Call for change – Urge from the Court to employ single joint expert instead of each party engaging their own medical expert!
Introduction
In personal injuries actions, it is usual that the parties would engage their
own medical experts who give vastly different, if not completely polarized,
medical opinions. In the recent decision of Rai Chandra Kala v La Creperie 8 Limited and another [2023] HKCU 2231,
His Honour Judge Andrew Li urged parties to widely employ Single Joint Expert
(“SJE”) in personal injuries cases,
especially those in the District Court, in light of the Civil Justice Reform (“CJR”) and Practice Directions 18.1 (“PD 18.1”).
Background
The matter before the Court is a
straight-forward assessment of damages. The Plaintiff, who worked as a cook for
the 1st Defendant at the time of accident, slipped on the floor in
the restaurant due to the wet surface (the “Accident”) and sustained injuries as a result. Interlocutory
judgment was entered against the 1st Defendant as no defence had
been filed. The Employees Compensation Assistance Fund Board was granted leave
to join as the 2nd Defendant for contesting the issue of quantum.
As a result of the Accident, the Plaintiff
suffered from a left wrist fracture. Physical examination showed acute
traumatic closed fracture of the left wrist. Open reduction and fixation
operation to the left radius was done. The doctors at the public hospital
granted about 9 months’ sick leave to the Plaintiff and the Medical Assessment
Board assessed the Plaintiff to have suffered 5% loss of earning capacity.
The Plaintiff and the 1st
Defendant has each appointed their own medical experts, Dr Wong for the
Plaintiff and Dr Chun for the 1st Defendant (collectively referred
to as the “Doctors”). The opinions
of the Doctors are poles apart despite the relatively minor and straightforward
injuries sustained by the Plaintiff and the modest damages claimed. The Doctors
primarily diverted on the issue whether the bilateral Carpal Tunnel Syndrome (“CTS”) suffered by the Plaintiff was
caused by the Accident or not. Dr Chun opined that the CTS symptoms were a
developmental condition and the Plaintiff has exaggerated her symptom, whilst Dr
Wong took the contrary view that the CTS was most likely related to the
Accident. In terms of loss of earning capacity, Dr Wong estimated it to be at 8%
while Dr Chun opined that it should be a half (i.e. 4%).
The Court’s
findings
Upon careful examination of the experts’
opinions., the Court found that the injuries and the resulting impact from them
come somewhere in-between. The Court found that the CTS was more likely to be a
natural developmental condition rather than caused by the Accident. However,
the Court also disagreed that the Plaintiff has exaggerated the symptoms.
Accordingly, the Court has awarded a sum
of HK$200,000 for pain, suffering and loss of amenities (i.e. PSLA) and took
into account 18 months (instead of 27 months as claimed by the Plaintiff) in
calculating the loss of pre-trial earnings. As the Plaintiff has been able to
secure a job that allows her to earn even more than being a cook prior to the
Accident, the Court did not award a separate claim for loss of earning
capacity.
It is high
time to change – use of Single Joint Expert
Upon deciding the case, the Court went on to
discuss the use of SJE.
The Court commented that polarized medical
expert opinions can cause difficulties when adjudicating cases. The Court noted
that determining the cause of a medical condition or the true extent and
effects of the injuries on an accident victim is not an exercise of simply
preferring one expert’s opinion to another’s, but involves a careful
examination of all available medical evidence and records and study them in
light of the plaintiff’s claims and complaints. Medical experts’ opinions are
one of the matters to be taken into account but is not necessarily the most
important matter, other relevant considerations include:
·
the initial injuries sustained by the victim;
·
the diagnosis and prognosis made by the treating doctors;
·
the treatments received in the public hospitals or clinics;
·
the response to the treatments;
·
the progress of the condition;
·
subjective complaints made by the victim;
·
the length of sick leave given;
·
the history of recovery; and
·
post-accident work records.
The Court took the view that the current
use of medical expert evidence by practitioners in personal injuries cases,
especially those of smaller claims in the District Court, are misconceived. Not
every personal injuries case would require the appointment of medical expert.
In simple and straightforward cases, medical records and reports from the
government hospitals or clinics would suffice for the Court to determine the
cause of injuries and the long term impact of the injuries on the victim’s
daily activities and earning capacity. A plaintiff may well be able to prove
his/her case on the balance of probabilities without the need of producing a
medical expert’s report in simple and straightforward case in the District Court
where he/she suffers from rather minor injuries.
The Court invited practitioners to
consider 3 questions before deciding whether to appoint any medical expert in a
personal injuries case:
1.
whether it is more cost effective to appoint a SJE or joint medical
expert (“JME”);
2.
whether the costs in appointing one expert on each side, with all the
associated costs in instructing them, analysing the reports, arguing over the
difference of the opinions, and seeking for a supplemental report etc. is
proportionate to the size of the claim; and
3.
whether the appointment of a SJE or JME will facilitate the settlement
of the disputes.
The Court concluded that it is high time for the courts and
practitioners not only to consider but to actually make wider use of SJE
in PI cases, particularly those in the District Court, for the following
reasons:
1.
Using SJE in PI cases will substantially reduce costs and delay.
2.
In terms of proportionality, the lesser the claimed sum, the more it is
difficult to justify the use of JME, even more so for more than one set of JME
for different medical disciplines. A PI case could have been disposed of much
earlier and costing less legal costs had a SJE been appointed at an early
stage.
3.
The wider use of SJE will lead to more impartial and objective expert
opinions in the long term in PI litigation in Hong Kong, which will only help
to facilitate the settlement of disputes rather than prolonging them.
4.
Using SJE in PI cases is now the norm rather than the exception in other
common law jurisdictions like Singapore, Australia and the United Kingdom.
The Court commented that most of the PI cases in the District Court will
be appropriate cases for the appointment of SJE. The smaller
the claim and more simple and straightforward the injuries, the stronger the
argument it is for the use of SJE in a particular case. The Court then set out
a set of proposed
“standard” directions for appointing SJE for the use of PI cases in the
District Court.
Takeaway
After the implementation of the CJR and
PD18.1, it is the first time the Court has called for change of a somehow “the
norm of appointing each party’s own medical expert” in personal injuries case. From
now on in all PI cases in the District Court, the parties should try to agree
on the appointment of a SJE or the Court will exercise its case management
power more vigorously in the appointment of SJE.
For enquiries,
please feel free to contact us at: |
|
E: insurance_pi@onc.hk T: (852) 2810
1212 19th Floor, Three Exchange Square, 8 Connaught
Place, Central, Hong Kong |
|
Important: The law and procedure on
this subject are very specialised and
complicated. This article is just a very general outline for reference and
cannot be relied upon as legal advice in any individual case. If any advice
or assistance is needed, please contact our solicitors. |
|
Published by ONC Lawyers © 2023 |
