LAM SO CHAI v. CHEUNG SAI LUI t/a HOI FUNG STEVEDORE & TRANSPORTATION CO

HCPI 360/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 360 OF 2007

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REASONS  FOR  DECISION

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1.  There are 3 matters at this Pre-trial Review:

(1)     application for specific discovery by the Defendant;

(2)     admissibility of the accident investigation report by the Marine Department;

(3)     calling the respective experts on the future needs of the Plaintiff.

2.  At the hearing, I ordered specific discovery upon consent, admitted the accident investigation report, and directed the reports on the future needs of the Plaintiff be admitted without calling the makers thereof.

3.  The Plaintiff was a cargo handling worker on board a vessel.  The load fell off and crushed him.  His right leg was amputated from thigh.

4.  The Marine Department rendered an accident investigation report.  The safety officer commented on the practice of loosening the bundling wires during the lift as the Plaintiff said he was so instructed to do.

5.  Mr Au-Yeung, for the Plaintiff, asked for leave to adduce the accident investigation report as technically, it might count as opinion evidence by an expert.

6.  Ms Lai, for the Defendant, pointed out that the Defendant denied the instruction to loosen the wires as alleged by the Plaintiff, and was concerned with admission of that part of the report.  She is not really concerned with the comments of the safety officer as they would be obvious on the alleged facts, and there is no need for another view from a defence expert.

7.  It is obvious that the safety officer was merely commenting on what the Plaintiff had told him.  Such basic facts would be subject to challenge at trial.  Upon clarification with the parties, it is common ground that the Defendant would not be bound by the disputed facts in not objecting to the admissibility of the report.  Hence, I admitted the report.

8.  The needs claim include: microprocessor controlled knee prosthesis (C-Leg), alternative accommodation, motor car and other transportation costs, domestic care, aids and equipment (e.g. wheel chairs and shower equipment), physiotherapy and massage, and counselling.

9.  It is agreed that the joint prosthetic report of Dr A Leong and Mr K Wong are to be admitted without calling the makers thereof.

10.  As to the evidence on the future needs, the respective experts are Mr Andrew Kwok, “rehabilitation expert”, and Mrs Shelly Chow, occupational therapist.  Mr Kwok is a trained social worker and has acted as case manager and expert witness for plaintiffs with disability.

11.  The battle line was first drawn before the PI Master when the solicitors insisted that a “rehabilitation report” is different from the “occupational therapist report”.  Now, Ms Lai’s complaint is that whilst the Plaintiff has claimed the state of the art C-Leg worth well over $2 million in restoring much mobility, Mr Kwok has recommended accommodation, transport etc. for $6 million as if the Plaintiff were a paraplegic.  Mrs Chow opined nil requirement for alternative accommodation, motor car and domestic care, etc.  Ms Lai requested Mr Kwok be called for cross-examination.

12.  I am not trying the case now, and any suggestions of extravagance or inconsistencies must be left to the trial judge.  However, as to whether more preparation on expert evidence is to be done, I think some observations of common sense and realism should be in order in this area once said to be “money spinner” by Seagroatt J, reformist judge and pioneer in case management in personal injuries litigation in Hong Kong.

13.  In cases where the plaintiff suffers impairment in faculties or mobility, and claims special aids and accommodation, evidence on the special needs, required space or alterations, and related costs are adduced.  Traditionally, such evidence has often come from occupational therapists. 

14.  Occupational therapy is the practice of helping people to the day-to-day tasks that “occupy” their time, sustain themselves, and enable them to contribute to the wider community.  Therapists instruct those with permanent disabilities in the use of adaptive equipment, including wheelchairs, orthotics, and aids for eating and dressing. [1]

15.  It should be borne in mind that rarely is the therapeutic value as such of occupational therapy in issue.  The reports are mainly market research on available choices and related costs of the aids and equipment, and the professionals who have experience in working with disabled persons give evidence on the needs and the relevant features.  Ultimately, the award will depend on the finding of the physical conditions of the plaintiff and the reasonable necessity and suitability of the items.  Hence, I think the substance of the opinion based on experience and research matters more than the qualifications of the experts and how they call themselves.

16.  Mr Kowk’s report purports to deal with the Plaintiff’s needs.  It is really a matter of common sense (or lack of it).  I do not think it serves any purpose to discard it and start afresh.  But for the future, points as to qualification of the needs expert, if any, should be taken at the early stage.  Under the new Practice Direction, I would envisage the experts to render joint report, and the matters could be taken up at the appointment stage.

17.  While still on the reports, I say they both are, especially that of Mr Kwok, too lengthy.  Obviously, the needs experts base their opinions on the parties’ pleaded case and on the reports of the physicians, and express their views on the necessity of the special items.   There is no need to repeat extensively what has already been set out by others.  In this case, the Statement of Damages has conveniently pleaded particulars of the special items with reference to sections of Mr Kwok’s report.  What Mr Kwok could have done was to justify the Statement of Damages with his reasons, referring to other reports as is necessary.  The spirit of the Civil Justice Reform is that costs should not be incurred unless they are necessary.  It is quality and not quantity that counts.  I suggest that if the trend of excesses shall continue in future, the Master may consider imposing costs cap on the preparation of the needs report.

18.  The Defendant’s real complaint is inconsistent global claims.  Alternative cases may be pleaded where there is reasonable justification.  But those responsible for formulating the alternative cases should consider any inconsistencies, and decide on which is the primary, and which is the secondary, and to expend such efforts and costs in preparation accordingly.  Given the duty to mitigate damage, where both alternatives are feasible, prima facie, the position must be to put first the lesser claim unless compensation is inadequate.  If at the end of the day it is considered that costs are unreasonably incurred on inconsistent claims, application may be made under the new O. 62, r.5(2), RHC for disallowance of costs for issues unreasonably raised, pursued or contested.

19.  At this juncture, I am not commenting on any particular items save on accommodation, and subject to that, I do not think any further preparation is necessary.

20.  The Plaintiff is currently residing in a 3 bed room public housing flat of 300+ sq ft at monthly rental of $1,440.  The Defendant’s case is that only alteration to the toilet is necessary, and permissions on alterations have been granted in similar cases in the past on compassionate grounds by the Housing Department.  Hence, I directed that the parties to agree on the scale measurements of the toilet and the approach area on the floor plan.  If the trial judge thinks the flat is too small, alternative accommodation may be provided for by logical projection.  It may not necessarily be level ground dwelling advocated by Mr Kowk.  I also directed the parties to obtain evidence of the Housing Department’s policy on alteration for disabled persons.  Time has been budgeted accordingly.

21.  It is not true that experts will invariably be called whenever their positions are divergent.  It depends on whether the difference can be resolved one way or the other on materials otherwise before the Court.  In this case, I ordered that the reports of the needs expert be adduced without calling the makers thereof. 

22.  I directed the Plaintiff do set down the case in the Running List (3 days reserved) within 56 days, not to be warned before 19 October 2009.

23.   I ordered costs of the PTR be in the cause with Legal Aid taxation.