HCPI 744/2009
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES ACTION NO. 744 OF 2009
_________________________
BETWEEN
KONG CHUNG FU (江宗虎)
Plaintiff
and
NG KA KI (吳嘉麒)
Defendant
_________________________
Coram : Before Master Marlene Ng in Chambers (open to the public)
Dates of Hearing : 1 November 2011 and 7 March 2012
Date of Handing Down Decision : 12 April 2012
______________
DECISION
______________
I. BACKGROUND
1. On 9 December 2006, the plaintiff was riding his motorcycle when he was hit by a private car (“Accident ”). On 27 November 2009, he commenced the present proceedings against the defendant to claim for damages for personal injuries and other loss and damages as a result of the Accident. On 3 February 2010, judgment on liability was entered in favour of the plaintiff for damages to be assessed (“Judgment ”).
2. Orthopaedic expert reports have been obtained for the purpose of the present proceedings, namely, the solo report by the plaintiff’s expert Dr Lau Man Tsang Richard (“Dr Lau ”) dated 8 September 2008 (“Lau 1st Report ”) and the joint report by Dr Lau and the defendant’s expert Dr Chun Siu Yeung (“Dr Chun ”) dated 8 April 2010 (“Ortho Jt Report ”).
3. The parties have also obtained the joint urological expert report signed by Dr Kwok Tin Fook for the plaintiff and Dr George Koo for the defendant (collectively, “Uro Experts ”) respectively on 27 July and 2 August 2010 (“Uro Jt Report ”), and the single joint psychiatric expert report by Dr Chung See Yuen (“Dr Chung ”) dated 27 September 2010 (“Psy Report ”).
4. On 3 June 2010, the plaintiff served his witness statement as to quantum (“1st Statement ”).
5. On 6 July 2010, Master J Wong ordered that expert medical evidence be limited to 1 orthopaedic, 1 psychiatric and 1 urological expert for each party. He further directed that the Lau 1st Report and the Ortho Jt Report be adduced at the assessment of damages (“Assessment ”) without oral evidence, but reserved the costs of the Lau 1st Report for determination by the judge/master hearing the Assessment. On 10 March 2011, I directed that the Uro Jt and Psy Reports be adduced at the Assessment without oral evidence.
6. On 10 December 2010, the plaintiff filed and served his Revised Statement of Damages (“RSOD ”). On 25 February 2011, the defendant filed and served his Answer thereto (“Answer ”).
7. At the Checklist Review (“CLR ”) on 10 March 2011, the plaintiff’s solicitors intimated that the plaintiff wished to serve his own supplemental witness statement in reply to some matters raised in the Answer. I therefore directed (a) the plaintiff to take out inter partes application for such purpose on or before 17 March 2011 and (b) the parties to submit joint written application to the PI Master on or before 20 May 2011 to set the case down for the Assessment.
8. On 17 March 2011, the plaintiff issued inter partes summons for leave to serve his own supplemental witness statement as to quantum. On 22 March 2011, the court granted such leave. Pursuant thereto, the plaintiff served his own supplemental witness statement as to quantum dated 17 March 2011 (“2nd Statement ”).
9. On 17 May 2011, I granted extension of time until 10 June 2011 for the parties to submit joint written application to the PI Master to set the case down for the Assessment.
10. On 10 June 2011, the parties’ respective solicitors jointly wrote to the PI Master stating inter alia that the plaintiff had invited the defendant to jointly seek clarification from Dr Lau and Dr Chun (collectively, “Ortho Experts ”) on inter alia the necessity/costs of further medical treatment, and proposing to report to the PI Master within 21 days on whether the defendant would consent to such proposal.
11. On 16 June 2011, I directed the parties to submit joint written application on or before 7 July 2011 to state whether the parties would agree to obtain supplemental joint orthopaedic expert report, but if not the plaintiff was to take out inter partes application on or before 14 July 2011 for leave to obtain such supplemental joint orthopaedic expert report.
12. On 7 July 2011, the parties’ respective solicitors jointly wrote to the PI Master to report that no agreement had been reached on whether to obtain the proposed supplemental joint orthopaedic expert report, and that the plaintiff was then seeking counsel’s advice.
13. On 8 July 2011, I reminded the parties of my directions in paragraph 11 above that required the plaintiff to take out inter partes application on or before 14 July 2011 for leave to obtain supplemental joint orthopaedic expert report.
14. On 13 July 2011, unbeknownst to the defendant and the court and notwithstanding (a) my directions in paragraph 11 above which required the plaintiff to take out inter partes application for leave to obtain supplemental joint orthopaedic expert report, (b) my reiteration of such directions on 8 July 2011 (see the above paragraph), (c) the parties’ discussion on the possible need for a supplemental joint orthopaedic expert report (see paragraph 12 above) and (d) the defendant’s known opposition to any supplemental orthopaedic expert report (see paragraph 12 above), the plaintiff unilaterally instructed Dr Lau to clarify the expert opinion expressed in the Ortho Jt Report.
15. On 14 July 2011, the parties’ respective solicitors jointly wrote to the PI Master to report that the plaintiff was seeking counsel’s advice, and requested for extension of time to comply with the directions in paragraph 11 above to take out inter partes application (if so advised by counsel) for leave “to obtain supplemental joint orthopaedic expert report on or before 14th July 2011 if the parties are unable to reach agreement as to whether such report is required or not” (my emphasis).
16. On 19 July 2011, I granted extension of time until 2 August 2011 for the plaintiff to comply with my directions in paragraph 11 above. But unbeknownst to the defendant and the court, Dr Lau compiled a supplemental solo orthopaedic expert report dated 25 July 2011 (“Lau 2nd Report ”).
17. On 2 August 2011, the plaintiff issued an inter partes summons (“1st Summons ”) for leave to (a) adduce the Lau 2nd Report at the Assessment, (b) serve the plaintiff’s 2nd supplemental witness statement on quantum as per the draft annexed thereto (“Initial Draft 3rd Statement ”) (“Statement Application ”), and (c) amend the RSOD as per the draft annexed thereto (“Draft Amended RSOD ”) (“RSOD Application ”).
18. On 2 August 2011, I dismissed the plaintiff’s application for leave to adduce the Lau 2nd Report, but extended time for the plaintiff to comply with my order in paragraph 11 above to take out inter partes application for leave to obtain supplemental joint orthopaedic expert report. I also adjourned the Statement and RSOD Applications for argument.
19. On 8 September 2011, the plaintiff issued an inter partes summons for leave to obtain supplemental joint orthopaedic expert report by the Ortho Experts (“2nd Summons ”).
20. On 9 September 2011, the plaintiff consulted a private orthopaedist Dr Chan Kow Tak (“Dr Chan ”). Dr Chan compiled a medical report dated 17 September 2011 (“Chan Report ”).
21. On 27 September 2011, I adjourned the 2nd Summons for argument to be heard together with the Statement and RSOD Applications. The argument hearing came before me on 11 November 2011 (“1st Hearing ”).
22. In her written submissions, Ms Chow, solicitor appearing for the defendant at the 1st Hearing, complains that although the plaintiff contends it is necessary to obtain a supplemental joint orthopaedic expert report due to his worsening orthopaedic condition, he has merely produced the Chan Report pursuant to a single consultation on 9 September 2011 without any disclosure of his treatment medical records/notes/reports from Caritas Medical Centre (“CMC ”) for the past 3 years since July 2008.
23. When I pointed out such documentary lacuna to Mr Kwok, counsel for the plaintiff, in the course of his oral submissions at the 1st Hearing, he applied for an adjournment to obtain CMC’s notes/records/ reports. I also directed the plaintiff to serve Supplemental List of Documents to discover and disclose medical notes/records/reports from CMC, Dr Chan and/or other hospital(s)/clinic(s) in respect of the orthopaedic care and treatment received by the plaintiff from July 2008 to date, and to restore the 1st and 2nd Summonses for argument upon disagreement (if any) over their disposal after inspection of such documents.
24. Subsequently, the plaintiff served on the defendant the medical report dated 16 November 2011 by Dr Wong Sze Hung of CMC’s department of orthopaedics and traumatology (“DOT ”) (“New Report ”) and CMC’s medical records in respect of the orthopaedic treatment and care received by the plaintiff from May 2008 to October 2011 (“New Records ”) (collectively, “New Medical Documents ”). However, the plaintiff has not discovered, disclosed or served any medical notes/records kept by Dr Chan, and no explanation has been forthcoming from the plaintiff for the absence of such medical notes/records.
25. After their review of the New Medical Documents, the parties still disagreed over the disposal of the 1st and 2nd Summonses, so the plaintiff applied to restore the Statement and RSOD Applications and the 2nd Summons for argument before me. Such adjourned hearing for argument came before me on 7 March 2012 (“2nd Hearing ”).
26. Shortly before the 2nd Hearing, the plaintiff revised his draft 2nd supplemental witness statement on quantum. At the 2nd Hearing, Mr Kwok applied to substitute the Initial Draft 3rd Statement with such revised draft (“Revised Draft 3rd Statement ”). Mr Lung, solicitor appearing for the defendant at the 2nd Hearing, did not object, and I granted leave accordingly.
II. PRELIMINARY MATTERS
27. For preliminary matters, I start with the hearing bundle. The hearing bundle includes 13 documents (being items 16-28 of the hearing bundle index) covering 46 pages of copy statements/documents from the police relevant to the issue of liability (“Liability Documents ”). The inclusion of the Liability Documents is inexplicable and unjustified since (a) the Judgment has been entered in favour of the plaintiff and (b) such documents are wholly irrelevant to the Statement and RSOD Applications and the 2nd Summons. At the 1st Hearing, Mr Kwok fairly conceded there should be no order as to costs of and occasioned by the inclusion of the Liability Documents in the hearing bundle, and the plaintiff’s solicitors through counsel undertook not to charge the plaintiff or the Director of Legal Aid in respect of such costs.
28. Secondly, the plaintiff has included the Lau 2nd Report in the hearing bundle. It is clearly marked in the hearing bundle index that the defendant disputes the inclusion of such document. Given that I have dismissed the plaintiff’s application for leave to adduce the Lau 2nd Report (see paragraph 18 above) and there has been no appeal against such order, the Lau 2nd Report is plainly inadmissible. At the 2nd Hearing, Mr Kwok disavowed reliance on the Lau 2nd Report. In such circumstances, there is no reason why costs of and occasioned by the inclusion of the Lau 2nd Report in the hearing bundle should not receive the same treatment as the Liability Documents.
29. Thirdly, the plaintiff has included the Chan Report in the hearing bundle. It is again clearly marked in the hearing bundle index that the defendant disputes the inclusion of such document. The defendant objects to the section titled “Comments” on the second and third pages of the Chan Report (“Disputed Part ”) which, accordingly to Ms Chow’s written submissions, contains expert medical opinion in respect of which the plaintiff has not obtained leave to adduce for the purpose of the present proceedings. At the 2nd Hearing, both Mr Kwok and Mr Lung agree that I should receive the Disputed Part and submissions thereon on a de bene esse basis. I shall return to the issue of admissibility of the Disputed Part in paragraphs 71-77 below.
30. Both Mr Kwok and Mr Lung agree that if I were to find in favour of the plaintiff in respect of the 2nd Summons and grant leave for the parties to obtain supplemental joint orthopaedic expert report by the Ortho Experts,
(a) the Ortho Experts should carry out a further joint medical examination of the plaintiff before compiling their supplemental joint report (as suggested in both Mr Kwok’s and Ms Chow’s written submissions);
(b) directions should be given for fixing the case management timetable for obtaining such supplemental joint orthopaedic expert report;
(c) the Statement and RSOD Applications should be adjourned for consideration and, where appropriate, determination after such supplemental joint orthopaedic expert report has been obtained.
31. In respect of (c) above, Mr Kwok at the 2nd Hearing acknowledged that the necessity and/or contents of the Revised Draft 3rd Statement and the Draft Amended RSOD may have to be re-considered in light of the contents of the supplemental joint orthopaedic expert report (if any) to be compiled by the Ortho Experts, and it is more appropriate to defer the Statement and RSOD Applications until after sight of any such supplemental joint orthopaedic expert report.
32. Both Mr Kwok and Mr Lung also agree that if I were to find against the plaintiff in respect of the 2nd Summons and decline to grant leave for the parties to obtain any supplemental joint orthopaedic expert report by the Ortho Experts, I must go on to consider and determine the Statement and RSOD Applications, and depending on my ruling on such applications I may fix a date for a CLR hearing for setting this case down for the Assessment.
III. INJURIES AND TREATMENT
33. According to the medical report by CMC’s accident and emergency department (“AED ”) dated 20 June 2007, the plaintiff was conscious and alert on arrival after the Accident. However, he told the Ortho Experts, the Uro Experts and Dr Chung that he lost consciousness after the Accident and later woke up in CMC’s intensive care unit. He later admitted to Dr Chung that he was conscious for some time after the Accident. In the 1st Statement, the plaintiff states he lost consciousness shortly after the Accident.
34. CMC’s AED noted that the plaintiff had a laceration at his forehead. His right leg was deformed with laceration at his right thigh. X-ray showed fractures of right hip, right distal femur bone and pelvis. The plaintiff was admitted to CMC’s surgical department for further management of the open fracture of his right femur.
35. At CMC’s DOT, the plaintiff was found to suffer from the following injuries: scalp laceration, right foot fracture, right femur open fracture, head injury (no further treatment required), right pelvic fracture (no further treatment required) and right hip fracture. He received several operations.
36. On 9 December 2006, the plaintiff had suturing of the scalp laceration and wound debridement/external fixation for right femur open fracture. The findings were open fracture of the distal right femur with severe comminution involving the metaphyseal and intra-articular regions, and open wound over distal femur with stripping of quadriceps muscle.
37. On 13 December 2006, the plaintiff had external fixation of pelvis, k-wire fixation for right foot fracture, debridement of thigh wounds, dynamic condylar screw to right distal femur and screw fixation for right proximal femur. The findings were pelvic sacral ala open-book type fracture, fractures of the 2nd to 5th metatarsal heads and necks, and acute traumatic closed fracture of neck of right femur.
38. On 10 January 2007, the plaintiff had debridement of compound fracture wound of distal right femur and examination of the joints under anaesthesia. It was found that most thigh wounds had healed, the 5th metatarsal head was dislocated, and the basal fracture was not united. “Right knee joint instability demonstrated on valgal and varus tests. The anterior and posterior draw signs were also positive with grade 1-2 laxities of the anterior cruciate and posterior cruciate ligaments. Dynamic condylar screw of the distal femur fixation loosened.” (see the Lau 1st Report at paragraph 2.2.4 and the Ortho Jt Report at paragraph 4.2.4)
39. On 25 January 2007, the plaintiff had removal of pelvic external fixator and dynamic condylar screw, and insertion of locking plate to right femur with bone graft from the left iliac crest. It was found there was big defect over the metaphyseal and distal diaphyseal region of the right femur, and comminution at the intra-articular fracture.
40. According to the Psy Report, the plaintiff told Dr Chung that during his hospitalisation a doctor suggested amputation.
41. The plaintiff was discharged from CMC on 9 June 2007 after lengthy rehabilitation. He told the Ortho Experts and Dr Chung that he used a wheelchair upon discharge.
42. The plaintiff attended orthopaedic follow up at the outpatient clinic of CMC’s DOT (“Clinic ”). When he visited the Clinic for follow up on 9 July 2007, some of the fractures were united but some were not. The plaintiff in the 1st Statement claims the doctors at the Clinic suggested there was no complete union of the various fractures, and he had to prepare for significant residual disability.
43. In August 2007, the plaintiff started physiotherapy at Tuen Mun Hospital (“TMH ”). In October 2007, he still required use of walking aids, and was admitted to CMC. Right femur exploration and bone grafting for right femur non-union were done on 1 November 2007. Donor grafts were taken from the right iliac crest. The plaintiff had outpatient physiotherapy at TMH after discharge.
44. The plaintiff was admitted to CMC on 15 April 2008 for further management of non-union of right femur facture. Right femur wound debridement and elective bone-grafting operation (from the left iliac crest) were performed on 16 April 2008. The plaintiff’s condition remained stable after the operation, and he was discharged on 2 May 2008 after courses of physiotherapy during hospitalisation. According to the plaintiff, he continued with physiotherapy at TMH after discharge. He was last seen on 4 July 2008 when his condition appeared static, and he was referred for medical assessment.
45. The parties have not provided the Ortho Experts with any further medical report on the plaintiff’s orthopaedic treatment and care after 2 May 2008. But the plaintiff told the Ortho Experts (see also paragraphs 7-8 of the 1st Statement) that he was admitted to CMC in October 2008 for bone-grafting of his femoral fracture. Donor grafts were taken from the right iliac crest. He was also fitted with a drop foot splint (ie an ankle-foot orthosis (“AFO ”)) after the procedure, but did not have any physiotherapy afterwards. His sick leave was terminated on 30 October 2009.
46. According to the Ortho Jt Report, the plaintiff told the Ortho Experts his femoral fracture did not heal well, but his treating doctors told him they had done everything for him.
47. According to the New Medical Documents, in January 2009 there was swelling, erythema and pain over distal lateral right thigh with serous discharge and an episode of fever due to infection. CMC’s patient assessment form dated 2 January 2009 notes that the plaintiff’s ambulatory status was “Outdoors” and his walking aid was “Wheelchair”.
48. According to the New Report and the operation record dated 8 January 2009, right thigh incision and drainage were done on 8 November 2009 for right lateral thigh abscess. The Progress Form in the New Records shows that after such procedure the plaintiff “can walk with stick in steady gait” (see entry for 17:40 hours on 11 January 2009) and “walk with quadripod independently in steady gait” (see entry for 18:20 hours on the same day).
49. The New Records also show that CMC’s medical personnel completed the Fall Prevention Checklist each day for 2-4 and 9-13 January 2009 and the Fall Risk Assessment Form each day for 2, 9 and 11 January 2011. The former notes that the plaintiff ambulated with assistance and safe environment for ambulation was provided. The latter notes that the plaintiff could mobilise with stick. The Patient Discharge Plan Summary (B) by CMC’s DOT notes the walking aid for discharge would be “stick”.
50. The plaintiff was discharged on 13 January 2009. CMC’s 病人出院護理摘要dated 13 January 2009 shows that his son was informed of inter alia the need to “預防跌倒”.
51. Thereafter, the plaintiff attended follow up at the Clinic on 30 January, 2 and 20 February and 2 and 20 March 2009. The New Records on subsequent follow up attendances reveal inter alia as follow:
Date
Medical notes/records
4 April 2009
More steady walking with orthosis/stick
8 July 2009
More consolidation of femur
30 October 2009
X-ray shows more bone formation at fracture site; walking with AFO; “no pa”
30 April 2010
Condition static, ankylose knee, use stick to walk
8 June 2010
No active complaint
29 October 2010
Pain over right distal femur, walk for 100m using quadripod, renew AFO
25 March 2011
X-ray shows implant in-situ and hip fracture has no avascular necrosis
21 October 2011
Complained of right hip and thigh pain with no fall
52. According to the New Report, the plaintiff’s overall condition improved slowly in view of the complicated multiple fractures. When he was last seen on 21 October 2011, there was some residual right hip and thigh pain. X-ray of the right hip and right femur showed united fracture. The plaintiff could manage to perform basic activities of daily living (“ADL ”) at home, but he would have difficulty in returning to work. “He has reached the maximum rehabilitation level and …… should be fit for any Medical Board Assessment if any”.
IV. PLAINTIFF’S COMPLAINTS
53. In Lau’s 1st Report, the plaintiff complains inter alia that he had right buttock pain, right leg pain, coccygeal pain, right foot drop and “pain and stiffness of the right knee”, shortening of the right lower limb (he had to wear 1in raised heel shoes on the right side), assisted walking (he used quadripod at home and needed a wheelchair for going out, and never tried climbing stairs since the Accident), left knee pain (he started to complain of pain in his left knee after overusing the left leg in walking), and paraesthesia of the medial half of the right 2nd toe after the Accident. The plaintiff claims that for ADL he could look after his personal hygiene and go out in a wheelchair for his meals at fast food stores, but his wife tended to the housework after finishing her day’s work.
54. In the Ortho Jt Report, the plaintiff maintains the above complaints and further complains to the Ortho Experts of inter alia left buttock pain, pain in his left sole on walking, and pain over the screw heads on the right thigh which were tender to pressure. There was pain and stiffness of the right knee, and he could not elevate his right lower limb against gravity.
55. In the Psy Report, the plaintiff complains that he had pain over his right lower limb once every few days with each attack lasting 1-2 minutes. His right lower limb was shorter than the left by 4cm. He had right foot drop, and his right toes were distorted. He needed a quadripod for walking, and had to rest after walking for around 100m. He had difficulty walking stairs. He needed to change posture after sitting for half an hour as his right lower limb was fixed in a straight position. He had difficulty in travelling by bus as he could not stand or sit properly with his unbent limb. These symptoms had become static since the end of 2008.
V. EXAMINATIONS BY MEDICAL EXPERTS
56. When the plaintiff was examined by Dr Lau on 5 August 2008 for the Lau 1st Report and by the Ortho Experts on 16 March 2010 for the Ortho Jt Report, he walked slowly with a quadripod in his left hand, and he had to use an AFO to prevent drop-foot on walking. During the solo examination he could not stand on either foot, but at the joint examination he could stand briefly on his left leg with support but could not stand on his right leg.
57. For both examinations, there were multiple scars on the right lower limb, and shortening of right lower limb of 4 cm. The sensation of the right lower limb was generally diminished distally from the thigh wounds. At the joint examination, the plaintiff told the Ortho Experts there was subjectively 50% decrease in the sensation of the right lower limb. For both examinations, the muscle power of the right lower limb was diminished, and there was drop foot of the right ankle with weak plantarflexion and no active dorsiflexion of the ankle and toes. In the joint examination, the toes of the right foot showed hyperaesthesia. The plaintiff complained of pain when the medial side of the right 2nd toe was touched. The right sole was also tender to touch. He could not lift his right lower limb against gravity, but when the right thigh was supported he could extend his knee against gravity.
58. In respect of the right knee, both examinations reveal that it was stiff and painful on passive movement. In the solo examination, there was mild laxity of the anterior cruciate ligament but no laxity on valgal and viral stress. At the joint examination, there was mal-rotation of the right lower limb. In the resting posture, it was neutral in position but normally it should be externally rotated. The left knee showed mild retro-patellar tenderness, a feature of osteoarthritis of the patello-femoral joint.
59. The findings on the range of movement of the plaintiff’s lower limbs were as follows:
Joint
Movement
Lau 1st Report
Ortho Jt Report
Right (°)
Left(°)
Right (°)
Left(°)
Hip
Flexion
100
120
110
125
Extension
0
5
0
5
Abduction
20
30
30
50
Adduction
15
30
15
50
External rotation
35
50
30
50
Internal rotation
20
35
15
35
Knee
Flexion
30
145
30
140
Extension
0
0
0
0
Ankle
Plantarflexion
35
60
25 (passive)
45
Dorsiflexion
-20
20
-10 (passive)
20
Subtalar
Inversion
15
15
15
15
Eversion
5
5
5
5
60. X-rays of the pelvis, right femur and right foot were taken for both examinations, but x-ray of the right knee was taken only for the joint examination:
(a) X-ray of the pelvis showed fracture of the superior and inferior pubic rami on the right side with mild separation of the fragments at the fracture sites. The later x-ray showed fracture of the sacral ala united in good alignment.
(b) X-ray of the right femur showed osteoporotic bone. The neck fracture had been fixed by 3 metallic screws. There was proximal migration of the trochanteric region causing shortening of the right lower limb, and a gap at the postero-medial aspect of the middle and distal part of right femur even though the fracture had been fixed with a long plate and screws. The bone had not united fully despite repeated bone-grafting procedures, and the proximal and distal fixation was not stable or rigid. The later x-ray showed that the femoral head remained round without evidence of avascular necrosis, and the hip joint space was the same as the contralateral side.
(c) X-ray of the right foot showed mal-united fractures of the 2nd to 5th metatarsals of the right foot. The fracture at the base of the 5th metatarsal was non-united, and the 5th metatarso-phalangeal joint remained dislocated. There were healed fractures of the distal phalanx of the big toe and middle phalanx of the 2nd toe.
(d) X-ray of the right knee for the joint examination revealed a Y-shaped fracture involving the condyles and articular surface of the distal femur. Fixation was not anatomical. Although union had been achieved, there were still some gaps in the fragments and the facture was not solid. The patella was present.
61. According to the Uro Jt Report, the plaintiff “is now able to walk independently wearing a right [AFO] and special shoes. He cannot walk very fast or carry heavy weights”. Indeed, the Uro Experts have noted that the plaintiff came to the examination venue (ie St Paul’s Hospital) by himself on 14 July 2010 “walking with the aid of a hand held stick because of a weakened right leg and foot”. Physical examination of the plaintiff by the Uro Experts showed that he “walked by himself with stick held with his left upper hand” and “right ankle supported by [AFO] due to foot drop”.
62. But according to the Psy Report, the plaintiff came alone for the examination by Dr Chung on 13 September 2010, and he walked with support of a quadripod.
VI. LAU 1ST REPORT AND ORTHO JT REPORT
63. In the Lau 1st and Ortho Jt Reports, the Ortho Experts opine that the plaintiff suffered from right femoral fractures, right foot fractures and right knee injuries including (a) pelvic fracture including the right side of sacrum and superior and inferior pubic rami, (b) fracture of right femur including the neck and shaft with marked comminution, (c) ligamentous injuries of the right knee, and (d) fractures of the right foot including 2nd to 5th metatarsals and toes. In the Ortho Jt Report, the Ortho Experts further note there was Y-shaped condylar fracture of the right knee.
64. The Lau 1st and Ortho Jt Reports state that the plaintiff still had a lot of problems with his injuries which mainly involved his right lower limb and right side of the pelvis. The major fracture in his distal femur remained non-united despite repeated bone-grafting procedures. The fracture site was maintained by the distal lateral femoral locking plate, but the fixation was also not solid. The bones were osteoporotic. Judging from the atrophic bone ends of the fracture site, the Ortho Experts opine that it would be unlikely for the fracture to achieve solid union, and there was not much that could be done to improve the plaintiff’s condition. In view of the osteoporosis and poor union, the plate could not be removed and re-fracture would be a possibility. “It is difficult to convince [the plaintiff] to undergo above-knee amputation and to ambulate on above-knee prosthesis. He is already 63 with hip and pelvic fractures; it will be difficult for him to adjust to walking with prosthesis.”
65. The Ortho Experts note there had been painful episodes in the plaintiff’s right lower limb. There was shortening of the right lower limb and right foot drop at ankle level with diminished sensation, power and range of movement of the right knee/ankle joints. There was also mild antero-posterior instability of the right knee, but on the other hand the right knee was stiff. The plaintiff’s pelvis/buttocks were painful on standing or sitting. He could not negotiate stairs or walk without the use of an AFO and quadripod. He stayed at home most of the time but used a wheelchair for ambulation when going out for his meals. The Ortho Experts opine that it is likely that the plaintiff will continue to rely on walking aids, and his leg may not function better than a person with above-knee amputation but without hip and pelvic fractures.
VII. CHAN REPORT
66. The Chan Report notes that when the plaintiff attended Dr Chan’s clinic for consultation on 9 September 2011 he was most concerned about the inability to properly bend his right knee. “He can now walk with a pair of crutches, but with a clumpsy gait because of the chief complaints” of (a) stiffness and weakness of right hip, (b) stiffness of right knee and limping gait, (c) right ankle foot drop (requiring right AFO for walking purpose) and wasting of right calf muscles, (d) impaired sensation of right foot, left hip and left leg on walking and (e) fractures of right foot metatarsals.
67. Dr Chan’s physical examination shows inter alia :
(a) stiffness in flexion and rotation of the right hip with impaired abduction;
(b) long noticeable scar seen over lateral aspect of the right thigh down to right knee level;
(c) right knee was “swollen and grossly deformed” with active flexion range of 0°~30° and no knee effusion;
(d) muscle of the right calf was wasted;
(e) right ankle could not actively dorsiflex, and there was impaired sensation of dorsum of the right foot;
(f) left hip and knee were essentially normal.
68. There was evidence of fracture neck of right femur with hip screws fixation shown in x-rays of the right hip done in March 2011. There was varus deformity of the femoral neck so that the right greater trochanter was impinged against the right pelvic wall, which accounted for the stiffness of the right hip and the shortening of the right thigh.
69. X-ray of the right knee and lower femur in September 2011 revealed “[evidence] of fracture lower
1/3 of shaft right femur extending to inner condylar area of the distal femur”. Dr Chan said the bone architecture of the lower femur did not look well. The bony union needed the protection of a long femoral plate with several distal transverse intercondylar screws. “The distal femoral articular surface of the right knee was disrupted. The patellofemoral articulation of the right knee was deformed and affected by the long femoral plate.”
70. In the Disputed Part, Dr Chan opines as follows:
(a) “The limited flexion range is a result of severe trauma of the right lower thigh, which had multiple operations done. Scarring and tissue loss would affect the flexion range. Disfiguration of the patellofemoral joint and presence of a long femoral plate and multiple screws would also affect the right knee range of motion.” Whether the long femoral plate can be removed depends on the status of the femoral fracture union, but x-ray taken in September 2011 showed there was not much callus formation over the posterior aspect of the fracture site. Dr Chan opines it will not be wise to remove the plate at that time, and the plaintiff may need to wait for 2-3 months and check the lower right femur again by x-ray. “The right knee joint degeneration as a result of trauma will have little chance to recover on its own. So is the range of motion of it. The poor architecture of the right lower femur makes a total joint replacement a remote treatment option.”
(b) The right femoral neck fracture healed in a less ideal configuration. There is varus deformity causing impingement of the right greater trochanter against the pelvis wall, which accounts for the limited range of motion and the limping gait.
(c) The right foot drop was due to peroneal nerve palsy, which could be a result of the initial Accident injury. If after nearly 5 years there is no significant recovery, it may be deemed to be permanent. An AFO is needed for walking purpose.
(d) The left hip pain is due to “compensatory over weight bearing on the left side” as the plaintiff could not exert too much weight on the injured right lower limb.
71. The first matter I need to consider is the admissibility of the Disputed Part. In the present proceedings, orthopaedic expert evidence is limited to 1 orthopaedic expert for each party, and the orthopaedic expert for the plaintiff is Dr Lau (see paragraph 5 above). So unless the court grants leave otherwise, the plaintiff can only adduce orthopaedic expert opinion evidence from Dr Lau and not from any other orthopaedist. Mr Kwok has not asked for (and I have not granted) any leave for further or additional orthopaedic expert opinion evidence to be adduced from any other orthopaedist for the purpose of the present applications. In the circumstances, the plaintiff cannot adduce any orthopaedic opinion evidence by Dr Chan.
72. The next question is whether the contents of the Disputed Part amount to orthopaedic opinion in contra -distinction to factual medical treatment information. The Chan Report notes that the plaintiff consulted Dr Chan on 9 September 2011. Ms Chow finds it strange there is only a single consultation without any reference to the plaintiff’s orthopaedic treatment history apart from brief references to multiple operations and extended physiotherapy, and no mention of provision or recommendation of any active treatment given by Dr Chan. She suggests that the purpose of the consultation in question seems to be more for the purpose of obtaining opinion than seeking treatment.
73. It is interesting to note that it was against the background of my dismissal of the plaintiff’s application under the 1st Summons to adduce the Lau 2nd Report on 2 August 2011 that the plaintiff consulted Dr Chan on the very day following his issuance of the 2nd Summons on 8 September 2011. It is therefore unsurprising that the defendant is skeptical about the purpose of the Chan Report. Further, despite the defendant’s challenge against the admissibility of the Disputed Part and the adjournment of the 1st Hearing for 4 months until the 2nd Hearing, the plaintiff has not taken any step to dispel such concern either by seeking leave to file affidavit evidence to address such matter and/or by discovering/disclosing Dr Chan’s medical notes/records pursuant to my order made at the 1st Hearing (see paragraphs 23-24 above), and Mr Kwok has not advanced any arguments in his submissions as to why the court should permit the Disputed Part to be adduced.
74. However, I note there is no suggestion on the face of the Chan Report that Dr Chan has been specifically engaged to provide orthopaedic expert opinion for the present proceedings. So for the present purpose, I am prepared to accept that Dr Chan is prima facie a treating doctor whom the plaintiff consulted for medical reasons. But this of itself is not a sufficient answer to the question posed.
75. Whether in a clinical or forensic setting, the doctor is a medical professional who is an expert in the medical field in which he practises. When a clinician or therapist prepares a medical report, he provides documentary testimony regarding the treatment diagnosis he made, the medical treatment he provided and the prognosis from a treatment perspective. In providing such factual treatment medical report, it is not his function to analyse relevant data from the historical treatment records/reports and the medical narrative provided by the patient, conduct forensic examinations, test alternative hypotheses, and integrate clinical experience and scientific medical knowledge for the purpose of rendering expert testimony that requires professional skill and objectivity. Hence, it is not for the clinician to critically evaluate the causation of the injury or disability for such evaluation falls within the realm of foresenic expert medical opinion (see my decisions in Pun Kwong Cheung v Tang Shiu Wo trading as Luen Yick Decoration & Design Co & anor HCPI 587/2008 (unreported, 23 February 2010) at paras.53-57 and Ngai Ping Kwan v Choi Yat Hung HCPI 537/2010 (unreported, 15 September 2011) at paras.59-65).
76. Thus, if a clinician or therapist in compiling his treatment medical report travels beyond provision of professional “fact” information on treatment-related matters by giving evaluative “expert” medical opinion, then such report cannot be regarded as a professional factual report focused on diagnosis and treatment. It becomes expert opinion for which leave of the court is required before it can be adduced in legal proceedings.
77. I note that Ms Chow and Mr Lung have been very fair in not challenging the admissibility of the medical narrative and the examination findings in the Chan Report other than the Disputed Part. But having carefully considered the contents of the Disputed Part, I find that they are long on the critical evaluation of the causation and prognosis of the plaintiff’s various injuries and impairments, and short on any medical treatment administered or advised. I have no hesitation in concluding that the Disputed Part is expert medical opinion albeit given by Dr Chan who purports to be a treating orthopaedist. In light of the restrictions on orthopaedic opinion evidence in the expert directions in paragraph 5 above which the plaintiff does not seek to undermine, I rule that the Disputed Part is inadmissible for the present proceedings including for the purpose of the 2nd Summons and the Statement and RSOD Applications.
VIII. 1ST AND 2ND STATEMENTS
(a) 1st Statement
78. In the 1st Statement, the plaintiff claims that since the Accident he had a significant permanent loss of mobility and had not been able to lead an independent life without substantial care by other people. He therefore stayed at home most of the time sitting or lying on the sofa with little or nothing to do. He still had frequent sensation of pain, numbness and stiffness in various parts of his body (notably his buttock, tailbone, right knee, right leg and right foot) without any definite trigger. His right leg was still grossly deformed with minimal prospect for any further recovery. The scars on his waist and right leg were tender and hypersensitive with minimal stimuli. Every few days, he would experience sharp pain in his right leg of several minutes for each attack even when he was sitting or resting,
79. The plaintiff further claims that his right lower limb had been shortened after the Accident and he could not raise or make any movement with his right ankle and toes. He needed to wear raised-heel shoes on his right foot for proper balance and could not stand on either foot on his own. He would have to rely on aids like quadripods for walking and automated wheelchair for going out. But even with walking aids he could barely manage to walk for a relatively short distance without obvious limp or awkward look. He could no longer climb stairs, walk uphill or travel by bus. As he had to use his left leg a lot more than before, it often felt painful and uncomfortable.
(b) 2nd Statement
80. The plaintiff claims that whilst a lot had already been done to his right leg after the Accident, there was not much improvement. He was “informed by his doctors that no further improvement should be expected and upper leg amputation should be done once and for all. Even though [he was] convinced that there is no chance for [his] right leg to get back to normal, [he was] still rather hesitant about undergoing this operation at this stage. Cutting off a leg is to say the least a very frightening concept. [He] may have to consider this possibility, however, if its condition gets worse than now”.
81. The plaintiff further claims he was still not able to walk around at home at all without a quadripod even though it was already some time after the Accident. When going out for longer distances not far enough to take a taxi, he had to rely on his electric wheelchair. “[He understood] from [his] doctors that [he would] have to be like this for the rest of [his] life.”
IX. REVISED DRAFT 3RD STATEMENT
82. The plaintiff has not applied for leave to file and has not filed any affidavit evidence in support of the 2nd Summons. Indeed, at the call-over hearing of the 2nd Summons on 27 September 2011, the plaintiff merely applied to adjourn the 2nd Summons for argument to be heard together with the Statement and RSOD Applications (see paragraph 21 above). In the circumstances, the Revised Draft 3rd Statement is merely an unsigned draft witness statement which has not been verified by affidavit. It is as yet unknown whether leave will eventually be granted for the plaintiff to rely on and serve any further witness statement as per the Revised Draft 3rd Statement.
83. However, Mr Kwok in his written and oral submissions refers to the contents of the Revised Draft 3rd Statement as if they were factual evidence forthcoming from the plaintiff. I am not persuaded that it is appropriate to elevate the assertions in the Revised Draft 3rd Statement as if they were affirmation evidence. To do so would be to allow the plaintiff to slip in evidence by the backdoor when he has not applied for leave to serve affirmation evidence for the present applications and the defendant has not had the opportunity to respond thereto.
84. In the circumstances, I shall regard the Revised Draft 3rd Statement summarised in paragraphs 85-88 below as no more than what the plaintiff intends to eventually finalise and serve on the defendant if the court grants leave under the Statement Application.
85. According to the Revised Draft 3rd Statement, the plaintiff is very concerned about the serious probability of a fall. He says his right leg and walking strength have become more feeble, and his right leg offers him little or no support when standing or walking. Even though it is almost 5 years after the Accident, his right leg continues to show signs of worsening. Sensation of short sharp pain and muscle spasm in his right leg (especially in the region around his right knee) are more frequent. The muscle of his right thigh/knee has shrunk. The plaintiff notes that Dr Lau opines there is no medical way to improve his right leg condition, and knee replacement is not possible. He does not know how much longer he can still walk with a quadripod, but he does not want to be confined to a wheelchair all the time.
86. The plaintiff in the Revised Draft 3rd Statement says that the doctors at CMC’s DOT have advised him to be extra-careful with the risk of slip, trip and/or fall when walking with the quadripod because his bones are more likely to fracture than those of normal people his age. He understands that any such fracture caused by a fall will be partly due to damage to his bones with early onset of osteoporosis as a result of the Accident. The plate and screws fixed in his right leg may also be damaged, broken or loosened upon a fall. Even though he has been and will continue to be careful, he thinks there is still a high probability that he will fall. There have been several occasions when he was almost knocked down on the street by pedestrians. Even though people try to avoid him, he may still be hit accidentally. Further, normal people may not appreciate his poor reflexes or his need to pause at irregular intervals to alleviate pain or other sudden attacks. There have been several occasions when he had to stand still to alleviate a sudden pain attack and was almost hit by people pushing open a door.
87. In the Revised Draft 3rd Statement, the plaintiff claims that due to over-reliance on his left leg, his left lower limb feels painful and uncomfortable within a few minutes after he gets up from a sitting position to stand or to walk. He is fearful of a fall when he stands up from a sitting position given the unresolved problem of his recurring dizziness and frequent sense of passing out that may strike him at the same time. He already has had experience of almost falling for more than a dozen times, so he often walks close to walls to occasionally lean on them for support.
88. After the New Medical Documents have been made available, the plaintiff has added new paragraphs to the Initial Draft 3rd Statement. In the Revised Draft 3rd Statement, the plaintiff claims that notwithstanding the brevity of the entry in the New Records for the follow up on 21 October 2011 and the absence of any record of complaint about his knee condition in the New Report, he has actually told the female doctor attending him on 21 October 2011 (who is not Dr Wong) about his knee problem, but she just focused on his right hip and thigh only without paying much attention to his complaint of knee degeneration. After taking x-rays of his right leg, he has been told nothing more can be done and his case will be closed. The plaintiff says he does not understand why the New Medical Documents do not specifically refer to his knee degeneration problem (which he finds strange).
X. LEGAL PRINCIPLES
89. There is no disagreement between Mr Kwok and Ms Chow/Mr Lung over the relevant legal principles on expert evidence. I repeat my observations in Ngai Ping Kwan at paras.6-7 citing the guidance by Bharwaney J in Fung Chun Man v Hospital Authority & anor HCPI1113/2006 (unreported, 24 June 2011) at paras.9-11 and 15.
90. In summary, expert medical evidence (including supplemental expert medical evidence) must be relevant, necessary and of probative value, ie it is likely to be of real assistance to the determination of the issues or, to put it in another way, it must be reasonably required to enable the court to resolve the issues in dispute. In the case of supplemental expert medical evidence, the court will be astute to ensure that “only proper questions to clarify genuine issues that are raised in a timely fashion are allowed to be put to the expert(s) after the joint report has been produced” (see Chan Yuet Keung v Harmony (International) Knitting Factory Limited HCPI 144/2009, Bharwaney J (unreported, 2 November 2010)).
91. The court also has regard to other circumstances, eg potential disruption to the trial, the prejudice to the other parties, the explanation given for a late application, and these matters have to be considered and weighed in light of and against the underlying objectives. Ultimately, the court strives to do justice between the parties and to secure the just resolution of the dispute in accordance with the substantive rights of the parties.
XI. DISCUSSION
92. I shall first focus on the 2nd Summons.
93. Mr Kwok submits that it is necessary, relevant and of probative value to obtain a supplemental joint orthopaedic expert report by the Ortho Experts to address on the following issues (“New Issues ”):
(a) the probability of a fall due to worsening of the right knee, and the consequence of such occurrence;
(b) the probability of either re-fracture of the right femur or fracture at the junction of the plate and the femur bone, and the consequences of such occurrence;
(c) what became of the Y-shaped condylar fracture and the ligamentous injuries of the right knee identified in the Ortho Jt Report;
(d) the significance of progression of right knee degeneration and the finding by Dr Chan of swollen and grossly deformed right knee;
(e) the effect of worsening right knee upon the left knee;
(f) the need (if any) for above knee amputation and post -operation care and equipment;
(g) the consequences (eg treatment, rehabilitation, aids and equipment) of the above scenarios and the relevant costs and expenses.
94. Mr Kwok submits that the supplemental joint orthopaedic expert report addressing on the New Issues is relevant and required and will be helpful to the court by providing medical evidence to assist the court in arriving at a fair and just decision. He argues that the cost for such report should not be great, and in any event not disproportionate to the claim at stake in the present proceedings. Since the Ortho Experts are not divided in their opinion in the Ortho Jt Report, it is likely that their opinion on the New Issues will be consistent with each other.
95. On the other hand, Ms Chow/Mr Lung submit that either (a) the New Issues have been sufficiently addressed in the Ortho Jt Report or (b) orthopaedic expert opinion on the New Issues are irrelevant, unnecessary or of limited value in assisting the court to assess the plaintiff’s condition and/or to resolve any disputed issue for it adds nothing beyond what is already known.
96. In respect of the New Issues in paragraph 93(a)-(b) above, Ms Chow/Mr Lung submit that it is difficult for the Ortho Experts to assess the exact probability of a fall, re-fracture and/or fracture, but the court can make an informed decision on these matters without further orthopaedic expert evidence (a) by drawing assistance from the physical examination findings in the Ortho Jt Report and (b) by considering the plaintiff’s evidence to assess the severity of his condition and the veracity of his subjective complaints.
97. In respect of the New Issue in paragraph 93(c) above, Mr Lung’s written submissions in fact admit that the Y-shaped condylar fracture and the ligamentous injuries of the right knee identified in the Ortho Jt Report are plainly the result of the Accident.
98. In respect of the New Issue in paragraph 98(f) above, Mr Lung argues that it is within the expertise of the prosthetic experts and not within those of the Ortho Experts to consider whether there is any need for above-knee amputation (with consequent after-care and equipment).
99. In respect of the New Issue in paragraph 93(e) above, Mr Lung submits that the alleged problem of over-reliance on the left leg is too remote.
100. Mr Lung further submits that even if the Ortho Experts can further assess the plaintiff’s right knee degeneration, such opinion evidence will not be real or substantial assistance since the difference in the claim for future medical expenses and aids/equipments in the Draft Amended RSOD as compared with such claim in the RSOD may not be more than HK$100,000.00.
101. In considering the above submissions, it is necessary, in my view, to consider the plaintiff’s medical and treatment history and what has been canvassed by the Ortho Experts in the Lau 1st and Ortho Jt Reports, and then ask whether there are any orthopedic-related medical matters which need clarification and/or expansion by the Ortho Experts and/or whether there are any new matters that may impact on their opinion as expressed in the Lau 1st and Ortho Jt Reports so that their opinion will be complete and comprehensive to properly assist the judge/master hearing the Assessment on the orthopedic medical aspects of the case.
102. Here, there is no doubt that the plaintiff suffered right femur open fracture and laceration of the right thigh, ie open fracture of the distal right femur with severe comminution involving the metaphyseal and intra-articular regions, and open wound over distal femur with stripping of the quadriceps muscle (see paragraph 36 above), and that he was treated with dynamic condylar screw to right distal femur and screw fixation for right proximal femur for the right femur fracture and wound debridement for laceration of the right thigh (see paragraph 37 above). However, the dynamic condylar screw loosened (see paragraph 38 above) and was eventually removed and replaced by insertion of locking plate to the right femur with bone graft (see paragraph 39 above). There was non-union of the right femur fracture despite multiple operations with bone-grafting (see paragraphs 42-45 above).
103. Hence, by the time the plaintiff was examined by Dr Lau on 5 August 2008 and by the Ortho Experts on 16 March 2010, the treatment doctors have told the plaintiff (and the Ortho Experts concur) that they had done all they could for him even though the right femoral fracture had not healed well. It was not apparent from Ortho Jt Reprt that the Ortho Experts were aware that the plaintiff’s right lateral thigh developed abscess in January 2009, the nature of the treatment he received for the infection and his recovery therefrom (see paragraphs 47-48 above). However, I am not persuaded that this development of itself deserves a supplemental joint orthopaedic expert report.
104. Without objection from Mr Lung, Mr Kwok at the 2nd Hearing has helpfully provided a diagrammatic presentation of the procedure for surgical fixation for comminuted and displaced open right distal femur fracture. It explains that the procedure requires an incision to be made into the right knee exposing the joint space. A drill is inserted into the knee and passed up into the femur bone. An intramedullary nail is then inserted and secured with multiple locking screws (ie 1 proximal locking screw and 2 distal locking screws). Mr Kwok submits that the procedure is not only complicated but also causes disturbance to the right knee. Whilst that may be so, the Ortho Experts as expert orthopaedists must have understood what such procedure entails, and again it is not of itself persuasive of any need for supplemental joint orthopaedic expert report.
105. In any event, as noted by the Ortho Experts in the Lau 1st and Ortho Jt Reports, the present case is complicated by the loosening of the condylar screws (see paragraph 38 above), so a distal lateral femoral locking plate has been inserted to replace the condylar screws. But the proximal and distal fixation was not stable/rigid and non-union of the right femur fracture is still evident by a gap at the postero-medial aspect of the middle and distal part of the right femur despite repeated bone grafting (see paragraph 60(b) above). The bones were also osteoporotic (see paragraph 60(b) above).
106. It is evident from the Lau 1st and Ortho Jt Reports that the Ortho Experts have carefully considered the above matters, and took the view that the right femur fracture is unlikely to achieve solid union, and nothing much more could be done to improve the plaintiff’s condition (see paragraph 64 above). Since the Ortho Experts have already canvassed such matters in the Lau 1st and Ortho Jt Reports, normally it would not be necessary to have a supplemental joint orthopaedic expert report to revisit what has been canvassed. However, the New Records show that since the Ortho Jt Report there was more consolidation of the plaintiff’s right femur and more bone formation at the factual site. More significantly, the entry for the last follow up at the Clinic on 21 October 2011 in the New Records and as summarised in the New Report confirms that that x-ray taken showed inter alia right femur “OK” with “fracture healed”.
107. In my view, a question immediately arises as to whether the Ortho Experts’ view as expressed in the Lau 1st and Ortho Jt Reports that judging from the atrophic bone ends of the right femur site the fracture is unlikely to achieve solid union can still hold good in light of the medical developments revealed in the New Medical Documents (see the above paragraph), and if the Ortho Experts’ view is disturbed, a further question may arise as to whether their conclusion (ie nothing much can be done to improve the plaintiff’s condition) based on such view needs to be revisited. Still further, query arises as to whether the Ortho Experts’ view that due to osteoporosis and poor union the locking plate cannot be removed is now still justified in light of the medical developments since the Ortho Jt Report.
108. The Ortho Experts have not had the opportunity to consider the New Medical Documents. In my view, they should do so and revisit their opinion given in the Lau 1st and Ortho Jt Report to see whether in light of recent developments such opinion can be maintained. There may be a need for them to review the x-rays taken at CMC on 30 October 2010 and 25 March and 21 October 2011 (see paragraph 51 above).
109. But Mr Kwok submits that if the Ortho Experts’ opinion in the Lau 1st and Ortho Jt Reports are viewed against the 1st and 2nd Statements and the Chan Report, there is room for greater pessimism over the plaintiff’s bilateral knee condition, lower limb functionality, risk of fall and fracture/re-fracture, and possible need for right above-knee amputation, and that the Ortho Experts should look into these matters and give their expert views. For the purpose of this discussion, I put aside the Disputed Part (which I have ruled to be inadmissible) and the Revised Draft 3rd Statement (which is not signed or verified).
110. There is no doubt that the plaintiff has suffered ligamentous injuries of the right knee as a result of the Accident (see paragraph 63 above). As early as in January 2007, right knee joint instability was demonstrated on valgal and varus tests. The anterior and posterior draw signs were also positive with grade 1-2 laxities of the anterior cruciate and posterior cruciate ligaments (see paragraph 38 above). However, by the time of the solo examination by Dr Lau on 5 August 2008, there was only mild laxity of the anterior cruciate ligament but no laxity on valgal and viral stress (see paragraph 58 above).
111. Although there is no mention of right knee fracture in the treatment medical reports and in the Lau 1st Report, x-rays taken for the Ortho Jt Report reveal a Y-shaped condylar fracture of the right knee involving the condyles and articular surface of the distal femur. Although union has been achieved and the patella is present, fixation is not anatomical and the fracture is not solid. There are still gaps in the fragments (see paragraph 60(d) above).
112. The examinations by the Ortho Experts for the Lau 1st and Ortho Jt Reports show that the plaintiff’s right knee is painful and stiff (see paragraph 58 above) with active flexion range of 0°~30° (see paragraph 59 above). This sits well with the plaintiff’s consistent complaint to the Ortho Experts of pain and stiffness of the right knee (see paragraphs 53-54 above) and of frequent sensation of pain, numbness and stiffness in inter alia his right knee in the 1st Statement (see paragraph 78 above). Indeed, the entry for the follow up at the Clinic on 30 April 2010 in the New Records suggests that the right knee was ankylosed (see paragraph 51 above). But this has already been reflected in the Psy Report which notes the plaintiff’s complaint of having to change posture after sitting for half an hour as his right lower limb is “fixed in a straight line” and not being able to stand or sit properly on a bus with his unbending right lower limb (see paragraph 55 above). This is further echoed by the plaintiff’s complaint to the Ortho Experts that he cannot elevate his right lower limb against gravity (see paragraph 54 above) but can extend his right knee against gravity if his right thigh is supported (see paragraph 57 above).
113. Dr Chan mentions that the distal femoral articular surface of the right knee was disrupted and the patello-femoral articulation of the right knee was deformed and affected by the long femoral plate inserted to protect the bony union of the right lower femur which architecture did not look well (see paragraph 69 above). However, I do not see such observation as being far different from the Ortho Experts’ opinion that the plaintiff’s right knee suffers from both mild antero-posterior instability and stiffness as well as limited range of movement (see paragraphs 59 and 65 above) and that little more can be done (see paragraph 64 above). Further, apart from the subjective assertions in the Revised Draft 3rd Statement (which is neither signed nor verified) to the effect that there has been worsening of the right knee, there is no objective evidence of such in the New Medical Documents which do not mention the knee condition at all. It is true that Dr Chan’s examination findings on 9 September 2011 include “swollen and grossly deformed” right knee with no knee effusion, but I am not persuaded that in the context of the injuries and surgical procedure done to the right knee region and the subsequent disabilities of the right knee, such presentation during the single consultation on 9 September 2011 is necessarily one of progressive degeneration such that it requires further exploration by the Ortho Experts in a supplemental joint orthopaedic expert report. This is especially so in the absence of complaint/finding about the right knee in the New Records for 13 follow up attendances between January 2009 and October 2011 (see paragraph 51 above). The plaintiff by the Revised Draft 3rd Statement (which is unsigned and unverified) purports to brush this aside by saying that the treatment doctor has failed to record his complaint made at the follow up on 20 October 2011 (see paragraph 88 above), but I find this strange when such doctor took the effort to record his complaints and to order/review x-rays of his right leg to consider whether the definitive step of closing the case should be taken.
114. In my view, the Ortho Experts have been seized of the matters in paragraphs 110-112 above when they prepared the Ortho Jt Report, and there is insufficient material or significant structural development in respect of the right knee placed before me to justify a need for supplemental joint orthopaedic expert report.
115. However, the same cannot be said for the plaintiff’s left knee condition. It has been recorded as early as in the Lau 1st Report that the plaintiff has complained of left knee pain due to overusing his left leg in walking (see paragraph 53 above). This is echoed by the 1st Statement in which the plaintiff claims that his left leg often feels painful and uncomfortable as he had to use his left leg a lot more than before (see paragraph 79 above). It is also supported by the finding at the examination by the Ortho Experts for the Ortho Jt Report that there was retro-patellar tenderness of the left knee, a feature of osteoarthritis of the patello-femoral joint (see paragraph 58 above). The plaintiff has complained to Dr Chan about left hip and leg pain on walking, but Dr Chan’s findings on examination of the left hip and knee were “essentially normal” (see paragraphs 66-67 above).
116. Here, the plaintiff undoubtedly has suffered severe injuries to his right leg and the consequent disabilities are not insubstantial. As will be seen below, his right lower limb mobility has been adversely affected. In the circumstances, common sense suggests that with a deformed right leg the plaintiff may rely on his remaining good leg (ie left leg) to aid mobility, and any compromise or deterioration of the left leg may have potentially significant implications in respect of his mobility and/or lower limb functionality. I am not persuaded by Mr Lung’s suggestion that assessment of the problem of over-reliance on the left leg is a remote issue in this case.
117. But the Ortho Experts have not addressed this issue in assessing the plaintiff’s prognosis, disabilities and impairments in the Lau 1st and Ortho Jt Reports. In my view, notwithstanding Dr Chan’s observation that the plaintiff’s left hip/knee are essentially normal, given the history and findings set out in paragraph 115 above, this is a matter that deserves further exploration and consideration by the Ortho Experts by way of a supplemental joint orthopaedic expert report.
118. I now turn to the matter of the plaintiff’s functionality. According to the Lau 1st and Ortho Jt Reports, the plaintiff has complained of inter alia right buttock/leg pain, shortening of the right lower limb (caused by proximal migration of the trochanteric region as shown in the x-ray taken – see paragraph 60(b) above) and pain over the screw heads on the right thigh (see paragraph 54 above). Physical examination by the Ortho Experts revealed that sensation and muscle power of the right lower limb were diminished (see paragraph 57 above). According to the Psy Report, the plaintiff complained of pain attacks over his right lower limb once every few days each lasting 1-2 minutes, and inconveniences in sitting and travelling by bus due to his unbending right lower limb that is fixed in a straight position (see paragraph 55 above).
119. As regards mobility, the plaintiff has consistently complained that he cannot negotiate stairs (see paragraphs 53-55 above). He used a wheelchair upon discharge from CMC in June 2007 (see paragraph 41 above) and ambulated with walking aids in October 2007 (see paragraph 43 above). By January 2009, one part of the New Records suggests he could go outdoors in a wheelchair (see paragraph 47 above), but another part suggests he could walk independently with stick or quadripod “in steady gait” (see paragraph 48 above). In August 2008 and March 2010, the plaintiff complained to Dr Lau and the Ortho Experts respectively that he had to use an AFO and quadripod at home and a wheelchair for going out (see paragraphs 53-54 and 56 above). This is consistent with plaintiff’s assertion in the 1st Statement made in June 2010 that he relied on walking aids such as a quadripod for walking and automated wheelchair for going out (see paragraph 79 above), and the Ortho Experts’ observation in the Lau 1st and Ortho Jt Reports that the plaintiff could not negotiate stairs and could not walk without an AFO and quadripod such that he stayed at home most of time and used a wheelchair for going out for meals (see paragraph 65 above). Hence, the Ortho Experts opine that it is likely that the plaintiff will continue to rely on walking aids, and his leg may not function better than a person with above-knee amputation but without hip and pelvic fractures (see paragraph 65 above).
120. But interestingly, in July 2010 (presumably unknown to the Ortho Experts since the Uro Jt Report has not been disclosed to them – see paragraph 1 of the Ortho Jt Report), the plaintiff was able to attend St Paul’s Hospital by himself for his joint examination by the Uro Experts. It is noted in the Uro Jt Report that he was then able to walk independently wearing an AFO and special shoes although he could not walk fast or carry heavy weight. All he required, according to the Uro Experts, was a hand held stick as walking aid (see paragraph 61 above). But in September 2010, the plaintiff attended examination by Dr Chung by walking with a quadripod and complained that he needed to use a quadripod for walking and had to rest after walking for 100m (see paragraphs 55 and 62 above).
121. Further, the New Records (not available to the Ortho Experts for compiling the Lau 1st and Ortho Jt Reports) show that the discharge plan for his last hospitalisation in January 2009 was for him to use a stick as walking aid. April 2009 saw that the plaintiff had “more steady walking with orthosis/stick”. In October 2009, the plaintiff was walking with AFO and “no pa”. In April 2010, the New Records note that he walked with a stick (see paragraph 51 above). Although it is noted in the New Records that by October 2010 the plaintiff could walk 100m using a quadripod (see paragraph 51 above), Dr Chan notes that during the consultation on 9 September 2011 the plaintiff could walk with a pair of crutches albeit with a clumsy gait (see paragraph 66 above).
122. The observations by various medical doctors in the paragraphs 120-121 above over a period from January 2009 to the September 2011 seem to suggest some degree of improvement in ambulation from use of quadripod and wheelchair to walking with stick or crutches. Even though CMC’s DOT in the New Report states that the plaintiff has reached maximum rehabilitation level (see paragraph 52 above), it is unclear whether it is the same as what the Ortho Experts had in mind when they compiled the Ortho Jt Report. In my view, it is necessary for the Ortho Experts to revisit their views expressed in the Lau 1st and Ortho Jt Reports that the plaintiff cannot walk without use of an AFO and quadripod, and has to rely on wheelchair for outdoor ambulation, especially in light of the orthopaedic development in respect of his right leg shown in the New Medical Documents (see paragraph 121 above). After all, the plaintiff’s lower limb functionality and mobility have a significant impact on the assessment of impairment (see paragraph 5 under the hearing “Comments” of the Lau 1st Report and paragraph 14 of the Ortho Jt Report). The Ortho Experts’ review and assessment of the updated condition of the plaintiff’s right leg mobility from an medical perspective will also aid the judge in assessing the veracity of the plaintiff’s assertions in the 2nd Statement of March 2011 that there has been no improvement in the functionality of the right leg and that he has to use a quadripod at home and a wheelchair outdoors (see paragraphs 80-81 above), and in the even more dire predictions of worsening ambulation in the Revised Draft 3rd Statement (see paragraph 85 above) if leave is eventually granted to the plaintiff to serve such statement.
123. Mr Kwok submits that the whilst the Lau 1st and Ortho Jt Reports have raised the possibility of fall and re-fracture, it falls short of giving proper elaboration and/or analysis of such possibility. A significant part of the Revised Draft 3rd Statement has been spent on the plaintiff’s fear of fall and consequent fracture or re-fracture, but I am not persuaded that I should rely on such assertions premised on an unsigned and unverified statement. Mr Kwok prays in aid the Fall Risk Assessment Form and the Fall Prevention Checklist completed whilst the patient was hospitalised for his right thigh incision and drainage operation as well as the care summary given to him upon discharge in January 2009 (see paragraphs 49-50 above) to urge me to infer that the plaintiff suffers high risk of potential fall. I am not persuaded that such inference is an inevitable conclusion from the documents. After all, the plaintiff was then suffering from infection-caused abscess resulting in operation on the right thigh. Obviously, the operation and consequent wound dressing and rehabilitation would affect mobility and require fall precaution measures to be put in place. But it does not necessarily follow that upon recovery from the right thigh infection the plaintiff still necessarily suffers from high risk of fall and re-fracture.
124. Nevertheless, there can be no doubt that the plaintiff’s ambulation is diminished as a result of the Accident, and he has complained not just about the poor status of his right leg but also problems with his left leg. Common sense suggests that a fall with possibility of fracture or re-fracture as alluded to in the Lau 1st and Ortho Jt Reports may have further adverse impact on the plaintiff’s already weakened lower limb(s). It is therefore important for the judge/master at the Assessment to consider and assess the probability of the plaintiff suffering such fall and consequent fracture or re-fracture. The Ortho Experts are silent in this respect in the Lau 1st and Ortho Jt Reports.
125. Mr Lung argues that this is a matter for the judge/master hearing the Assessment, and the Ortho Experts are not in a position to assess such probability. I disagree. Whilst it is an ultimate question for the tribunal hearing the Assessment to determine whether the plaintiff is likely to suffer from fall and fracture or re-facture in future given allowances for the vicissitudes of life, it is for the Ortho Experts to assist by drawing on their expertise and experience with assistance from medical literature and clinical studies if appropriate and saying (if they can) whether the plaintiff’s current or projected orthoapedic constitution and/or ambulatory status lend themselves to a greater or lesser likelihood of a fall and fracture or re-fracture in future or whether it is indicative of a propensity to suffer such eventuality. Is it almost certain that the plaintiff will go through life unaffected by any fall and fracture or re-fracture? Alternatively, is there a strong possibility that the plaintiff’s condition or progression of such condition will lead to a fall and fracture or re-fracture? Still alternatively, will such event certainly have occurred at some stage but it cannot be said when it will have taken place? In my view, orthopaedic expert opinion (if any) on these matters premised not just on the factual assumptions and findings set out in the Lau 1st and Ortho Jt Reports but also on the new developments as to the plaintiff’s mobility discussed above will be of assistance to the judge/master at the Assessment.
126. Mr Kwok submits that the issue of above-knee amputation has been raised by the Ortho Experts without serious discussion, but such dire procedure requires more in-depth consideration. It appears that amputation was suggested during the plaintiff’s hospitalisation (see paragraph 40 above), but he was frightened and hesitant about undergoing such serious operation (see paragraph 80 above). However, as evident in the 2nd Statement of March 2011, the plaintiff appears to be more resigned to considering the possibility of amputation if his right leg condition gets worse (see paragraph 80 above).
127. In the Lau 1st and Ortho Jt Reports, the Ortho Experts state that it is difficult to convince the plaintiff to undergo above-knee amputation and to ambulate on above-knee prosthesis, and that it will be difficult for him to adjust to walking with such prosthesis given that he is over 60 years old and suffers from hip and pelvic fractures as well (see paragraph 64 above). It is not surprising that the Ortho Experts (who were then aware that the plaintiff has declined amputation but as yet unaware of his more resigned attitude towards amputation in March 2011) did not expand further on the subject.
128. But having raised the possibility of amputation, it is relevant for the forensic experts to consider (a) whether ultimately and irrespective of the plaintiff’s wishes above-knee amputation will be medically inevitable in future in light of the plaintiff’s orthopaedic condition including the degree of likelihood of a future fall and fracture or re-fracture, and (b) whether any elective above-knee amputation now or in future will be medically suitable or beneficial to the plaintiff at all given his age, his underlying orthopaedic condition (especially in light of developments as to his femur fracture recovery and indoor/outdoor ambulation since the Ortho Jt Report), the rehabilitation required for such serious operation, the ability to use or ambulate with artificial prosthesis given his hip, pelvic and femur fractures, and the physical and functional impact of being confined to a wheelchair if use of artificial prosthesis is unlikely.
129. I disagree with Mr Lung that it is not within the expertise of the Ortho Experts to address on these matters. Indeed, I find that they are the appropriate medical experts to say whether the plaintiff’s muscoskeletal architecture requires or is amenable to above-knee amputation. A prosthetic expert only comes into the picture in the post -amputation period to see what aid/equipment (such as artificial prosthesis) can assist in rehabilitation and recovery in ADL and/or ambulation.
130. In light of the above discussion, I am not persuaded that the plaintiff’s condition is so static since March 2010 that no further clarification by the Ortho Experts is required at all. However, it must be evident from the above discussion that my conclusion as to the need for supplemental joint orthopaedic expert report is not squarely premised on the grounds put forward by Mr Kwok and/or the plaintiff.
131. Ms Chow and Mr Lung both remind me that the 2nd Summons has been made late in the day when the present proceedings are almost ready for setting down for the Assessment, and further delay resulting from obtaining a supplemental joint orthopaedic expert report and deferral of the Statement and RSOD Applications until after such report has been obtained will only further delay the plaintiff from getting a final award of damages and put the defendant at risk of becoming liable for more damages, interest and costs. Mr Lung suggests that the amendments to the Draft Amended RSOD only increase the plaintiff’s claim for future medical expenses, aids and equipment by not more than HK$100,000.00. Ms Chow and Mr Lung therefore submit that any supplemental orthopaedic joint report will cause delay, be disproportionate and not cost effective, and add controversy to the Assessment.
132. However, I bear in mind that although the Accident happened in December 2006, ie more than 5 years ago, the case has not been set down for the Assessment as yet. Since damages are assessed down to the Assessment, the tribunal must take into account physical, mental, medical and functional developments since the Accident, and the need for any supplemental expert medical opinion must be determined not only on whether there are matters in the initial report that need clarification but also on whether subsequent developments raise matters that put in question any opinion expressed in the initial report. Whilst I take into account the ideals in the underlying objectives, I must also have regard to the primary aim of case management which is to ensure there is a just resolution of the dispute between the parties. Whilst the defendant may be disappointed by my permission for obtaining supplemental joint orthopaedic expert report, what the court must strive is to avoid injustice and not disappointment. The increase of not more than HK$100,000.00 in the claim for damages for future medical expenses, aids and equipment in the Draft Amended RSOD is not a paltry sum.
133. In all the circumstances, I consider that leave should be granted for the parties to obtain supplemental joint orthopaedic expert report. The parties have agreed to arrange a further joint medical examination of the plaintiff by the Ortho Experts. No doubt, the plaintiff will provide updated medical history/narrative to the Ortho Experts during the interview. I also consider that although the Ortho Experts should not have sight of the Disputed Part, they should be provided with the medical notes/records kept by Dr Chan. Obviously, they should not consider the Lau 2nd Report at all. The Ortho Experts should be consulted as to whether they require review of the x-rays referred to in paragraph 108 above.
134. Hence, the Ortho Experts in compiling their supplemental joint report may have access to more information/documents than what has been made available to this court for the purpose of the 2nd Summons. In the premises, my observations in the above paragraphs on certain matters urged by Mr Kwok but which have not weighed with me in my decision to allow supplemental joint orthopaedic expert report to be obtained do not bind the Ortho Experts in their consideration of the relevant medical/orthopaedic issues that may have bearing on their updated opinion as to the plaintiff’s condition, prognosis, impairment, disability and/or further treatment.
XII. CONCLUSION
135. I therefore grant the following orders:
(a) For the avoidance of doubt, no leave is granted for the Disputed Part to be adduced and be admissible for the purpose of the present proceedings including the Assessment.
(b) Within 28 days from today, ie on or before 10 May 2012, the plaintiff shall serve supplemental list of documents to make discovery and disclose Dr Chan’s medical notes/records in respect of the plaintiff’s treatment and care, and there be inspection of documents within 7 days thereafter, ie on or before 17 May 2012.
(c) Leave to the parties to obtain supplemental joint orthopaedic expert report by the Ortho Experts.
(d) Within 14 days from today, ie on or before 26 April 2012, the parties shall jointly write to the PI Master (“Joint Application ”) on the following:
(i) state the date of the further joint medical examination of the plaintiff by the Ortho Experts, which date shall be no later than 70 days from today, ie on or before 21 June 2012;
(ii) state the date for completion of the supplemental joint orthopaedic expert report by the Ortho Experts, which date shall be no later than 56 day thereafter, ie on or before 16 August 2012;
(iii) confirm that the parties would desptach instructions to the Ortho Experts to compile their supplemental joint orthopaedic expert report within 21 days from today, ie on or before 3 May 2012;
(iv) propose directions for obtaining supplemental joint orthopaedic expert report;
(v) propose a date for restoring the Statement and RSOD Applications for further call-over hearing by the PI Master;
(vi) propose all other necessary and appropriate case management directions;
(vii) propose a date or time period for restoring the case for CLR for leave to set the case down for the Assessment.
(e) The Ortho Experts shall compile a supplemental joint orthopaedic expert report pursuant to their further joint medical medical examination of the plaintiff. The Ortho Experts shall have regard to paragraphs 86-87 of PD18.1, and shall state (i) all the issues upon which they have reached common opinion, (ii) all the issues upon which they are unable to reach common opinion, (iii) their competing view on each and every such issue, and (iv) their reasons for disagreeing with the opposing view. Such supplemental joint orthopaedic expert report shall be accompanied by its statement of truth.
(f) No further or additional expert medical reports shall be obtained or adduced without leave of the PI Master.
(g) The Statement and RSOD Applications be adjourned for further directions to be granted pursuant to the Joint Application or further order.
(h) PI Master shall be notified at once and in any event within 3 days if any of the above dates or directions are not met with detailed reasons.
(i) Solicitors for the plaintiff shall send a copy of this order to the legal aid counsel in charge of this case to ensure that there is no delay in compliance with these directions due to late assignment of counsel or due to late issuance of an appropriate certificate.
(j) Time shall run during court vacation.
(k) Liberty to apply.
136. I grant a costs order nisi as follows:
(a) For the avoidance of doubt, there be no order as to costs of and occasioned by the preparation and compilation of the Lau 2nd Report.
(b) There be legal aid taxation of the plaintiff’s own costs in respect of costs of the hearing on 6 September 2011 and costs of and occasioned by paragraph 1 of the 1st Summons reserved under paragraph 9 of my order dated 6 September 2011.
(c) There be no order as to costs of and occasioned by the preparation, compilation and/or any use of the Disputed Part in the Chan Report in the present proceedings.
137. In respect of the 2nd Summons, whilst costs normally follows event, there is reason for depart from the usual order. First, although the defendant has resisted the application, it is clear from Part XI above that in acceding to the relief sought in the 2nd Summons I have not fully relied on the grounds put forward by the plaintiff. Rather, I have considered all the circumstances and come to a view as a matter of proper case management. Normally such costs will be costs in cause.
138. Secondly, although it is plainly evident on the face of the Ortho Jt Report that (a) treatment medical notes/records after the date of such report are not yet available and (b) the Chan Report on a single consultation on 9 September 2011 is the only medical information available for eliciting the plaintiff’s orthopaedic condition after March 2010, the plaintiff has made no attempt to obtain the New Medical Documents until the 1st Hearing when such documentary lacuna was drawn to Mr Kwok’s attention. This, of course entailed an adjournment for the plaintiff to obtain the New Medical Documents, which adjournment would have been unnecessary if the plaintiff had reasonable litigation foresight to obtain such documents when or shortly after he consulted Dr Chan (if not earlier), and/or to ask for such factor (ie the time required for obtaining the New Medical Documents) to be taken into account in fixing the adjourned hearing for argument. I am persuaded that the defendant should not be at risk as to costs of the 2nd Hearing.
139. In the circumstances, I also grant a costs order nisi as follows:
(a) upon the undertaking by the plaintiff’s solicitors through counsel not to charge the plaintiff or the Director of Legal Aid for costs of and occasioned by the inclusion of the Liability Documents in the hearing bundle, there be no order in respect of such costs;
(b) there be no order as to costs of and occasioned by the inclusion of the Lau 2nd Report in the hearing bundle;
(c) save as provided in (d) below, costs of and occasioned by the 2nd Summons (including all costs reserved in respect of the 2nd Summons, costs of Mr Kwok’s written skeleton submissions dated 28 October 2011 and 6 March 2012, and costs of the written submissions of Ms Chow and Mr Lung, “Included Costs ”) shall be costs in the cause of the Assessment with certificate for counsel;
(d) save and except for the Included Costs under (c) above, costs thrown away by the adjournment of the 1st Hearing and costs of the 2nd Hearing shall be the Defendant’s costs in the cause of the Assessment;
(e) the plaintiff’s own costs under (c) and (d) above be taxed in accordance with Legal Aid Regulations.
(Marlene Ng)
Representation:
Mr Tim Kwok instructed by Messrs Alvin Liu & Partners for the plaintiff.
Ms YS Chow (on 1 November 2011) and Mr B Lung (on 7 March 2012) of Messrs So Lung & Associates for the defendant.