DCEC1550/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1550 OF 2008

BETWEEN

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R U L I N G

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1.  This is an application by the Applicant for leave to adduce psychiatric expert evidence at the trial herein. No psychiatric report has yet been obtained.

2.  In support of the application, Miss Chan, solicitor for the Applicant has filed an affidavit setting out some of the factual background of the case, and produced a number of medical reports from the treating doctor.

3.  It is the Applicant’s case that she has sustained a personal injury in an accident arising out of and in the course of employment as a cleaning worker with the Respondent on 24 February 2008.  She has been treated in Queen Elizabeth Hospital and diagnosed to suffer from back sprain.  She has follow-up treatment in Kwong Wah Hospital and has received physiotherapy treatment and occupational therapy treatment.

4.  On 29 October 2008, the Applicant was assessed by the Medical Board of the Labour Department to have 3% permanent loss of earning capacity and a Form 7 Certificate was issued on 12 November 2008.  The Applicant does not agree with the assessment, but she has not taken out any review.  But she has appealed against the assessment in this action.

5.  On or about 8 December 2008, the Applicant was re‑admitted to Queen Elizabeth Hospital due to severe back pain.  She was referred to the Department of Psychiatry for further management of her persistent low mood.  Since 16 December 2008, the Applicant has been regularly receiving medical treatment at East Kowloon Psychiatrist Centre.

6.  According to a medical report dated 18 May 2009 by Dr Tsang Lo Wah of the East Kowloon Psychiatric Centre, the Applicant has complained to the treating doctor that she has increased irritability and poor sleep since July 2008.  She has sense of worthlessness and fleeting suicidal idea.  The impression to the treating doctor is agitated depression.  The Applicant has been put on anti-depressant, with regular follow-up in two to three weeks’ interval.

7.  The Applicant had been referred to an occupational therapist for assessment and was noted to be unable to resume work as a dishwashing worker due to poor physical tolerance which was caused by low back pain.  It is said by Dr Tsang that “her low mod was related to low back pain after the injury”.

8.  Miss Chan also relies on the joint orthopaedic medical report by Dr Tony Hung and Dr Danny Tsoi dated 10 August 2009.  The said medical report by Dr Tsang was given to the orthopaedic experts for reference.  The main complaint of the applicant is low back pain.  She also complained of having paranoid idea of strangers laughing at her in the street. 

9.  After discussion on the cause of the low back pain, at paragraph 61 of the joint report, Dr Hung and Dr Tsoi commented that:

“At present [the Applicant] still suffers from low pain and left lower limb pain. The hearing problem, neck problem, urinary incontinence and the paranoid ideas are not related to the present injury. The symptom of the back and lower back pain was partly due to the psychosomatic complaint of [the Applicant].”

10.  Miss Chan also refers to paragraph 74 of the report when the experts said they agree that the Applicant should be assessed and treated by a psychiatrist for the psychological problem after the back sprain injury.

11.  In another report prepared by Dr Tang Yuen Yee of the East Kowloon Psychiatric Centre dated 20 May 2010, it is further recorded that the Applicant had harboured a suicidal idea of jumping from height and had removed the window frame in front of family and gestured to jump down.  There was an episode of the Applicant taking out a chopper at home and wanted to chop her husband during a conflict.  Dr Tang maintains that the Applicant suffers from agitated depression.

12.  Dr Tang records that the Applicant has improvement in mood and sleep after titrating up the antidepressant.  On the visit by the Applicant to the East Kowloon Psychiatric Centre on 27 April 2010, she complains of low back pain and feels her mobility is affected.  Her mood is stable and there is no suicidal ideation.  The Applicant has good drug compliance.

13.  Relying on the strength of these medical opinions, Miss Chan submits that it is necessary to have the Applicant assessed by a psychiatrist.

14.  The suggestion of having the Applicant examined by psychiatrist was first brought up by Miss Chan in a letter to the Respondent on 24 August 2009, with reference to the Report by Dr Tsang.  It was opposed by the Respondent, and they maintained their stance. 

15.  Miss Fong, who appears for the Respondent, submitted that from the reports from East Kowloon Psychiatric Centre, there is no suggestion that the alleged psychiatric symptoms are the result of the occurrence of the accident in February 2008.  She agrees that Dr Tsang mentioned that the low mood of the Applicant is related to the low back pain after the injury, but she submits that there is no sick leave being granted by Dr Tsang after each consultation.

16.  It is submitted by Miss Fong that the report by the East Kowloon Psychiatric Centre is sufficient to assist the trial judge in determining the extent of the alleged psychiatric symptom. She further submits that the Applicant fails to satisfy the Court that the production of further psychiatric expert evidence is necessary, relevant or of probative value.

17.  After the hearing, Miss Chan put in a letter attempting to provide supplemental submissions.  In particular, she put forward a list of the sick leave certificate of the Applicant.  She admits in her supplemental submission that she has made a mistake in agreeing with Miss Fong that there is no sick leave certificate granted by the psychiatric expert. 

18.  I should mention this, after the hearing was completed, an advocate should not unilaterally write to the court trying to rectify or amend her submission without further seeking leave of the court and notifying the other side.  So, to that, I have to point out to Miss Chan that it is not appropriate for her to write to me without first seeking leave and alerting the other side of what she intends to do.

19.  For the present purpose, I would take her supplemental submission into account since the matter is before me and, after all, if that is truly a mistake of the solicitor, then subject to the question of costs, I do not see any reason why I should not take that into account.  But, I have to alert myself that additional medical certificate presented, it is only for two very short periods of sick leave from which is granted by the East Kowloon Psychiatric Centre.  The rest is granted by the orthopaedic experts.

The Law

20.  The Applicant may always obtain the medical examination she likes.  The issue before me is whether any such report may be adduced in the trial of this action. Since no report has been obtained, I have to assess the need from the available medical opinion before me. 

21.  The guiding criteria for giving leave to adduce psychiatric expert evidence, like any other expert evidence, are necessity, relevance and probative value.  I refer to the case Chan Kwok Ming v. Hitachi Service Co Ltd, HCP1322/2002.

22.  With regard to the admission or exclusion of expert evidence the principles are usefully set out by Madam Justice Chu in Wong Hoi Fung v. American International Assurance Co. (Bermuda) Ltd. & Anor, HCA4576/2001.  Paragraph 12 reads as follows:

“In deciding whether certain proposed expert evidence should be received, the relevant test has been stated to be a two-stage one. Firstly, the evidence has to be admissible as ‘expert evidence’ for the purpose of section 58 of the Evidence Ordinance, Cap.8. Secondly, the evidence must be relevant, in the sense that it is helpful to the court in arriving at its decision on one or more of the issues to be resolved ...”

23.  I also refer to the remark by Mr Justice Fung in Farman Khan v. Lau Kai Hong & Anor, HCPI850/2008.  His Lordship said the task of the court is not therapeutic but forensic; and an application to adduce expert evidence must be supported by prima facie evidence of relevance.

24.  The court has a duty to restrict expert to what is reasonably required for proper adjudication.  I bear in mind the remarks by Mr Justice Seagroatt in Wong Hin Pui v. Mok Ying Kit & Anor [2001] 1 HKLRD 854, 874-875, against proliferation of expert medical evidence which are not essential.  I also refer to the judgment of Justice Suffiad in Ho Man Fong v. Sime Darby Motor Services Limited,HCPI109/2003 when His Lordship commented that:

“There will be a further order that the plaintiff will not be entitled to claim the costs incurred in obtaining the expert psychiatric report of Dr Peter Ho Pang Nin and/or the costs incurred in calling him as an expert witness since that evidence was wholly unnecessary and the plaintiff’s case could very well have been brought on the basis only of the psychiatric reports from North District Hospital outpatient psychiatric department.

There has been a growing tendency in Personal Injuries litigation whereby plaintiffs have been alleging psychiatric impairment quite unnecessarily as in this case, probably in the hope that it would increase the quantum which they will recover at the end of the day.”

25.  In a lot of cases, the report from the treating doctor would be sufficient.  Of course, each case turns on its own fact.  For the present case, I have to consider, first of all, whether the evidence now suggested to be adduced by the Applicant would be relevant in the sense as suggested by Madam Justice Chu that it is helpful to the court in arriving as a decision on one or more of the issues to be resolved. 

26.  And, secondly, I have to balance whether the report, already obtained from the East Kowloon Psychiatric Centre could be sufficient to assist the trial judge to come to a just decision. 

The Issue

27.  I have to first consider, what is the issue in dispute in this employee’s compensation application.  This is an application for Employee Compensation under sections 9, 10 and 10A of the Employment Compensation Ordinance.  The Applicant also appealed against the Certificate of Assessment.  Hence her sick leave period and her permanent loss of earning capacity would be in issue.

28.  At the hearing, Miss Fung submitted that the Applicant has not been granted any sick leave by East Kowloon Psychiatric Centre, that is now being corrected as I mentioned earlier on. 

29.  And with the additional information, it only shows a short period of sick leave was granted by the East Kowloon Psychiatrist Centre.  All the rest of her sick leave was granted by the orthopaedic doctor or clinic. 

30.  If the only reason for obtaining the psychiatric expert report is to show the appropriateness of the sick leave being given, I am sure the two reports from the East Kowloon Psychiatric Centre would give sufficient information to assist the trial judge in their assessment.

31.  The next question is whether the report is required to assess the loss of working capacity of the Applicant.  The question I have to ask is, first of all, whether there is prima facie evidence that the psychiatric illness affects her working capacity.

32.  It appears from the report available before me, that the Applicant suffers from irritability and poor sleep in the beginning.  She later has sense of worthlessness and fleeting suicidal idea. And from the report of Dr Tang, she had an idea of jumping from height, and there was an episode of her taking out a chopper at home to attack her husband during a conflict.  The latest development appears that she was under control with the assistance of medicine.

33.  Miss Fung submits that the illness only surfaced 13 months after the accident, and is not linked with the accident.  Miss Fung submits that from the report of Dr Tsang, it cannot be shown that the alleged psychiatric symptoms are the result of the accident in February 2008. Miss Chan relied mainly Dr Tsang’s comment “[the Applicant’s] low mood was related to low back pain after the injury”.

34.  I will first note that both reports from East Kowloon Psychiatrist Centre do not suggest the psychiatric condition of the Applicant would affect her working capacity.

35.  It is helpful to read also the joint medical reports by Dr Hung and Dr Tsoi.  The Applicant’s complaints, as set out in paragraph 16 of the report are:

(a)   Low back pain;

(b)   Left knee pain since July 2008;

(c)   Left ear hearing problem and neck pain radiates to left upper limb since 20 days before the assessment;

(d)   Urinary stress incontinence since 2008;

(e)   Hallucination: She has paranoid idea of strangers laughing at her in the street.

36.  In conclusion, at paragraph 61 of the report, the experts opine that the Applicant still suffers from low back pain and left lower limb pain.  The hearing problem, neck problem, urinary incontinence and the paranoid ideas are not related to the present injury.  The symptom of her back and lower limb problem is partly due to the psychosomatic complaint of the Applicant. 

37.  At paragraph 62, the experts added that Waddell’s simulation tests were positive.  Dr Tsoi opines that the Applicant was magnifying her disability during the assessment.  Her symptoms and apparent disability were grossly disproportional to the physical signs.

38.  And at paragraph 67, Dr Hung opines that the Applicant will have discomfort and sometimes difficulty when she exerts her back, such as prolonged walking, standing, squatting, bending of her back, lifting, carrying or moving heavy objects.  Dr Tsoi opines that the residual back discomfort arising from the spring back is minimal.  Both experts agree at paragraph 68 that the Applicant would be independent in her activities of daily living, and the injury should have no significant negative impact on her social recreational and sports activity.

39.  And on sick leave, both experts agree that the condition of the Applicant is stable and further sick leave after 8 August 2008 is not necessary.

40.  The experts also agree, as I mentioned earlier on, that the Applicant should be assessed and treated by psychiatrist for the psychological problem after the back spring injury. 

41.  Full opinion has been given by the experts on the effect of the low back pain and left lower limb pain to her working capacity.  Both experts opine that the Applicant could return to her pre-action work, and both orthopaedic experts when expressing their view on the working capacity of the Applicant do not make any reservation for any psychiatric findings.

42.  I take into account the fact that the experts are not experts in psychiatry.  But their analysis of the effect of the pain on the working capacity is very detailed.  And looking at the whole picture of her problem, her main complaint is her lower back pain which is affecting her working capacity.  And I can see that the two experts have given a very detailed analysis of how that is going to affect her problem.

43.  From what is available, including three reports I refer to above, there is no prima facie evidence that the psychiatric condition of the Applicant is affecting her working capacity.

44.  Miss Chan also argued that when the Board made the assessment, they have not taken into account the psychiatric condition of the Applicant.  But once the appeal against the decision of the Board is before this court, the consideration is: what is appropriate percentage of permanent loss of working capacity?  It should be the same consideration for assessing the percentage. The appeal by itself is not an additional reason for psychiatric evidence be introduced. 

45.  I do not agree that it is helpful to the trial judge, as the psychiatric condition of the Applicant has been set out in detail in the medical report by the East Kowloon Psychiatrist Centre.  I fail to see why this report would not be sufficient to assist the trial judge.

46.  I conclude that it is not necessary and not relevant to admit an expert psychiatric report.  In any event, there is sufficient evidence from the two medical reports to assist the court.  I, therefore, dismiss the application.

(Discuss costs)

47.  Costs to the Respondent summarily assessed at $23,000.