SO CHEUK YI v. PANG HARLING HARRY

HCPI 526/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 526 OF 2007

----------------------

----------------------

----------------------

D E C I S I O N

----------------------

1.  This is a late application to adduce additional psychiatric evidence where the case should have been set down in January this year and supposedly be warned in 2 weeks’ time. 

2.  The Plaintiff was a teenager when she received orthodontic treatment from the Defendant, and it is alleged that the treatment should properly have required a dental surgeon as opposed to orthodontist.

3.  The former solicitor, Messrs. Rita Law & Co., did not comply with the order of Saunders J at the Pre-trial Review on 3 December 2008 to set the case down for trial not to be warned before mid-June 2009.  It went to a new firm of solicitors last week, and hence, this late application.

4.  Expert reports have been adduced:

(1) on liability by respective orthodontist experts for the Plaintiff and the Defendant; and

(2) on quantum as to prospective remedial operation by a dental surgeon expert for the Plaintiff only. 

5.  The Defendant was willing to go by the Plaintiff’s expert evidence on quantum and elected not to adduce any evidence on his side at the last PTR.

6.  As I said, the case was not set down as it ought to have been.  Now the Plaintiff’s new lawyers want to adduce new psychiatric evidence.  There is also the problem of lack of expert evidence on quantum for the Defendant to meet the substantial amendments in the Revised Statement of Damages which has been served on the Defendant’s solicitors in January this year but not filed in Court.

7.  I come to the psychiatric evidence first.

8.  The affidavit of Mr So, for the Plaintiff, apparently filed yesterday but not reached me through the system as yet, enclosed a psychiatric report from the treatment psychiatrist, Dr MK Au.  Dr Au diagnosed the Plaintiff in suffering from Generalized Anxiety Disorder with worry about her present condition and further treatment.  He also believed that the diagnosis of Dysthymic Disorder is tenable, affecting social, occupational and interpersonal relationship.

9.  I pointed out that if the Plaintiff’s former solicitors had complied with the PTR order, the case would have been set down and on the Warned List within 2 weeks or so.

10.  Dr Leong, solicitor for the Defendant, submitted that the Defendant is not ready to go for trial because the Revised Statement of Damages presented massive inflation on entirely different bases from the original, and the Defendant will have to engage his own expert on quantum.

11.  I do not know whether it is fortunate or unfortunate that the Revised Statement of Damages was not filed.  On the basis that the proposed revision was going way beyond the confines of the original one, I order that the case is to go on trial on the original Statement of Damages and existing evidence on quantum.

12.  As to psychiatric evidence, it does not need an expert to say that a teenager receiving long protracted improper treatment resulting in jaw deformity will likely be suffering from anxiety and fear for future operation.  But surgery is a must, and the trial judge can deal with anxiety.

13.  While Dr Au was categorical that all criteria under DSM-IV for Generalized Anxiety Disorder were confirmed, he only believed that  Dysthymic Disorder was tenable.  The diagnosis is not confirmed in the same terms and it comes simply too late.  As stated in the new Practice Direction, late change of legal representation is no excuse for re-writing the case management timetable.  

14.  Hence, I disallow the additional evidence by reason of lateness. 

15.  Dr Leong informed the Court that the Defendant had tried to initiate settlement negotiations as well as mediation, but there was no response from the Plaintiff’s former solicitors.  They are still in mind to invite the Plaintiff to go for mediation.  

16.  It is agreed that the existing expert reports are to be adduced without oral evidence, and 3 days are needed.   I shall list the case in the Fixture List on September 22 to 24 (3 days) to make up for lost time on the one hand, and also that the parties may have sufficient time to catch up on the settlement negotiations and/or mediation, if so advised.

17.  I order that today’s costs be Defendant’s costs in the cause.