ALI MUHAMMAD RAZZAQ v. HUNG TAI ENGINEER COMPANY LTD AND OTHERS

DCPI 2093/2022

[2025] HKDC 125

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2093 OF 2022

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DECISION

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THE APPEAL

1.  By a Notice of Appeal filed on 5 September 2024, the Plaintiff (“P”) appeals against the decision of Master Jocelyn Leung dated 19 June 2024 (and later clarified on 15 August 2024) in refusing P’s application to seek clarification from Single Joint Expert (“SJE”) Dr Lam Kwong Chin (“Dr Lam”) on various paragraphs of his SJE report dated 6 November 2023 (“SJE Report”).

2.  The 1^st to 4^th Defendants (“Ds”) oppose P’s application all along and in this appeal.

3.  This Court read the written submissions and heard the arguments in court of P’s counsel Mr Ashok K Sakhrani and Ds’ counsel Ms Julia Lau.

BACKGROUND

4.  P’s personal injuries claim herein arose out of an accident at work that occurred on 23 March 2020. He was then aged 27. Whilst standing to work on top of a bucket around 1 metre above the ground, P fell, first hitting his buttock on the bucket and then landed on the ground on his left side (“Accident”). He was diagnosed to have suffered neck and back sprain injuries.

5.  P was assessed by SJE Dr Lam on 31 July 2023, more than 3 years after the Accident. He was still complaining of “persistent low back pain, more on the right…could not walk unaided, had to walk with 2 elbow crutches, even at home …taking painkillers daily”[1].

6.  Pursuant to the examination and review of the medical records, Dr Lam makes the following findings and conclusions as set out in the SJE Report[2]:-

(1)  P had a “back sprain/ contusion with soft tissue/ muscle involvement without bony damage or neurological deficit”;

(2)  The MRI scan of the lumbar spine conducted on 5.7.2021 “showed multiple level changes of disc desiccation, mild decreased height and posterior disc protrusions”. These findings are “degenerative in origin and should be pre-existing, ie P had degenerative disc disease. It is highly unlikely for a fall to cause such MRI changes in 15 months”.

7.  P first made a request for proposed directions to the court to seek clarification from Dr Lam on the SJE Report in respect of 5 issues regarding §§95, 100, 107 and 108 (“P’s Request”) by way of the parties’ joint letter dated 19 June 2024, along with other agreed proposed case management directions and adjournment of the Checklist Review (“CLR”) hearing fixed on 20 June 2024.

8.  By a court note of the same date, Master Leung made an Order on CLR directions and, in respect of P’s Request, stated “No order be made regarding the proposed directions sought by the Plaintiff (disagreed by the Defendants)” (“the 19.6.2024 Order”)

9.  P sought clarification of the 19.6.2024 Order regarding P’s Request by letter dated 25 June 2024.

10.  On 15 August 2024 Master Leung issued a court note stating that by the 19.6.2024 Order, “the Court refused the Plaintiff’s application”.

11.  P filed this appeal on 5 September 2024.

Appeal Out of Time

12.  I first will deal with the issue of delay in P filing the appeal.

13.  Ds argue that the appeal was lodged 2 months late after the 14-day time limit which had started to run from the date of the 19.6.2024 Order in accordance with O 58 r 1(3) of the Rules of the District Court.

14.  The following sequence of events is relevant to the court’s consideration of the out of time issue:-

Date	Events
31.7.2023	Assessment by Dr Lam
6.11.2023	SJE Report date
5.12.2023	P filed the Revised Statement of Damages (“RSOD”)
11.1.2024	Ds filed the Answer to RSOD
22.1.2024	Mediation
20.2.2024	P’s letter to Ds first stating P’s Request/ proposing to seek clarification from Dr Lam on the SJE Report upon Counsel’s advice
22.2.2024	Ds objected by letter
12.4.2024	P filed Questionnaire for CLR hearing fixed on 19.4.2024 (no mention of P’s Request)
17.4.2024	Joint letter to court on proposed directions (no mention of P’s Request)
19.6.2024	Joint letter to the court on (i) proposed agreed directions and adjournment of CLR fixed on 20.6.2024 and (ii) P’s Request and Ds’ disagreements
19.6.2024	Master Leung’s Order: “No order be made” regarding P’s Request
25.6.2024	P’s letter to court seeking clarification of the 19.6.2024 Order regarding P’s Request
2.8.2024	P filed Questionnaire for CLR fixed on 16.8.2024, repeating P’s Request
15.8.2024	Joint letter to the court setting out parties’ disagreements on P’s Request
15.8.2024	Court note: P’s Request/application was refused per the 19.6.2024 Order
5.9.2024	P filed the Notice of Appeal

15.  P argues that the 19.6.2024 Order was unclear in that the manifest intention of the court was not stated, and the Master did not state any reason nor give directions regarding the attendance at trial of Dr Lam in the event that clarification of his evidence would be required.

16.  Pausing here, this Court remarks with disapproval that it is wholly unjustifiable for P to complain that the 19.6.2024 Order was unclear, that the Master did not state any reason for making no order to P’s Request made in the parties’ joint letter to the court, and that the non-agreed issues required submissions from the parties and finally a determination from the court.

17.  P had failed to follow the proper procedure, where the parties had failed to come to consensus regarding seeking clarification of medical expert evidence, to make an application by way of Summons to have the matter properly argued and dealt with before the PI Master. Such are clear guidelines set out in the judgment of Bharwaney J in Chan Yuet Keung v Harmony (International) Knitting Factory Ltd [2010] 5 HKLRD 599 at §§47-48, which P had failed to follow. The parties in this case had instead chosen to set out P’s Request and the parties’ disagreements and arguments in the form of proposed directions in their joint letter dated 19 June 2024 to the court, and seek the court’s ruling.

18.  In any event, an appeal against a Master’s decision is dealt with by way of rehearing. The Judge hearing the appeal will give the weight it deserves to the previous decision of the Master, but he is in no way bound by it, and is in no way fettered by the previous exercise of the Master’s decision or reasons given. (Hong Kong Civil Procedure 2025, Volume 1, §58/1/2).

19.  P’s position is that the court’s refusal of P’s Request was only first ascertained in the court note dated 15 August 2024. On that basis, the appeal lodged on 5 September 2024 was slightly late by 7 days.

20.  I find that there is no ambiguity in the 19.6.2024 Order. The court note dated 19 June 2024 was issued with reference to the parties’ joint letter of even date. The Master made specific reference to the proposed directions sought by the Plaintiff (disagreed by the Defendants) (ie regarding P seeking clarification on the SJE Report) and decided to make no order.

21.  The deadline for an appeal from the Master’s decision therefore fell on 3 July 2024. P’s Notice of Appeal was 2 months late.

22.  Ds also criticise that P’s Request, first raised in P’s letter to Ds dated 20 February 2024, was late, given the SJE Report was made available on 6 November 2023. In between P had filed the RSOD and his supplemental witness statement on 5 December 2023, Ds had filed the Answer to RSOD on 11 January 2024 and parties had attempted mediation on 22 January 2024 though had failed to reach settlement.

23.  Ds also argue that P had not promptly pursued the request after the 20 February 2024 letter. No mention of P’s Request was made in P’s Questionnaire filed for the CLR fixed on 19 April 2024. P proceeded the case by filing his 2^nd supplemental witness statement on 9 May 2024. In the joint written application (for CLR directions and adjournment of CLR) dated 19 June 2024, P’s Request was made for the first time to the court.

24.  In considering whether this Court should exercise discretion to extend time to appeal, I have considered the following factors highlighted by DHCJ Wong Yan Lung SC in the case of Postwell Limited v Cheng Kap Sang [2004] 2 HKLRD 355 at §33:-

“In considering whether to extend time to appeal, the court has to consider the following factors:

1. The length of the delay;

2. The reasons for the delay, in terms of firstly why the original time limit was not complied with and, secondly, why the application for extension of time could not have been made earlier;

3. The chances of the appeal succeeding if leave given; and

4. The prejudice to the other party if application is granted.”

25.  I do not accept Ds’ argument that there was a delay in P’s Request first made in writing on 20 February 2024. There is no operative deadline within which a party must make a request for seeking clarification on medical expert reports. Rather the sequence of events raises the reasonable inference that parties herein had filed the RSOD and Answer to RSOD within reasonable time after receipt of the SJE Report, and held the mediation on 22 January 2024 to explore the possibility of settlement. Meanwhile, in hopes of settlement, one would have thought it would be reasonable for P to withhold making an application for seeking clarification on the SJE Report and not incurring unnecessary costs shortly before mediation took place.

26.  The delay of 2 months in lodging the appeal upon the 19.6.2024 Order cannot be said to be substantial. In any event, Ds had known of P’s stated intention of seeking clarification on the SJE Report by P’s letter dated 20 February 2024 which listed the 5 issues sought to be clarified.

27.  P had upon the 19.6.2024 Order, rightly or wrongly, promptly raised the query of uncertainty in his letter to Ds dated 20 June 2024, and wrote to the court on 25 June 2024 to seek clarification of the Master’s decision regarding P’s Request. The Master’s reply was received after almost 2 months in a court note dated 15 August 2024 – this has unfortunately partly contributed to the 2 months’ delay.

28.  P has given an explanation for the delay, supported by his letters to Ds and the court respectively dated 20 June 2024 and 25 June 2024.

29.  More importantly, Ds, despite their counsel Ms Lau’s submissions that such delay “has inevitably prejudiced Ds not only in terms of costs but also in terms of availability of witnesses”, has not been able to demonstrate how the delay of 2 months during July and August 2024 would impact on costs or availability of witnesses such that it would be unjust to allow P to proceed with the appeal.

30.  It is noteworthy that Ds have adduced witness statements from 5 factual witnesses in this action. After the initial exchange of witness statements in June 2023, Ds have recently in June 2024 filed further witness statements of 3 of their witnesses.

31.  This Court is not convinced that the delay of 2 months in P bringing the appeal will impact on the availability of witnesses.

32.  In the circumstances and having considered all factors, it is appropriate in my view to exercise the court’s discretion to grant an extension of time for P to proceed with this appeal.

Relevant Paragraphs in the SJE Report

33.  The 4 paragraphs of the SJE Report on which P seeks clarification regarding 5 issues (set out in §34 below) are recited herein for easy reference:-

Ҥ95. Summing up, based on the history and physical findings, Mr Ali had a back sprain/contusion with soft tissue/muscle involvement. There was no evidence of bony damage or neurological deficit.

• The MRI findings are degenerative in origin.

• In orthopaedic practice, similar back injuries could usually improve gradually with conservative treatment.

• The diffuseness, chronicity and intensity of the present back complaints are more than expected for an uncomplicated back sprain / contusion 3½ years ago.

• Upon examination, the findings were largely subjective and dependent on voluntary effort.

• The preservation of lumbar lordosis (also present in CT on 25/3/20) and absence of muscle spasm were objective signs that the pain should not be a severe one.

• The magnitude of current complaints could not be satisfactorily explained on physical ground.

§100. In orthopaedic practice, most people with uncomplicated back sprain / contusion could return to their previous employment or physical activities. Based on the nature of injury and more objective parts of the findings, Mr Ali should be able to return to work as a rigger. The residual back symptoms might partly affect his working efficiency and endurance.

§107. The given ratings are based on the present complaints of back pain. In Mr. Ali’s case, they are also contributed by pre-existing degenerative spine.

• For apportionment purpose, if the alleged accident did precipitate the pain, it would contribute to ½ of the present disability.”

§108: Degenerative is an on-going process. As Mr Ali was already noted to have multiple level degenerative changes in MRI at the age of 28, his degenerative disc disease would continue to deteriorate.

• Even without the alleged incident or any trauma, he probably would have back pain at an age earlier than the average.

• He belongs to Scenario ii: there is a strong possibility that some other event or natural progression of the condition would have brought about the present condition.

• As an estimate, he probably would have similar degree of back pain before he is 40, even if he did not have any accident.”

The 5 Issues Sought to be Clarified

34.  P seeks clarification on the above recited paragraphs of the SJE Report regarding the following 5 issues set out in the parties’ joint letter to the court dated 19 June 2024, as elaborated and slightly revised by P’s counsel Mr Sakhrani in court:-

(1)  Whether P’s contusion injury to the back has aggravated either permanently or temporarily the pre-existing degeneration and possibly caused or contributed to the prolapsed intervertebral discs (PID), including whether the recovery from the injury was complicated by the pre-existing degenerative changes (“take your victim as you find him”)[3];

{NB Mr Sakhrani confirmed at the hearing that “PID” in Issue 1 raised is a wrong reference, and should be replaced by “disc protrusions” as Dr Lam has specifically concluded that P did not have PID L3/4/5/S1 due to back injury from an orthopaedic perspective[4].}

(2)  Whether and how the MRI lumbar spine findings of nerve root impingement at L4/5 and compression at S1 lateral access shown in the MRI scan conducted on 5.7.2021 would impact the views on genuineness of P’s condition/complaint and his suitability for returning to work as a rigger[5];

(3)  The meaning of “might partly affect his working efficiency and endurance” in relation to P returning to his previous employment as a rigger which work requires frequent lifting of heavy weights and climbing up and down[6];

(4)  The rationale and analysis of Dr Lam’s apportionment of the pain and attributing half (1/2) to the pre-existing degeneration in view of the same being asymptomatic before the Accident[7]; and

(5)  The rationale of Dr Lam’s view that P’s case falls into Scenario 2 of the 3 possible scenarios set out in Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958, and the comment that P would have similar degree of back pain before reaching the age of 40[8].

The Legal Principles on SJE Evidence

35.  SJE medical evidence is often required in personal injuries actions in assisting the court in understanding and resolving medical issues. There is no dispute on the legal principles and that most of the issues, in particular those of the injured plaintiffs’ ability to return to their pre-accident work, are of fact and ultimately matters for the trial judge and not for the expert. It is open to the trial judge to reject the views of the SJE and adopt instead the factual evidence of P.

36.  In Chan Yuet Keung (supra) per Bharwaney J at §31:-

“…It is also common ground that I am not bound to accept the opinion of Dr Lam on these issues. Accordingly, I permitted the defendant to proceed on the basis that it was not bound by the opinion of the single joint expert on these issues notwithstanding that it had not sought his opinion on the plaintiff’s ability to return to his pre-accident work.”

37.  I accept the submissions of Mr Sakhrani that having regard to the need for efficient case management and procedural economy, before calling a SJE to give evidence for clarification or explanation purposes, it would be appropriate for the parties to first jointly ask the SJE to express his opinion in writing so that (i) there are no surprises at trial; and (ii) the clarity may help reduce the issues that arise from his expert opinion. Calling the expert to give evidence at trial instead of obtaining clarification first is not consistent with the underlying objectives of efficient and costs economical case management under the CJR.

38.  The approach to be adopted in assessing expert evidence is discussed in the judgment of DHCJ Raymond Leung SC in Wong Siu Wa v Win Sino Engineering Limited [2018] HKCFI 1663 at §31:-

“154. In assessing the expert evidence, I would respectfully adopt the approach of Stuart-Smith in Loveday v Renton [1989] 1 Med LR 117 (at 125), wherein it was explained that:

(a) The mere expression of opinion or belief by a witness, however eminent, does not suffice.

(b) The court has to evaluate the witness and the soundness of his opinion.

(c) Most importantly this involves an examination of the reasons given for his opinions and the extent to which they are supported by evidence.

(d) The weight to be given to the opinion of an expert depends on:

(1) the internal consistency and logic of his evidence;

(2) the care with which he had considered the subject and presented his evidence;

(3) his precision and accuracy of thought as demonstrated by his answers;

(4) how he responds to searching and informed cross-examination and in particular the extent to which a witness has conceived an opinion and is reluctant to re-examine it in light of later evidence, or demonstrates a flexibility of mind which may involving changing or modifying opinions previously held;

(5) whether or not a witness is biased or lacks independence.”

39.  Leave should be granted for parties to seek jointly further expert evidence where clarification/explanation/elaboration is required on any areas of the SJE Report to ensure that all legitimate relevant medical issues are properly explored and canvassed. This would help narrow down the issues and assist the court in understanding the medical issues and evidence and coming to a fair result.

40.  But first the court will have to be satisfied that there is something in the concerned paragraphs of the medical expert report that contains internal inconsistencies, lacks reasons or logic making it difficult to understand or causing confusion, and requires clarification.

41.  Bearing the stated legal principles in mind and having considered the submissions of counsel, I now turn to the 5 Issues on which P appeals to seek clarification from SJE Dr Lam.

Issue 1

42.  The matters of clarification sought[9] are whether the back contusion injury (i) has permanently or temporarily aggravated the pre-existing degenerative spine and/or caused or contributed to the disc protrusions; and whether (ii) its recovery was complicated by the pre-existing degenerative changes.

43.  Dr Lam has reviewed the MRI conducted on 5 July 2021 and taken x-rays of the lumbar spine on the date of assessment. He concludes that P had degenerative disc disease and all remarkable multiple-level disc changes and disc protrusions were pre-existing and highly unlikely to have been caused due to the fall within 15 months from the Accident[10].

44.  Dr Lam’s conclusion is interpreted to mean that the MRI findings of the lumbar spine were pre-existing and not aggravated by the injury. This is supported by the evidence of preservation of lumbar lordosis which was also present in the CT scan taken on 25 March 2020, indicative of nil interval change.

45.  As to the latter part of the Issue 1, there is no evidence indicating that recovery of the soft tissue back contusion injury was complicated by the pre-existing degenerative changes.

46.  Dr Lam expressly states that P[11]:

(1)  suffered no loss of lumbar lordosis and no paraspinal muscle spasm;

(2)  suffered no asymmetrical muscle wasting, focal weakness, sensation loss or altered reflexes in his lower limbs; and

(3)  straight leg raising was limited in supine but not in sitting posture ie no spinal nerve root tension.

47.  Further, Dr Lam concludes that similar back injuries could usually improve gradually with conservative treatment and P had reached his maximal medical improvement (MMI). Upon the examination and physical findings, Dr Lam casts doubts on the genuineness of the serious pain symptoms resulting in severe disabilities of the back and lower limbs reported by P by stating the following[12]:-

(1)  The diffuseness, chronicity and intensity of the present back complaints made by P are more than expected for an uncomplicated back sprain/ contusion which happened 3½ years ago;

(2)  The findings were largely subjective in nature and dependent on the voluntary effort;

(3)  The preservation of lumbar lordosis (which was also present in the CT taken on 25/3/2020) and absence of muscle spasm were objective signs that the pain should not be a severe one; and

(4)  The magnitude of current complaints could not be satisfactorily explained on physical ground.

48.  Clearly, Dr Lam does not consider the soft tissue contusion back injury had caused aggravation to the already degenerative spine otherwise he would have stated the same. There is no evidence suggesting that the injury had a complicated or hampered recovery due to the pre-existing degenerative lumbar spine.

49.  In any event, Dr Lam has fully considered P’s pre-existing degenerative lumbar spine condition when examining and assessing his condition and come to the conclusions on the permanent state/MMI at a time when P’s lumbar condition had stabilised. In Mr Sakhrani’s words, Dr Lam has “taken the victim as you find him” and the clarification sought regarding temporary aggravation is unnecessary.

50.  I rule that no clarification is required on Issue 1.

Issue 2

51.  P seeks clarification on the impact of the specific MRI findings of nerve root impingement at L4/5 and compression at S1 lateral access in the context of the overall symptoms and return to work. He queries if these could also impact on Dr Lam’s views on the genuineness of P’s condition and his suitability for work as a rigger.

52.  Whilst Dr Lam has given a thorough explanation on the pre-existing nature of the multiple levels of disc changes shown in the MRI findings[13] and their degenerative nature[14], I do accept Mr Sakhrani’s submissions that Dr Lam has not dealt with the specific findings of nerve root impingement and compression sought to be clarified by P, and their impact, if any, on the reported symptoms, and for that matter, genuineness of P’s complaint and ability to return to rigger’s work.

53.  This is a medical issue which requires input and elaboration by the medical expert.

54.  It is in my view appropriate to allow the clarification sought on Issue 2.

Issue 3

55.  Upon Dr Lam’s conclusion that “(P) should be able to return to work as a rigger. The residual back symptoms might partly affect his working efficiency and endurance”[15], P complains that Dr Lam did not sufficiently deal with the nature and impact of the reduction of efficiency, particularly since P was employed in heavy labour as a rigger.

56.  Such a query would imply that Dr Lam has failed to appreciate and understand the heavy work nature of P’s pre-accident work.

57.  There is however no evidence or suggestion that Dr Lam’s conclusion was based on disputed facts as to the high physical demand of P’s pre-accident work, or that Dr Lam had no knowledge or was provided with inaccurate information on the same, such that clarification on his view on P’s ability to return to his pre-accident work would be required.

58.  Dr Lam was clearly aware of the heavy work nature of P’s pre-accident jobs and that he was working as a rigger at the time of the Accident, as he has taken work history from P and recorded in the SJE as follows[16]:-

“He had worked in construction sites all along, including posts as a general labourer, rigger, welder and excavator operator. He said he used to work for 26 days a month and was working as a rigger at the time of the accident.”

59.  In any event, this Court takes the view that the matters sought to be clarified under Issue 3 are issues of fact and matters for the court upon consideration of all factual and medical evidence, with the assistance of medical expert opinions where appropriate.

60.  Dr Lam has given his thorough opinions on the extent of P’s disabilities and limitation resulted from the back contusion injury and in P’s pre-existing degenerative lumbar spine condition, and casted doubt on genuineness of P’s reported symptoms and demonstrated disabilities.

61.  It is the function of the court to make findings on the work capacity of P, in particular the question of his ability to return to his pre-accident work as a rigger demanding eg frequent heavy weight lifting and climbing of stairs. This is not a medical issue requiring the input of a medical expert. They relate to matters of common sense. The courts do not require expert evidence on matters which are well within their province to resolve.

62.  Clarification on Issue 3 is not necessary, and is refused.

Issues 4 & 5

63.  Issues 4 and 5 relate to Dr Lam’s opinions on the extent and severity of the pre-existing degenerative lumbar condition, its apportionment in contributing to the present disability of P and estimation of its impact on P’s condition but for the Accident, and can in my view be considered together.

64.  P seeks clarification on (under Issue 4) the rationale or analysis as to the nature and extent of Dr Lam’s apportionment that the pre-existing degenerative spine would contribute to half (½) of P’s present disability[17], and (under Issue 5) the reasons for his comments that P would have similar degree of back pain before reaching the age of 40 and his case falls into Scenario 2[18] of Chan Kam Hoi (supra).

65.  P does not dispute, as thoroughly explained by Dr Lam with reference to the MRI findings dated 5 July 2021, that P suffered pre-existing degenerative condition of the lumbar spine. Dr Lam casts doubt on the genuineness and magnitude of P’s reported symptoms.

66.  Instead of dismissing P’s complaints, Dr Lam has expressly based on the present complaints of back pain of P in giving his opinions on (i) apportionment of the pre-existing condition in contributing to half (1/2) of P’s present disability, if the Accident did precipitate the pain and (ii) P’s case falling into Scenario 2, ie there is a strong possibility that some other event, or natural progression of the condition, would have brought about the present state.

67.  In other words, Dr Lam has accepted P’s reported disability and taken his case to its highest in his conclusions regarding apportionment and severity of the pre-existing degenerative spine justifying Scenario 2.

68.  In giving these opinions, Dr Lam, as stated clearly in the SJE, has information of P’s pre-accident employment as a rigger, his relatively young age of 28 when the MRI scan was conducted and the reported absence of previous back or lower limb problems. He has reviewed the medical records and reports on treatment progress, x-rays and MRI findings and conducted physical examination and clinical assessment in considering and coming to the above conclusions based on the extent and severity of P’s pre-existing degenerative spine condition.

69.  Dr Lam further highlights in the SJE Report that “degeneration is an on-going process”, and that given the “multiple level degenerative changes in MRI at the age of 28, (P’s) degenerative disc disease would continue to deteriorate”[19].

70.  On that basis and following the logic of natural progression, Dr Lam concludes that P’s case falls into Scenario 2 and “As an estimate, he probably would have similar degree of back pain before he is 40, even if he did not have any accident”.

71.  Whether Dr Lam’s conclusions on (i) the apportionment, (ii) Scenario 2 under Chan Kam Hoi (supra) and (iii) the estimated time and age when P would have had similar back condition/disability irrespective of any accident would be accepted are matters for the trial judge, who would consider all factual and medical evidence before the court.

72.  On the SJE Report, I am of the view that Dr Lam has set out with clarity and without ambiguity an analysis of the objective medical findings and P’s subjective complaints, and the bases with reasons for the conclusions on the matters under Issues 4 and 5.

73.  I agree with Ds’ counsel Ms Lau and rule that no clarification is required on Issues 4 and 5.

CONCLUSION

74.  To conclude, save and except Issue 2, P has not demonstrated the necessity to seek clarification/explanation/elaboration, such as due to internal inconsistency, or lack of care, logic, medical basis or evidence with which Dr Lam has considered the issues and presented his views in the SJE in relation to Issues 1, 3, 4 and 5. No clarification should be allowed.

Disposition

75.  I make the following order and directions:-

(1)  Leave is granted for P to appeal out of time against the Order of Master Jocelyn Leung dated 19 June 2024 regarding P’s proposed directions to seek clarification on the SJE Report;

(2)  Leave is granted for P to seek clarification on Issue 2;

(3)  Leave is refused for P to seek clarification on Issues 1, 3, 4 and 5;

(4)  Parties do prepare and issue a joint instruction letter seeking clarification on Issue 2 to the SJE within 14 days from the date hereof and the SJE’s reply by way of Supplemental SJE Report shall be ready within 28 days thereafter;

(5)  P’s solicitors do file the Supplemental SJE Report within 7 days after receipt of the same; and

(6)  The issue whether the SJE Report and the Supplemental SJE Report can be adduced without calling the maker thereof at trial is to be determined at the next Checklist Review hearing.

Costs

76.  P’s appeal is allowed only to the extent that clarification is allowed to be sought on 1 (Issue 2) out of the 5 issues proposed.

77.  Ds are the substantial winner of the appeal but have lost on the out of time argument. Ds should in my view be awarded part but not all of the costs of the appeal.

78.  Apart from the costs of the appeal, so as to facilitate taxation of costs and avoid confusion, I should also deal with the costs pertaining to and occasioned by P’s Request and parties’ disagreements and arguments contained in the following documents:-

(1)  P’s letter to Ds dated 20 February 2024 stating his intention in making P’s Request;

(2)  Ds’ letter dated 22 February 2024 objecting to P’s Request;

(3)  Parties’ joint letter to the court dated 19 June 2024;

(4)  P’s letter to Ds dated 20 June 2024 stating that Master Leung had not in giving the 19.6.2024 Order dealt with P’s Request and reserving P’s right to raise the matter in the coming CLR;

(5)  Ds’ letter dated 21 June 2024 in reply;

(6)  P’s letter dated 25 June 2024 to the court seeking clarification of the 19.6.2024 Order regarding P’s Request;

(7)  Parties’ joint letter to the court dated 15 August 2024 regarding P’s Request;

(8)  Court note dated 15 August 2024 confirming refusal of P’s Request; and

(9)  Parties’ joint letter to the court dated 29 August 2024 setting out P’s intended appeal, parties’ disagreements on further conduct and arguments on costs of the joint letters to the court.

79.  Upon parties’ joint letters dated 15 August 2024 and 29 August 2024, Master Leung made costs orders relating to P’s Request in her Order dated 30 September 2024 which states:-

“(2) The costs of and occasioned by the letter filed on 15.8.2024 be to the 1^st to 4^th Defendants to be taxed if not agreed; and

(3) The costs of and occasioned by the letter filed on 29.8.2024  be in the cause.”

80.  Of note is that parties’ joint letter dated 19 June 2024 to the court deals partly with the agreed CLR directions other than P’s Request. The costs provisions in the corresponding 19.6.2024 Order deal with the CLR directions on case management only and are unrelated to P’s Request.

81.  Having considered all matters, it is in my view appropriate to award Ds 70% of the costs of the appeal, and 50% of the costs of the parties’ letters and correspondence listed in paragraph 78 above relating to P’s Request.

82.  I therefore make a costs order nisi that:-

(1)  P do pay Ds 70% of the costs of the appeal, with certificate for counsel, to be taxed if not agreed;

(2)  Paragraphs (2) and (3) of the Order dated 30 September 2024 of Master Leung be set aside;

(3)  P do pay Ds 50% of the costs of the letters and correspondence listed in paragraph 78 above, to be taxed if not agreed;

(4)  The other 50% of the costs of the letters and correspondence listed in paragraph 78 above be in the cause; and

(5)  P’s own costs be taxed in accordance with the Legal Aid Regulations.

83.  In the absence of application from the parties to vary this costs order within 14 days, the costs order nisi will become absolute.

84.  Lastly, I thank counsel for their assistance.