WONG WAI HONG v. LEUNG HOI TONG AND ANOTHER

DCEC 2326/2021

[2023] HKDC 1842

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2326 OF 2021

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IN THE MATTER OF AN APPLICATION BETWEEN

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REASONS FOR DECISION

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A. The Summons and the Order

1.  The Applicant in these Employees’ Compensation Proceedings applied by summons (“Summons”) for leave to adduce the evidence of a single joint psychiatric expert (“SJE”). The legally unrepresented 1^st Respondent remained neutral, and was excused from the substantive hearing on 11 December 2023. The Employees Compensation Assistance Fund Board (“the Board”), which was granted leave on 23 December 2022 to join as the 2^nd Respondent, opposed the Summons.

2.  After hearing submissions of counsel, Mr Richard Yip and Ms Flora Lam respectively for the Applicant and the Board, at the substantive hearing, I granted leave to the Applicant to adduce the evidence of a SJE, and gave consequential directions.

3.  These are the reasons for my decision.

B. Applicable Legal Principles for Adducing Psychiatric Evidence

4.  The established legal principles I applied in this Summons are not in dispute, and they are summarized in the decision of this court in Li Chiu Mui v Po Leung Kuk.[1] An application for the adducing of psychiatric expert evidence involves two-staged criteria, namely the prima facie stage and the discretion stage.

5.  First, at the prima facie stage, the applying party is required “to show that the proposed psychiatric expert evidence is relevant, necessary and of probative value (i.e. it is likely to be of real assistance to the determination of the issues and reasonably required to enable the court to resolve the issues in dispute)”.[2]

6.  Secondly, at the discretion stage, the court will conduct a balancing exercise of its case management discretion by weighing up all the relevant circumstances, such as by assessing “(i) whether or not there is a causal connection between the accident and the plaintiff’s psychiatric condition; and if so, (ii) whether that causal link is strong or tenuous”; the potential disruption to the trial; the prejudice to the other parties; and the explanation offered by the applicant in cases where a late application is made for expert evidence to be adduced.[3] These matters will have to be further considered and weighed against the underlying objectives to ensure costs effectiveness and economy, expedition, proportionality, and fairness between the parties: see Fung Chun Man v Hospital Authority & Anor.[4]

C. Discussion

C.1 The Applicant satisfied the prima facie stage

7.  Before the accident on 12 April 2021, the Applicant had worked as a carpenter for more than 15 years. There were deep lacerations in four of his fingers after a circular saw cut his left hand on the date of accident. On 13 April 2021, a surgeon at Queen Elizabeth Hospital (“QEH”) performed emergency “operation for wound exploration, repair of tendon and fracture fixation”[5] a day after his admission to the A&E Department. The Applicant was discharged the next day, and was granted sick leave until 12 October 2021. On 18 October 2021, the Applicant found work as a van driver and miscellaneous construction worker.[6]

8.  According to the various medical reports and medical notes of QEH and West Kowloon Psychiatric Centre (“WKPC”), the Applicant complained to the doctor of having suffered from psychiatric-related symptoms around two months after the accident.

9.  A diagnosis of Posttraumatic Stress Disorder (“PTSD”) was made in his 1^st psychiatric consultation on 24 January 2022 at WKPC,[7] and the Applicant has continued to receive treatments there. By 27 September 2023, the Applicant had received 10 treatments at WKPC, alongside his clinical psychologist consultations.[8]

10.  It is the Applicant’s case that due to the psychological trauma he sustained from the accident, it has been difficult for him to return to his pre-accident occupation. However, in the Certificate of Review of Assessment (“Form 9”) dated 30 November 2022, the Employees’ Compensation (Ordinary Assessment) Board (“MAB”) of the Labour Department only assessed the Applicant’s orthopaedic injuries in relation to the “left hand fracture” without mentioning the Applicant’s psychiatric injury. The Applicant filed an appeal against Form 9 on 16 December 2022.

11.  On 23 December 2022, the Applicant and the Board were granted leave to adduce orthopaedic medical expert evidence. Consequently, a joint orthopaedic medical report of Dr Kong (for the Applicant) and Dr Ko (for the Board) dated 6 July 2023 was filed. In the said joint report, Dr Kong suggested that the Applicant be assessed by a psychiatric expert for his PTSD while Dr Ko made no such suggestion.

12.  From the brief background above, it cannot be disputed that the Applicant has suffered from PTSD shortly after the accident. When the Applicant was assessed by the MAB for the first time on 20 July 2022 and later re-assessed on review on 16 November 2022, the Applicant had already attended consultations at WKPC for his PTSD three and four times respectively. However, the MAB made no reference to any psychiatric injury either in the first assessment certificate by way of Form 7 and later in Form 9.

13.  Since the MAB did not provide any reasons or state what medical documents it had considered in the assessment, it is not possible to know whether the MAB had considered the Applicant’s PTSD but excluded it from its assessment for being too mild (as Ms Lam has contended in one of her objections)[9] or whether it had simply omitted and overlooked the Applicant’s psychiatric condition altogether in its assessment.

14.  The Applicant’s appeal against Form 9 is therefore the only way to have his psychiatric condition assessed afresh by a court. I do not agree with Ms Lam that the existing psychiatric medical evidence from WKPC is sufficient to enable a court to conduct a proper assessment in this case. Quite apart from the issue of causation that the Applicant needs to adduce evidence to prove, there will also be the likely complication of duplication. Since the Applicant started to suffer from PTSD while he was still on sick leave for his orthopaedic injuries, it is likely that some of the periods of absence from work and the percentage of permanent loss of earning capacity brought about by PTSD may overlap with those assessed by the orthopaedic experts.

15.  Presently, the Applicant is still unable to return to his pre-accident occupation that provided him with a much higher income. He is earning a drastically reduced income from his alternative employment. Owing to the big drop in the Applicant’s income, Mr Yip submitted[10] that the Applicant might seek compensation at trial based on the “Paper Mills formula”.[11]

16.  Needless to say, the cause of the Applicant’s diagnosed PTSD and its impact on his earning capacity is of vital importance to the issue of quantum. The contentions that the Applicant’s PTSD might have been caused or triggered by his financial pressure; or by legal aid issues[12] would have to be determined at the trial. In order to enable the court to carry out a proper assessment and to determine these issues in this case, I am of the view that the assistance of a psychiatric expert is necessary.

17.  For these reasons, I find that the Applicant has satisfied the prima facie stage.

C.2 The Discretion Stage

18.  The Applicant is an aided person. It is therefore incumbent upon his assigned solicitors to act with great prudence to safeguard the proper use of public funds. Hence, a matter concerning the adducing of medical expert evidence requires careful scrutiny and should not be made as a matter of routine.

19.  The above approach is therefore applicable to the Summons. Importantly, since the present application was for an additional medical expert, the assigned solicitors should therefore exercise much greater care and vigilance. In effect, the Applicant did not, as Ms Lam has contended, issue the Summons promptly until he had sight of Dr Kong’s suggestion for an assessment of a psychiatric expert.

20.  Ms Lam therefore criticized the Applicant for the delay of 2.5 years in the issuing of the Summons after the accident. She further contended that the Applicant did not explain the long delay.

21.  In considering if a delay is reasonable, it is necessary to examine the matter in context. In this regard, it is important to bear in mind that pursuant to s 16H of the Employees’ Compensation Ordinance, an assessment certificate issued by the MAB is binding on parties. Hence, it would have been premature for the Applicant to deal with matters concerning medical expert evidence until after Form 9 had been issued, and the appeal against it had been filed on 16 December 2022. Viewed in this context, I think Ms Lam’s criticism of the 2.5-years’ delay was made out of context.

22.  Ms Lam also faulted the Applicant for not seeking leave for the adducing of the psychiatric expert evidence at the time when he had obtained leave for the adducing of the orthopaedic expert evidence. In my view, I can dispose of this criticism even without any explanation from the Applicant.

23.  In this case, the 1^st Respondent was acting in person. Hence, the adducing of expert evidence was clearly a matter between the Applicant and the Board. As evidenced by the Board’s stance in the Summons, even if the Applicant had sought leave for the adducing of psychiatric expert evidence much earlier, the Board would have certainly opposed it. In such circumstance, the assigned solicitors would have to carefully examine the strength of such an application before making it. It is now clear that the Applicant only obtained more supporting evidence at a later stage.

24.  Dr Kong’s recommendation had certainly bolstered the application. This, coupled with the medical evidence from WKPC and the Applicant’s continuing suffering of the symptoms of his PTSD, would have greatly strengthened the merits of the Summons. In all the circumstances, I consider that it is reasonable for the Applicant to have issued the Summons at the stage when more supporting evidence was available. Overall, I believe that the Applicant’s delay in this regard is reasonable and can be excused. When looking at the matter in the round, I do not think it is fair to fault the Applicant and/or his assigned solicitors for having taken this cautious approach.

25.  In the exercise of my direction, I had not lost sight of the inevitable effect of the costs increase and the delay to the proceedings. However, these undesirable features, in my view, would be greatly mitigated by this court’s ordering only one single joint expert, and by imposing a very tight timetable for the preparation of the single joint psychiatric expert report.

26.  Having regard to all the circumstances in this case, this court considered that fairness could best be attained by exercising its case management power to grant leave to the Applicant.