LEUNG WAN LUNG v. CHENG WAI MAN

HCPI 6/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 6 OF 2009

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D E C I S I O N

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I.  Background

1.  In this case, the Plaintiff claims against the Defendant for personal injuries, loss and damages he sustained as a result of a road traffic accident on 16 June 2006 (“Accident”).  Judgment on liability was entered on 5 March 2009 for damages to be assessed.

2.  According to the Plaintiff’s statement to the police dated 3 July 2006 and his witness statement dated 4 September 2009, at the material time he was driving a light goods vehicle with a passenger seated next to him when the medium goods vehicle (trailer without container) driven by the Defendant rammed into the nearside of his vehicle.  The Plaintiff’s vehicle was rocked by the impact but did not overturn.  He was thrown by the impact, and the right side of his body/ head hit against the car door/window.  He had a nosebleed and felt faint and weak.  He remained in the driver’s seat until the ambulance came to take him to hospital.

3.  On 4 August 2009, Master A Ho ordered that expert medical evidence be limited to 1 orthopaedic and 1 neurological consultant for each party, and directed the Plaintiff to apply for leave to adduce psychiatric expert evidence if so advised.  On 18 August 2009, the Plaintiff issued an inter partes summons (“Summons”) for such purpose and it was adjourned for argument before me.

II.  Injuries and treatment

(a)  Emergency treatment at Kwong Wah Hospital (“KWH”)

4.  After the Accident, the Plaintiff was taken to KWH’s accident and emergency department (“AED”).  There was tenderness over the back of the cervical spine and reduced motor power over the right upper/lower extremities.  The right jerk reflexes were impaired, and x-ray cervical spine revealed loss of normal lordosis with suspected fracture of the C6 vertebra.  The Plaintiff was admitted to KWH’s department of orthopaedics (“DOT”) for further management.

(b)  Hospitalisation at KWH

5.  At KWH’s DOT, the Plaintiff complained of right side neck pain, right side upper/lower limb numbness/weakness, epitaxis, nausea and vomiting.  On physical examination, there was diffuse tenderness over cervical spine and right scapula.  His right upper/lower limb power was reduced (4/5) with decreased sensation over right side of body and limbs.  X-ray cervical spine showed loss of lordosis but preserved alignment with no soft tissue swelling or fracture seen.  CT brain/cervical spine showed no abnormality. MRI brain/cervical spine and MRA vertebral artery showed no significant intracranial lesion.  There was mild spondylosis with some spinal stenosis over cervical spine.  Despite dubious lesion causing non-visualisation of the lower left vertebral artery, the Plaintiff refused further investigation by digital subtraction angiography.  He was treated conservatively with analgesics and put on physiotherapy and occupational therapy.  Aspirin was started by neurosurgeon for suspected vertebral artery ischaemia.  The Plaintiff’s right upper/lower limb power improved gradually and he was discharged on 20 June 2006.

(c)  KWH’s outpatient orthopaedic follow-up

6.  According to the Plaintiff’s witness statement, he attended follow-up at the outpatient clinic of KWH’s OTD 11 times between 21 July 2006 and 19 June 2008.  At the follow-up on 27 March 2008, there was residual neck stiffness with mild right upper limb weakness.

(d)  North District Hospital’s (“NDH’s”) physiotherapy treatment

7.  Between 24 July 2006 and 21 February 2007, NDH’s physiotherapy department (“PD”) arranged 21 physiotherapy sessions for the Plaintiff with focus on mobolisation/strengthening of the upper/lower limbs and pain relief.  At the last session there was subjective improvement of 70-80%, but residual weakness and occasional dizziness were reported.  Objectively, muscle power of the corresponding spinal level was reduced on the right side, and power grip of the right hand was less than that of the left.  The Plaintiff was discharged as his condition was static.

(e)  KWH’s neurological treatment

8.  The Plaintiff attended KWH’s neurosurgery clinic once on 10 August 2006.  Medical advice for further diagnostic angiogram for suspected left vertebral artery dissection/stenosis was refused, and the Plaintiff did not attend the clinic since.

(f)  NDH’s occupational therapy treatment

9.  On 15 August 2006, the Plaintiff was referred by KWH’s DOT for outpatient occupational therapy.  He had 8 sessions for limb mobolisation/strengthening between 10 October 2006 and 2 January 2007.  According to the Plaintiff’s affirmation and witness statement, he had 6 more occupational therapy sessions at NDH from 4 February to 18 July 2008.

10.  At the occupational therapy session on 2 January 2007, there was complaint of limited neck movement due to pain, stretching pain when the right shoulder flexion was above 140˚, decreased strength of right upper/lower limbs, and decreased grip strength of right hand.  The Plaintiff also complained of dizziness, fatigue and need to rest.

(g)  NDH’s AED treatment

11.  According to the Plaintiff’s witness statement, he sought treatment at NDH’s AED on 8 November 2006.

(h)  KWH’s treatment for chest discomfort

12.  The Plaintiff was referred by KWH’s DOT to the medical specialist outpatient clinic on 10 November 2006 for symptoms of chest discomfort/palpitation and episodic high blood pressure.  On 22 August 2007, the Plaintiff was seen at the outpatient clinic of NDH’s department of medicine.  He claimed the aforesaid symptoms were related to anxiety and lasted for 30-60 minutes each time.  Apart from nausea and facial flushing, there were no other associated symptoms.  The Plaintiff was subsequently seen on 14 November 2007 and last seen on 20 February 2008. According to the medical report of Dr Chan Kam Hon dated 18 April 2008, “[the] clinical impression was that his previous symptoms were unlikely to be related to organic disease and were most likely related to anxiety.  He was reassured and discharged from our clinic subsequently.”

(i)  NDH’s 2^nd AED treatment

13.  The Plaintiff attended NDH’s AED on 3 May 2007 for “insomnia for half year, agitated mood and poor temper”. Physical and mental state examinations were unremarkable.  The provisional diagnosis was “suspected personality disorder” and hypnotics were prescribed.

(j)  NDH’s psychiatric treatment

14.  On 17 May 2007, the Plaintiff attended NDH’s psychiatric clinic and claimed to suffer from constant pain in his neck/head since the Accident.  He also had insomnia and nightmares whenever he managed to get to sleep.  He had heightened sensitivity towards any traffic sounds and felt agitated/frustrated.  He had low mood, loss of libido and felt suicidal at times.  The Plaintiff’s mental state revealed during the interview was depressed but not suicidal.

15.  According to NDH’s Out-patient Progress Sheet for 17 May 2007, it was stated as follows:

“Feel more [illegible] & more tired

→ Sleep → 10-2 → 5-6am

→ Anxious lessen → improved

→ No panic → upset

→ Less hypersensitivity”

More details were given in the Case Summary (Psychiatric Out-patient) of the same date as follows:

“Source of Referral & Reason of Referral

32 yrs married driver – unemployed after RTA last june – admitted to KWH – hit on the side of the car

Chief Complaint

Lorry hit by a container lorry, lost of conscience briefly, hit head - ? arterial occlusion – rt side hemiparesis – still a little improved – followed by O&T KWH, neckache now – headache

History of Present Illness

Unable to move neck – taking analgesic – and finished course of physiotherapy – feel very irritable, unable to sleep- wake at the middle of night- after 2 hours – wake up with bad nightmare – the same dream, all the time, feel very worry- palpitation and flash back – hypersensitive with the car sound, mood poor – feel very frustrated and unable to work- wife want to divorce him, felt useless and no friend, son 7 yrs, not able to control him, wife work as OL, married for 8/9 yrs, relationship ok till now – felt suicidal , no plan yet, app- ok, wt increase, libido, nil  loss of morning erection, no psychosis

……

Past Psychiatric History

nil

……

Premorbid Personality

extrovert, enjoy football, climbing, karaoke

……”

The diagnosis was post-traumatic stress disorder with co-morbid depression.

16.  The Out-patient Progress Sheets of NDH’s department of psychiatry (“DPsy”) are summarised as follows:

26 July 2007	“Feel tired → Sleep better 11 – 3/4 am. Less anxious & agitated & tired. Mood – OK. Still pain over the back …… [prescribe mediation]”
6 September 2007	“Stable & well. Sleep 4-5 hrs. Mood ü Try cut down xanax [medication] (stop) …… [prescribe medication]”
15 November 2007	“A bit of anxious with stopping xanax. Sleep difficult a bit. A bit agitated with the stress of marriage divorce → Suicidal thoughts → had arguments …… [prescribe medication including adding xanax]”
11 November 2007	“Feel a bit better. Sleep 3-4 hrs – improved. Still anxious – still stress over marriage issue …… [prescribe medication]”
29 November 2007	“Feel better, sleep better. Less anxious than before. Tired during the day. Mood ü …… [prescribe medication]”
21 January 2008	“Sleep – stable. Use …… xanax to relief anxiety. Orthopaedics told that his physical progress is bad. ↑ stress ……[prescribe medication]”
11 March 2008	“Forgotten [appointment] sleep. Still bother about the travelling. Tired during the [illegible]. But palpitation with car travel …… [prescribe medication]”

17.  When the Plaintiff was seen on 11 March 2008, he still had significant anxiety symptoms whilst travelling by car.  The Plaintiff was then on various psychiatric medications.  When he was seen on 25 May 2009 he was able to sleep with his medications, but was unable to find work and felt increasingly stressed by the situation.  In all, the Plaintiff attended 16 sessions of psychiatric treatment between 17 May 2007 and 3 February 2009.  He is still receiving psychiatric treatment at NDH.

(k)  NDH’s 2^nd physiotherapy treatment

18.  On 11 October 2007, the Plaintiff was again referred for physiotherapy and he attended 13 sessions between 18 December 2007 and 26 March 2008.  At first, the Plaintiff complained of neck pain/weakness over right upper/lower limbs.  Neck flexion activities increased stretching at the neck region.  Objectively, active range of neck movement was much reduced.  Active elevation range of right upper limb and hand behind back movement on the right side were also reduced.  Paraspinal neck muscles were tight and tender to palpate.  At the treatment session on 18 March 2008, the Plaintiff reported subjective improvement of 15%.  Objectively, neck stiffness towards active movement remained unchanged.  Active range for neck flexion and rotation were about half of normal range, and neck flexion was limited to quarter of normal range.  Active range for right shoulder was 145˚whilst the passive range was full.  There was jerky movement during neck rotation and right upper limb movement, and mild non-specific tenderness over right upper trapezius and neck muscles.  The importance of home exercises and neck mobolising exercises were emphasised.  In view of the Plaintiff’s static condition, he was discharged from the physiotherapy treatment programme.

(l)  KWH’s occupational therapy treatment

19.  On 11 October 2007, the Plaintiff was referred to KWH’s OTD for mobolisation, work capacity assessment and driving assessment.  At the initial assessment on 29 October 2007, the Plaintiff complained of persistent pain over his cervical spine, neck stiffness, numbness/weakness of right arm/leg, and on and off soreness of the back muscles.  Objective assessment showed that the range of movement of the neck was very limited in all directions, and active neck movement aggravated his neck pain.  The range of movement of the right shoulder was moderately limited, and the grip power, pinch power and finger dexterity of the right hand were significantly poorer than the left.  There was mild weakness of the Plaintiff’s right quadriceps.  He could squat with adapted method, but complained of back tightness when he stooped and back muscle fatigue after prolonged sitting.  The Plaintiff’s lifting capacity and weight carrying tolerance were limited by right arm/leg weakness.  He walked with a limp and his stair-climbing tolerance/stability was affected by his right leg weakness.

20.  Since 31 October 2007, the Plaintiff attended occupational therapy sessions 3 times a week with treatment focused on right arm and leg strengthening.  According to his witness statement, he attended 60 sessions between 31 October 2007 and 21 April 2008.  On 26 November 2007, the Plaintiff failed the on-road driving assessment due to inability to steer effectively and to apply right-sided gas and brake pedals accurately.  At the latest work capacity assessment on 28 April 2008, the Plaintiff subjectively felt 50-60% recovery with improvement on the movement ranges of neck and right shoulder, but he still complained of (a) persistent pain over his neck dorsum, which was aggravated by neck movements, (b) persistent soreness of right trapezius muscle and right arm, (c) weakness of right arm and leg, (d) resting tremor of right hand, and (e) reduced sensation over right arm and leg.  Objective assessment revealed moderate to severe limitation of neck movement, mild to moderate limitation of right shoulder movement, limitation of movement of right wrist and forearm, and reduced grip power and finger dexterity of his right hand.  The assessment also showed reduced strength of right quadriceps, right leg weakness on squatting, inability to stand on single right leg, and neck/back tightness on stooping.  The Plaintiff could not climb ladder due to right leg weakness, and his lifting and weight carrying capacities were limited due to right arm/leg weakness.  He could walk at normal speed on level ground with a limp, and self-reported reduced sitting/walking tolerance.  Stair-climbing ability was affected due to right leg weakness, and he presented with a marked limp.  The physiotherapist concluded that the Plaintiff’s demonstrated work capacity was below the original work requirements of a lorry driver and delivery worker, and he was advised to seek indoor non-labour work in view of his limited physical capacity.

(m)  NDH’s 2^nd occupational therapy treatment

21.  On 18 January 2008, NDH’s DPsy referred the Plaintiff to NDH’s OTD for outpatient occupational therapy for the purpose of psychoeducation and cognitive behavioural therapy.  The initial assessment result was as follows:

“- emotion: low and anxious mood, anhedonia, irritable

- sleep: insomnia with nightmare of the road traffic accident

- self-perception: had sense of inferiority and uselessness

- somatic discomfort: headache in noisy environment

- daily life: lack of purposeful daily engagement”

When the Plaintiff was seen on 17 April 2008, he was in similar emotional state and performance, but with increasing recognition of the need for awareness of own dysfunctional thoughts and for engagement in purposeful activities during the day.  It was recommended that he should continue “the cognitive behavioural therapy programme, daily activity schedule with interested and purposeful activities, relaxation training” (see occupational therapy report of Mr Tam Wai Chung dated 25 April 2008).

(n)  KWH’s work capacity evaluation

22.  According to the medical report by Dr Wong Chit Chun Radley of KWH’s DOT dated 15 May 2008, the Plaintiff was evaluated by KWH’s occupational therapist on 19 March 2008 in respect of his work capacity, which was reported to be far below the requirements for his pre-Accident work as a lorry driver and delivery worker.

(o)  Certificate of Assessment

23.  According to the Certificate of Assessment dated 19 March 2008 issued by the Medical Assessment Board, the Plaintiff was assessed to suffer from 78% loss of earning capacity for “head and neck injury resulting in psychiatric impairment, neck stiffness and pain, need some supervision, decreased digital dexterity, and walk with difficulty”.  The letter from the Commissioner for Labour dated 20 July 2009 clarified that the aforesaid 78% loss of earning capacity comprised 8%, 10% and 60% respectively for orthopaedic, psychiatry/clinical psychology and neurosurgical aspects.

(p)  NDH’s clinical psychological treatment

24.  The Plaintiff was seen 3 times at the outpatient department of Alice Ho Miu Ling Nethersole Hospital (“AHMLNH”).  At the first session on 19 August 2009, the Plaintiff reported that he had dreams of the Accident about 3-4 times per month and poor emotional control.  He did not sleep well because of neck aches and headaches.  He was unable to work for several years.  He reported to have temper control after receiving counselling from a social worker and occupational therapist at NDH.  At that time, his main concern was about his relationship with his wife who worked as a clerk and returned home late for 2 years.  He suspected her of having extra-marital affair, but refused her request for divorce.  Since the Plaintiff attended regular counselling at NDH and had to take taxi to AHMLNH, it was agreed that his case be closed on 11 February 2009.

III.  Orthopaedic expert evidence

25.  According to the joint orthopaedic expert report of Dr Chan Sai Keung (“Dr Chan”) for the Plaintiff and Dr David Cheng (“Dr Cheng”) for the Defendant dated 24 October 2008 (“Ortho Report”), the Plaintiff informed Drs Chan and Cheng that he started to talk with stuttering, first on an episodic interval, then more often after being discharged home from KWH’s DOT.  He complained of headache (mainly over the left frontal area) and a sense of fatigability but no dizziness.

26.  The Plaintiff complained that since 2007 (ie about a year after the Accident) he began to experience tremor of the right upper limb or forearm which would stop on holding objects.  He was told by neurosurgeon that not much could be done, and was advised to do exercise.  He also complained of some weakness/paraesthesia, eg he could use chopsticks and write but with some slowness.

27.  The Plaintiff further complained of constant neck pain that needed regular analgesics.  There was no pain over the lower limbs, but a sensation of paraesthesia over the entire right lower limb.  He could walk with a limping gait for over 2 hours, travel on his own and take public transport.

28.  Physical examination revealed stuttering speech and gross tremor of the right upper limb which would stop on holding an object.  The Plaintiff walked with hemiplegic gait with right elbow bent, right leg externally rotated and weight on the left side.  He could not support himself on the right leg alone and could squat only marginally.  The neck was straight with tightness and muscle spasm, and there were grossly diminished range of motion and tenderness along the right paraspinal region.  There were no long tract signs, no ankle clonus and no hyper-reflexia of the lower limb, but there was slight degree of spasticity of the muscle on the right side.  X-ray revealed loss of cervical lordosis and marginal osteophytes, but no evidence of any fracture.

29.  Drs Chan and Cheung agreed there was clearly neurological involvement after the Accident given the diminished sensation and weakness over the right upper/lower limbs, ie a right side hemiparesis.  Various exhaustive investigations were done but the findings were unremarkable and demonstrated no pathology.  With the Plaintiff’s refusal of further neurosurgical investigation, the doctors at KWH did not make any definite diagnosis.  Empirical treatment of right hemiparesis with aspirin was given and then the focus was on rehabilitation. Drs Chan and Cheng were unable to form an exact diagnosis of what the Plaintiff suffered, but from the clinical picture presented opined that he “must likely suffer a form of cord or brain damage; and that this injury was probably the result of the [Accident]”.

30.  Drs Chan and Cheng noted that the Plaintiff went through a long course of rehabilitation but the results were mediocre.  It was then 3 years after the Accident, the Plaintiff had reached a stabilised state with the following complaints: (a) tremor of the right upper limb which was said to have begun a year after the Accident, (b) weakness of the right upper/lower limb, (c) paraesthesia of the right upper/lower limb, (d) stuttering of speech, and (e) neck pain and headache.  From their physical examination of the Plaintiff, Drs Chan and Cheng “agree that [the Plaintiff’s] complaints are justified”.

31.  Drs Chan and Cheng considered the prognosis was fair and the Plaintiff’s present physical impairments were likely to be permanent, but with time and adaptation it was possible for to improve his general activities.  Orthopaedic treatment could not really help, but the Plaintiff should attend general clinic for periodic monitoring of his condition for symptomatic treatment on a need-to basis.  They were also of the view that given the Plaintiff’s neurological impairments, he would not be able to resume his pre-Accident work as driver or deliveryman.  Indeed, Drs Chan and Cheng doubted whether the Plaintiff was capable of doing any job requiring moderate physical demand.  He should look for alternative work of light physical demand and preferably sedentary in nature.  His earning capacity and his social and other activities would be affected.  Drs Chan and Cheng recommended a period of sick leave of 2 years.

IV.  Neurological expert evidence

32.  According to the joint neurological expert report of Dr Brian Choa (“Dr Choa”) of the Plaintiff and Dr Edmund Woo (“Dr Woo”) of the Defendant dated 29 January 2009 (“Neuro Report”), the Plaintiff reported that when he was hospitalised at KWH, he still had a lot of neck/head pain, and could not at first bear weight. It was about the 4^th day that he could walk and stand. He was discharged after 5 days’ hospitalisation.  He was able to walk out of the ward with the help of a friend, who took him home in his van.  At the time of the Neuro Report, the Plaintiff was continuing with psychiatric follow-up at NDH and orthopaedic follow-up at KWH, but follow-up by neurosurgeons, physiotherapists and occupational therapists had ceased.  His medication then included painkillers on demand, floxetine for depression, alprazolam and diazepam for anxiety and sleep, and propranolol for tremor.

33.  According to Drs Choa and Woo, the Plaintiff was a well-looking and well-groomed man with normal effect.  He smiled readily and was generally pleasant.  He was cognitively normal.

34.  The Plaintiff complained of head/neck pain.  The pain felt in the centre of the back of his neck (worse on the left) was a deep-seated discomfort that made his eyes felt tired.  It was there all the time but it waxed and waned and tended to be worst when he was tired later in the day.  It could occasionally prevent sleep or wake him from sleep.  The Plaintiff took 2 painkillers a day for it, sometimes took a third one at night if the pain disturbed sleep.  Overall, these pains had improved since the Accident.

35.  Physical examination of the head/neck showed resistance by the Plaintiff to attempts to rotate his head/neck and he turned his whole body with such manoeuvres.  Tenderness was reported on the left side of the back of the head without radiation of pain.  The cranial nerves were normal, and in particular eye movements were full and papillary reactions, facial sensation and facial/tongue movements were normal.

36.  The Plaintiff complained of developing stuttering speech some 9 months after the Accident.  It came and went but tended to be worse when he was tired.  He was advised by occupational therapists to practise reading aloud, but was not offered any formal speech therapy.  Physical examination revealed that the Plaintiff spoke with a stutter that from time to time disappeared.

37.  The Plaintiff further complained of mild tremor of the right upper limb at rest or on walking that did not affect use of the upper limb or dexterity of the right hand.  He noticed that as he walked his right arm was flexed or got drawn up against his body, and that his right arm was weaker so that it was hard to lift heavy things, eg carry heavy shopping bag or move furniture around.  Physical examination revealed that the muscle bulk and tone of the right upper limb were normal, but there was an intermittent fast tremor present mostly at rest but abolished by action or by maintaining a posture.  Power was normal but effort during the examination was intermittent with a variable degree of give-way weakness.  There was no pronator drift of the outstretched arm.  Sensation was inconsistently reported, but there was no area of definite sensory loss to any modality.  The reflexes were normal and Hoffman’s sign was absent (normal).

38.  The Plaintiff complained that he was unsteady on his legs and hence walked with a limp.  This had improved considerably since the early days after the Accident.  He had no difficulty in walking or negotiating stairs, but had not been able to run after the Accident.  He had a fall at home when he slipped in the kitchen and cut his finger, but had not fallen outside the home. He was able to go out on his own.  Physical examination showed that muscle bulk and tone of the right lower limb were normal as were sensation and reflexes.  Power was normal but effort was again intermittent with variable give-way weakness.  The Plaintiff walked with a limp and dragged his left leg.  On testing his ability to walk heel-to-toe, he alternately favoured the right leg or his left.

39.  The Plaintiff reported that he developed a bad temper after the Accident and his marriage started to break down.  He also had nightmares and feeling of low esteem.  For this he received and continued to receive treatment from clinical psychologists and psychiatrists at NDH, and took antidepressant and anti-anxiety medications.  He had improved on this treatment.

40.  Drs Choa and Woo agreed that the Plaintiff sustained a minor injury to the soft tissues of his back at the time of the Accident.  There was no evidence of cerebral injury and no impairment of consciousness or post-traumatic amnesia.  Radiological investigations showed no cerebral abnormality.  The non-visualised left vertebral artery was almost certainly a normal variation.  A vertebral dissection in which the arterial wall was torn and the artery blocked would have led to brainstem deficits in addition to hemiparesis.  The findings by Drs Choa and Woo revealed no objective signs of neurological damage, and in particular no change of muscle tone or tendon reflexes to support either a cerebral or spinal cord lesion.  All the findings in the Plaintiff’s limbs were normal.  In other words, his apparent tremor and right-sided weakness had no organic basis.  His stutter, which reportedly came on a number of months after the Accident, was intermittent and did not fit into the pattern of a genuine stutter. 

41.  Drs Choa and Woo opined that “[the] orthopaedic experts understandably did not realise that [the Plaintiff’s] paralysis was non-organic”, thus the whole person impairment for his neck condition/pain from the orthopaedic perspective should be limited to 5% (Dr Choa) or 1% (Dr Woo).  The Plaintiff was then being treated for his alleged post-traumatic stress disorder and depression in the public sector.  His neck pain/stiffness should be readily amenable to simple treatment with medication and physical therapy.

42.  Drs Choa and Woo were also of the view there was “no loss of earning capacity attributable to a neurological injury, as there was none”.  Dr Choa was of the view that neurologically the Plaintiff was fit to return to driving and was probably fit to do so from the beginning of 2007.  Dr Woo opined there should be no sick leave from the neurological perspective.

43.  As to the genuineness of the deficits, Dr Choa opined that the Plaintiff’s neurological picture was “either feigned or a manifestation of psychological processes, a conversion or somatoform disorder.  Overall the features favour the former as patients with a conversion disorder are inevitably more disabled by it, for example not being able to use the affected body part effectively”.  Dr Choa recommended that an expert psychiatric assessment be arranged to settle the question of a somatoform disorder of psychological origin and to recommend a treatment plan, if any.

44.  On the other hand, Dr Woo opined that “[the] inconsistencies and discrepancies in the physical deficits that [the Plaintiff] demonstrated defy neurophysiological principles and strongly suggest that they are feigned.  They cast serious doubt on the genuineness and integrity of his complaints.”  Dr Woo was of the view that there was no indication for a psychiatric evaluation.

V.  Legal principles

45.  Both Mr Sakhrani, counsel for the Plaintiff, and Mr Lam, solicitor for the Defendant, have no dispute over the relevant legal principles.  They have cited Arfan Muhammad v MPS Engineering Limited & anor HCPI457/2003, Deputy High Court Judge Muttrie (unreported, 30 June 2005), Farman Khan v Lau Kai Hong and Lau Siu Yuk trading as Shun Sum Engineering Company (a firm) HCPI850/2008, Fung J (unreported, 29 April 2009), and my previous decisions on the subject as follows:

(a) Lau Lai Shan v Hospital Authority DCEC784/2007 (unreported, 29 February 2008);

(b) Wong Ka Yee v Gay Giano International Limited DCEC436/2007 (unreported, 4 August 2009);

(c) Ip Sau Lin v Hospital Authority [2009] 2 HKC 383;

(d) Abid Khan v Queen Wan Limited DCEC71/2008 (unreported, 11 June 2009).

46.  It is unnecessary to repeat the fullness of the relevant legal principles here.  Suffice to say that the guiding criteria is whether the expert medical evidence sought is necessary, relevant and of probative value.  In considering the issue of relevance, the expert medical evidence must be relevant in the sense that it is helpful to the court in arriving its decision on one or more issues to be resolved.  If the court can make an informed decision on (and/or resolve) any issue in the case justly without the aid of such expert medical evidence, then the court may regard such expert evidence as not useful and should not be adduced.  This calls for an exercise of judicial discretion, and pertinent considerations will include (a) how cogent the proposed expert medical evidence will be, (b) how helpful it will be in resolving any of the issues in the case, and (c) how much it will cost and the relationship of that cost to the sums at stake.

VI.  Discussion

47.  In the present case, the parties have obtained the Ortho and Neuro Reports.  The present dispute is whether psychiatric expert evidence should be allowed.

48.  Mr Sakhrani argued that this case cried out for psychiatric expert evidence.  He submitted it was well documented that the Plaintiff developed psychiatric symptoms after the Accident, which were diagnosed and treated and which persisted for a long time despite the comprehensive treatment regime.  Mr Sakhrani further pointed out that Dr Choa fairly explained the need for psychiatric evaluation to enable a reliable conclusion to be made of the Plaintiff’s condition.  He went on to suggest that Dr Woo’s approach insofar as he refused to acknowledge that any inconsistencies might be explained by a psychiatrist or psychiatric disorder(s) was too narrow to be supported.  Given the prima facie material to support the relevance of psychiatric expert evidence and the difficulty for the trial judge in coming to any informed decision as to the genuineness of the Plaintiff’s complaints without such expert evidence, Mr Sakhrani submitted that I should rule in favour of the Summons.

49.  On the other hand, Mr Lam submitted that the mildness of the soft tissue injuries caused by the Accident without any loss of consciousness and without objective signs of neurological damage, the deferred presentation of the alleged psychiatric symptoms about 4½ months after the Accident, the absence of any indication for psychiatric assessment until Dr Choa’s recommendation in the Neuro Report (which should be regarded as a neutral comment rather than prima facie evidence of relevance) plainly did not support any need for psychiatric evaluation as proposed by the Plaintiff.  In any event, even if the Plaintiff suffered from any psychiatric disturbance, it was not serious and was probably largely in remission for some time as evident from the medical treatment notes/records and from the Plaintiff’s default of 2 psychiatric follow-up appointments since 11 March 2008 (which led to his registration as a new case at the next follow-up on 4 December 2008).  Mr Lam was of the view that the medical treatment notes/records and the Certificate of Assessment were sufficient material for the trial judge to come to an informed conclusion as to the Plaintiff’s psychiatric disturbance/disability (if any) and their causal link (if any) with the Plaintiff’s physical deficits and/or the Accident.

50.  Here, although an Answer to the Statement of Damages has not been filed as yet, there is no doubt the Defendant puts in issue the genuineness of the Plaintiff’s physical and behavioural complaints.  In my view, such key issue concerns several aspects:

(a) whether the alleged chronic neck pain/stiffness and headaches are as persistent and debilitating as the Plaintiff claims;

(b) whether the physical deficits, eg stuttering speech, tremor of right upper limb, weakness/numbness/paraesthesia of right upper/lower limbs and limping/hemiplegic gait, are feigned, exaggerated or genuine;

(c) whether the Plaintiff has suffered and/or still suffers from any recognisable psychiatric condition and if so, what are the relevant diagnosis, treatment and prognosis.

51.  The above matters plainly have implications on expert medical evidence in the sense that this court has to decide whether the trial judge will be assisted by psychiatric expert evidence in the final adjudication of such matters.  As a starting point, it is important to bear in mind that it is not for this court to decide the ultimate issues, and hence not for this court to constrain the fullness of the Plaintiff’s case in coming to a just resolution of the dispute by preventing him from deploying necessary and relevant expert medical evidence.  But at the same time the court has to take note of the underlying objectives in Order 1A of the Rules of the High Court and of the need to guard against proliferation of unnecessary expert medical evidence that not only does not assist the trial judge but adds to time and costs to the detriment of the litigants.  In this respect, I need go no further than to refer to the strong reminders by Seagroatt J in Wong Hin Pui v Mok Ying Kit & anor HCPI763/1997 (unreported, 21 December 1999) and Suffiad J in Ho Man Fong v Sime Darby Motor Services Limited HCPI196/2003 (unreported, 19 July 2005).

52.  In this case, notwithstanding Mr Lam’s submissions, complaints of neck pain, reduced motor power over right upper/lower limbs and reduced right side jerk reflexes were raised as early as at the Plaintiff’s initial attendance at KWH’s AED immediately after the Accident (see paragraph 4 above).  The Plaintiff repeated his complaints of neck/right shoulder pain and right side upper/lower limb numbness/weakness with reduced power/sensation of right side body/ limbs during his hospitalisation at KWH (see paragraph 5 above).  Thereafter, the Plaintiff had orthopaedic outpatient follow-up for inter alia mild right upper limb weakness (see paragraph 6 above) and physiotherapy treatment for mobolisation/ strengthening of upper/lower limbs (see paragraph 7 above).  Objective assessment by the physiotherapist revealed reduced muscle power of the corresponding spinal level on the right side and reduced power grip of the right hand (see paragraph 7 above).  Further course of physiotherapy was given for the same purpose and objectively there were neck stiffness, limited range of movement for neck/right shoulder, jerky movement during neck/right upper limb movement and mild non-specific tenderness over right upper trapezius/neck muscles (see paragraph 18 above).  Likewise, the Plaintiff received occupational therapy treatment for limb mobolisation and training, but he still complained of neck/right shoulder pain, and reduced strength of right upper/lower limbs, and decreased grip strength of right hand (see paragraphs 9-10 above).  During further course of occupational therapy, the Plaintiff continued to complain of numbness/weakness of right arm/leg and on and off soreness of back muscles (see paragraph 19 above).  Objective assessment showed limited range of movement of neck and right shoulder with reduced grip power, pinch power and finger dexterity of the right hand and weakness of right leg that affected the Plaintiff’s ability to squat, stoop, lift/carry weight, sit/walk at length and climb stairs (see paragraphs 19-20 above).

53.  Although the Defendant puts in issue the severity if not the existence of neck pain/stiffness, the court at this stage cannot ignore the objective x-ray findings of loss of normal cervical lordosis (see paragraphs 4-5 above) and physical examination findings by Drs Chan and Cheng of a straight neck with tightness and muscle spasm (see paragraph 28 above).  I also note that the Plaintiff’s complaint of persistent neck pain/stiffness aggravated by neck movement and persistent soreness of right shoulder/arm were such that regular analgesics were required and were in fact prescribed by his treating doctors. 

54.  Since pain is a significant feature of the Plaintiff’s claim for compensation, it is necessary for the trial judge to discover the extent and quality of the pain felt and/or perceived by the Plaintiff and the effects it has on his daily and/or work functions.

55.  I bear in mind that tolerance for pain varies from one person to another and that there may or may not be an obvious relationship between an injury and chronic pain.  It is common knowledge that pain being subjective and hence impossible to measure scientifically can be exaggerated or feigned, and that malingered presentation of pain after a trauma is a possibility that has to be considered in any litigation for obtaining financial compensation.  But it is equally possible that invisible but intrusive pain can cause substantial disability such that a person is less able to cope with the effects of his injuries and/or his daily or work activities.  Common sense further suggests that genuine chronic pain can be stressful/demotivating and may reduce range of movement.  But these considerations of themselves do not justify having psychiatric expert evidence.  After all, a trial judge is well placed to consider the credibility and/or reliability of assertions on the basis of all the evidence presented in the course of the proceedings, including existing medical treatment/expert reports and witness evidence.

56.  But, in my view, the present case goes beyond mere assessment of the veracity of the allegation of lingering neck/right shoulder pain.  Here, the Plaintiff has been diagnosed by his treating hospital/clinic to suffer from a psychiatric condition, ie post-traumatic stress disorder with co-morbid depression, and has received and/or is continuing to receive psychiatric and/or clinical psychological treatment with medications.  Questions have been raised and put in issue by the parties as to whether the pain is subjectively real and if so how disabling the pain is.  In the circumstances, the co-morbidity of the alleged psychiatric condition as against the assertion of persistent pain needs to be addressed in ascertaining whether there is any psychogenic overlay to the signs and symptoms of chronic pain that may not necessarily be verifiable by medical diagnostic procedures but may nevertheless be linked to the Accident.  In my view, psychiatric expert evidence will be helpful to the trial judge in resolving such matters.

57.  Mr Lam pointed out that the Accident was not a serious one (see paragraph 2 above), the mental state examination of the Plaintiff by NDH’s AED doctor on 3 May 2007 was unremarkable (see paragraph 13 above), and there was improvement in the Plaintiff’s alleged psychiatric conditions (see paragraphs 14-16 above).  He submitted that the available psychiatric and clinical psychological treatment reports/records and the Certificate of Assessment would be sufficient material to enable the trial judge to come to an informed decision.

58.  With respect, I disagree. Even if I accept the factual matters Mr Lam refers to in the above paragraph solely for the purpose of the present application, there is no doubt that the medical treatment notes, records and reports still report continued tiredness/anxiety and inability to wean off psychiatric medications as yet (see paragraph 16 above) as well as significant anxiety symptoms whilst travelling by car, insomnia with flashbacks, and strain on personal and family life due to the Accident and inability to inability to find work (see paragraphs 15-17 above).  There is therefore a real issue as to whether the Plaintiff has had and/or still has a recognisable psychiatric condition caused by the Accident, and if so, whether any psychiatric disorder which the Plaintiff has suffered or suffers is largely in remission or not.  In my view, the trial judge in determining such issues will benefit from forensic assistance by medical experts on the psychiatric diagnosis (if any), causation/aetiology, prognosis and future treatment of the relevant psychiatric condition (if any).  There are of course cases which the psychiatric treatment notes, records and reports will be sufficient (see for example Ip Sau Lin, Ho Man Fong and Abid Khan), but in light of the discussions on the issues of chronic pain above and the physical deficits below, I am persuaded that this case is not one of them.  Further, the Certificate of Assessment raises more questions than answers.  The Commissioner for Labour has confirmed that of the assessed loss of earning capacity of 78%, neurological aspects account for 60%.  However, the Neuro Report suggests there is no loss of earning capacity attributable to neurological injury.  So is the bulk of loss of earning capacity attributable to some other genuine or feigned cause?  Clearly, the trial judge will be assisted by psychiatric evidence in resolving such issue.

59.  I now come to the more thorny issue of the Plaintiff’s complaints of physical deficits canvassed in paragraph 50(b) above.  The documents before me first refer to limping/hemiplegic gait, resting tremor of the right hand and intermittent stuttering speech in October 2007, April 2008 and October 2008 respectively (see paragraphs 19-20 and 25-26 above) although there is some suggestion that the problem of stuttering speech has been reported to neurosurgeons when first experienced by the Plaintiff about 9 months or a year after the Accident (see paragraphs 25, 30 and 36 above).  But it is also evident from the documents before me that the Plaintiff did present with early complaints of related physical deficits (eg weakness/numbness, decreased sensation and paraesthesia of right upper/lower limbs and other signs canvassed in paragraph 50(b) above) for which he received extensive rehabilitative treatment after the Accident.  Although there were some self-reported improvements, the Plaintiff continually maintained such complaints.

60.  As seen from the Neuro Report, the physical deficits cannot be fully explained by any non-psychiatric medical or neurological disorder.  After all, although Drs Chan and Cheng at first suspected neurological damage as a result of the Accident (see paragraph 29 above), Drs Choa and Woo clarified there was no objective signs of neurological damage and the physical deficits were non-organic in nature (see paragraph 40 above).

61.  Mr Lam laid strong emphasis on Dr Woo’s criticism of the Plaintiff’s demonstration of physical deficits which were inconsistent and likely to be feigned, and his further view that psychiatric evaluation was not required.  However, I consider such observation neutral since Dr Woo was careful to premise such criticism on his neurological expert view from an organic perspective that the Plaintiff’s physical deficits defy neurophysiological principles.

62.  But the question here is whether the lack of anatomical support for the physical deficits (ie identification of a neurological or general medical condition) should exclude any forensic investigation into possible psychological factors for the complaints in light of the Plaintiff’s psychiatric medical history since the Accident.

63.  Dr Choa was of the view that the Plaintiff’s neurological picture was “either feigned or a manifestation of psychological processes, a conversion or somatoform disorder”.  He fairly pointed out that from a neurological perspective the overall features favour the former, and recommended psychiatric assessment to settle the issue of whether there is any recognisable psychiatric condition.

64.  Mr Lam submitted that such recommendation appeared to be an afterthought by Dr Choa to bolster the Plaintiff’s case in absence of any clear organic cause for the physical deficits.  I disagree.  Given the Plaintiff’s reluctance to seek neurosurgical treatment after the Accident, the Neuro Report is the first time neurological experts were called upon to opine in detail on the Plaintiff’s physical deficits, hence Dr Choa’s opinion can hardly be said to be an afterthought.  However, Dr Choa is a neurological and not psychiatric expert, and I accept his reference to potential psychiatric disorders should be regarded as a neutral comment.

65.  But even if, as Mr Lam suggests, there is overpresentation of disability, I am persuaded it is necessary, relevant and of probative value in this case to seek psychiatric expert evidence to ascertain any interaction of the disabling conditions and psychological factors.

66.  First, Drs Chan and Cheng in the Ortho Report identified the physical deficits in their physical examination of the Plaintiff, and notwithstanding their inability to make a definite diagnosis, they “agree that [the Plaintiff’s] complaints are justified” (see paragraph 30 above) and that such complaints are likely to be permanent (see paragraph 31 above).  But Drs Choa and Woo noted some give-way weakness, alternate favouring of right leg or left leg and the intermittent nature of the stuttering speech.  The trial judge will need assistance to resolve the discrepancies and inconsistencies.

67.  Secondly, the Plaintiff raised complaints about some of the physical deficits almost immediately after the Accident (see paragraphs 4-5 above) and there was presentation of psychiatric or psychological symptoms a few months after the Accident for which he received and continued to receive treatment to date (see paragraphs 12, 14-17 and 24 above).  Although Mr Lam questioned the deferred presentation of the alleged psychiatric symptoms, I do not think there is such obvious and substantial temporal disparity that enables the court to reject outright consideration of any causal link with the Accident.  I bear in mind that the treating doctor has reached a diagnosis of post-traumatic stress disorder with co-morbid depression (see paragraph 15 above) in respect of the Plaintiff’s psychiatric or psychological symptoms.

68.  Thirdly, it is interesting to note that on 10 November 2006 the Plaintiff was referred to the medical specialist outpatient clinic for chest discomfort/palpitation and episodic high blood pressure (ie physical symptoms suggestive of medical disorder).  After investigation by the department of medicine, the clinical view was that such “symptoms were unlikely to be related to organic disease and were most likely related to anxiety”.  It appears therefore the Plaintiff had a history of reporting physical symptoms or complaints which cannot be explained by medical disorder and which may reasonably be argued to have a non-organic or somatoform origin.

69.  In my view, it is therefore prima facie reasonably arguable there may well be some psychiatric correlation between the Plaintiff’s physical deficits and dysfunctional symptoms of sensory/motor disability (eg weakness/paraesthesia/numbness and tremor), hypersensitivity to stressors/pain or loss of bodily function (eg stuttering speech) and the Accident even though diagnostic testing does not show a physical cause.  I am of the view that there is sufficient prima facie material to justify allowing psychiatric expert evidence to be adduced in the present case to assist the trial judge in examining whether such deficits and symptoms are psychosomatic and/or stem from a recognisable psychiatric condition caused by the Accident or whether they are due to any malingered sick role adopted by the Plaintiff.

70.  Naturally, in coming to this view, the above discussions are necessarily fact-sensitive and confined to the circumstances of this case.  They set no precedent for seeking psychiatric expert evidence in any other case.

V.  Conclusion

71.  I therefore grant leave for the parties to obtain and adduce psychiatric expert evidence in this action.  In the circumstances, I vary paragraph 2 of the Checklist Review Order of Master A Ho dated 4 August 2009 so that expert medical evidence be limited to 1 orthopaedic, 1 neurological and 1 psychiatric consultant.

72.  Both Mr Sakhrani and Mr Lam indicated at the hearing before me that should I come to such view, the parties would engage respective experts to compile a joint psychiatric expert report.  I therefore direct that the parties do within 14 days from the date hereof jointly write to myself as PI Master on the following matters:

(a) state the names of the parties’ respective psychiatric experts;

(b) state the date of the joint medical examination of the Plaintiff by the parties’ respective psychiatric experts, which date shall be no later than 70 days from the date hereof;

(c) state the date of completion of the joint psychiatric expert report, which date shall be no later than 70 days thereafter;

(d) propose directions for obtaining the aforesaid joint psychiatric expert report in line with the above timetable;

(e) propose directions for consequential matters, eg filing and service of Revised Statement of Damages and Answer thereto, and restoring the case for further Checklist Review, etc;

(f) propose any other necessary and appropriate case management directions.

73.  On the matter of costs, I believe that costs should follow event. Mr Lam submitted there is enough prima facie material, especially in light of the Neuro Report, to require the Plaintiff to come to court to justify the need for psychiatric expert evidence.  However, the Defendant has gone further than that to oppose the application under the Summons, and has failed in such endeavour.  There is a possibility that the Plaintiff’s claim for compensation for psychiatric disabilities may fail at the assessment hearing, but that may well be reflected in eventual order in respect of costs of the action.  But on the Summons the Plaintiff has satisfied me that psychiatric expert evidence is necessary, relevant and of probative value to the final adjudication, and I see no reason to depart from the usual principle of costs following event.

74.  In the circumstances, I grant a costs order nisi that the Defendant do pay the Plaintiff’s costs of the Summons with certificate for counsel in any event to be taxed if not agreed and that the Plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.  The Plaintiff did not seek summary assessment of costs.  If the Defendant opposes certificate for counsel, which Mr Lam indicated at the hearing that the Defendant will, it is for the Defendant to make appropriate application.  But suffice to say here that I have been assisted by counsel on the general principles and medical matrix in dealing with the Summons.

Representation: