A New Era in Personal Injury Cases: The Court’s Call for Single Joint Experts

A. Background of the Case

The plaintiff worked as a cook in the first defendant’s restaurant and slipped on the floor at work sustaining injuries. As part of the litigation process, the plaintiff was jointly examined by orthopaedic experts appointed separately by the parties. However, the JMR prepared by the experts put forth polarised opinions on whether the bilateral carpal tunnel syndrome suffered by the plaintiff was caused by the accident. In his Judgment, HHJ Li indicated that he found it difficult to ascertain the true extent of the plaintiff’s injuries as a result of the polarised views expressed by the medical experts and arrived at a conclusion that was positioned between the divergent expert opinions.

B. Urging for a Wider Use of Single Joint Experts

In his remarks, HHJ Li considered the current norm of appointing separate medical experts and advocated a shift towards tighter control on adducing expert evidence in PI litigation in the District Court.

Misconception about the Use of Medical Experts in PI Cases

In his Judgment, HHJ Li indicated that, going forward, it may not be necessary to appoint two medical experts of the same discipline from opposing sides in every PI case. In uncomplicated PI cases, the Court may rely on the medical records and reports from government hospitals or clinics to determine the cause, extent and impact of an injury. 

HHJ Li indicated that three key factors should be considered in determining whether appointment of medical experts is required and these include: (i) cost-effectiveness; (ii) proportionality; and (iii) facilitating settlement of disputes. 

Benefits of Appointing SJE in PI Cases

Applying the key considerations mentioned above, HHJ Li went on to advocate the use of SJE in simple PI cases:

1. Cost-effectiveness: The use of SJE may substantially reduce costs and delays. As a medical expert usually charges the same for preparing a single report for both parties and for preparing a JMR, the cost of compiling a JMR is therefore doubled if each side appoints their own expert. Further, it is not uncommon for polarised opinions to be given and as such, the use of SJE may avoid unnecessary arguments.
2. Proportionality: The lesser the sum claimed, the more difficult it is to justify the costs associated with obtaining a JMR from the parties’ separately appointed experts. Given the uncomplicated nature of PI cases in the District Court, the use of SJE is more proportionate to the amount claimed.  
3. Settlement of disputes: HHJ Li observed that as matters stand, the current practice of appointing separate experts is, on occasion, neither cost-effective nor helpful to the Court, as some experts often lack objectivity and are merely operating as the “advocate” or “hired gun” of the party who appointed them and accordingly are inclined to prepare reports that favour the party who hired them. Furthermore, some experts are frequently, or solely only willing to act for the plaintiff’s side or the defendant’s side so that they can merely “cut and paste” opinions from similar reports. Expert opinions prepared in this way provide limited assistance to the Court in better understanding the technical or medical issues involved.

HHJ Li further substantiated his position by considering the practice in other common law jurisdictions under which appointment of SJE in PI cases is now the accepted practice. HHJ Li added that in his opinion, only through the wider use of SJE in PI litigation can Hong Kong keep pace with the prevailing position in other common law jurisdictions.

Proposed Standard Directions for Appointing SJE

After consulting the PI masters in the District Court and drawing on his own experience, HHJ Li devised standard set of directions for appointing SJE. The parties should first try to agree on the appointment of a SJE and if they cannot agree on the joint appointment, directions should be sought from the PI master by submitting a list of nominations and the Court will then appoint a SJE from the list of nominations provided by the parties. In cases where the parties have already obtained a JMR in related employee's compensation proceedings, directions should be sought from the PI master as to whether it is appropriate to adopt the existing JMR or to appoint a new SJE.

HHJ Li cautioned that his proposed standard directions are intended only for use in PI cases in the District Court and may not be suitable for cases in the High Court, which often involve more complex medical issues with greater levels of compensation and damages to be assessed and awarded. Since the increase of the District Court’s jurisdiction up to HK$3 million, the majority of PI cases are now in the District Court and therefore HHJ Li’s judgment will have a significant impact on PI litigation in Hong Kong. HHJ Li expressly stated that any party who obtains a JMR without leave of the Court is at risk as to: (i) the costs of preparing the JMR; and (ii) whether leave will be given to adduce the JMR obtained. Furthermore, any JMR obtained without leave might not even be admitted into evidence and could be expunged from the Court’s file, with the solicitor responsible for obtaining the JMR responsible for any wasted costs personally on an indemnity basis. 

C. Future Outlook

This recent decision demonstrates the Court’s intention to exercise its case management power more vigorously as to appointment of medical experts in the post-CJR era. We anticipate that HHJ Li’s call for the use of SJEs will have a significant impact on the parties’ and practitioners’ approach in adducing medical expert evidence in PI claims in the District Court. In the circumstances, it will be interesting to monitor how HHJ Li’s proposed directions will be adopted and implemented in future PI proceedings in the District Court, in particular when the parties fail to agree on the choice of a SJE and how the Court will approach the selection of experts.