HCPI 587/2008
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES ACTION NO. 587 OF 2008
_________________________
BETWEEN
PUN KWONG CHEUNG ( 潘廣祥)Plaintiff
and
TANG SHIU WO trading as LUEN YICK DECORATION & DESIGN CO
1st Defendant
DECCA LIMITED (達藝室內工程有限公司)
2nd Defendant
_________________________
Coram : Before Master Marlene Ng in Chambers (open to the public)
Date of Hearing : 15 January 2010
Date of Handing Down Decision : 23 February 2010
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D E C I S I O N
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I. Introduction
1. On 26 November 2005, the Plaintiff was employed by the 1st Defendant to work at a construction site in Kennedy Town, Hong Kong. The Plaintiff claimed the 2nd Defendant was the principal contractor of the site.
2. The Plaintiff claimed that on that day whilst he was using a portable electric abrasive wheel to “cut a wooden plank fixed near a concrete wall”, the metal blade of the abrasive wheel broke and a fragment thereof struck his right eye (“Accident”). On 12 August 2008, he commenced the present proceedings against the Defendants to claim for damages for personal injuries for breach of statutory duties and negligence on the part of the 1st and/or 2nd Defendants.
3. The Defendants denied the claim. They also claimed that the Plaintiff was contributorily negligent by inter alia (a) using the abrasive wheel when he knew it was not suitable for cutting wooden plank and when his co-worker told him to use a hand saw instead, and (b) failing to use safety goggles which were provided or were available.
4. At the hearing of the Checklist Review (“CLR”) hearing on 30 November 2009, the Defendants applied for leave to call and cross-examine the following medical officers:
(a) Dr Nip Wai (“Dr Nip”) of the department of psychiatry of Prince of Wales Hospital (“PWH”);
(b) Dr Fong Man Yee (“Dr Fong”) of PWH’s department of psychiatry;
(c) Dr Wong Kit Yi (“Dr Wong”) of Li Ka Shing Psychiatric Outpatient Clinic (“LKS Clinic”),
and to issue and serve writs of subpoena on Drs Nip, Fong and Wong to attend trial to give evidence.
5. The Plaintiff opposed such application. By my order of the same date, I directed that such application be adjourned for argument before a Master in chambers. The matter came before me for argument on 15 January 2010.
II. Ophthalmology problem
6. In 1993, the Plaintiff had right eye cataract extraction operation as well as epikeratophakia operation (for correction of severity of long-sightedness following the cataract extraction operation) in Mainland China.
7. After the Accident, the Plaintiff was first seen at the accident and emergency department (“AED”) of Queen Mary Hospital (“QMH”) with marked reduction in visual acuity and abrasion of right eye but no rupture of the eyeball. He was referred to the ophthalmology clinic (“Eye Clinic”). When he was first seen at the Eye Clinic on 28 November 2005, visual acuity of the right eye was reduced and an area of depression and thinning was noticed centrally at the corneal graft whereas the superior aspect of the corneal graft was swollen. The ophthalmologist made a diagnosis of right eye healing epithelial defect with secondary rejection. With treatment the corneal graft became clear, but the depressed area remained the same and there was no improvement of visual acuity.
8. The Plaintiff complained of frequent pain and tearing of the right eye. Vision remained poor and not improved by spectacles or contact lenses. There were impairment of binocular function and loss of concentration. The Plaintiff claimed to have difficulty in returning to carpentry work.
9. QMH’sdepartment of ophthalmology granted sick leave for the following days to the Plaintiff: 26 November 2005 to 6 January 2006, 10 to 11 May 2006, 18 May 2006 and 22 November 2007, and PWH’seye clinic granted sick leave on 10 June 2009 and from 22 July to 21 September 2009.
10. According to the joint ophthalmology expert report of Dr Liang Chan Chung Benedict (“Dr Liang”) for the Plaintiff and Dr Cheung Sek Hong (“Dr Cheung”) for the Defendants dated 4 June 2008, the experts disagreed as to whether the present right eye cornea opacity and reduced visual acuity were due to trauma caused by the Accident or whether the corneal scar was pre-existing.
11. At the CLR hearing on 30 November 2009, I directed that a joint supplemental expert report be obtained from Dr Liang and Dr Cheung to particularly address on the Plaintiff’s pre-existing condition in respect of the right eye. Such joint supplemental report was not yet available at the hearing before me as the experts wanted to re-examine the Plaintiff. Such joint expert medical examination only took place on 12 January 2010.
III. Psychiatric treatment
12. According to the medical report of Dr Fong of PWH’s department of psychiatry dated 22 June 2009 (“Dr Fong’s Report”), the Plaintiff was first see at LKS Clinic on 12 December 2006 upon referral by Princess Margaret Hospital (“PMH”). The Plaintiff reported he had an injury to his right eye whilst on duty in November 2005 and was unemployed for 4 months prior to the consultation. He had marital problems with his wife at the same time as his wife left home with their son.
13. Dr Fong’s Report went on to say that since August 2007 the Plaintiff started to have low mood, which was mainly precipitated by stress from his unemployment, his eye injury and marital discord. He presented with diurnal variation in mood, insomnia, poor appetite with weight loss, and poor concentration and memory. He also had increased irritability and poor temper control. His alcohol consumption increased for his difficulty in falling asleep. But no psychotic symptoms or suicidal idea were reported. The Plaintiff was admitted to PMH in November 2006 because of his fleeting self-harm ideation. He was diagnosed to suffer from moderate depressive episode and treated with antidepressant and hypnotic.
14. The Plaintiff had regular follow up at LKS Clinic and was abstinent from alcohol since 2007. He was partially responsive tomedications but still had fluctuating mood with occasional low mood and irritability. Later, he reported hearing some vague non-existent voice though he could not elaborate on the contents of the voice. He also expressed some paranoid idea as he suspected he was being followed, but he did not fully believe in it. He became sensitive to others’ comments and sometimes became impulsive with an urge to scold others. Antipsychotic and anxiolytic were added to his medications. But no further admission for mental illness was needed so far.
15. According to the Plaintiff’s witness statement dated 21 January 2009, he received about 20 sessions of psychiatric treatment at PWH’s psychiatric clinic (“PWH Psy Clinic”) between 12 December 2006 and 10 October 2008, and was still attending regular follow up as at the date of his witness statement.
16. As at the date of Dr Fong’s Report (ie 22 June 2009), the Plaintiff was last seen by Dr Fong on 19 June 2009 and showed partial response to medications. He became less anxious and his mood slightly improved after adjustment of medications. But he still reported occasional irritability and poor concentration. No definite psychotic symptoms or suicidal idea were reported. His sleep and appetite were satisfactory, and he was taking various psychiatric medications.
17. Dr Fong’s treating diagnosis was that the Plaintiff suffered from moderate depressive episode, which needed regular follow up and long term medications and which prognosis was guarded as the Plaintiff never achieved full remission since the onset of the illness even after full dose of medications.
IV. Sick leave
18. The Plaintiff’s sick leave for employment compensation purpose was assessed to be from 26 November 2005 (ie the date of the Accident) to 5 January 2006, 10 to 11 May 2006, 18 May 2006, 22 November 2007 and 13 December 2007 to 30 January 2009, ie 466 days.
19. Dr Fong’s Report noted that the Plaintiff was granted sick leave from 13 December 2007 to 21 August 2009 due to his fluctuating mood.
20. According to the written submissions of Ms Ko, solicitor for the Defendants and the various medical certificates disclosed in the agreed hearing bundle:
(a) Dr Tam Fung Ling (“Dr Tam”) of PWH Psy Clinic granted sick leave to the Plaintiff for “depression” from 13 December 2007 to 23 January 2008;
(b) Dr Nip also of PWH Psy Clinic granted sick leave from 24 January to 6 March 2008 for “mood disturbance”, from 6 to 20 March 2008 for “medical follow up”, and from 20 March to 3 July 2008 for “mood disturbance”;
(c) Dr Fong of PWH Psy Clinic granted sick leave from 30 January to 17 April 2009 for “medical illness”;
(d) Dr Nip granted sick leave from 17 April to 19 June 2009 for “mood problem”;
(e) Dr Fong granted sick leave from 19 June to 21 August 2009 for “medical illness”;
(f) Dr Wong of LKS Clinic granted sick leave from 21 August to 12 September 2009 for “medical illness” and from 11 September to 20 November 2009 for “follow up for mood problems”.
V. Witness statements
21. According to the Plaintiff’s witness statement and supplemental witness statement dated 21 January and 1 September 2009 respectively, he substantially lost right eye vision which reduced his working ability. He had no income and became negative and depressed. His mood deteriorated and was unstable. He constantly worried about health (eg he was worried about whether his right eye was more prone to infection in future due to the injury) and employment (eg he was nervous thinking about the future), and had suicidal ideation. He could not sleep due to pain in his right eye, and had nightmares and insomnia. He had to take sleeping pills, psychiatric drugs and painkillers, which caused stomach upset, headaches, dizziness, loss of concentration, poor memory and depressed mood. He felt worthless and became irritable, anxious and easily angered.
22. The Plaintiff claimed that after the expiry of his sick leave, he asked the 1st Defendant whether there was work for him. He claimed to have told the 1st Defendant that his right eye vision had not fully recovered and he could not use the electric saw. The 1st Defendant arranged light duty for him, ie to assist other carpenters on a renovation project. The Plaintiff started working on the renovation project but his right eye felt painful and he had to take leave frequently in order to seek medical treatment. The 1st Defendant terminated his employment in late November 2006.
23. The 1st Defendant disagreed with the Plaintiff’s case. According to the 1st Defendant’s witness statement and 2nd supplemental witness statement respectively dated 20 January and 18 November 2009, when the Plaintiff telephoned him after the expiry of his sick leave to say he was ready for work, he assigned the Plaintiff to carry out renovation work. On 25 April 2006, the Plaintiff returned to work and carried out the same duties as before the Accident. The Plaintiff was not given any special treatment or light duty, and he did not tell the 1st Defendant of any difficulty in carrying out his work. As before the Accident, the Plaintiff’s work required judgment of distance by the eye and use of the electric saw. The 1st Defendant observed that the Plaintiff could work independently without supervision and he was satisfied with the Plaintiff’s work. On 9 November 2006, the Plaintiff left his employment with the 1st Defendant due to redundancy (ie the 1st Defendant had less work at that time and he also made 10 other employees redundant at the same time).
24. The 1st Defendant’s case was corroborated by the witness statement and supplemental witness statement of 黃柏葉 respectively dated 20 January and 18 November 2009. 黃柏葉 was the Plaintiff’s co-worker when the Plaintiff returned to work for the 1st Defendant after the Accident in April 2006. 黃柏葉claimed he saw the Plaintiff carried out the same work and had the same working hours as the other workers, and the Plaintiff used the electric saw. 黃柏葉 further claimed he did not notice the Plaintiff had any eye problem.
25. The Plaintiff in his witness statement went on to say that he could not return to long-term employment, but his doctor encouraged him to take up work to test his working ability, so he tried to work as a general labourer, decoration/renovation worker, delivery worker, casual decoration worker and miscellaneous worker, but found it was difficult to hold down a job because of his eye problem.
26. In/about January 2006, the Plaintiff’s wife left home with their son upon finding out that his right eye loss of vision substantially diminished his earning capacity. They divorced in June 2007. Subsequently, the Plaintiff had a girlfriend who lived with him. He remarried on 21 July 2008. At the date of his supplemental witness statement (ie 1 September 2009), he had a 5 month old son.
27. The Plaintiff claimed he returned to the PWH Psy Clinic on 13 December 2007 for psychiatric treatment for unstable mood and was given sick leave until 30 January 2009. He made diligent efforts to look for work during his sick leave, but could not find work after mid-December 2007. His right eye pain, his unemployment and his financial pressure caused his mood to deteriorate again. As at the date of his witness statement, the Plaintiff was still receiving psychiatric treatment.
28. In his supplemental witness statement, the Plaintiff confirmed thatin May 2009 he joined 泰運公司 as a temporary delivery worker. But he could not judge distance with his left eye and had to apply for leave to attend follow up treatment for his constant depression, so his work capacity and efficiency were substantially reduced and his employment was terminated in June 2009.
29. The Plaintiff claimed that on 21 August 2009 when he attended follow up at the PWH Psy Clinic he was found to have severe depressive symptoms and was immediately referred to Shatin Hospital for inpatient treatment. He was discharged on 31 August 2009. He said he could not return to carpentry work. But with a child and increased family expenses, he was always looking for work. However, when potential employers found out about his loss of right eye vision and his long term psychiatric medications, they would not consider employing him.
VI. Surveillance reports
30. According to the surveillance report by Great Force Investigation Consultants Ltd dated 4 December 2007, the Plaintiff was observed going to work at a renovation flat, to have lunch with his colleagues, and to purchase and carry large wooden sheet on 3 December 2007. On 4 December 2007, the Plaintiff was observed making purchase at a convenience store, travelling by bus and MTR, reading newspaper, entering a bank, going to work at the renovation flat, having lunch with his colleagues and talking on his cell-phone. Similar observations were made on 5 December 2007. It was said that the Plaintiff had resumed gainful employment as an interior decoration worker and was found working at the renovation flat. The investigators commented that the Plaintiff did not show any visual disability of his right eye as he checked his bag, read newspaper and watched his cell-phone. He was also seen to be at ease when chatting with his colleagues and did not display any sign of depression.
31. In his witness statement, the Plaintiff explained that he felt better at the time when the surveillance recording was made in November and December 2007 because he was then working and able to chat with his colleagues. But he was still taking psychiatric medications and applying eye drops at that time.
32. According to the surveillance report dated 1 June 2009, the Plaintiff was seen leaving PWH on 17 April 2009 and taking the train to Lo Wu. On reaching Shenzhen he took a coach to 佛山南海區九江鎮 and then got on a private car travelling towards 磺磯村. He then stayed at the village. The investigators stated that the Plaintiff did not display any visual disability of his right eye or any sign of psychiatric illness or depression.
VII. Psychiatric expert opinion
33. According to the joint psychiatric expert report of Dr Peter Ho (“Dr Ho”) for the Plaintiff and Dr Law Wun Tong (“Dr Law”) for the Defendants dated 28 May 2008, Dr Ho opined that the Plaintiff was suffering from a moderate depressive episode that was in partial remission, and that thePlaintiff had many symptoms compatible with a depressive episode, including depressive mood, disturbance in functions of sleep and sex, reduced interest, anxiety, fleeting suicidal ideas, impaired concentration and memory, and irritability. Sensitivity and ill-defined psychotic symptoms such as ideas of reference, vague paranoia or hallucinations could also be presenting features in patients suffering from a depressive illness with anxiety. The Plaintiff’s nightmares and anxiety about having a similar accident might be considered as anxiety symptoms that were an after-effect from the stresses at the time of the Accident or part and parcel of his depressive episode.
34. Dr Ho was of the view that it was understandable for persons with chronic pain and physical disabilities to develop depression. With the accumulation of secondary social stresses on top of the unremitting physical condition, the precipitation of depressive disorder was not unexpected. In the present case, with his eye problem and its effect upon his work, it was likely for the Plaintiff to develop mild depressive symptoms in the early stages after the Accident (such as irritability and impairment of sexual desire and interest etc) that would impair his relationship with his wife. The financial difficulties secondary to his physical disability was reportedly a contributory factor to the conflicts with his wife. The departure of his wife and son was the final blow that triggered off a full-blown depressive episode. Since there was no prior relationship problem with his wife and he seemed to be coping well with life in general, Dr Ho thought that the physical disability arising from the Accident had directly and indirectly caused the Plaintiff’s depressive episode. The litigation process might cause some degree of anxiety, but Dr Ho did not think that it was a significant contributory factor to his depression.
35. Dr Ho pointed out that anxiety and depression were aggravating factors for pain or other physical symptoms. In depressed patients, complaints about any pre -existing physical disorder (eg the Plaintiff’s previous eye condition from which he had already recovered) would usually increase and hypochrondriacal preoccupations were common.
36. Overall, Dr Ho thought there was only a low chance that the Plaintiff feigned his mental symptoms. Dr Ho was of the view that the Plaintiff’s overall diverse symptoms could be considered as reasonably consistent with what was described by other doctors. “From the medical notes available, [Dr Ho has] not found any indication of exaggeration from the doctors who had treated him on a long-term basis.” During the interview by Drs Ho and Law, the Plaintiff did not show any tendency of making an impression that his symptoms were very severe (eg he denied having any problem with self-care or having strong suicidal ideas at present, and he reported some improvement of his mental condition). Dr Ho was of the view that the Plaintiff’s difficulties in concentration and memory during the interview likely arose out of his psychiatric condition, the effect of medications and his lack of motivation in doing the tests. Dr Ho explained that patients who were more depressed and preoccupied with their own problems might likely do worse during these tests of concentration or memory, and sometimes they might not put in adequate efforts. Dr Ho opined that the Plaintiff’s depression was an understandable development from his eye problem and its effect upon him included the work problems and departure of his wife and son after the Accident.
37. On the other hand, Dr Law noted that according to the Plaintiff he did not have any mental symptoms for a few months after the Accident when he was working, but started to have mood disturbance after his employment was terminated. He turned irritable and had arguments with his wife. His alcohol consumption increased and could not sleep well at night. Later his wife left him with their son, and when his wife initiated divorce proceedings his mood further deteriorated. He felt sad and muddled. He sought medical help and was referred to LKS Clinic. He received treatment since late 2006, and reported about 10% improvement regarding his psychiatric symptoms. Dr Law noted that the development of mood changes was after the psychosocial stressors of financial and family stain, and he was of the view that the Plaintiff suffered from an adjustment disorder with prolonged depressive reaction. The mood symptoms were reactive in origin and had largely subsided with time and treatment.
38. Dr Law opined that the Plaintiff’s clinical presentation was dramatic during the assessment. He had little eye contact; he was sluggish in response and closed his eyes most of the time. In the middle of the interview, he complained of tiredness and numbness of his hand. He asked to have a rest and walked very slowly. At a question from Dr Law towards the end of the interview, the Plaintiff suddenly turned tremulous and complained he could not move his hands. In giving the medical history, the Plaintiff also complained of “hallucination” that he was followed by a Chinese person who suddenly changed to a foreigner and that he heard some imaginary voices. Dr Law said these features were not compatible with any formal psychiatric disorder or depression. Dr Law further noted that in the surveillance recording the Plaintiff was noted to socialise with friends, walk briskly, read newspapers on escalators/trains and behave quite normally, which demeanour was totally different from the presentation at the interview by Drs Ho and Law. Dr Law thought that the Plaintiff grossly exaggerated his symptoms and disabilities, and although he suffered from some mood symptoms after the Accident as a result of the associated psychosocial stressors, the residual symptoms should be mild.
39. In response, Dr Ho reminded that in general there could be some difference between the demeanour of a patient during a psychiatric interview and that observed in a surveillance recording (eg many patients would be tearful when talking about their sufferings or appear anxious/agitated when reminded of a traumatic event during a psychiatric interview but observed to be emotionally more stable when they are walking on the streets), so it was rather difficult to determine accurately the mental condition of a patient from a surveillance recording without an in-depth psychiatric interview. Many depressed or even psychotic patients might not have any remarkable external signs, and it would be more so when the patient in question only suffered from a mild depression.
40. Mr Ho further reminded that the Plaintiff had not expressed any severe symptoms of depression or psychosis, and in fact had specially mentioned improvement to his condition after he received psychiatric treatment and found a new girlfriend. There were no remarkable signs of severe depression or psychosis shown in the surveillance recording, but such recording would not have excluded any milder degree of depression or some psychological after-effects from the Accident. Although ophthalmologists were better placed to comment on the Plaintiff’s eye symptoms, Dr Ho opined that vision was a precious and vital bodily function and minor visual dysfunction could substantially affect the mental state of a person. The departure of his wife and son could also be stress factors of a sufficient magnitude to precipitate a depressive problem or adjustment reaction.
41. Dr Ho further noted that the Plaintiff honestly reported his return to work on intermittent basis and did not hide such fact from Drs Ho and Law. He also reported he would dine out with his friends at times. The surveillance recording did not show the Plaintiff to have engaged in sawing objects. Whilst the litigation might pose some stresses upon the Plaintiff, Dr Ho opined that they were not so significant as to cause any sick role behaviour. The Plaintiff had actually tried to return to work on repeated occasions, and Dr Ho disagreed that the Plaintiff was remarkably sluggish throughout the interview. He actually answered questions quite promptly on the whole and only appeared tired and sluggish at times.
42. Dr Ho opined that the tremors, visual illusions or vague auditory hallucinations were not incompatible with a psychiatric disorder. The Plaintiff did not report having frequent symptoms of visual illusions or auditory hallucinations, and he actually reported that these experiences had become less frequent recently. With regard to his behaviour demonstrated at the end of the interview (ie complaint of heaviness of his limbs with shaky hands and body, heavy breathing and dizziness, which the Plaintiff claimed to have experienced quite often, and then hitting the chair and wanting to leave the interview room as early as possible), Dr Ho thought the frustrations and stresses from a lengthy interview might have triggered such anxiety and emotional agitation. If the Plaintiff had intended to grossly exaggerate his disability for the purpose of the litigation, he might have wanted to talk more about his sufferings instead of requesting to leave the interview on his own initiative.
43. Dr Ho estimated the Plaintiff’s impairment to his whole person due to psychiatric disability alone was about 8% upon taking into account his various symptoms such as his impaired memory and concentration, irritability with low tolerance to frustrations, poor sleep, low confidence, depressive mood with anxiety symptoms, reduced interests, sexual desire and appetite etc. But the mental impairment and loss of earning capacity in relation to his psychiatric disability was estimated to be in the mild range.
44. Dr Ho noted that the Plaintiff had received treatment from the public sector so far with some degree of improvement, but many residual symptoms were detected in the interview by Drs Ho and Law. If the Plaintiff’s condition did not improve significantly after 1 year, Dr Ho recommended that he should consider seeking treatment in the private sector since the experience of the therapist directly treating the case and the time that could be spent on treatment would be generally more favourable. More intensive psychotherapy and closer monitoring of side effects or efficacy of the medications could be more readily achieved in the private sector. Whilst the exact duration and frequency of such private sector treatment depended on the Plaintiff’s response and progress, Dr Ho’s provisional estimate was a frequency of 2 sessions a month each lasting half to 1 hour for a further period of at least 2 more years if there was no marked improvement a year from the time of the assessment by Drs Ho and Law. The treatment would be for more intensive psychotherapy directed to the Plaintiff’s fear of sawing objects and his anxiety in having another similar accident as well as behavioural treatments such as systemic desensitisation.
45. On the other hand, Dr Law opined that the Plaintiff should continue treatment with LKS Clinic for about 6 months at monthly intervals after the litigation is over in order to tail off the medication he had been taking. Dr Law was of the view that the litigation was a significant perpetuating factor for the Plaintiff to maintain a sick role and was also the underlying cause for the exaggeration of his symptoms. But he acknowledged that the uncertainty of the result of the litigation might lead to some anxiety. But once this factor is removed, the Plaintiff will further improve. Dr Law did not think the Plaintiff needed any in-depth psychotherapy.
46. Dr Ho said it would be difficult to give an accurate prognosis since there were many varying factors that could affect the outcome, eg the Plaintiff’s physical, social and financial problems not to mention the effects of treatment, but overall prognosis would mainly be influenced by the progress of his eye and employment problems. Given the slow progress of these problems, the prognosis of his depressive illness was deemed to be somewhat unfavourable even though there was some overall improvement of his mental condition after psychiatric treatment and he got a new girlfriend. Although the Plaintiff’s life expectancy is not directly affected, it was well known that around 10-15% of patients suffering from more intense depression commit suicide and such risks might not be completely ignored in the long term in view of his suicidal tendency in the past.
47. According to Dr Ho, purely from the psychiatric perspective alone, the Plaintiff was considered as not being totally incapable of returning to his previous job. Although there might be some difficulties in relation to his psychiatric symptoms (eg reduced confidence and fear about sawing objects again), he would likely cope with other duties not requiring him to saw objects. From the psychiatric viewpoint he might need sick leave, but it would be difficult to predict the period needed. “A rough estimate is that of a period of four months during the most severe phase of his psychiatric illness in the past. The psychiatric doctors treating him would be in a better position to comment on the sick leave period that he would need in the future.”
48. Dr Law thought that sick leave for the psychiatric problem should be 3 months after the first consultation with the psychiatrist. Dr Law was of the view that any residual mood symptoms of the adjustment disorder should be mild and should not impair significantly the Plaintiff’s working capacity, so he should be able to return to his previous job from the psychiatric perspective. Dr Law said the limit should only be related to his eye problem. He estimated the percentage of loss of earning capacity due to the adjustment disorder to be 2%.
VIII. Defendants’ application
49. Ms Ko submitted that the Defendants’ case was that after the Accident the Plaintiff resumed working as a carpenter for the 1st Defendant between April and November 2006, and that the surveillance recordings showed no abnormality on the part of the Plaintiff in December 2007 and June 2009. This was supported by witness statements of the 1st Defendant and黃柏葉, the surveillance recordings and reports, and the psychiatric expert opinion of Dr Law.
50. Although Dr Fong’s Report stated that the Plaintiff’s chronic depression since August 2006 was precipitated by the stress from unemployment, eye injury (ie the Accident) and marital discord, the descriptions of the illness in the medical certificates by Drs Nip, Fong and Wong were general in nature and did not state that “the psychiatric problem of the Plaintiff relates to the accident”.
51. Ms Ko submitted that the Defendants should be given an opportunity to cross-examine Drs Nip, Fong and Wong given the extended period of sick leave covered by their medical certificates from January 2008 to date. It was suggested that these doctors might come to a different view if they had the opportunity to review the surveillance recordings. It was argued on the above grounds that viva voce evidence from Drs Nip, Fong and Wong would be relevant and of probative value and the Plaintiff would suffer no prejudice.
IX. Plaintiff’s opposition
52. Ms Chan, solicitor for the Plaintiff, opposed the application. She submitted that there was no suggestion that Drs Nip, Fong and/or Wong in any way acted improperly, and hence there was no need for such treating doctors to give oral evidence at trial. To allow such doctors to be called and cross-examined when there was no justifiable need would only increase the length of the trial unnecessarily and would not be conducive to the saving of costs.
X. Discussion
53. In my view, this matter can be easily resolved by a proper understanding of the role of the treating doctor and the effect of medical certificates in the context of personal injuries litigation.
54. The role of a medical professional or doctor as an expert in the medical field is different in “clinical” and “forensic” settings. In the present case, Drs Nip, Fong and Wong are medical providers and/or clinicians who have offered psychiatric treatment to the Plaintiff as summarised in Dr Fong’s Report. Such report provides documentary testimony regarding the psychiatric treatment provided, and as is usual for a treating doctor in rendering a treatment medical report, Dr Fong gives the treatment diagnosis and states whether the treatment diagnosis is causally related to the accident in question. In Dr Fong’s Report, Dr Fong also gives a prognosis from a treatment perspective.
55. On the other hand, Drs Ho and Law are independent psychiatric examiners with forensic expertise but no doctor-patient relationship with the Plaintiff. They have gathered relevant data from treatment medical records/ reports and the surveillance recordings, conducted forensic examination, and integrated clinical experience and scientific medical and mental health knowledge for the purpose of rendering expert testimony that requires objectivity regardless of the Plaintiff’s wishes or needs. The formulation of such psychiatric expert opinion requires analysis of the data gathered and testing of alternative hypothesis.
56. The above gives rise to differences between forensic and clinical evaluation. In the usual clinical setting involving doctor-patient relationship, the patient suffering from psychiatric disorder or symptoms comes to seek medical help for those problems, and it will be unusual for the clinician to critically question whether or not the patient is actually experiencing those problems or whether he is exaggerating or even malingering. It is also not normally expected for the psychiatrist clinician to seek corroboration of a patient’s information or complaint to the same extent as will a forensic examiner. Rather, it is recognised that the clinician’s treatment medical report is primarily based on the subjective symptoms reported to him by the patient and not on his independent forensic investigation (eg review of surveillance recording).
57. In the circumstances, given the psychiatrist clinician’s function discussed above, even if he is called to give evidence and admits under cross-examination that he has not critically reviewed the full medical history or investigated the patient’s information and complaints, it does not mean that such psychiatrist clinician as a treating doctor should be discredited. The true question is whether the primary subjective history and symptoms reported to the psychiatrist clinician by the patient can be supported.
58. This is also reflected in the guidance from the Court of Appeal on the effect of sick leave granted in medical certificates. In Choy Wai Chung v Chun Wo Construction & Engineering Company Limited CACV172/2004 (unreported, 15 July 2005), Rogers VP said as follows:
“ 9. On this appeal Mr Chan SC, who appeared on behalf of the plaintiff, placed great reliance upon the fact that the plaintiff had been given sick leave certificates. In my view the judge was perfectly entitled to reject these as an indication of the plaintiff’s inability to work for the reasons which she gave. It was for the judge to decide whether on the evidence the plaintiff had been unable to work and, if he had been able to work, the extent to which he was able to work. Obviously in doing so the judge must have regard to the medical evidence. Nevertheless, the judge cannot be bound by the mere issue of sick leave certificates. As the judge pointed out the issuance of sick leave certificates would be primarily because of the subjective symptoms reported to the doctors by the plaintiff.”
59. In Tam Fu Y ip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210, 214-216, Le Pichon JA said as follows:
“ 13. On the material before him, the Judge ……made the following factual finding at para.34:
I have found as a fact that the plaintiff is, as Dr Chun observes, grossly exaggerating the injury suffered in September 2002. I am satisfied that he was fit and able to return to his former employment no later than January 2003. I would, were it necessary, prefer the opinion of Dr Chun as to the length of sick leave to be allowed.
14. Notwithstanding that finding, the Judge considered that there was an impediment to his going behind the periods of sick leave given by the treating doctors because there was no evidence adduced to suggest or imply that those who had granted the plaintiff sick leave had done so improperly. He held (at para.36) that there was “insufficient evidence for [him] to revisit the integrity of the granting of sick leave”. ……
16. There is no respondent’s notice challenging the express finding made in para.34 of the judgment. …… It therefore fell to him to come up with a convincing explanation as to how para.36 could sit comfortably with para.34. As I understand it, Mr Lam’s submission is that apart from the specific finding in para.34, there was also an implied finding implicit in the Judge’s statement that he was unable to go behind the periods of sick leave given. It was said that in accepting the certificates, the Judge was also accepting that the plaintiff was unable to return to work as a result of the accident. As the express and implied findings are not contradictory, there is no reason for this court to accept one finding and not the other. But in my view the fact that the Judge appeared to be under the impression that there was some impediment to his going behind the certificates, must militate against his making any ‘implied finding’. I am far from persuaded that paras.34 and 36 can co-exist and, since para.34 is an express finding, para.36 must go.
17. Mr Lam then submitted that the loss of earnings during the entire period covered by the sick leave certificates should be recoverable as expenses honestly and reasonably incurred by the plaintiff on the basis of expert advice. …… Mr Lam also prayed in aid the fact that the doctors in issuing the certificates are subject to the code of conduct governing the medical profession and it has to be assumed that when issuing the certificates, the treating doctors were acting in accordance with the requisite standard required of them. There are difficulties with the submission. First, it is the patient who makes the request for a certificate from the doctor. Second, a doctor treating his patient may, consistently with the code of practice, issue the certificate without carrying out any detailed examination since such an examination is not always practicable or necessary. What is quite clear in the present case is that the plaintiff has been found to have grossly exaggerated his complaints. Although the exaggeration took place during the joint examination, plainly it would be open to the Judge not to disregard the possibility of the plaintiff also having exaggerated his symptoms when he saw the treating doctors responsible for issuing the sick leave certificates.
18. Since the plaintiff’s pre-trial loss of earnings is ascertained by reference to the period during which the plaintiff was prevented by the injuries sustained from returning to work, what has to be ascertained and identified is the length of that period. In my view, that is an exercise that would not require evidence to suggest or imply that those who had granted sick leave to the plaintiff did so improperly. Logically, if the finding is that the plaintiff could have gone back to work after three months, that is the period that is relevant to the assessment and award of pre-trial loss of earnings and no other. Sick leave certificates are no more than a piece of evidence that has to be evaluated in the light of all the available evidence including medical evidence before the court. As Rogers VP observed in: Choy Wai Chung v Chun Wo Construction & Engineering Co Ltd (unrep., CACV 172/2004, [2005] HKEC 1077) at para.9, the judge cannot be bound by the mere issue of sick leave certificates: the issuance of such certificates would be primarily because of the subjective symptoms reported to the doctors by the plaintiff.
19. For the reasons stated, the appeal was allowed. ……”
60. Ms Ko submitted that some of the medical certificates failed to identify with particularity the diagnosis for which sick leave was granted and it would be useful to have the doctors issuing such certificates to give evidence at trial to explain the same. Ms Ko was concerned that the judgment of Suffiad J in Li Wan Kei v Hyundai Engineering & Construction Company Limited HCPI577/2004 (unreported, 6 March 2006) would limit the full deployment of the Defendants’ defence contentions.
61. Suffiad J in Li Wan Kei said as follows:
“ 54. …… However, no steps had been taken by the defendant to challenge or even question the sick leave granted by government doctors. In those circumstances, the fact that the defendant’s expert may have suggested a shorter period of sick leave to be reasonable in this case is neither here nor there.
55. In this respect, the words of Deputy Judge Saunders in the case of Zheng Biao v. Kwok Wai Lung (HCPI 115/2001) are directly applicable where he said:
“Mr Zheng was on sick leave from 29 April 1998 to 30 September 2000. That is a period of two years and five months. There is no dispute that throughout the whole of that time he was given appropriate sick leave certificates by doctors, and there is no suggestion that those doctors have acted in any way improperly. While it may well be that a person suffering from the same injuries might have gone back to work earlier, in the absence of any evidence to challenge the validity of the sick leave certificates for the period of two years and five months, upon which Mr Zheng was entitled to rely, I am satisfied that the period of sick leave cannot be challenged. It is right that both orthopaedic surgeons have said that a shorter period would be appropriate, but neither directly question the validity of sick leave certificates issued.”
56. In the circumstances, there is no reason why the plaintiff should not be entitled to claim full loss of earnings for the sick leave period granted to him save and except for the short period of time when he actually did return to work for the defendant between 15 October to 4 December 2001 when he was paid $30,150.70.”
Ms Ko argued such observations suggested that in the absence of evidence that the claimant was a malingerer, the court would usually allow the full period of the sick leave granted under the medical certificates.
62. I disagree with Ms Ko’s arguments. In my view, Li Wan Kei and Zheng Biao cited therein do not establish any principles in relation to the evidential value of the medical certificates, but are cases confined to their own facts in that the defendants in those cases took no steps to challenge or question the sick leave period in the sense of being the period during which the plaintiffs were prevented by the injuries sustained from returning to work. It is therefore unsurprising that on the factual matrix of those cases, the learned judges abided by the sick leave granted. It does not follow from such cases that any “challenge” to or “question” over the validity of the sick leave in the medical certificates must be by way of cross-examination of the relevant government doctors.
63. But even if I am wrong and Zheng Biao and Li Wan Kei did in fact hold that the validity of the medical certificates could not be disputed where “there is no suggestion that those doctors have acted in any way improperly” and/or in the so-called absence of any evidence to challenge the same even though a person suffering the same injuries might have gone back to work earlier, such propositions do not sit well with the principles in Choy Wai Chung (which was not cited in those 2 cases) as re-affirmed by the Court of Appeal in Tam Fu Yip Fip . The guidance by the Court of Appeal is binding on me and I reject the above propositions suggested by Ms Ko.
64. Turning to the facts of the present case, there can be no doubt that it is for the trial judge to decide on all the evidence before him (a) whether the Plaintiff has suffered and still suffers from psychiatric disability to the extent that he claims, (b) whether the Plaintiff has been unable to work and if so the period for which he has been unable to work, and (c) if the Plaintiff has been able to work, the extent to which he was able to work. In respect of such adjudication, Dr Fong’s Report and the sick leave certificates are no more than pieces of evidence that have to be evaluated in light of all the available evidence including treatment medical evidence, evidence from witnesses as to fact as well as expert psychiatric evidence from Dr Ho and Dr Law. In weighing such evidence, the trial judge is not bound by Dr Fong’s Report or by the mere issue of the medical certificates. Rather the trial judge will recognise that such evidence is primarily based on subjective symptoms reported by the Plaintiff without the benefit of forensic examination or investigation (which is often not practicable or necessary for treatment purpose), and he will critically weigh such evidence against the other pieces evidence before him.
65. From the above, it is clear that the Defendants intend to adduce at trial witness evidence from the 1st Defendant and黃柏葉 as to the Plaintiff’s ability to return to pre -Accident work as a carpenter and to usethe electric saw after the Accident, surveillance evidence that shows the Plaintiff working as an interior decorator and apparently behaving normally without depressive or other psychiatric symptoms in December 2007 and June 2009, and psychiatric expert evidence from Dr Law that suggests that the Plaintiff has grossly exaggerated his disabilities and that his working capacity should not be significantly impaired. Cross-examination of the Plaintiff with the aid of such evidence will provide sufficient material to test the primary underlying premise of Dr Fong’s Report and the medical certificates. If the Plaintiff’s credibility and evidence cannot withstand such cross-examination and/or if the other evidence referred to above prevails, the foundation for Dr Fong’s Report and the medical certificates premised on subjective history and symptoms reported by the Plaintiff may become questionable without any need to find impropriety on the part of the treatment doctors.
66. I bear in mind that Drs Ho and Law are in agreement that the Plaintiff was suffering from a mental disorder. Although Dr Law used the diagnostic label of adjustment disorder with prolonged depressive reaction and Dr Ho used the diagnostic label of depressive episode, which was of moderate intensity in the past and now in partial remission, the psychiatric experts both agree that “the psychosocial stressors such as [the Plaintiff’s] employment and financial problems, the divorce with his wife and son leaving him are significant factors in precipitating his mental disorder”. This echoes Dr Fong’s Report which states that the Plaintiff’s low mood was mainly precipitated by stress from inter alia his unemployment and marital discord. Both psychiatric experts also agree that purely from the psychiatric viewpoint, the Plaintiff is still considered capable of returning to his pre -Accident work although Dr Ho considers there may be some difficulties in relation to his fear of sawing objects again. There is disagreement between the psychiatrists as to whether in-depth psychotherapy is needed, but they both consider permanent psychiatric impairment and loss of earning capacity are in the mild range and the Plaintiff can continue with psychiatric treatment in the public sector, but Dr Ho recommends transfer to the private sector if there is no significant improvement after a year.
67. The substantial differences between the psychiatric experts are (a) whether (according to Dr Ho) the chronic eye problem and eye pain were significant causative factors for the Plaintiff’s mental disorder (see also Dr Fong’s Report) or whether (according to Dr Law) the Plaintiff has grossly exaggerated his disabilities and the litigation has perpetuated his sick role (to which proposition Dr Ho disagrees), and (b) whether (according to Dr Law) the psychiatric sick leave should be for 3 months after the Plaintiff’s first consultation with the psychiatrist or whether (according to Dr Ho) such sick leave should be for 4 months during the more intense phase of his mental disorder leaving future sick leave to be determined by his treating psychiatrists. These differences essentially turn on the reliability of the Plaintiff’s subjective report of his history and symptoms, and on the credibility of his assertions on his ability to return to work.
68. In such circumstances, I am satisfied that cross-examination of Drs Nip, Fong and Wong is not necessary or probative in value. I have carefully borne in mind the need to be fair to both parties, but plainly there is sufficient evidential material to assist the trial judge to form a concluded view upon the parties’ respective stance upon assessment of such evidence. In coming to this view, I bear in mind the underlying objectives in Order 1A of the Rules of the High Court to promote a sense of reasonable proportion in the conduct of proceedings and to deal with the case as expeditiously as is reasonably practicable. To burden a trial with unnecessary oral evidence does not advance such underlying objectivesnor enhance the just resolution of disputes in accordance with the substantive rights of the parties.
XI. Conclusion
69. The Defendants’ application is therefore dismissed. There is no reason why costs should not follow event. I therefore grant a costs order nisi that the Defendants do pay the Plaintiff’s costs of the Defendants’ application, including costs reserved pursuant to paragraph 14 of my order dated 30 November 2009, in any event to be taxed if not agreed. There shall be legal aid taxation of the Plaintiff’s own costs.
70. After the hearing before me, the parties jointly wrote to the PI Master to report on progress of the matter. I hereby also grant further consequential case management directions as follows:
(a) The respective ophthalmology experts Dr Liang Chan Chung Benedict and Dr Cheng Sek Hong do on or before 5 March 2010 compile joint supplemental report pursuant to their joint examination of the Plaintiff on 12 January 2010. In the joint supplemental report, the ophthalmology experts shall have regard to paragraphs 86-87 of Practice Direction 18.1 and shall state (i) all the issues upon which they reached a common opinion and (ii) all the issues upon which they failed to reach a common opinion, and further state (iii) their competing view on each and every such issue and (iv) the reasons for their disagreement with the opposing view. In particular, the joint supplemental report should fully address any divergence in opinion in relation to the effect of the Plaintiff’s pre -Accident eye condition.
(b) There be extension of time until 19 March 2010 for the Plaintiff to comply with paragraph 8 of my order dated 30 November 2009.
(c) There be extension of time until 7 April 2010 for the Defendants to comply with paragraph 9 of my order dated 30 November 2009.
(d) There be extension of time until 21 April 2010 for the parties to comply with paragraph 10 of my order dated 30 November 2010.
(e) The parties shall ensure that (i) counsel’s advice on evidence liability and quantum have been obtained and (ii) all outstanding interlocutory applications as advised by counsel have been sought by 21 April 2010.
(f) The CLR hearing on 1 March 2010 at 10:30am be vacated and adjourned to 3 May 2010 at 11:30 am.
(g) Save as provided as aforesaid, paragraphs 16 and 18 of my order dated 30 November 2010 do stand.
(h) No further or additional expert medical reports shall be obtained or adduced without leave of the PI Master.
(i) PI Master shall be notified at once and in any event within 3 days if any of the above dates or directions are not met.
(j) Liberty to apply.
(Marlene Ng)
Representation:
Ms K Chan of Messrs Yip, Tse & Tang for the Plaintiff.
Ms G Ko of Messrs Winnie Leung & Co for the 1st and 2nd Defendants.