LIMBU BHIMRAJ v. ALL CLAD ASIA LTD

HCPI 603/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 603 OF 2007

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AND

HCPI 606/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 606 OF 2007

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BETWEEN

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D E C I S I O N

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1.  The Plaintiff has applied for the substitution of his orthopaedic expert. 

2.  The Plaintiff had two injuries on construction site at the span of 4 days.  On the first occasion, he fell down from a ladder and his back landed on the ground.  On the second occasion, his back was hit by a protruding bamboo scaffold on the sore spot from the previous injury.

3.  On 29 December 2006, the Plaintiff’s expert, Dr SC Bong and the Defendant’s expert, Dr SY Chun conducted a joint examination of the Plaintiff.  The doctors agreed to 39 paragraphs of basic findings and they found there was a pre-existing wedge fracture at the L-3 disc, and there was a crack fracture also at L-3 caused by the accident. 

4.  There are various degrees of difference in opinions between Dr Bong and Dr Chun, but they both agreed that the Plaintiff’s condition had reached maximum improvement, and he could go back to work with    lingering pain resulting in lower efficiency.

5.  On 6 June 2008, the Plaintiff has gone off on his own to get a second opinion from Dr Li Wing Kin.  Dr Li found that the Plaintiff was also suffering from injury to the intervertebral facet joints on the left side at L-3 and L-4.  He based in the opinion on wedging of L-3 and the marginal osteophyte at L-4 with mild narrowing of the L-3 and L-4 disc space.  He said he Plaintiff could not return to his previous job and had to take up sedentary duties, and recommended further treatment of anti-inflammatory drugs, simple analgesics, muscle relaxant, massage and exercises, and he recommended the further course of treatment to last for about 6 weeks.

6.  All the three doctors agreed that the sick leave period of 4 months was reasonable.

7.  Mr Burke, for the Plaintiff, submitted that the Plaintiff has pleaded inability to return to work.  Since Dr Bong’s opinion did not fit the Plaintiff’s feeling, he was at liberty to obtain a second opinion, as otherwise his case could not be proved.   Hence there is no expert shopping nor any abuse.

8.  Mr Kwong, for the Defendant, objected to the application on two grounds: 

(1)     The joint report stated maximum improvement and there was no major change in the condition to warrant updating of the current opinion;

(2)     The Plaintiff never invited the Defendant to participate in a joint examination and the obtaining of fresh medical expert evidence now is detrimental to case management in sparking off a new round of comments and/or examinations.

9.  Mr Kwong submitted that the Defendant had before the change of solicitor by the Plaintiff agreed to the course of joint examination and reporting.  The two doctors put their heads together and agreed to a substantial amount of findings with minor difference in opinions.  If the Plaintiff were at liberty to get a separate report and to start the process of mutual commentaries by the experts separately, it would be detrimental to the case management by the joint examination and reporting that the court had put into practice for a long time.

10.  I agree with Mr Kwong on both grounds.  As to the substantive medical issue, the Plaintiff had a pre-existing spinal condition and a fresh crack from the injuries.  The injuries were not substantial, and the doctors had given their opinion.   The complaint of some degree of pain could be received in the evidence from the Plaintiff himself.  I do not see the need of getting a fresh opinion other than expert shopping. 

11.  Secondly, the course of joint examination which is now set out in the new draft Practice Direction poised to come into force upon the implementation of the Civil Justice Reform in 2009 has received wide support from both the Bar and the Law Society upon recent consultation.

12.  Joint reporting has the advantage of maximising agreement between the doctors and focusing on the disagreement.  It also has the advantage of infusing realism amongst professionals and to reduce the excesses of partisanship which has often been seen during the time where doctors has conducted separate examinations and reporting.

13.  In the premises, the application to substitute the Plaintiff’s expert is refused.

14.  The resulting issue as to whether the doctors are to be called to give evidence orally will also subside by reason of the substantial agreement in the joint report.

15.  I order the costs of this application, which has taken up the entire oral hearing of the Pre-Trial Review this morning, be to the Defendant in any event.  Mr Burke said he could not resist it.