MOK KING SUN v. TURN ROUND CO LTD AND OTHERS

HCPI 865/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 865 OF 2007

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REASONS  FOR  DECISION

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1.  The issues at this Pre-trial Review are:

(1) Application for specific discovery;

(2) Calling of the respective psychiatric experts;

(3) Calling of the Plaintiff’s treatment psychiatrist.

2.  At the hearing, I refused the order for specific discovery by the Plaintiff against the 2^nd and 3^rd defendants, granted leave to call the respective psychiatric experts, but refused leave to call the treatment psychiatrist.  I now give my reasons.

Background

3.  The Plaintiff was a motor mechanic employed by the 1^st Defendant.  He sustained serious jaw and dental injuries as a result of the dislocation of the hydraulic jack raising the vehicle.  

4.  The 2^nd and 3^rd Defendants are associated companies and the tenant of the “site” , and operated a garage there at some stage. 

5.  The Plaintiff alleged that the 1^st Defendant was a sub-contractor of the 2^nd and 3^rd Defendants. 

6.  The 2^nd and 3^rd Defendants denied any sub-contract, and alleged that 1^st Defendant was their sub-tenant.  They denied being occupiers of the site and/or in control and management of the piece of equipment in question.

7.  The Plaintiff received maxillofacial surgeries, and was diagnosed with Post Traumatic Stress Disorder (PTSD).  The respective psychiatric experts are Dr. Singer, for the Plaintiff, and Dr. Chan Chee-hung, for the 1^st Defendant.  The issue is the severity of the symptoms, and whether the Plaintiff’s fear to return to work in a garage is real or exaggerated.

Specific discovery

8.  Mr. Hingorani, for the Plaintiff, sought record of contracts of the 2^nd and 3^rd Defendants with their customers for a period of 12 months before the accident.

9.  He pointed out that the plea of sub-contract was based on a declaration by an employee of the 2^nd Defendant to the Labour Department.  He submitted that by looking at the orders received by the 2^nd and 3^rd Defendant, one could find out whether they did carry on site activities similar to those of the 1^st Defendant.  If so, the 2^nd and 3^rd Defendant’s common duty of care should extend to the Plaintiff.

10.  Mr. Yeung, for the 2^nd and 3^rd Defendants, pointed out the Plaintiff’s own declaration to the Labour Department stated that the 1^st Defendant was only a tenant and had no other relationship with the 2^nd and 3^rd Defendants.  Even if the 2^nd and 3^rd Defendants had anything to do with the “site”, the accident only related to the jack which belonged to the 1^st Defendant, and they had no management and control of jack in question.

11.  I am not dealing with the factual disputes in the declarations.  I approach discovery on the basis of relevance and whether it is necessary for the saving of costs and/or fair disposal of the cause or matter.

12.  The Plaintiff is not seeking the contract between the 1^st Defendant and the 2^nd and 3^rd Defendants (which has been denied).  The 2^nd and 3^rd Defendants do not dispute their presence on site, but say it was on an entirely separate undertaking from the 1^st Defendant.  As the issue was whether there was any sub-contract between the 1^st Defendant and the 2^nd and 3^rd Defendants, the discovery of contracts between the 2^nd and 3^rd Defendants and their customers will not be throw any light on the matter.

13.  Hence, the application for specific discovery is refused.

Expert evidence

14.  Dr. Singer suggested the Plaintiff could not resume pre-accident work because of panic attacks and fear of working with cars.   Dr. Chan suggested exaggeration of the symptoms.

15.  Mr. Hingorani submitted that, prima facie, experts should be taken as credible witness on the facts, but they may still be cross-examined as to reliability.  He listed 4 examples when such may be necessary:

(1) allegation of malingering and/or exaggeration;

(2) disparate opinions to a high degree;

(3) challenge of observations by the expert;

(4) where there are signs of bias on the part of the expert.

16.  Mr. Hingorani indicated that the Plaintiff wishes to challenge an alleged conversation with Dr. Chan during the examination that Plaintiff would avoid the jack but could handle it if he had to do so.

17.  Further, Mr. Hingorani submitted that bias could be in the form of confirmatory (or confirmation) bias and information seeking bias.  Confirmatory bias is the desire to find out information that agrees with the original hypothesis, and information seeking bias is an unbalanced search for information supporting the hypothesis but simultaneously neglecting facts which are opposing it.

18.  Mr. Hingorani pointed out that Dr. Chan cited the example of the Plaintiff’s anger with his son as suggestive of exaggeration.  However, there is literature to show that exaggeration on matters not relating to compensation is not relevant or it points away from malingering.

19.  Dr. Chan also mentioned complaints of tantrum and decrease of sexual desire by the Plaintiff’s girlfriend, but he had not explored the Plaintiff’s sexual and temperamental change before and after the accident.

20.  I wish to point out that I am not trying to resolve any of the issues raised.  I list them out merely as consideration of whether the doctors need to be called for the resolution thereof.

21.  I cannot agree more that experts are expected to be credible on the facts, as they have an overriding duty to assist the Court, and the disputes should really be as to their opinions.  But we all know too well that there are often challenges to one on one observations during examination between the Plaintiff and the Defendant’s expert.  Of course, plaintiffs could make all sorts of allegations, but there could be safeguards for such challenges, such as a joint examination by the respective experts.

22.  I note that the psychiatrists here have not conducted a joint examination.  One purpose of having a joint examination is to avoid different observations on different occasions, or disputes on observations under single examination. 

23.  Mr. Hingorani submitted that while not saying that a joint examination is not appropriate for psychiatry, he has misgivings about it, as psychiatry is concerned with human behaviours which are not susceptible to diagnostic tests such as x-rays, MRI or CT scans, and there should also be interactive interviewing between the patient and the psychiatrists.

24.  I appreciate that psychiatry involves the relation of the complaints by the patient to the psychiatrist, and the evaluation of the genuineness of the complaints.  But very often, cross-examination on the facts of the evidence or agreed behaviour observed under the examination will be sufficient to conclude on credibility.

25.  I wish to point out that the purpose of taking medical expert evidence in personal injuries cases is not therapeutic but forensic.  The Court retains the control on how expert evidence should be presented in order to attain the saving of costs and fair disposal of the cause or matter.

26.  Whilst I am not deciding on whether to order a joint examination and report (especially in psychiatry), I think some general observations on the benefits of joint examination and reporting is helpful:

(1) avoidance of different observations on different occasions, or disputes on observations under single examination;

(2) discussions amongst the experts to narrow down the issues;

(3) specifying matters agreed and matters not agreed and the reasons for any non-agreement;

(4) avoidance of numerous supplemental reports commenting on the reports of the other side;

(5) minimizing the need to call the experts to deal with matters which could have been dealt with under (1) to (4) above.

27.  The Final Report on Civil Justice Reform pinpointed that partisanship and lack of independence on the part of the experts will under their roles in the judicial process. 

28.  In the Code of Conduct for Expert Witness in Annex D to Rules of the High Court (Amendment) Rules 2008 (commencing on 2 April 2009), para. 12 provides that:

“12.   An expert witness shall abide by any direction of the Court to –

(b) confer with any other expert witness;

(c) endeavour to reach agreement on material matters for expert opinion; and

(d) provide the Court with a joint report specifying matters agreed and maters not agreed and the reasons for any non-agreement.”

29.  During a joint examination, if there are ambiguities and/or doubts at any stage,  the experts should discuss and seek clarification there and then.  Experts should discuss on crucial observations swaying their opinions and put forward their reasons to the opposite experts, as they are expected to be open in their reasoning, and to cooperate in narrowing down the issues.  Gentlemanly professionals can always agree to disagree.

30.  None of the points raised by Mr. Hingorani really militate against my general observation.  No matter what suggestion of malingering or how wide the differences between the opposing opinions, well set out reasoning with supporting facts and theories should assist the trial judge without the calling of the proponent.  If interactive interviewing is desired, the doctors could take turn with the other acting as observer.  The alleged bias is in fact taking into account irrelevant materials and/or failure to take into account relevant materials.  Expert conferencing and frank discussions at the joint examination will be helpful to identify such problems.  Notwithstanding differences in opinion, I daresay the need to call the psychiatrists could have been avoided if they had discussed about the relevant facts, and commented on each other’s bases of reliance thereon.

31.  I note the recent increase in the use of joint examination and report in psychiatry, and I hope this helpful trend may continue.

32.  Be that as it may, and mainly due to the fact that there was a failure to arrange for a joint examination, I agree with Mr. Hingorani that the respective psychiatric experts be called to give oral evidence.

Treatment evidence

33.  The Plaintiff was diagnosed with PTSD by Dr. David Lau of St. Paul’s Hospital in September 2007. 

34.  Dr. Chan referred to the findings of Dr. Lau but commented that simple questions rather than direct questioning should have been avoided by Dr. Lau.

35.  Mr. Hingorani pointed out that the report by Dr. Lau was narrative, and there was no basis to suggest any leading questions.  Hence, he wished to call Dr. Lau to ask him whether leading questions instead of simple questions were asked.

36.  Very often, counsel wished to find out from the treatment doctors matters which allegedly are ambiguous or even contradictory with other facts or diagnostic tests.  Without writing to ask for a clarification, the first thing they do is to apply to call the doctor.  That is not conducive to saving costs.

37.  In this case, Mr. Hingorani submitted that there was no basis to suggest any leading questions by Dr. Lau.  Mr. Wong, for the 1^st Defendant, indicated he did not wish to cross-examine Dr. Lau.  As such, I see no need to call Dr. Lau and Mr. Hingorani is at liberty to make his point in submission.

Costs

38.  I ordered the Plaintiff to pay to the 2^nd and 3^rd Defendants the costs of the application on specific discovery assessed at the gross sum of $2,000.

39.  As for the rest of the PTR, costs be in the cause with Legal Aid taxation for the Plaintiff.

40.  I wish to enter a caveat that if the need to call the experts be occasioned by the lack of consideration and/or refusal to arrange a joint examination and joint report, those may be matter taken into account by the Court on costs at the appropriate stage.