YEUNG MAN v. WING SHING CAISSON & FOUNDATION LTD AND ANOTHER

DCEC851/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 851 OF 2004

D E C I S I O N

1.  This is a claim for employees’ compensation.  The respondents have filed an answer on 16 October 2004 denying the applicant’s claim.  Pursuant to a consent order dated 10 January 2005, it was ordered that the parties were to file and exchange expert medical reports within 60 days from the date thereof.  Pursuant to the consent order, the applicant’s former solicitors on 11 March 2005 filed the expert medical report of Dr Lau Hoi-kuen, the applicant’s orthopaedic expert, dated 28 January 2005, and the respondents’ solicitors filed the expert medical report of Dr Lam Kwong-chin, the respondents’ orthopaedic expert, dated 7 February 2005.  On 23 April 2005, the respondents’ solicitors filed the supplemental expert medical report by Dr Lam dated 9 April 2005. 

2.  At the hearing before me on 13 March 2005, I ordered that the applicant do file and serve a supplemental expert medical report by Dr Lau within 21 days from the date thereof.  I further ordered that the expert medical evidence be limited to one orthopaedic expert for each party.  After hearing the parties’ submissions, I allowed the respective experts to be called to give evidence at the trial since there might be an issue in relation to the applicant’s choice of treatment after the accident and its consequential impact, if any, on his disability and earning capacity.  The case was set down for trial on the running list not to be warned before 15 August 2005 with an estimated time of three days.

3.  The applicant changed his solicitors on 14 June 2005.  On 16 August 2005, the applicant’s solicitors took out a summons to seek, inter alia:

(a)	leave to adduce as evidence the expert medical report of Dr Christopher Tong dated 17 July 2005 at the trial, and
(b)	expert directions that expert medical evidence be limited to two orthopaedic experts for each party.

No affidavit was filed in support of the application.

4.  The respondents opposed the application and their solicitors filed an affidavit for such purpose.  Other than the background matters referred to above, the affidavit in opposition sets out the following matters:

(a)	At the request of the applicant’s former solicitors, the applicant was jointly examined by Dr Lau and Dr Lam at Dr Lam’s clinic on 25 January 2005.
(b)	The respondents’ solicitors wrote to the applicant’s solicitors on 22 June 2005 requesting for service of the supplemental expert medical report of Dr Lau pursuant to my order dated 13 May 2005.
(c)	To date, the respondents have failed to serve the supplemental report of Dr Lau.
(d)	On 18 February 2005, the applicant commenced common law personal injuries action against the respondents in HCPI No. 167 of 2005 (hereinafter called “the High Court action”) in respect of the same accident.
(e)	The applicant also adduced Dr Lau’s report dated 28 January 2005 in the High Court action.  At the checklist review hearing on 4 August 2005, the PI Master queried why no single joint expert medical report was prepared.  In fact, it was the applicant’s former solicitors who indicated by their letter of 5 November 2004 that the applicant preferred to have the expert medical reports done separately.
(f)	On 4 August 2005, Master Kwan in the High Court action ordered, inter alia, that:
	(1)	the medical evidence was to be limited to one orthopaedic consultant for each party, i.e. Dr Lau for the plaintiff (applicant) and Dr Lam for the defendants (respondents), and
	(2)	within 14 days the parties were to arrange a joint orthopaedic report by Dr Lau and Dr Lam pursuant to Order 38, rule 38 of the Rules of the High Court that identified the matters in issue and the supporting reasons for their differing views and that such joint orthopaedic report shall be ready within 70 days, i.e. on or before 13 October 2005.
(g)	At the aforesaid checklist review hearing on 4 August 2005, the applicant’s solicitors did not refer to the expert medical report of Dr Tong dated 17 July 2005 in place of or in addition to that of Dr Lau.
(h)	Both the present proceedings and the High Court action proceeded on the basis that each party would have one orthopaedic expert, that their reports upon joint examination were to be adduced, and that the applicant’s expert was Dr Lau.
(i)	The applicant’s summons was the first time the respondents ever heard that the applicant wished to engage and indeed had engaged a second orthopaedic expert for the present proceedings.
(j)	Given the late stage of the proceedings, the respondents opposed the applicant’s application to adduce expert medical evidence from Dr Tong.

5.  The starting point is that each party should be entitled to all experts of his own choice subject to their expertise in giving evidence of the type in question, the relevancy of their expertise to the issues being litigated and case management considerations.  This is the usual course in an adversarial process.

6.  In this case, there is no question over the expertise of Dr Lau, Dr Lam and Dr Tong or the relevancy of orthopaedic expert evidence to the issues in question, but the right to call experts as referred to above is not an unfettered right.  In modern litigation, the court is concerned to filter out excessive expert evidence and to limit such evidence to what is necessary for the efficient and just determination of the case.  The court also stresses the need to maintain a sense of proportion as to the nature and subject matter of the claim as well as to costs. 

7.  However, whilst such case management principles serve useful guidance as underlying principles, they must be tailored to suit the demands of justice in each case.  The proper criteria to determine whether any expert medical report can or should be admitted into evidence are necessity, relevance and probative value.

8.  The present application should be viewed in the context of the developments in the present proceedings.  This case has been set down for trial in the running list and can be warned at any time now.  It is plain that when the parties were before me at the hearing on 13 May 2005, subject to the filing and service of the supplemental expert medical report of Dr Lau, both parties indicated they were ready for trial. 

9.  As discussed above, the applicant has not filed any affidavit in support of the present application.  Mr Tun, solicitor for the applicant, informed me from the Bar table that a supplemental expert medical report from Dr Lau has in fact been obtained by 28 May 2005.  However, the applicant decided not to adduce such supplemental report despite my order of 13 May 2005.  The applicant has not notified the respondents of such decision despite enquiries made by the respondents’ solicitors to the applicant’s solicitors in June 2005. 

10.  Since then, the applicant has unilaterally and without notice to the respondents retained Dr Tong, a new orthopaedic expert, to obtain a fresh orthopaedic expert report.  The report was ready by 17 July 2005.  Although the applicant and/or his solicitors must be well aware that the present proceedings were due to be warned for trial anytime after 15 August 2005, the applicant took close to a month to consider his position and did not disclose Dr Tong’s report to the respondents’ solicitors until 13 August 2005.  The applicant’s solicitors’ letter to the respondents’ solicitors dated 13 August 2005 consisted of only one sentence, namely: “We send you herewith by way of service a copy of the medical report of Dr Christopher Tong dated 11 July 2005.”  No explanation was given as to the change or addition of the new orthopaedic expert.  Indeed, no supporting affidavit has been filed to date.  It is therefore quite unsurprising that the respondents oppose the present application. 

11.  Mr Tun confirms there is no criticism of Dr Lau’s professionalism or expertise.  He further confirms that it is not the case that the applicant has lost confidence in Dr Lau.  I further note that it is not the applicant’s intention to substitute Dr Tong’s report in place of Dr Lau’s report.  Rather, it is the applicant’s intention to rely on the reports of both Dr Lau and Dr Tong save and except for Dr Lau’s supplemental expert medical report. 

12.  In this respect, I refer to the remarks of Seagroatt J in Wong Hin Pui v Mok Ying Kit & Another (No. 2) [2002] HKLRD 856, 874 – 875 against the proliferation of expert medical reports.  I need not repeat here what must be familiar to all practitioners in this field of the law.  Whilst the trenchant comments by the learned judge were made in the context of a personal injury case, I find his guidance of no less relevance to employees’ compensation cases where expert medical evidence is not unusual.

13.  The reasons put forward by Mr Tun for adducing Dr Tong’s report can be summarised as follows:

(a)	Despite the similarity of the physical findings and radiological examination results by Dr Lau and Dr Lam pursuant to their joint examination in January 2005, their expert opinion varies substantially.  Dr Lau supports the genuineness of the applicant’s complaints, but Dr Lam discredits such complaints as being non-genuine.
(b)	Dr Tong in his report referred to the non-union of the ulnar styloid which is likely to have compensated normal triangle fibro-cartilage complex (TFCC) function with resultant ulnar side wrist pain which the applicant complains of.  Dr Lau did not mention TFCC condition in his report.

14.  As a starting point, I do not see how differences in medical opinion between the parties’ experts form a justifiable basis for one party to seek further experts in the same field to bolster his own case.  Indeed, Mr Tun accepts that this is not his proposition.  I now turn to consider the reports of Dr Lau and Dr Tong.

15.  In comparing Dr Lau’s and Dr Tong’s reports, I do not see any material difference in respect of their history taking, the radiological examination results and their expert opinion.  There are slight differences in the physical findings but I note there is a lapse of time between the examinations by Dr Lau in January 2005 and Dr Tong in July 2005.  Nevertheless, both experts have recorded less movement of the applicant’s left wrist joint as well as muscle wasting of the left arm as compared with the right upper limb. 

16.  Dr Lau’s and Dr Tong’s respective expert opinion confirm the applicant’s initial choice of Chinese as opposed to western medicine and the subsequent treatment by western medicine.  Both agree that the condition of the applicant’s left wrist has reached a permanent state and that the applicant suffers genuine residual pain and limitation of movement.  Neither recommends surgery for the malunited fracture of the left distal radius.  Both experts agree that the applicant will have difficulty in returning to his pre-accident job as an excavator operator.

17.  I do not consider the reference to TFCC condition by Dr Tong as so fundamentally material as to justify adducing his report in evidence.  He says that TFCC condition is a result of the ulnar styloid non-union.  Dr Lau acknowledges the non-union and confirms the genuineness of the left wrist pain as a result thereof.  He also alludes to an objective fact, i.e. significant muscle wasting of the applicant’s left arm and forearm, as support for the genuineness of the applicant’s complaints.  This has not been referred to by Dr Tong.  In any event, Mr Tun is quite unable to say why the matter of TFCC condition cannot be put to Dr Lau, whose professionalism and expertise are not challenged, for him to express his expert opinion on the same.

18.  On the above analysis, I cannot really see the additional probative value to the present proceedings if Dr Tong’s report is adduced in addition to Dr Lau’s expert medical report.  This brings me back to the guidance by Seagroatt J in Wong Hin Pui’s case.  Like the learned judge, I question the need for the expense and time required not just for procuring Dr Tong’s report but the consequential impact on time and costs for the respondents as well as the court and other litigants if Dr Tong’s report is adduced and he is called to give evidence. 

19.  I bear in mind that both Dr Lau and Dr Lam conducted a joint examination so that there is a common factual basis on which the parties’ respective medical experts have expressed their opinion.  To allow the applicant to adduce Dr Tong’s report dealing with a fresh examination of the applicant in July 2005 is to give the applicant a last-minute tactical advantage that is not just unfair but unnecessary since all experts accept that the applicant’s condition has already reached a permanent state.

20.  Further, there can be no suggestion that the applicant’s case will be stifled without Dr Tong’s report.  Not only is Dr Lau’s report available, the applicant has been given the opportunity for Dr Lau to adduce a supplemental report, which opportunity the applicant has chosen not to avail to date by his decision not to serve such supplemental report.

21.  Mr Wu, solicitor for the respondents, referred me to the case of Gary Beck v Ministry of Defence WT [2003] CP Rep 62, 11 June 2003, which concerned a claim for damages for clinical negligence.  In that case, there were court directions for each party to exchange expert evidence limited to one psychiatrist per party concerning the issues of liability, causation, condition and prognosis.  Over the following months, the respondent lost confidence in its own selected expert even though his report was favourable to the respondent on liability because the expert did not have sufficient knowledge of the Ministry of Defence psychiatric referral system which was relevant to the issue of liability.  The respondent applied for permission to change experts. 

22.  In that case, the judge below opined that if the application were refused and the respondent lost the case, it and its medical expert would have an understandable sense of grievance at being obliged to persist with an expert in which they had totally lost confidence.  He therefore concluded that the application was the only way forward to facilitate an informed and fair trial.  The English Court of Appeal allowed the respondent to change experts subject to the forthwith disclosure of the report of the respondent’s original expert.

23.  Mr Phillips LJ’s judgment well summarised the Court of Appeal’s views.  The learned judge noted that the criticism was not directed at the conclusions of the respondent’s original expert but at the unsatisfactory form and manner in which these conclusions were expressed so as to result in a loss of confidence in him as an expert.  He went on to say:

“	34.	I do not consider that a claimant should be required to take such an assertion on trust.  Equally, I can accept that it may not be reasonable, and has been found not to be reasonable in this case, to expect defendants to advance specific criticisms of an expert’s report at the time when the possibility remains that the defendants will be driven to rely upon that expert because the application to replace him has been refused.
	35.	The answer in this case, as in any case where a situation similar arises, is that proposed by Lord Justice Simon Brown that the permission to instruct a new expert should be on terms that the report of the previous expert be disclosed.  Such a course should both prevent the practice of expert shopping and provide a claimant in the position of Mr Beck with the reassurance that the process of the court is not being abused.  In this way justice will be seen to be done.”

24.  Here, there is no loss of confidence in Dr Lau, but Mr Tun submitted that the applicant refuses to adduce the supplemental medical report of Dr Lau and insists on calling a new expert, Dr Tong.  In such circumstances, I do not consider it fair or in the interest of justice to allow Dr Tong’s report to be adduced without disclosure of Dr Lau’s supplemental expert report.

25.  This is a case which plainly calls for a case management decision.  The court will not hesitate to make such decision to facilitate the just and efficient disposal of the present proceedings.  Having balanced the interests of both parties, I find that there is no justifiable basis for the applicant to adduce the evidence from a second orthopaedic expert whether on the basis of Dr Lau’s professionalism and expertise, on the subject matter of his expert opinion or on the need for a just and fair disposal of the present proceedings.  I therefore dismiss paragraphs 4 and 5 of the applicant’s summons.

(Court discussion re costs)

26.  Costs in relation to paragraphs 1, 2 and 3 of the applicant’s summons be costs in the cause of the application.  I apportion three minutes of today’s hearing time for this aspect.  Costs in relation to paragraphs 4 and 5 of the applicant’s summons to be paid by the applicant to the respondents, to be taxed if not agreed.  There will also be an order in terms of paragraph 7 of the applicant’s summons.

(Court discussion re order)

27.  I also order that my order dated 13 May 2005 that the applicant do file and serve the supplemental report of Dr Lau Hoi-yuen be rescinded.