KWOK YAT MING v. CHAN SIU WAI AND ANOTHER

HCPI 291/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 291 OF 2007

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REASONS  FOR  DECISION

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1.  The case was referred for Pre-Trial Review to consider:

(1)     Admission of the joint supplemental orthopaedic report commenting on the surveillance evidence;

(2)     Additional witness statements on the Plaintiff’s pre-accident and post-accident earnings.

2.  I admitted them at the hearing and now give my reasons.

3.  The Plaintiff was a back seat taxi passenger.  He was injured in a collision with a car driven by the 1^st Defendant and owned by the 2^nd Defendant. 

4.  The Defendants have been adjudged liable for damages to be assessed.

5.  The Plaintiff had a fractured right acetabulum (hip joint) and dislocated hip.  He had reached maximum medical improvement and resumed work as part-time plumber-electrician.  He still complains of pain of the right lower limb: 1 hour upon walking, ½ hour upon standing, and 10 minutes upon squatting.

6.  The Defendants have conducted surveillance on the Plaintiff, and proposed to the Plaintiff’s solicitors for comments by the orthopaedic experts.  A joint supplemental report from Dr Wong Man-shun (for the Plaintiff) and Dr Chun Siu Yeung (for the defendants) was obtained without leave of the Court.   Parties now applied for its admission.

7.  In Khan Shiraz v Yee Lee Sea-Land Forwarding Co Ltd HCPI 323/2004 (10 August 2006), Suffiad J faulted the defendant for obtaining a separate report from its expert to comment on the surveillance tape.  His Lordship observed that in the majority cases, where the orthopaedic experts have commented on the extent of the disabilities, it would be unnecessary for them to comment on what was seen of the plaintiff on surveillance tapes.

8.  Notwithstanding that the parties have agreed to admission of the joint supplemental report, I have made enquiries on its worth beyond mere factual summary of the observations and/or any comments which are within the realm of a lay observer.

9.  Mr Clough, for the Plaintiff, submitted that parties are always free to consult their experts.  Be that as it may, the Court has the discretion on admissibility and costs based on relevance and probative value, bearing in mind the underlying objective of economy and proportionality.

10.  I am mindful that in personal injuries cases, sometimes the lawyers rather than their clients are in the driving seat of the litigation, and as most cases are settled on costs payable by the insurer, economy and proportionality might not have been in the forefront of consideration.  Hence, I must determine what the doctors will add to the viewing of the tape by the trial judge.

11.  Mr Sakhrani, for the Defendants, regretted the proper procedure had not been followed, but submitted that there is positive value added by the comments in the joint supplemental report.  The doctors agreed that Plaintiff was seen to have walked with a normal gait, and on 4 September 2008 there was a trace of short stance gait indicating mild comfort of lower limb on long distance walking.  Mr Sakhrani conceded there was no description of how long the distance was, but said that could be worked out from tape.  And the agreement on mild discomfort only upon walking long distance would exclude pain as alleged by the Plaintiff.

12.  Mr Clough conceded he was bound by his expert that there was only evidence of mild discomfort but not pain on the day in question.  However, the Plaintiff would give evidence of his experience on other occasions.

13.  Mr Sakhrani submitted that with the common understanding and agreement on mild discomfort as opposed to pain from Mr Clough, the joint supplemental report would save much time on cross-examination and interpretation of the surveillance evidence.

14.  On this basis, I granted leave to admit the joint supplemental report.

15.  The Master has ordered specific discovery of wage records from the pre-accident employer (Luen Hop) and the post-accident employer (Mansfield).  The Plaintiff has produced wage statements from Mansfield (supported by MPF and IRD records etc.) and Mr Sakhrani has no problem with that.

16.  As to pre-accident, Luen Hop’s statement was without letterhead, undated,  with no description of the name and post of the signatory, and also without contemporaneous records.  Mr Sakhrani said it raises more questions than being probative.  Also, the Master referred to paras. 66(3) of PD 18.1 in ordering specific discovery, and those paragraphs list out the types of wage records pointing towards the requirement of contemporaneity.

17.  Para. 66(3) also includes the statement of an ex-employer.  As to the queries raised by Mr Sakhrani, I consider they are matters of weight to be determined by the trial judge.  Hence, I admitted the statement.

18.  Further, the Master also ordered evidence of freelance work.  Plaintiff sought to adduce statements of other ex-employers paying him cash before.  The question is one of weight.  Hence, I also admitted them.

19.  The parties agreed that the medical experts are not to be called, and 3 days will be sufficient.  I granted leave to set down.  I add that unless the case is set down for assessment in the Running List before a judge within 6 weeks, what remains of the action is dismissed.

20.  I ordered costs in the cause with certificate for counsel, and Legal Aid taxation.