Hong Kong Personal Injury Brief - May 2023 edition

Watch out – single joint expert may be the new norm

In a very recent decision, HH Judge Andrew Li of the District Court (Judge) has tightened control over adducing of expert medical evidence in personal injury (PI) cases, particularly those in the District Court. He observed that it was high time for the courts and practitioners not only to consider but to actually make wider use of a single joint expert (SJE) rather than respective medical experts appointed by opposing parties.

The Judge noted that medical experts engaged by the parties often gave polarised opinions on a plaintiff’s injuries, prognosis and impairment. He considered it undesirable and costly for practitioners to engage their respective experts to carry out a joint medical examination (JME) and prepare a joint medical report (JMR). Instead, if the Court agrees medical expert evidence should be adduced, the Court will promote, encourage and urge parties to appoint a SJE in appropriate cases, which he considers to be most of the cases in the District Court.

This case involved an assessment of damages - Rai Chandra Kala v La Creperie 8 Ltd and ECAFB. The Plaintiff worked as a cook with the 1st Defendant. Default judgment was entered against the 1st Defendant as no defence was filed. The Employees Compensation Assistance Fund Board (ECAFB) joined in as the 2nd Defendant to contest the issue of quantum. Parties had previously engaged their respective orthopaedic experts to carry out a JME and thereafter prepared a JMR on the Plaintiff’s injuries and physical condition in the related employees’ compensation (EC) case when the 1st Defendant was still legally represented. The 1st Defendant did not participate or appear at the assessment hearing of the subsequent common law claim.

The Judge noted that the two experts gave drastically polarised opinions on the Plaintiff’s injuries, prognosis and impairment. Having gone through the medical evidence himself, instead of adopting all the opinions from one of the experts, the Judge found the Plaintiff’s injuries and resulting impact came somewhere between the two experts’ opinions. He considered having polarised expert opinions from two different experts on the same issue neither desirable nor cost effective. He said it was high time that directions should be given to engage a SJE by parties for most cases in the District Court, provided expert medical evidence is relevant, necessary and of probative value in the first place.  

The Judge observed that not every PI case would require appointment of a medical expert, least two medical experts of the same discipline from opposing sides. For simple and straight forward cases, the medical records and notes from the government hospital/clinics would be sufficient to allow the Court to determine the cause of injury and long term impact from such injuries on the plaintiff’s daily activities and earning capacity.

The three most important factors in deciding whether to appoint a SJE or JME are (i) cost-effectiveness (ii) proportionality and (iii) facilitating settlement of disputes. Even if expert medical report would be necessary, the Court will promote use of a SJE and practitioners should start to get used to this new norm. He even set out a new mechanism and proposed “standard” directions for seeking leave to adduce expert medical evidence. If parties cannot agree on a SJE, the court will appoint one from the list of nominations identified by the parties.

The Judge also reminded parties to seek appropriate directions for adducing expert medical report already obtained from the related EC case in the common law claim, including updating the report, obtaining a supplemental one or even a new one from a SJE.

Implication  

This case sets out the Court’s new norm for appointing a SJE if expert medical evidence is allowed. Insurers and defendants should beware that not only may the Court prohibit parties from engaging their respective experts to carry out a JME, it could even disallow expert medical evidence altogether and proceed to assess the claim based on the available medical notes and records.  

Theoretically, use of a SJE should lower costs all round which would be beneficial to insurers but only time will tell whether such experts would produce neutral and impartial reports. If they adhere strictly to the Code of Conduct for experts and their duty to the Court to give truly independent and unbiased opinions, we should hopefully see more realistic damages and speedier settlements.

Cases where the Court refuses to allow medical expert evidence will also likely proceed much quicker hence reducing the window of opportunity for settlement negotiation.