LAM SIU KONG v. LUCK ON ENTERPRISE LTD t/a OCEAN SUPER SEAFOOD RESTAURANT

HCPI 698/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 698 OF 2009

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BETWEEN

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D E C I S I O N

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Background

1.  This is, basically, an application by the Plaintiff for leave to adduce psychiatric expert evidence although in the summons dated 13 May 2010 the Plaintiff has chosen to seek orders for, amongst others: -

“ 1. The solicitors for the Plaintiff shall instruct Dr. Benjamin Lai to conduct an examination on the Plaintiff within 14 days from the date of the Order to be made hereof and to compile an expert report within 56 days from the date of the examination;

2. Leave for the Plaintiff to serve the psychiatric expert report of Dr. Benjamin Lai on the Defendant within 14 days after receipt thereof;”

2.  The Defendant contested and said that the same was not necessary in the circumstances of this case.

3.  The Plaintiff was aged 40 at time of accident i.e. 14 April 2008 working as a captain in a restaurant.  She claimed damages from her employer at the time i.e. the Defendant for the accident.

4.  Writ of summons with endorsement of claim was filed on 30 October 2009 and by a consent order dated 5 November 2009, interlocutory judgment on liability was entered against the Defendant with damages to be assessed and costs.

Applicable legal principle

5.  Parties concede that legal principles governing whether leave should be granted to adduce expert evidence are necessity, relevance and probative value as laid down in Chan Kwok Ming v Hitachi Service Co. Ltd. (HCPI 322 of 2002) referred to in Arfan Muhammad v MPS Engineering Ltd & Ors. (HCPI 457 of 2003, unreported, 20 June 2005).

6.  Chu J. in Wong Hoi Fung v. American International Assurance Co. (Bermuda) Ltd & anor (HCA 4576 of 2001, unreported, 8 October 2002) said that expert evidence is relevant if it is helpful to the Court in deciding one or more issues to be resolved.

7.  Issue before the Court is therefore whether in this case psychiatric expert evidence is necessary, relevant  and of probative value and is helpful to the Court hearing the assessment of damages.

Application

8.  In support of this application, Ms. Chan, Solicitors for the Plaintiff referred to records of the Association for the Rights of Industrial Accident Victims and said that records dated 30 September 2008 by social worker of the Association showed that the Plaintiff was presented with symptoms of depression.

9.  The Plaintiff further referred this Court to the medical report from Dr. Wong Sze Nga of Kwai Chung Hospital dated 15 March 2010.

10.  She also relied on the case of Wong Ka Yee v Gay Giano International Ltd. (DCEC 436 of 2007).  In that case, the Applicant was injured in the course of employment.  She had started receiving psychiatric treatment after the issue of proceedings for her psychiatric disorder.  The Respondent in that case challenged the genuineness of the Applicant’s symptoms and argued that the trial Judge could sufficiently assess the case on evidence from lay witnesses and the existing medical reports to arrive at a just determination.

11.  Her Honour Judge Ng ruled that the Respondent’s doubt on the genuineness of the Applicant’s pain and reaction and consequent functional and work impairment poses challenge to the psychiatric diagnosis by the treating doctor of the Applicant.  Her Honour Judge Ng found that psychiatric expert evidence is likely to be helpful to the trial judge in arriving at his/her decision at the end of the day.

12.  Ms. Chan submitted that in this case the Defendant doubted the psychiatric complaints of the Plaintiff and therefore the psychiatric diagnosis posed by the said Dr. Wong.

13.  She said therefore that psychiatric expert report would assist the Court in adjudicating whether the Plaintiff’s claim is forged, exaggerated or genuine and further whether the same if exist, would affect the employability of the Plaintiff and if so, the extent.

14.  She said therefore a psychiatric report is relevant, necessary and of probative value in the present case.

15.  In opposing the application, Mr. Chan, Solicitors for the Defendant submitted that in all the medical reports filed by the Plaintiff pursuant to Order 18 rule 12(1A) of the RHC, the Plaintiff did not make any psychiatric complaint both to the government doctors and private practitioners treating/assessing her from the time of the accident on 14 April 2008 up to 29 July 2009.

16.  It was pointed out also that even during the joint medical assessment by the orthopaedic experts of the Plaintiff for the purpose of these proceedings, the Plaintiff still failed to make psychiatric complaints.

17.  Further, it was stated that in both the Certificate of Assessment (Form 7) dated 7 May 2009 and the Certificate of Review of Assessment (Form 9) dated 27 August 2009 in the related Employees Compensation action, complaints were absent.

18.  Moreover, Mr. Chan referred this Court to the fact that even in Plaintiff’s witness statement dated 28 July 2009 filed in the corresponding employees’ compensation claim, the Plaintiff did not complain that she was suffering from psychiatric symptoms.

19.  He also referred this Court to the case of Chang Man Sze v Chan Siu Wai & anor (HCPI 290 of 2007) where Master Kwan dismissed the Plaintiff’s application for leave to adduce a report of a consultant in plastic surgery with costs to the Defendant.  It was said that the new complaint of itchiness had never been raised previously in any report, statement or pleading since the action commenced.  Master Kwan considered the number of medical consultations times the Plaintiff had.  It was said that despite these many chances, the Plaintiff did not make such complaint of itchy scars.  The Plaintiff in that case, also did not complain of itchy scars to the respective orthopaedic experts when they jointly examined her.  Master Kwan commented that “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”.

20.  In response to the said record of the Association for Rights of Industrial Accident Victims, Mr. Chan submitted that the same was merely records made by a social worker that the Plaintiff had minor depressive symptoms and therefore she was advised to join stress relief group.  Mr. Chan representing the Defendant submitted that the social worker merely mentioned the Plaintiff was a bit depressed, she was not suspected of having psychiatric illness, otherwise they would have advised her to seek psychiatric treatment instead.  In any event, it was said the social worker was not trained to differentiate between “depression” as a psychiatric illness and “depression” within the normal range of unhappiness.

21.  Mr. Chan urged this Court not to attach any weight to this record.

22.  It was further submitted by Mr. Chan that the Plaintiff was not truthful in when she said because of the depression that she had, she mainly stayed at home after the accident.  Mr. Chan referred this Court to her behavior observed under surveillance which he said contradicted this saying.  It was said that in the surveillance tape taken on various occasions in June, July and August 2009 the Plaintiff did not show signs of depression or low mood or loss of energy or loss of interest and that therefore the genuineness of the Plaintiff’s psychiatric complaints was questionable.

23.  This Court was told also that both orthopaedic experts after examining the Plaintiff opined that examination of the Plaintiff by other specialists is not necessary.

24.  In fact, both orthopaedic experts and Plaintiff’s private treating orthopaedic surgeon are of the opinion that the Plaintiff is capable of returning to her pre-accident job as a restaurant waitress.

The Government Hospital Psychiatric Report

25.  Mr. Chan argued that as the Plaintiff has been seeking treatment from West Kowloon Psychiatric Centre for her alleged psychiatric symptoms, the doctors treating her from the West Kowloon Psychiatric Centre are equally qualified psychiatrists and are in a position to inform the Court the mental state of the Plaintiff and whether psychiatric illness (if any) are related to the subject accident.  He referred to the psychiatric report dated 15 March 2010 from Dr. Wong Sze Nga.

26.  The report revealed that the Plaintiff first attended their clinic on 18 December 2009, said that she had previously met an accident in April 2008 at work injuring the right foot and had became unemployed since then.  The report also mentioned that the Plaintiff became financially dependent on her mother as she had used up all her savings.

27.  Dr. Wong said Plaintiff complained of low mood and increased instability since early 2009 with crying episodes accompanied by negative cognition, sense of worthlessness, decreased concentration, lethargy, non-specific somatic symptoms, poor appetite, disturbed sleep with occasional wakening.  She also claimed to have self-harming behavior such as burning herself with cigarette butt, slapping her own face and had fleeting suicidal ideas.

28.  On basis of such complaints, Dr. Wong had diagnosed the Plaintiff with moderate depression episode and medication was prescribed.

29.  According to Dr. Wong, the Plaintiff was last seen 29 January 2010, i.e. a bit over 1 month after the 1^st consultation in December 2009.  Plaintiff self reported to have decreased irritability but was still in low mood and had disturbed sleep.

30.  Dr. Wong observed during the interview that mood of the Plaintiff was fairly stable and no psychiatric symptoms are detected.

31.  Dr. Wong therefore concluded that Plaintiff is suffering from moderate depression mood and the same was precipitated by the injury on duty which later caused unemployment and financial difficulty.

32.  Mr. Chan representing the Defendant however criticized that the Plaintiff should not make such complaint of financial difficulty because even before her first consultation with the psychiatrist, she had been receiving $8,500 per month during sick leave period, reimbursement of medical fees and compensation of $203,656.63 from the related Employee Compensation claim.

33.  As for the Plaintiff’s claim for unemployment, Defendant says that there was no evidence that Plaintiff had attempted to seek a job after the accident despite the view of all orthopaedic experts that she is fit to return to her pre-accident job.

34.  Plaintiff was said to have gone to various private clinics to obtain additional sick leave after the original treating Yan Chai Hospital had ceased giving her further sick leave after 17 June 2008.

35.  All sick leave expired on 19 August 2009.

36.  It was said although Plaintiff stressed that she is unable to return to her pre-accident job, the same contradicts even the view of her own treating orthopaedic expert, Dr. Yam.

37.  Mr. Chan for the Defendant submitted further that based on Dr. Wong’s medical report and all the various medical reports adduced by the parties in these proceedings, the Court is in a position to assess the Plaintiff’s damages without any further psychiatric expert report being adduced by the Plaintiff.

38.  He cited the case of Farman Khan v Lau Kai Hong and Lau Siu Yuk trading as Shun Sum Engineering Co (a firm) (HCPI 850 of 2008) which concerns an appeal from the PI Master who had refused leave for the Plaintiff to adduce expert evidence from a psychiatrist.  Fung J ultimately dismissed the appeal and said “in the circumstances, the Plaintiff should further consult his treatment doctors, not to the extent of getting a full expert opinion, but at least some explanation of possible link with the accident.  If there are well documented treatment records and possible link with the accident, one would expect that such records from the government hospitals might well be sufficient for the trial judge in assessing quantum”.

39.  He further relied on the case of Ho Man Fong v Sime Darby Motor Services Ltd (HCPI 1096 of 2003) where Suffiad J warned against alleging psychiatric impairment unnecessarily with a hope that it would increase the quantum that might be recovered at the end of the day.  Suffiad J said the expert psychiatric report “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”.

40.  Again, the case of Chang Man Sze v Chan Siu Wai & anor (HCPI 290 of 2007) was mentioned by the Defendant where Master Kwan dismissed the Plaintiff’s summons for leave to adduce psychiatric expert report with costs to the Defendant.  Master Kwan said “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 of 2003.  That government report would have served her purposes just as well as Dr. Chiu report.  The report of Dr. Chiu was not necessary”.

41.  Mr. Chan submitted that the case of Wong Ka Yee cited by the Plaintiff can be distinguished and is not applicable in this case.  He submitted that the Plaintiff in that case had been receiving regular treatment for psychiatric disorder at early stage after the accident and was diagnosed to be suffering from adjustment disorder triggered by the accident and further that even specialists of other specialty (other than psychiatry) has agreed that she be continually treated.

42.  In addition, in the Certificate of Assessment, she was said to be suffering from depression caused by the accident.

43.  Mr. Chan says in this case, even in the Statement of Damages filed at time of filing of the writ in the present case, apart from saying that she was attending treatment for headache and difficulties in breathing, the Plaintiff did not claim herself as suffering any psychiatric illness nor did she claim damages resulting therefrom.

Analysis

44.  Firstly, in this case, Plaintiff in his summons asked for leave of this Court to obtain a psychiatric report.  In fact, as clearly spelled out in Arfan Muhammad v MPS Engineering Ltd and anor (HCPI 457 of 2003, 30 June 2005), the Court does not have the power to forbid a Plaintiff or indeed any party from obtaining an expert report.  What the Court can do is to grant or refuse leave for that report to be adduced.  It follows therefore that the party obtain the report at their risk of the same not being allowed to be adduced if no prior leave was given.

45.  Plaintiff in her affirmation filed on 12 May 2010 in support of this application said because both orthopaedic experts in their Joint Report dated 19 August 2009 were of the view that with more confidence and a gradual return to work program, she should be able to return to her pre-accident job with mild reduction in work capacity, she wanted to obtain an opinion from a psychiatrist as to whether and how she could regain her confidence, in order to return to her pre-accident job.  That, in my view, should be a matter for the treating psychiatrist of the Plaintiff at West Kowloon Psychiatric Centre and the Plaintiff herself. In any event, as submitted, there is no evidence before this Court that the Plaintiff has attempted to seek a job.

46.  In fact, all the medical reports before the Court including those from government hospitals and private practitioners treating the Plaintiff indicated the Plaintiff could return to her pre-accident job, only with reduced work efficiency.

47.  Although the Plaintiff has started her treatment at West Kowloon Psychiatric Centre, there has been no sick leave issued nor was it ever indicated that the Plaintiff was unfit to return to work.

48.  I must say that it is most strange that if the Plaintiff did suffer from psychiatric symptoms since 2009, she has failed to indicate the same to any of her treating doctors, not even to the orthopaedic experts examining her as late as 8 August 2009.  This Court noted that it was only after the issuance of the Joint Report in August 2009, which said that the Plaintiff could return to pre-accident job, that she proceeded to make psychiatric complaints and attended the West Kowloon Psychiatric Centre, for the first time in December 2009.

49.  For reasons as submitted by Mr. Chan, this Court accepts that little, if any, weight should be given to the records by the Association for the Rights of Industrial Accident Victims.

50.  Further, the orthopaedic experts in the report are of the view that the Plaintiff need not be assessed by other specialists.  Obviously, these medical practitioners though not psychiatrists, did not detect anything which triggered them to find otherwise.

51.  Although the Plaintiff was said to exhibit no psychiatric symptoms in the surveillance tape, I do not find it safe to conclude the Plaintiff therefore is not suffering from psychiatric illness as the same might not be manifested at all times.

52.  It is also noted that the said Dr. Wong Sze Nga prepared her report on 15 March 2010.  The number of consultations received by the Plaintiff at the clinic must be few because she said the Plaintiff was last seen on 29 January 2010 and she only first attended the Centre on 18 December 2009.

53.  It is true and not challenged that Dr. Yam, her treating orthopaedic expert also viewed that the Plaintiff could return to pre-accident work as a waitress.

54.  Paragraph 5 of the Plaintiff’s affirmation dated 12 May 2010 reads “After the accident and as a result of the injury, I have been unemployed to date and have been financially dependent on my mother after using up all my savings.”

55.  It is difficult for one to understand what financial difficulty the Plaintiff is facing when it is not challenged that she had been receiving sick leave pay of $104,952.70, medical fees reimbursements of $6,948 and the said $203,656.63 compensation money.

56.  As contended by Mr. Chan, even in her own witness statement dated 28 July 2009 filed in DCEC 238/2009, the Plaintiff still failed to mention any of these psychiatric symptoms.

57.  As submitted, the same is also absent in both the said Form 7 and Form 9.

58.  On review of all the medical reports filed in this case, as submitted by Mr. Chan, the psychiatric complaints are absent.  I opined that the genuineness or otherwise of the psychiatric complaints of the Plaintiff is ultimately a matter for the trial Judge/Master hearing the case.  It accords with common sense therefore that evidence throwing doubt on the veracity of such psychiatric complaints which form the basis of diagnosis of the psychiatrist should be taken into account when considering application for leave to adduce expert evidence. In this case, there is no suggestion that the psychiatric illness, if any, affect the employability of the Plaintiff and therefore the quantum of damages for the pre-trial or post-trial loss of earnings or the loss of earning capacity although the quantum for pain suffering and loss of amenities may be affected.

59.  Even if the Plaintiff need to continue to receive treatment from government clinics, the sum of future medical expenses will not be substantial.

60.  In this case, in view of the failure of the Plaintiff to voice her psychiatric complaints on any of the many occasions when she consulted medical practitioners, it is safe to conclude that any psychiatric illness that the Plaintiff is suffering is not serious.  It is noted that Dr. Wong in her report said the Plaintiff was noted to have no psychiatric symptoms at time of interview.

61.  It is also true that the Plaintiff failed to claim damages for psychiatric illness even in the Statement of Damages filed in this action in October 2009.

62.  This Court agrees with Mr. Chan that the case of Wong Ka Yee can be distinguished from the case here.  In that case, the Applicant has a well documented history of psychiatric treatment.  Shortly after the accident, the Applicant had been receiving intermittent treatment for her suspected case of depression.  The same is also fortified by the Certificate of Assessment (Form 7) which included reference to “depression”.

63.  Unlike the case here, the cardiothoracic experts assessing her also both recommended that the Applicant should receive further psychiatric treatment.

64.  On the other hand, the present case is more akin to the case of Chang Man Sze when leave to adduce psychiatric evidence was refused.

65.  Court has a duty to restrict expert evidence to what is reasonably required for proper adjudication.  This Court reminds itself of the remarks of Seagroatt J in Wong Hin Pui v Mok Ying Kit’s Anor [2000] 1 HKLRD 856, 874-875 against proliferation of expert medical evidence which are not essential.

66.  I take the view that the Court could simply rely on existing medical reports, including the government psychiatric report, in assessing damages in this case.

67.  It would be a wasteful exercise of costs and certainly wrong for the Court to allow the Plaintiff to adduce psychiatric expert report in this case to, in the words of the Plaintiff,  “advise her on whether or how she could regain confidence to return to her pre-accident job” or as submitted by Ms. Chan.  I do not find further psychiatric expert evidence relevant or necessary in this case.

68.  Clearly, the underlying objections of Civil Justice Reform, in particular, regards to the cost-effectiveness, proportionality and procedural economy will not be served if I should grant the application in the circumstances of this case.

Conclusion

69.  I therefore refuse the application of the Plaintiff.

Costs

70.  As costs normally follow the event, in this case, I see no reason why I should depart from such rule.  I make an order nisi that all costs of and incidental to this summons be to the Defendant.

Summary assessment

71.  On the hearing date, this Court has indicated that it will be dealing with costs of this application by way of summary assessment.  The Defendant’s Solicitors failed to present his Statement of Costs on the hearing date and was directed to have the same lodged with Court and served on the Plaintiff within 3 days of hearing.  Solicitors for the Defendant failed to comply with the Order and only did so on 17 August 2010 when prompted by this Court.  They are reminded of paragraph 15 of Practice Directions 14.3, the consequence for non-compliance of such court order without reasonable excuse and shall refrain from repeating such conduct.

72.  In this case, the costs of and incidental to this application is summarily assessed at $20,730, the same to be paid by the Plaintiff to the Defendant.