ARFAN MUHAMMAD v. MPS ENGINEERING LTD AND ANOTHER

HCPI 457/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.457 OF 2003

------------------------

------------------------

-----------------------------------------------

REASONS  FOR  RULING

-----------------------------------------------

1. On 16 December 2004 the P.I. Master refused leave to the plaintiff to adduce the report of Dr Chung See Yuen dated 4 October 2004.  The plaintiff appealed and I allowed the appeal.  I now give reasons. 

2. The plaintiff’s claim arises out of an accident at work on 29 June 2000, when, according to him, he fell off a ladder.  He suffered a head and a left thigh injury.  He was seen by Dr Brian Choa, the neurologist on 6 September 2002 in connection with his head injury, by Dr Choi Chi Wah, Danny, his own orthopaedic expert on 15 September 2003, and by Dr David Cheng, the defendants’ orthopaedic expert in connection with his thigh injury. 

3. The case proceeded to a check list review and on 3 November 2003 the Master gave a direction that the medical evidence was to be limited to one orthopaedic consultant for each party and one neurological consultant for the plaintiff, i.e. those named above.  The review hearing was adjourned until 12 November 2003 for discussion on a supplemental report of Dr Tsoi which the plaintiff had obtained.  Ultimately the defendant was given leave to adduce a supplemental report by Dr Cheng, and the plaintiff was given leave if necessary to obtain a further supplemental report by Dr Tsoi to comment on that of Dr Cheng.  Costs were reserved, but the outstanding costs issues in respect of these orthopaedic reports do not concern me here. 

4. On 25 August 2004 the plaintiff filed a summons seeking leave to obtain a report from the psychiatrist, Dr Chung See Yuen.  This was the first time the question of expert psychiatric evidence was raised.  At the hearing before the Master on 7 September 2004 the plaintiff’s solicitor produced a memorandum dated 19 May 2004 by one Dr Wat Chi Sum, a medical officer at South Kwai Chung Hospital.  He said that he had interviewed the plaintiff on three occasions between August and October 2002.  He was unable to get much information from the plaintiff because of the language barrier, but arranged various tests and diagnosed the plaintiff as suffering from depression.  The plaintiff was given anti-depressant drugs and told to return on 19 November 2002, but he did not.  Dr Wat said that he had not seen the plaintiff for over 19 months and could not comment on his mental state, nor could he draw any conclusion as to whether the mental problem was related to the injury. 

5. As appears from her written Reasons for Decision the Master felt that the information before her was insufficient for her to order a psychiatric report and advised the plaintiff’s solicitor to seek further supporting evidence from a Government clinic.  The solicitor agreed to approach the South Kwai Chung Clinic.  The hearing was adjourned until 16 December 2004 for this purpose.  The plaintiff’s solicitor went ahead and obtained Dr Chung’s report; according to her affidavit, in order to get a psychiatric appointment in a public hospital, the plaintiff would have to be referred by the Accident and Emergency Department and the first available appointment would be likely to come in mid to late 2005.  So in order to avoid delay, the plaintiff attended Dr Chung on a private basis.

6. The Master at the further hearing commented that the court was presented with a fait accompli in that the solicitor, having applied for leave to obtain the report, instead of seeking evidence to support that application, simply went ahead and obtained it.  She went on to consider the merits and refused to allow the report to be adduced.  She applied the test enunciated by Suffiad J in Chan Kwok Ming v. Hitachi Electric Service Co. Ltd,HCPI 322/2002, that the proper criteria to determine whether any expert medical report can or should be admitted into evidence are necessity, relevance and probative value.

7. I am unclear as to why there should be a practice (for I am told that there is such a practice) of applying for leave to obtain, rather than adduce an expert medical report.  The court does not have the power to forbid a plaintiff to obtain an expert’s report.  If he wants to obtain one, it is a matter for him though of course he takes the risk that, if he is not given leave to adduce it, he will never recover the cost.  Presumably plaintiffs, particularly those receiving legal aid, wish to have some advance protection against the costs risk. 

8. In any event, the report was obtained.  Whether the court was presented with a fait accompli was irrelevant.  The question for the Master was, as it was for me at the appeal hearing, which was a hearing de novo, whether the report should be adduced. 

9. There is evidence that the plaintiff sought psychiatric treatment in late 2002.  Dr Choa saw the plaintiff in September 2002.  In his report, he said that the plaintiff had suffered a mild head injury.  There was a fracture through the wall of the left frontal sinus allowing air to enter the skull but no intracranial damage or bleeding.  Post-traumatic amnesia was only half an hour, putting the cerebral injury into the trivial category. 

10. After commenting on the orthopaedic injuries Dr Choa went on to say that another consequence of the injury was that the plaintiff had become depressed.   He said that the reactive depression was further hampering the plaintiff’s ability to function and to enjoy life and that a combination of effective orthopaedic treatment and proper psychiatric management should restore him to full health within six months. 

11. Dr Chung’s opinion at paragraphs 24 and 25 of his report is given as follows:

“	24.	I believe Mr ARFAN is suffering from the following mental problems:
	24.1.	He is suffering from some symptoms of post-concussional disorder. This disorder is an acquired impairment in cognitive functioning, accompanied by specific neurobehavioural symptoms, that occurs as a consequence of closed head injury of sufficient severity to produce a significant cerebral concussion. The symptoms that he is having include subjective bad memory, headache and dizziness. The disorder is caused by the head trauma on 29 June 2000. The symptoms are likely to be permanent as more than 4 years have elapsed after the head trauma.
	24.2.	He is depressed because of the many problems he is having including worries about his physical problems, unsightly scars over his thigh, inability to work, and his future. The depression is caused by the accident and the result physical problems. It is aggravated by the unemployment and financial situation. The symptoms that he is having consist of depressed mood, pessimistic ideas, feelings of difficulty coping, low self-esteem, lack of interest in activities and sleep problems.
	25.	His complaints are subjective and there are absence of objective findings during the present assessment. I believe the mental problems are mild and the impairment levels are compatible with most useful functions.  His enjoyment of life is affected by his depressed mood, low self-esteem and lack of motivation in activities.”

12. Dr Chung goes on to say that the plaintiff is mentally fit to return to his pre-accident job though his work efficiency will be mildly affected by, inter alia, his depressed mood.  If he cannot return to the pre-accident job because of his orthopaedic condition the plaintiff is mentally fit to work as a messenger, car park attendant, security guard or the like.

13. He also says that the plaintiff needs 10 one-hour sessions of psychiatric treatment for his depressive condition, once ever two weeks for six sessions and once every month for four sessions.  The cost in the public sector would be about $100 per session, and in the private sector $1,200 to $2,500 per session. 

14. The learned Master took the view that Dr Chung was not prepared to conclude that the plaintiff was suffering from depression or any other recognised mental illness; he only said that the plaintiff had “symptoms of” and not that he was “suffering from” post-concussional disorder.  

15. Perhaps the full range of symptoms is not there, but as I understand it post-concussional disorder is one of those conditions which may produce a basket of symptoms, not all of which need be present for a diagnosis of the disorder.  In any event, Dr Chung says that the plaintiff is suffering from a mental disorder caused by the head trauma, i.e. that suffered in the accident, and from depression also caused by the accident.  It is true that the problem is not serious, but the psychiatrist’s opinion is that there is a psychiatric problem which needs treatment. 

16. It is suggested that Dr Chung’s report is not necessary because Dr Choa has already advanced a similar opinion.  He is a better expert on post-concussional syndrome.  Further, although he is not a psychiatrist no objection has been taken to his opinion on the plaintiff’s depression.  I do not agree.  All Dr Choa has said is that the plaintiff needs, or needed when he was seen a combination of orthopaedic treatment and psychiatric management which would restore full health within six months.  He does not say what the psychiatric treatment should consist of, any more than he says what orthopaedic treatment should be given.  Neither is his field.  But once he points to a psychiatric disorder, to my mind, the opinion of a psychiatrist becomes necessary. 

17. It is also argued that the plaintiff has failed to lay the foundation to adduce relevant and probative psychiatric evidence.  That might have some force if I were considering whether the plaintiff should be given leave to obtain a psychiatrist’s report, but I am not.  It is also argued, and I accept this, that the psychiatric report does not advance the claims for loss of earnings and loss of earning capacity.  However it does advance a claim for the cost of psychiatric treatment which may be added by amendment.  Although it is a small claim I cannot see that it is right that it should be stifled.  There is also the question of mitigation raised by counsel for the plaintiff.  Dr Chung says that the plaintiff believes could not work as a construction worker because “he is weak, sad and the other mental problems”.  I accept that the report is relevant to any question of mitigation which may be raised.

18. It is also suggested that the solicitor’s conduct should be taken into account but I do not see that the plaintiff should be penalised for his solicitor’s failure to follow up the question of a psychiatric report earlier.  It is also said that the court should not allow the proliferation of experts’ reports.  I respectfully agree with the trenchant comments of Seagroatt J in Wong Hin Pui v. Kok Ying Kit & Anor(No. 2) [2000] 1 HKLRD 856 but it is also important in principle that a claim, however small, should not be stifled; and that would be the effect of refusing to allow this report to be adduced. 

19. For these reasons I allowed the appeal.