CHANG MAN SZE v. CHAN SIU WAI AND ANOTHER

HCPI 290/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 290 OF 2007

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R U L I N G

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1. The Plaintiff claims for damages suffered as a result of a road traffic accident on 7 May 2006.  She was then a 28 year old cashier. She was a passenger in the rear of a taxi when it was involved in a collision with a car driven by the 1^st Defendant and owned by the 2^nd Defendant.

2. There was an order for a split Trial.  In a Judgment dated 12 August 2008, Mr Recorder Patrick Fung SC found for the Plaintiff on the issue of Liability.  The directions sought in paragraphs 3 to 6 of the Summons dated 23 April 2009 are only in relation to quantum.

3. The Rulings made herein are in relation to paragraphs 1 & 2 of the Summons, which sought leave to adduce: (a) the report of a psychiatric expert Dr Leo Chiu dated 13 March 2009; and (b) the report of a consultant in plastic surgery Dr Chow Sik Kuen dated 17 March 2009.

4. I shall first deal with the application for leave to adduce the report of psychiatric expert Dr Leo Chiu dated 13 March 2009.  The Plaintiff made the following points:

·    Expert psychiatric evidence was considered necessary by the orthopaedic experts in their joint report dated 28 November 2008;

·    Dr Chiu’s report satisfies the overall criteria of relevance, necessity and probative value;

·    The court does not have the power to forbid a Plaintiff from obtaining an expert report;

·    Dr Chiu’s opinion “advances the Plaintiff’s case in respect of pain, suffering, loss of amenities and loss of earning capacity”;

·    Dr Chiu’s recommendations “advances the Plaintiff’s claim for future medical expenses”.

5. In relation to the application for leave to adduce the report psychiatric expert Dr Leo Chiu dated 13 March 2009 the Defendant made the following points:

·    The application for a report from a psychiatric expert is a recent afterthought.  In the 3 Check Lists filed on 30 October 2007, 18 January 2008 & 27 August 2008 the Plaintiff indicated that no more than expert orthopaedic evidence was required.  Had the Plaintiff’s solicitors taken proper instructions from the start, the pleadings would have reflected this, and the applications made back in 2007.  The allegations made in the Statement of Damages dated 3 April 2007 are quite different from the allegations that were made to the government psychiatrist Dr Lee Wing King dated 19 February 2009;

·    Dr Chiu’s report was commissioned by the Plaintiff without leave of the Court, and in the face of objections by the Defendant;

·    Dr Chiu’s report does not satisfy the criteria of relevance, necessity and probative value;

·    The Plaintiff should have considered using the psychiatric report from the government hospital instead, as directed in HCPI 1096/2003;

·    The application is against the underlying objectives of the CJR.

Reasons for the Ruling on the report of Dr Chiu

6. The law requires that, at this interlocutory stage of the proceedings I look at the report “at face value” only.  As explained in paragraph 20 of the Judgment of the former PI Judge in Chan Kwok Ming v Hitachi Electrical Service Co (HK) Ltd, HCPI 322/2002, the weight to be attached to the contents must be a matter for the Trial Judge.

7. Having considered all the evidence and the submissions, I rule that the report is not necessary.  I find that “at face value”, Dr Chiu’s report does not add much more to the available information contained in the report of the government psychiatrist Dr Lee Wing King dated 19 February 2009.  If the Plaintiff had chosen to rely solely on the government doctor’s report, it would have shown that: (a) the Plaintiff was suffering from recognized mental disorder, viz “psychotic depression”; (b) she was on prescribed medication; (c) she required further treatment as a further follow-up appointment was arranged; (d) she was also being referred to a psychologist for treatment or counselling for what the government psychiatrist considered to be “jealousy delusion towards husband, anxious mood, irritability and depressed mood”.

8. Dr Chiu’s report covers the same areas covered by the government psychiatrist.  His diagnosis was “major depressive disorder”.  Dr Chiu says that “major depressive disorder” is the same diagnosis made by the government psychiatrist, because “psychotic depression is the short name for “major depressive disorder with psychotic features”.  The only difference in diagnosis between the 2 psychiatrists was whether the Plaintiff should be regarded as “psychotic”.  The government psychiatrist thought it “psychotic” because there was no basis for her “unsound belief of the unfaithfulness of her husband without supporting evidence”.  Dr Chiu thought the Plaintiff were merely “worried” that her husband was unfaithful, and being worried is not the same as being psychotic.

9. The Plaintiff should have chosen to rely on the government hospital report to show that she had suffered psychiatric symptoms as a result of the accident, pursuant to HCPI 1096/2003.  That government report would have served her purposes just as well as the Dr Chiu report.  The report of Dr Chiu was not necessary.  If the Plaintiff had objection to being described as “psychotic”, there is no reason why, during her testimony she could not have explained this to the Trial Judge.

10. I scrutinized the exact words used by the orthopaedic experts, and found that it was misleading for the Plaintiff’s solicitor to submit that both orthopaedic experts had “considered psychiatric assessment necessary”.

11. The Plaintiff’s nominated orthopaedic expert Dr Wong Man Shun did not recommend the Plaintiff obtain a psychiatric report.  He merely recommended a psychologist look into the situation.  At paragraph 89(iii) on page 19 of the joint report, this is what he wrote:

“Dr Wong noted that there is high element of psychological complaint on her history of the present condition. During the examination, Ms Chang appears to be slow on response and lots of inappropriate complaint with a tone of anxiety, depression and also paranoia. A separate assessment by appropriate expert is recommended to assess her psychological problem related to the trauma.”

12. Dr Chun Siu Yeung the Defendant’s expert wrote this at paragraph 85 of the joint orthopaedic report:

“85.  She was reported to have anxiety and compulsive spending, whether this was related to the traffic accident should be evaluated by an expert psychiatrist.”

13. In Farman Khan v Lau Kai Hong and Another trading as Shun Sum Engineering Co (a firm) (29 April 2009, HCPI 850/2008), the PI Judge explained that when a medical of one discipline makes a comment that a Plaintiff consult doctors of other specialities, it cannot be seized upon by the Plaintiff or his solicitors as “prima facie evidence of relevance”.  It all depends on the context.

14. It is interesting to note that the respective orthopaedic experts Dr Wong and Dr Chun did not specifically state that the Plaintiff’s alleged abstention from sex were due to some orthopaedic or physical cause.  They were in total agreement on the physical findings.  The scars were non-tender, the knee flexion was full and symmetrical, the hip joints were normal and the fracture had united well.  So whatever caused the Plaintiff to abstain from sex could not have been physical, yet neither orthopaedic expert suggested that a psychiatrist be consulted on this ground.

15. I confess that I am unable to understand why Miss Chih wished to rely on the decision in Arfan Muhammad v MPS Engineering Ltd and Another (30 June 2005, HCPI 457/2003) to submit that the Court “does not have the power to forbid a Plaintiff from obtaining an expert report”.  The fact is that the Plaintiff has already obtained a report.  The hearing was for leave to adduce the report.

16. I turn now to Miss Chih’s argument that Dr Chiu’s report “advances the Plaintiff’s claim for future medical expenses”; and “pain suffering and loss of amenities”.  I find these arguments untenable.  It is wrong in principle simply to obtain a report in order to advance the claim.  It is precisely the attitude that Mr Justice Suffiad decried in Ho Man Fong v Sime Darby Motor Services Ltd (19 July 2005, HCPI 1096/2003).

17. I now turn to the cosmetic surgeon’s report.  In her application to adduce the report of Dr Chow Sik Kuen dated 17 March 2009 the Plaintiff’s solicitor made the following points.

·    Dr Chow’s report satisfies the overall criteria of relevance, necessity and probative value;

·    The court does not have the power to forbid a Plaintiff from obtaining an expert report;

·    Dr Chow said that the scars were caused by the accident.

18. In relation to this application the Defendant made the following points:

·    The complaints of itchy scars in Dr Chow’s report is an entirely new allegation.  This complaint of itchy scars did not appear in the Statement of Damages dated 3 April 2007.  This complaint of itchy scars did not appear in any of the previous witness statements of the Plaintiff.  It is an indication that the motive of the application to adduce the report in the hope that it will increase the quantum to be recovered at the end of the day.

Reasons for the Ruling on the report of Dr Chow Sik Kuen

19. It was argued in the skeleton submission that the Plaintiff needed the Dr Chow report to show that the Plaintiff’s scars “were solely caused by the accident”.  Technically that is incorrect.  The Plaintiff had operations on both knees when she was an adolescent.  The operations left her with 2 unsightly scars over her knees (“the old scars”).  The road traffic accident caused the Plaintiff to have more scars on her body (“the new scars”).  The new scars are from operations done to fix the fractured femur.  The details of the operations are well documented in the hospital notes, reports and in the joint orthopaedic report of Dr Chun Siu Yeung and Dr Wong Man Shun dated 28 November 2008.  The Plaintiff did not need the report of Dr Chow to show that the new scars were caused by the road traffic accident.  In fact, the joint orthopaedic report contained a passage giving details of the new scars, see paragraph 66 on page 11.

20. At paragraph 41 Dr Chow conceded that all a cosmetic surgeon could do was to improve the appearance of the scars. As a cosmetic surgeon he would not be able to remove the scars.  He explained that as the Plaintiff’s scars ran perpendicular to the lines of skin relaxation, revision procedures to improve the appearance of the new scars was not advised.  He suggested dermabrasion and cell culture instead. Dr Chow said “Whether it is worth undertaking the treatments will be the decision of the patient herself”.  In other words, the treatment suggested is optional.  So, it cannot be argued that Dr Chow’s report is “necessary” to the Plaintiff’s claim.

21. When the Plaintiff received the new scars, she was a 28 year old married woman.  She was no stranger to obvious scars, and had borne the rather obvious scars at her knees since she was an adolescent.  In his report, Dr Chow described the old scars in this way “…operation at Princess Margaret Hospital, resulting in obvious vertical scars on both left and right knees”.  Moreover, although unsightly, from the photographs in the Bundle, the new scars were situated on the right side of the torso, near or above the pantyline and therefore would not have been seen by other people under normal circumstances.  I cannot see that it can be proportional under CJR to allow the costs of cosmetic surgeons’ reports simply to provide grounds for a debate on the viability of operations “to try and improve the appearance” of the new scars.

22. The only new issue raised by the report of Dr Chow was the complaint of itchiness.  It is a new issue because this complaint had never been raised in any report, statement or pleading since the action commenced.  (The complaint of itchiness of the new scars was also raised in Dr Chiu’s contemporaneous report at paragraph 15(2).)

23. I find the Defendant’s complaints that the Plaintiff planned to use the Dr Chow report to bolster her damages to have some force.  From the documents in the Hearing Bundle, I counted the number of times the Plaintiff was seen in government hospitals.  The dates were 8 May 2006, 30 May 2006, 20 July 2006, 14 September 2006, 26 October 2006, 7 March 2007, 13 March 2007, July 2007, 22 October 2007, 24 October 2007.  Despites these many chances, it appears that the Plaintiff did not complain of itchy scars, as there are no references to such complaints.

24. It is noted that the Plaintiff did not complain of itchy scars to the respective orthopaedic experts when they jointly examined her on 13 November 2008.  We know this because the experts listed out all 34 of her complaints in pages 7 to 10 of the joint report.  It is unlikely that one would forget to voice a complaint about such a disagreeable and unpleasant affliction like a persistent itch when one has received an invitation to list out all of one’s complaints.

Conclusion

25. The Plaintiff has not shown the “relevance”, “necessity” or “probative value” of the Dr Chiu or Dr Chow reports.  For the reasons given herein, paragraphs 1 and 2 of the Summons dated is dismissed with costs to the Defendants.  Such costs shall be taxed if not agreed, with legal aid taxation for the Plaintiff’s own costs.

Directions as to the further conduct of this Action

(1)   The time for compliance with paragraph 5 of the Order dated 5 September 2008 shall be extended by 28 days to 11 August 2009, when the Plaintiff shall file and serve her Revised Statement of Damages.  Time is to run and leave to file during August vacation.

(2)   The time for compliance with paragraph 6 of the Order dated 5 September 2008 shall be extended to 28 days thereafter, on or before 8 September 2009, when the Defendants shall file and serve their Answer.

(3)   The time for compliance with paragraph 7 of the Order dated 5 September 2008 shall be extended for 28 days from the Answer to 6 October 2009, when the parties shall agree the contents of the Assessment Bundle.

(4)   The time for compliance with paragraph 8 of the Order dated 5 September 2008 shall be extended to 3 November 2009, when the parties shall ensure that counsel’s advice shall have been obtained.

(5)   The Check List Review is adjourned to 30 November 2009 at 10:30a.m. for Approval of the Bundle and for leave to set down for Assessment on Damages.

(6)   Liberty to Apply.