HO MEI WAH v. BOON CHI SUN

HCPI 394/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 394 OF 2006

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REASONS FOR DECISION

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1.  This is an application by the defendant for leave for the parties to obtain a supplemental joint psychological report from Prof. Peter Lee and Dr Michael Tsang in relation to surveillance reports dated 12 September 2009, 10 November 2009 and 19 May 2010 prepared by Great Force Investigation Consultants Ltd within 28 days from the date of the order to be made herein and for leave to adduce the expert evidence contained in the supplemental report at the assessment of damages in this action. After hearing the parties, I made an order in terms of paragraph 1(a) of the summons taken out by the defendant. I also gave leave to the parties to obtain a supplemental joint psychiatric report from Prof. Felice Lieh Mak and Dr Cheung Hung Kin in relation to the three surveillance reports within 28 days from the date of my order and to adduce the evidence contained in their supplemental report at the assessment of damages. These are my reasons for that decision.

2.  These proceedings arose as a result of a road traffic accident which occurred on 21 October 2004.  At the material time, the plaintiff, then aged 29, was a front seat passenger in a private car driven by her husband.  The defendant was driving a light goods vehicle which collided with the private car.  It is alleged that, as a result of that collision, the plaintiff struck her head on the windscreen of her vehicle and suffered loss of consciousness. Interlocutory judgment for damages to be assessed was entered soon after proceedings were commenced.  The case has been set down for damages to be assessed by a judge, pursuant to the leave granted by Suffiad J to do so, and 11 to 15 April 2010 have been reserved for the hearing.  The defendant’s summons, taken out after the case was set down for hearing, was fixed before me, as the Personal Injuries Judge, instead of the trial judge because a judge had not yet been assigned to hear the case.

3.  It is the plaintiff’s case that she suffered from post-concussional syndrome and from a serious psychiatric disability as a result of the accident. Prof. Peter Lee was instructed by the defendant’s solicitors to assess the plaintiff.  He concluded, in his report dated 13 November 2007, that the plaintiff’s current condition was more compatible with the diagnosis of schizophrenia of a paranoid subtype and that her schizophrenic illness was likely to have been precipitated by many stress factors acting conjointly.  In his report, Prof. Lee recorded the behaviour and mental condition of the plaintiff.  She attended his clinic with her husband on three occasions.  She was unkempt and wore a pair of slippers.  At the initial meeting, she appeared timid and walked with a queer shuffling gait with arms guarding the chest even as she was walking along the corridor.  She had an erratic presentation on all three occasions.  She was generally passive and not forthcoming.  Periodically, she remained mute and appeared buried in thoughts.  At a later stage, she complained that “he is coming, he is coming” and “he might be here”, appearing anxious and scared and she held onto herself, holding the arms across the chest and looking childlike.  She also strenuously rubbed her hand with the other hand continuously.  She was convinced that the driver of the van was coming after her.  At other times, when she became more settled and not bothered by her fears, she could provide him with a cursory account of her past personal history and development.  Periodically she appeared to have auditory hallucinations, when she became mute and non-responsive, and subsequently reported hearing the driver talk to her.

4.  Dr Tsang Hing Pui, who assessed the plaintiff on the instructions of the plaintiff’s solicitors, agreed with Prof. Lee that the plaintiff’s condition was more appropriately classified under the schizophrenia spectrum.  While her schizophrenia might not be caused by the accident, it triggered the onset of the disorder.  Dr Tsang also examined the plaintiff on three occasions.  She appeared dull and was somewhat unkempt.  She walked with an unsteady gait, giving the impression that she was wobbling along the hallway into the consultation.  She settled down and became calmer and more relaxed soon after she started giving an account of the accident.  She complained about hearing the driver scolding her at times and believed that he was after her and wanted to kill her.  At times, she appeared to have some blocking in her thought processes and would stop in the middle of a sentence as if she had dozed off.  She had a very similar presentation and behaviour on the two subsequent interview sessions.

5.  The joint psychiatric report of Prof. Felice Lieh Mak and Dr Cheung Hung Kin was obtained later, after Suffiad J had granted leave to the parties to obtain this report.  The psychiatrists interviewed the plaintiff on 21 August 2009 but their joint report was only completed on 31 December 2009 as Prof. Lieh Mak wanted to review the plaintiff’s clinical records which were only made available on 14 December 2009.  In the joint report, Dr Cheung maintained the opinion he had expressed in his previous report dated 16 March 2009, that the plaintiff suffered from multiple psychiatric disorders including psychotic disorder with delusions and hallucinations due to head trauma, post-concussional syndrome, post-traumatic stress disorder, major depressive episode and dementia due to head trauma.  On the other hand, Prof. Lieh Mak concluded that the plaintiff was a malingerer and was fabricating her symptoms and that she did not suffer from any psychiatric disorder as a result of the accident on 21 October 2004.

6.  Between the time the psychiatrists jointly interviewed the plaintiff and the date of their joint report, the defendant’s solicitors had instructed investigators to conduct surveillance on the plaintiff.  This was done on a number of days in September 2009, and again in November 2009.  The surveillance reports of September and November 2009 had been served on the plaintiff’s solicitors in early January 2010.  I am informed that, at the hearing of the PTR on 20 April 2010, mention was made of the surveillance reports by the solicitors for the defendant.  The plaintiff’s stance was that the makers of the report had to be called if the defendants wished to adduce them.  However, no specific direction was sought or given in respect of the surveillance reports.  A third round of the surveillance was commissioned and carried out by the investigators in May 2010, and they prepared a third surveillance report dated 19 May 2010.

7.  The photographs attached to the surveillance reports showed the plaintiff to be behaving normally as she went shopping, ate at restaurants, and fetched her son from school on different occasions in September and November 2009 and in May 2010.

8.  Although leave to set the case down for the assessment had been granted on 20 April 2010, no request for the experts to review the surveillance reports was made by the defendant’s solicitors until September 2010.  In their letter dated 6 September 2010, the defendant’s solicitors stated that the plaintiff’s condition as shown in the surveillance reports and videos was inconsistent with the picture painted by her when attending the examination by Dr Tsang and Prof. Lee and they invited the plaintiff solicitors to agree that the expert psychologists should review the surveillance evidence and prepare an updated joint report. This request elicited a negative response.

9.  On 27 September 2010, Prof. Lee wrote to the defendant’s solicitors stating that the plaintiff’s behaviour in a natural environment, as shown up in the surveillance videos, was distinctly different from her clinical presentation.  In the video, she was much more at ease and self-confident with no seeming signs of distress, fear or guardedness.  He was of the view that an updated joint report, which took into account the discrepancies between the plaintiff’s natural life presentation and that noted during a clinical assessments, would be of use to the court.  This letter was sent to the plaintiff solicitors by the defendant solicitors who repeated their request for such a joint report.  This request was denied on 14 October 2010 on the ground that a “ further supplemental report at this stage is against the spirit of both the practice directions and the CJR, when you in fact had ample opportunity to apply for leave at the PTRs.”  The defendant then took out this summons on 5 November 2010.

10.  The question whether or not experts should be asked to review surveillance evidence and prepare supplemental reports consequent upon such review has been raised in the past.  In Khan Shiraz v. Yee Lee Sea-land Forwarding Co. Ltd, HCPI 323/2004, 10 August 2006, Suffiad J answered the question in the negative for these reasons:

“17. I say unnecessary because in the majority of cases, where orthopaedic experts have already given their opinions as to the extent of the disabilities of a plaintiff, it would not be necessary for them to have to comment in a separate report on what is seen of the plaintiff on surveillance tapes. That is an exercise that the court will be well equipped to do and to compare what can be seen the plaintiff with the opinions already expressed by the experts in their reports, and then to decide whether or not the plaintiff was exaggerating or malingering. Usually that should not involve any expertise to make that comparison where the experts’ opinions have already been given in earlier reports.

18.      Such a practice of obtaining a separate report from a medical expert only for to comment on surveillance tapes is not a practice that should be encouraged, and in the exceptional case where there may be good reasons grounds for doing so, leave could and should be obtained before it is done, by putting forward the grounds or reason why it should be done.”

11.  I agree with these observations and with the later observations of Marlene Ng DJ in Chan Kwok Biu v. Ming Cheung Construction Co. Ltd, DCEC920/2008, 26 May 2009, who said that, on the application for leave:

“19. … the court will exercise its discretion on the basis of whether such further expert medical evidence is relevant, necessary and of probative value. This really depends on the circumstances of each case, and in particular the nature/extent of the claimant’s injuries and the nature of his pre-accident work, and the expert medical opinion already given by the experts.

20. First of all, it should be remembered that surveillance evidence often provides a ‘snapshot’ in time of the claimant. If the surveillance footage shows the claimant performing task of carrying out activities which he says he cannot undertake and such surveillance evidence arguably undermines the fundamental medical premise of the expert medical opinion, it is more likely that the court will grant leave for the medical experts to comment on the footage.

21. For example, where there is an arguable risk of misdiagnosis if the surveillance footage is not shown of the medical experts ... there can be no doubt that the medical expert should be asked to comment on the surveillance video recording to confirm or revise the diagnosis.

22.      But where the surveillance evidence seeks to undermine the claimant’s credibility rather than the medical premise for the expert medical opinion, then it may not be inevitable and necessary for the medical experts to comment on the footage because ‘[that] is an exercise that the court will be well equipped to do and to compare what can be seen of the plaintiff with the opinions already expressed by the experts in their reports, and then to decide whether the plaintiff was exaggerating or malingering’ (see Khan Shiraz at para. 17).”

12.  When it comes to granting leave to adduce expert evidence and supplemental expert evidence, the courts strive to strike a balance between the benefit to the court in receiving such evidence and the cost of obtaining such evidence.  In cases such as Khan Shiraz, the court does not need the further assistance of the experts in deciding whether the plaintiff was exaggerating or malingering.  In the present case, however, the court is not equipped with the necessary expertise to conclude that just because the presentation of the plaintiff in the surveillance videos is distinctly different from her clinical presentation that she must have been exaggerating or malingering when she presented herself before the psychologists.  In the course of resisting this application, Mr Anthony Cheung, who appeared for the plaintiff, conceded that he could not discern the psychiatric condition of the plaintiff by viewing her behaviour as shown on the surveillance videos.  And neither can the court.  That is precisely why expert evidence would be of assistance to the court.  In the present case, the benefit to the court of the additional expert evidence outweighs cost considerations and justifies the grant of leave to obtain such further evidence.

13.  Another consideration is the impact of the additional expert evidence on the length of trial.  Where the experts have expressed very different views on the condition of the plaintiff, it is not difficult to foresee that the grant of leave to obtain additional reports will only serve to increase controversy and increase the length of trial.  The benefit to the court from such additional evidence must be weighed against the increased costs of a trial that is likely to be lengthened by such additional evidence.  Where, however, as in the present case, leave has been given to call the experts at trial, we have a very different situation from that prevailing when leave has been given for the parties to adduce the experts’ reports but leave has not been given for those experts to give oral evidence.  If I did not give leave for the experts in this case to prepare supplemental reports after reviewing the surveillance evidence, the experts would not be able to express their views on the surveillance evidence when they gave evidence at trial.  This is clearly unsatisfactory and I can foresee that the judge conducting the assessment may allow such evidence to be adduced for the first time orally when the experts give evidence in the witness box.  By granting leave at this stage, the experts can express their views in writing in advance of trial.  Doing so is likely to shorten the length of trial rather than to lengthen it.

14.  For these reasons, I granted leave to the parties to obtain a joint supplemental report from the psychologists, Prof. Lee and Dr Tsang.  As the psychiatrists, Prof. Lieh Mak and Dr Cheung, will also be called to give evidence at the assessment and as their views on the surveillance evidence will be as relevant and of benefit to the court as the views of the psychologists, I also granted leave to the parties to obtain a joint supplemental report from them.

15.  Before I granted leave, I carefully considered what I thought was Mr Cheung’s best point in opposing this application, namely, that the defendant had left it too late and had only made the application after the case had been set down.  I did not accept Mr Cheung’s submissions that there was a risk that the matter might be delayed and that the trial dates would have to be vacated.  I do not see any risk of that happening since the supplemental reports ought to be at hand long before the hearing commences in April next year.  Had there been a genuine risk that trial dates, which are milestone dates, might have to be vacated, I would not have acceded to the application in the absence of exceptional circumstances justifying the late application.  No exceptional circumstances exist in the present case.  However, the reason for the delay offered by Ms Christina Lee, who appeared for the defendant, and which I accept, was that she was late in advising her solicitors that expert evidence on the surveillance evidence was required before the case could be properly assessed.  As the surveillance evidence could only provide a “snapshot” that any particular point in time, it was necessary to conduct surveillance on the plaintiff on multiple separate occasions to show consistently normal behaviour on her part on these occasions.  The reason why the application was not made earlier was because the surveillance exercise had only been completed in May 2010.  And the reason why the first request was not made until 6 September 2010 was because of her late advice.  These explanations can hardly provide any justification for derailing a milestone date.  Clearly, the defendant’s solicitors ought to have realised on reviewing the first two surveillance videos that the plaintiff’s behaviour as shown on those videos was distinctly different from her clinical presentation and that this was a matter that the experts might wish to comment upon.  The surveillance exercise could have been completed and application made before the case was set down for trial.  That is why I say this was Mr Cheung’s best point.

16.  However, weighing the delay on the part of the defendant against the other factors identified above, particularly, the benefit to the court from being able to receive such evidence, the balance falls in favour of granting the application notwithstanding that it was made after the case was set down for trial.  There is also the distinct possibility that a review of the surveillance evidence may produce consensus between the experts instead of the substantial differences now existing between them.

17.  Notwithstanding my conclusion in this case, I must sound a caution to practitioners that the time is fast approaching when interlocutory applications made after setting down are unlikely to be acceded to, absent very cogent reasons or exceptional circumstances, even if granting them would not affect milestone dates.

18.  Notwithstanding the valiant efforts by Mr Cheung to resist such an order, who argued that the plaintiff may not necessarily have opposed the application if it had been made earlier and before the case was set down, I awarded costs to the defendant on the usual basis that costs follow the event.  Given the tenor of the letters dated 21 September 2010 and 14 October 2010, I am not persuaded that the same resistance would not have been offered to any requests made earlier by the defendant.