HUI FUNG PING v. HOSPITAL AUTHORITY

HCPI 589/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 589 OF 2008

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D E C I S I O N

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1.  This case is referred to me by the PI Master upon difficulties in arranging joint examination and joint report by the respective occupational therapy experts

2.  The Plaintiff was a patient at a hospital run by the Defendant in 2005.  She wanted to go to the toilet but received no assistance from the staff.  Her son assisted her but he could only take her to the door of the female toilet.   She had a fall in the toilet and fractured her hip.  She has since developed dementia.  She has to use walking aid but is not wheelchair bound.

3.  Since discharge from hospital, the Plaintiff has been residing in an elderly home.  She used to live with her son and his family in a public housing unit on the 9^th floor of the building.  The present issue is whether she should be returned home, and if so, whether and/or to what extent alternative accommodation and domestic help are required. 

4.  The respective occupational therapy experts are Ms Jocelyn Au, for the Plaintiff, and Mrs Shelley Chow, for the Defendant.  They have written separate reports.

5.  The Master has ordered joint examination and joint report in January this year.  Difficulties were indicated to the Master on arranging a joint examination.  Hence the matter was referred to me for case management.

6.  In March, the experts compiled a so-called joint report.  I say “so-called” because apart from their respective signatures at the end, it is obvious that the joint report was a cut and paste job of the separate reports.  There was no joint examination.  The experts referred to their own version of background facts and the medical reports, and gave separate opinions obviously without discussion on agreement and disagreement.

7.  Miss Koon, for the Plaintiff, sought to explain the peculiar circumstances of Ms Au.  Ms Au is full-time faculty member of the Polytechnic University.  As such she would not do any joint examination during office hours but only in the evening.  Mrs Chow, on the other hand, insisted that such professional work should be carried out during office hours.   Hence, there was no joint examination.

8.  May I say if Ms Au holds out to practise as a professional expert, the fact that she would not do any joint examination during office hours is wholly unacceptable.  I do not know whether she needs permission from the University for absence from her daily duties, but it is really not my concern.

9.  My concern is running an efficient court, which requires the experts to confer with each others to narrow down the issues as indicated in the Code of Conduct for expert witnesses under the Civil Justice Reform. 

10.  On a separate matter, it is not entirely clear from Mrs Chow’s report whether she was agreeing or disagreeing to alternative accommodation and domestic help.  What she seemed to be saying is that if the Court so finds, then the accommodation needed is 650 sq. ft. as opposed to 850 sq. ft. 

11.  I asked Miss Yeung, for the Defendant, what is the Defendant’s stance on the matter – necessity or merely quantum.  Miss Yeung maintained that the Defendant objected to the Plaintiff’s items but admitted that it was not altogether clear from Mrs Chow’s report, and asked for leave to seek clarification from her.

12.  Granted the difficulties of arranging a joint examination, and quite obviously their inability at least to confer and discuss with each others and narrow down the issues and agree on parts which can be agreed,  I have no alternative but to order another joint examination and report from two other occupational therapy experts. 

13.  I note the expenses and the delay.  The delay is due to the Plaintiff’s expert behaving in an unprofessional manner.  Notwithstanding costs, there is the need to ensure proper conduct, especially in view of the new Practice Direction, lest case management directions of the Master be sabotaged.  Having considered the status quo of the Plaintiff, I would make the conscious decision of ordering a new joint examination and report.

14.  I referred the parties to Wong Hin Pui v Mok Ying Kit & Anor HCPI 763/97 (21 December 1999) where Seagroatt J cautioned on the excessive, expansive and wholly unjustified use of occupational therapists in personal injury cases.  I wish to add my concern on excesses and expenses.  Space is linked to equipment.  Very often, occupational therapists prescribed the full array of equipment which are not justified at the end of the day, leaving space a more or less common sense consideration.  I appreciate that issue may have to be looked at by someone anyway.  But the value of the expertise may be so diminished that the costs of the expert reports be disallowed or substantially taxed off.  I hope that all those concerned shall approach it with a good measure of proportionality.

15.  I  direct that the new report be completed within 3 months’ time. The parties shall find experts who can meet the deadline and inform them of the committed date. 

16.  I order a 2^nd PTR on 3 July 2009 at 12 p.m.  If there are any difficulties, I expect the parties to come back as soon as possible. 

17.  Costs are reserved pending further consideration and progress of the case.