NG SUT LAN v. THE MENTAL HEALTH ASSOCIATION OF HONG KONG

DCEC523/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 523 OF 2010

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BETWEEN

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D E C I S I O N

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1.  By summons dated 10 January 2011, the applicant applies for leave to obtain and adduce psychiatric expert evidence at the trial of these proceedings.

2.  This application came about this way.

3.  By the order dated 16 December 2010, H.H.  Judge Leung made an order giving directions for the filing of witness statements and various medical reports, but not for any psychiatric injuries (“the Order”).

4.  In the Order, there was a specific paragraph which states as follows.

“Application for leave to adduce psychiatric expert evidence, if any, shall be made within 14 days from the date hereof, in the absence of which parties to submit joint written application within seven days thereafter for setting down the case for trial”.

5.  Under the Order, any application for leave to adduce psychiatric expert evidence ought to have been taken out by the end of December 2010.

6.  Prior to the Order, on 14 December 2010, solicitors for the applicant wrote to solicitors for the respondent, proposing that the applicant be examined by a psychiatrist, Dr. Chow Lok Yee.

7.  The letter also proposed that that examination was to take place on 26 January 2011 at 3 pm, and it also asked for the respondent’s solicitors’ view, within seven days, whether they would agree to have Dr. Chow as a single joint expert or instruct their own medical expert to conduct a joint examination with Dr. Chow and prepare a joint expert report according to the relevant Practice Directions.

8.  On the same day, solicitors for the respondent wrote back, objecting to the applicant’s solicitors’ proposal to obtain psychiatric expert evidence.  The reason given was that the applicant had already suffered psychiatric illness since 2003 and she was receiving treatment from Castle Peak Hospital until 2007.

9.  It was also pointed out by solicitors for the respondent that the Medical Assessment Board did not assess the applicant to have been suffering from any psychiatric impairment from the accident in this claim.

10.  Clearly, there was a disagreement on 14 December 2010 as to the application for leave to adduce psychiatric evidence.

11.  Therefore, on 29 December 2010, the applicant’s solicitors wrote to the court, referring to the Order and made an informal application for leave to adduce psychiatric evidence.

12.  In response to that letter, H.H. Judge Leung made the following comments.

13.  He pointed out that no formal application was taken out within the requisite time limit, and therefore, he gave directions on 3 January 2011 that the issue for leave to obtain and adduce psychiatric expert evidence would be adjourned to be heard by the EC judge at a direction hearing to be fixed within seven days, and thereafter, the applicant took out the present summons.

14.  The hearing bundle and the skeleton submissions for this application were only lodged by the applicant at the eleventh hour.  The Court received this material in the late afternoon yesterday.

15.  At the hearing, after Miss Wong (appearing for the applicant) had made her submissions, Mr. Chan (appearing for the respondent) informed the Court that he had, in fact, not seen the hearing bundle nor the written submissions relied on by the applicant. I was told that although the bundle had been sent to the offices of the respondent’s solicitors, Mr. Chan in fact did not personally receive the requisite documents since they were sent to the wrong branch office.

16.  Therefore, the Court adjourned the hearing until 4 o’clock in the afternoon to enable Mr. Chan to peruse the requisite material, so that he could properly make submissions in response to Miss Wong’s argument.

17.  Miss Wong pointed out that by a medical report from the Castle Peak Hospital dated 3 August 2010, it could clearly be seen that there was a provisional diagnosis that the applicant is suffering from adjustment disorder, and that the adjustment disorder was causatively linked to the accident complained of in this application. 

18.  Paragraph 8 of that report reads as follow.

“In summary, she is likely suffering from adjustment disorder in reaction to her injury on duty on 1 June 2008. Her prognosis would depend on the progress of her physical condition and pain control (enquiry of which should be directed to relevant specialities) and her coping and support. Reassessment would be necessary before her degree of impairment could be commented”.

19.  In a joint orthopaedic report filed for the purpose of these proceedings by Dr. Fu Wai Kee and Dr. Tsoi Chi-wah Danny, they pointed out at page 10 of the report that they agreed the applicant’s symptoms could not be explained on medical ground, and that they were more likely due to her depressive disorder, and that the applicant should be assessed by a psychiatrist.

20.  Mr. Chan advanced the following grounds of opposition:

(1)   the applicant has a long history of psychiatric illness;

(2)   the application did not claim psychiatric injuries;

(3)   Form 7 did not make any assessment on the applicant’s psychiatric illness;

(4)   sick leave was granted only in respect of the applicant’s orthopaedic injuries;

(5)   there was an intervening event in that there was evidence to show that the applicant suffered another accident on 21 March 2010.

(6)   even if psychiatric illness is relevant, there is sufficient information for the court to decide on the issue.

21.  Mr. Chan accepts that the Court of Final Appeal decision of LKK Trans Limited v Wong Hoi Chung (2006) 9 HKCFAR 103 is authority for the proposition that for the purposes of the Employees’ Compensation Ordinance Cap 282, the accident only needs to be a cause of the injury (and the attendant incapacity) and that there is no requirement to show that it was the sole cause.

22.  So to that extent, the mere fact that the applicant has a pre-existing psychiatric injury is not to be treated as a good ground for resisting the application for leave to adduce psychiatric evidence.

23.  I also do not accept Mr. Chan’s submission that there is sufficient material for the court to adjudicate on what impact that psychiatric injury would have had in the determination of the issues in this application, but I think Mr. Chan has a valid point in that the application right now does not make a claim for psychiatric injury.

24.  At paragraph 4 of the Application, the only pleaded injuries as being suffered by the applicant are back, left limb and right shoulder injuries, but Mr. Chan accepted that insofar as any amendment were to be necessary, that amendment would not be extensive, in that it would only consist of adding the words “adjustment disorder” to that paragraph.

25.  Mr. Chan also indicated very helpfully that insofar as an application of amendment were to be made on that basis, it would likely be unopposed.

26.  On Miss Wong’s part, she told me that the application to amend could be taken out within seven days.

27.  I am of the view that the applicant has shown sufficient material to satisfy me that the psychiatric expert evidence is relevant to the present proceedings.

28.  Therefore, upon the undertaking of the solicitors of the plaintiff to take out an application to amend the Application, I will grant leave for the application to adduce psychiatric expert evidence.

(Discussion re joint medical examination)

29.  I make the following orders:-

(1)   Leave to the parties to adduce psychiatric expert evidence, limited to one psychiatric expert for each party, namely Dr. Chow Lok Yee for the applicant and Dr. Wong Chun Kwong for the respondent.

(2)   The parties’ psychiatric experts shall conduct joint examination on the applicant within three months from the date of the order (on or before 19 April 2011) and file a joint report into court within 42 days thereafter, ie on or before 31 May 2011.

(3)   The parties to write to the court jointly within seven days thereafter for further directions.

(Discussion re costs)

30.  The costs order that I will make will be as follows. 

31.  The costs of an occasion by this application be costs in the cause, save and except the costs of this morning’s hearing be paid by the applicant to the respondent in any event. The applicant’s own costs are to be taxed in accordance with Legal Aid Regulations.