CHING WING LIK v. 謝貽朗 t/a WAI SHUN ENGINEERING CO AND ANOTHER

HCPI 26/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 26 OF 2008

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D E C I S I O N

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1.  The PI Master has referred this case to me for the determination of the issue of the calling of a psychologist expert.

2.  The Plaintiff is a construction site manual worker.  He had a fall in July 2005 when lifting weight.  He sustained back injury and is now complaining of lingering back pain. 

3.  The medical opinions at this stage is as follows: The Plaintiff’s orthopaedic expert, Dr Danny Tsoi, gave an opinion that the Plaintiff can return to the pre-accident job with a reduced efficiency in lifting heavy object.  Alternatively, he could change job to become a messenger or watchman or the like; and the sick leave period of two years granted by the treating doctor at the Hospital Authority is acceptable.

4.  Dr Chung See Yuen, the Plaintiff’s psychiatrist expert, said the Plaintiff is suffering from adjustment disorder and depressive mood because of the accident and resultant physical problems, and the associated anxiety of financial problems and litigation, but the mental state has no effect on his returning to the pre-accident job whatsoever.

5.  On the Defendants’ side, the orthopaedic expert Dr Au Kin Ming who examined the Plaintiff at an earlier stage in December 2005 did not give an opinion as to the length of the sick leave period for the obvious reason that the sick leave must have been deemed not to have expired.  And at that stage, Dr Au said due to the mental and physical condition of the Plaintiff, it was unlikely that he could return to his pre-accident job.

6.  Mr Chik, for the Defendants, now asks for an examination by a psychologist as opposed to a psychiatrist. 

7.  Miss Chui, for the Plaintiff, does not object in principle for the appointment of a psychiatrist expert by the Defendants, but is opposed to a psychologist.  Mr Chik only wanted a psychologist not a psychiatrist notwithstanding the stance of the Plaintiff.

8.  Mr Chik complains that the Plaintiff has obtained a psychiatrist’s report without first seeking leave from the PI Master contrary to the usual practice that the Plaintiff will only go ahead to get the opinion of orthopaedic surgeon in a physical injury case and not any psychologist’s report without first seeking leave.  Basically, Mr Chik complained what the Plaintiff has done was unnecessarily.

9.  I do not really see the need to have a psychologist for two reasons: Firstly, even on the report of the Plaintiff’s psychiatrist Dr Chung, the depression is not serious, and may I say is really expected in almost all cases of injuries followed by litigation where the case is not settled earlier. There is no effect on the returning to work, and Dr Chung deferred to the opinion of Dr Tsoi on both resumption of pre-accident job and sick leave. 

10.  Secondly, to have a psychiatrist on one side and a psychologist on the other side is not desirable because the Plaintiff has always been receiving treatment by the government psychiatrist with prescribed medication for quite a long period, and the subject is one for a psychiatrist to comment on.  But in any case, the dispute is narrow and whatever psychiatric or psychological condition of the Plaintiff, there is no call for further counselling, and it is not something that the Court cannot resolve even without the intervention of a psychologist’s opinion. 

11.  The Plaintiff no doubt has anxiety because the case is dragged on.  There is a lot to be set about settling the case earlier, if possible with the help of a mediator, and I know there is a pilot scheme on mediation run by the Federation of Insurers and the Hong Kong Mediation Council and the parties may explore that avenue because the confine of the dispute seems to be the length of the sick leave period, upwards two years as per Dr Tsoi, most likely it may be one year or so from the other side’s supplemental expert report,  and maybe Dr Tsoi will agree upon seeing it.

12.  When I explored with the parties whether they can start talking even before getting the supplemental report from Dr Au as to length of sick leave period, they sensibly agreed to it before considering whether the supplemental opinion is necessary.  I commend their good sense and I say, if required, the direction on supplemental reports on the sick leave period may be dealt with on paper.

13.  On this note, and with sensible retraction from Mr Chik, I shall not grant leave for the appointment of a psychologist expert by the Defendant.