues on his own with the assistance of the 2^nd Surveillance Footage. The D cited Khan Shiraz v Yee Lee Sea-Land Forwarding Co Ltd (HCPI 323/2004, Suffiad J, unreported) on the principle at paragraph 17:-

“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.”

44.  The situation here is very different from the Khan case. In that case, the surveillance footage was not provided to the plaintiff’s expert but to the defendant’s. The Court has acted correctly to grant leave to the plaintiff’s expert solely to comment on the surveillance footage.

45.  Nonetheless, in the present case, the D is unable to give a satisfactory explanation for not supplying the 2^nd Surveillance Footage to Dr. Lam for consideration, which could have helped Dr. Lam to reach a professional conclusion.

46.  On this point, I accept the P’s submission that it is also in all fairness, the D shall not withhold any information obtained which is relevant and of importance for Dr. Lam to come to an opinion. It is undesirable to leave the task of considering the 2^nd Surveillance Footage to the trial judge to do it on his own. Should the trial judge be left alone to decide on this point, I can envisage the trial judge’s difficulty in coming to a decision as to how he should approach the 2^nd Surveillance Footage without the assistance of an opinion from Dr. Lam. (See Chung Yuk Chun v The Garden Company, Limited (CAMP 41/2024, [2025] HKCA 227).

47.  I have no hesitation to say the 2^nd Surveillance Footage shall be provided to Dr. Lam for reconsidering his entire opinion as a whole.

48.  Question 4 is a general conclusion of Questions 1 – 3 and I accordingly allow it.

Whether to grant leave Dr Lam to testify at trial

49.  Asking Dr. Lam to give oral evidence is unnecessary now when those unclear matters can be clarified through a supplemental expert report which I have ordered.

50.  I shall say the test remains the same and as a general rule, there is no need for single joint expert evidence to be amplified or tested by asking the single joint expert to give evidence or to be cross examined. (See: Chan Yuet Keung (supra)) Should the necessity arise, the application for leave to call a single joint expert to testify shall be tested upon balancing exercise of all relevant considerations and shall accord with the underlying objectives of the Civil Justice Reform. (See Nga Investment Ltd v Lau Jennifer PT (DCCJ 4140/2014, [2018] HKDC 1094).

51.  Albeit it serves as the P’s fallback position. I seriously doubt whether Dr. Lam could be able to testify without reviewing the 2^nd Surveillance Footage. I do not see it appropriate and fair to ask Dr. Lam to watch the 2^nd Surveillance Footage at trial and to comment on spot.

Conclusion

52.  With the foregoing reasons, I grant leave to the parties to request Dr. Lam to compile a supplemental expert report for the purpose of clarification. The P has helpfully proposed draft instructions for Dr. Lam as attached to the P’s written skeleton submissions. I shall adopt paragraphs 1(1) to 1(4) only therein as instructions given to Dr. Lam. Paragraphs 2(1) to 2(3) of the draft instructions involved fact finding exercise which shall be the task of the trial judge and thus shall not be included.

53.  I dismiss the application for leave to call Dr. Lam to give oral evidence at trial.

Costs

54.  Costs shall follow the event. I make a costs order that the D to pay the P’s costs of the P’s summons filed on 30 April 2025, including all costs reserved and with certificate for counsel, to be taxed if not agreed. The P’s own costs be taxed in accordance with the Legal Aid Regulations.