XCHRX CHIU YUK TONG v. WONG CHI KEUNG AND ANOTHER

HCPI 174/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 174 OF 1999

____________

_______________________

REASONS FOR DECISON

_______________________

1. This Plaintiff was struck by an omnibus owned by the China Motor Bus Company and driven by the 1st Defendant, on the 19 March 1996, some 4 1/2 years ago. It appears that she was attempting to board that bus when she was knocked down by it as it drove off. The bus stop was situated on the pavement which was part of a bus stopping bay. The area was occupied at the time by two public light buses. The Defendant's bus did not wait for the bay to clear but pulled up alongside the two smaller buses to set down and pick up passengers who had to cross the bay behind and/or in front of those buses. The bus driver having opted to take up that stopping position must have been aware of the difficulties boarding and disembarking passengers would encounter. It called for extra care on his part. As one would expect the accident was investigated to some extent by the Police. The bus driver was prosecuted for but not convicted of offences relating to non-compliance with road markings and requirements as to where passengers should be set down and picked-up.

2. As a result of the accident the Plaintiff suffered the complete loss of her left lower limb. She is significantly crippled. She was then 75 years of age. Everything indicated that this claim by her - there was clear prima facie evidence of negligence on the part of the bus driver - should be initiated and progressed with all expedition.

3. The writ was not issued until February 1999 almost at the end of the three year limitation period. That fact alone calls for an explanation by the Plaintiff's Solicitors. I have asked for information as to when the Plaintiff first consulted and instructed lawyers to act on her behalf and when her currently Solicitors were first instructed. I have been informed that she first consulted Solicitors/the Legal Aid Department some time in 1996. Her present Solicitors were assigned her case in March 1997, three and a half years ago.

4. Following the issue of the Writ the Solicitors for the Plaintiff, and for the Defendants had to prepare for the Check List Review which took place on the 21 September 1999, six months later.

5. In that hearing, the first stage in case-management under the 1998 Practice Direction, the Plaintiff's Solicitors filed a number of documents. They included:

A Proof of Evidence of the Plaintiff dated 18 May 1999 - that date is well over 3 years after the accident.

Two short medical reports from the Queen Mary Hospital dated the 4 September 1996 both addressed to the Director of Legal Aid.

The Significance of the above is that the Plaintiff's claim had been in the hands of the Legal Aid Department since September 1996, at the latest, some six months after the accident.

A short medical report dated the 16 July 1997 (wrongly dated in the Index as 16 July 1999). This brought the picture up to December 1996 only.

The Brief Facts of the case relating to the prosecution of the bus driver.

Some photographs in black and white being photostats. These are filed in breach of the direction relating to photographs.

A sketch plan of the scene of the accident made by a Police Officer but without explanatory statement.

A MVE report on the omnibus which is inconsequential.

A record of the proceedings against the bus driver in Chinese. (There is no translation)

None of the statements taken by Police Officers from any witnesses to the accident has been filed by the Plaintiff's Solicitors.

6. In this insubstantial form and failing to comply with the Practice Direction, the case came before the Master for directions. The Plaintiff had been languishing in hospital and a geriatric nursing home for 3 1/2 years with negligible progress in her claim and without the benefit of an interim payment of damages.

7. On the 21 September 1999, the learned Master made the following principal directions:

1. Statements of Fact were to be served within 21 days.

2. Medical evidence was to be served within 42 days and was to be limited to an orthopaedic consultant.

3. The Revised Schedule of Damages was to be served within 14 days of receiving the medical reports.

The learned Master in fixing the above time-scale clearly had in mind the need to inject some degree of urgency and expedition into this case. It had been sadly lacking hitherto. She also adjourned the Check List Review until mid December 1999; it was to come back before her. Nonetheless, consistent with her recognition of the need for urgent progress, she ordered that the action be set down for trial within 60 days in the fixture list before a Judge with an estimate of 3 days.

8. Between then and the adjourned hearing on the 20 December 1999 very little occurred. The Defendants' Solicitors filed their driver's statement.

9. The learned Master made directions only as to the Revised Statement of Damages and the Defendant's answer to it, the service of a statement on behalf of the Defendants (which has not in fact materialised) and confirmed the setting down provision as operative from the 20 December 1999.

10. That was nine months ago. The Plaintiff has continued in her unhappy disabled state in the geriatric hospital. Since then the Defendants have filed Police documents which were noticeably absent from the Plaintiff's Solicitors inadequate preparation of this case for the Check List Review. These documents include:

1. Police Statement of the 1st Defendant (the bus driver).

2. Police Statement of Lo Tak Keung which is highly material to the case and particularly the Plaintiff's case.

These were filed in November 1999.

11. Nothing then transpired until the Plaintiff's Solicitors took out an application to obtain leave to serve an Occupational Therapist's report on 8 August 2000. The direction of the learned Master as to setting down this action for trial has been ignored. It has still not been set down. A further year has passed since the original Check List Review.

12. I have been presented with a chronology of events since February 1999 and a purported explanation for the delay since then. In my view the delay is inexcusable. It is quite unacceptable that an elderly lady, now 79 years of age, has had to endure her misery whilst her lawyers struggle to come to terms with what basic efficiency and competence require. This is an uncomplicated Road Traffic action which should have been resolved long ago. What needed to be done by way of preparation was very little - even that has not been achieved. The public could be forgiven for concluding that some lawyers have little regard for the interests of their client and that delay - to an unacceptable extent in this case - operates only in the interests of the lawyers and inflates costs.

13. The application before me is to allow the Plaintiff's Solicitors to serve and adduce an Occupational Therapist's report obtained on 7 July 2000.

14. Before I deal with the contents of, and the relevance of such a report, I should review the orthopaedic evidence which was the subject of one of the Master's directions over a year ago, and is highly relevant to the application.

15. The report of Dr Arthur Chiang, the orthopaedic Consultant, is dated 12 July 1998 and was obtained by the Plaintiff's current Solicitors. From that it is apparent that they were in possession of medical evidence seven months before they issued the writ. Dr Chiang writes very full reports. He has given evidence in these courts. His vast experience enables him to give expert opinion as to the extent of a person's disability and what effect that has on a person's life. It is not difficult to imagine what effect these injuries have had on this Plaintiff. He sets out his assessment on pages 8 and 9 of his report.

16. He makes reference to an "Occupational Therapist's assessment" being "required if the costs in these areas are required." But he deals with the needs of the Plaintiff in her present environment and is clearly returning to the position if she were to stay at home. An up to date report from Dr Chiang, examining the Plaintiff in her environment has not been sought. I cannot understand why this has not been done. This aspect falls wholly within the ambit of the orthopaedic consultant's expertise.

17. What I have been presented with is a 22 page report from an Occupational Therapist, costing I am told, $40,000.00 and obtained, I am told, on Counsel's advice. This report is a picture or review of the Plaintiff in the nursing home where she has resided for some years. The first 17 pages contain material more properly covered by the Plaintiff herself, by her family or by Dr Arthur Chiang. Her report is essentially hearsay to that extent and less pertinent. The remainder of the report covers matters which could properly be put to Dr Chiang (Aids and Equipment) or covered by a video of her daily life in the nursing home. This is not expert evidence. It is a direct relation of an existing state of affairs and trespasses into the area properly to be covered by an orthopaedic consultant. No judge needs to be told that a 79 year old Plaintiff with one leg, and disabled to such an extent, requires a particular wheelchair, to be mobile.

18. In my view it is not only quite unnecessary but a misuse of Occupational Therapist's expertise, which is not to be regarded as replacing that of appropriate experts. It is quite pointless for her to be asked to deal with the requirements if the Plaintiff were to live with her family when it is quite clear that, rightly or wrongly, this is not what she, or her family envisage. The cynical lawyer would regard such evidence, if relevant and allowed to be adduced, as inflating a claim beyond the realistic.

19. There is no place for such a report in this case and the Defendants have rightly objected to it. The Plaintiff's legal advisers have, I regret to say, lost sight of her immediate and long term needs. Any of the matters to which this report refers, which are or may be pertinent, can be dealt with by direct testimony from other quarters. It has been contrary to this Plaintiff's interests that the proper resolution of her claim has been so delayed. The action must be fixed as soon as possible. In view of her age and the obvious urgency, the date for trial will be fixed for the 11 to 13 December 2000.

20. It is, I regret, necessary to restate that practitioners, both Solicitors and Counsel, should consider very carefully the extent of the expert medical and quasi-medical evidence necessary for a particular case. This stricture is equally valid in respect of expert evidence, if it be such, in respect of liability. Many cases are overloaded with so-called expert reports. They are often a waste of money, judicial time, and in simple terms, paper. The cost of such wasted ventures is not to be borne by the

Defendants. It does not meet the party and party, or even common fund criteria. Since it results from misjudgment by the lawyers concerned it should not be borne by the Plaintiff and the Courts duty is to be vigilant to prevent the hapless Plaintiff from being saddled with the costly consequences of his or her lawyers' errors. Certainly orders for Legal Aid Costs will not be made if the consequence would be to sanction such an imposition upon Plaintiff.