HUI CHUNG WAI v. TANG CHI FAI

DCPI 1711/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1711 OF 2007

______________________

______________________

REASONS FOR DECISION

Background to the present summons

1. On 29 January 2005, the Plaintiff was injured in a traffic accident.

2. On 14 September 2006, the Plaintiff issued a Writ of Summons to sue the Defendant for damages allegedly arising out of the Defendant’s negligent driving of a vehicle.  The even-dated Statement of Damages gave a list of “Cognitive/psychological impairment” as a result of the accident. 

3. On 16 November 2006, the Defendant filed a Defence denying both liability and quantum.

4. On 18 October 2006, the Plaintiff was first treated by a psychiatrist in Castle Peak Hospital.

5. On 2 May 2007, the Plaintiff was treated by a clinical psychologist in Tuen Mun Mental Health Centre as earlier on referred from the psychiatrist in Castle Peak Hospital. 

6. The parties had a joint orthopedist report dated 17 March 2007 prepared by Dr. Jack Wong for the Plaintiff and Dr. Lam Kwong Chin for the Defendant.  Dr. Wong mentioned [in paras. 28-29 of the report] as follows:

28.	Mr. Hui claimed that he also suffers from psychological symptoms such as insomnia, nightmare, and phobia on riding vehicles.
29.	Dr. Wong suggests that Mr. Hui should be assessed and treated by psychiatrist for his (alleged) psychiatric symptoms.

7. Up to the Checklist Review held on 24 September 2007, neither the parties nor the Court had any indication for calling expert witnesses.   

8. On 26 September 2007, upon the Plaintiff’s solicitors’ instructions, Prof. Lo prepared a clinical psychologist report of the Plaintiff (“Prof. Lo’s Report”).  

9. On 4 December 2006, the Plaintiff filed a Revised Statement of Damages to reduce the quantum.

10. On 9 November 2007, the Plaintiff took out the present summons to adduce Prof. Lo’s Report as evidence at trial.  The Defendant resisted the summons. 

The Plaintiff’s alleged cognitive/psychological impairment

11. It was important to know the relevant allegations in the Plaintiff’s case before one could go any further.  Both the original and the Revised Statements of Damages gave a list of cognitive/psychological impairment, among others, as follows [Hearing Bundle at pp. 160-161]:

-	Phobia of driving
-	Phobia of traveling in high speed in any vehicle except train
-	Occasional nightmare related to traffic accident – about 1 to 2 times every a couple of weeks
-	Impairment of concentration – cannot watch TV for long, otherwise feeling very tired
-	Slowness in thinking
-	Easily feel tired

12. These were not specifically stated in the present summons or the Plaintiff’s Skeleton Arguments.  I singled them out as they, among other forms of impairment, apparently affected his ability to drive (“Driving-related Impairment”).  No doubt the Plaintiff would have to draw support for such impairment from Prof. Lo’s Report at trial. 

The Plaintiff’s case

13. In the Plaintiff’s Skeleton Arguments, the Plaintiff confined to argue [at p. 2] for its admission because so far there was no evidence on the full extent of impairment of the Plaintiff and in particular the psychological impairment on the Plaintiff’s ability to drive.  My initial reaction was that it might not be a substantive factor in assessing quantum, given that it would require quite a string of causation for a promise (to learn to drive and then work for the employer as a driver cum delivery-man) to materialize.  Nevertheless, without usurping the function of the trial court, I would determine the issues in the present summons irrespective of the aforesaid concern. 

14. The Plaintiff submitted that Prof. Lo’s Report was of relevance, necessity, and probative value. 

The Defendant’s case

15. Ms. Yuen on behalf of the Defendant submitted that Prof. Lo’s Report was not so.  However, Ms. Yuen did not deal with each limb separately.  I would try to formulate her case. 

Relevance

16. There seemed to be no argument put forward by the Defendant under this limb.  In my judgment, evidence of the Driving-related impairment would be relevant in determining quantum. 

Necessity

17. Ms. Yuen cited the case of Kwan Tat Kuen v Cheung Choi trading as Ho Tsun Company HCPI 899/2006.    She argued that the Court would not admit the evidence of a clinical psychologist in place of a psychiatrist.  I understood that Deputy Judge Muttrie disallowed the clinical psychologist’s report as “simply unnecessary” because both parties’ psychiatrists had already canvassed diagnosis and treatment, and not, as Ms Yuen sought to submit, that the clinical psychologist was not qualified as an expert there.  In our present case, so far there was no evidence on this aspect.  Such evidence would be necessary.

Probative value

18. The main thrust of Ms.Yuen’s argument [per paras. 19 and 24 of her Skeleton Submission and para. 48 of her Supplemental Skeleton Submission] was that such impairment was “mental illness”the determination of which fall outside the expertise of a clinical psychologist.  I would not agree.  The Driving-related impairment could not be regarded as “mental illness”.  It would be absurd to suggest that anyone having, say, a phobia of driving, suffered a mental illness. 

19. She also argued that psychosomatic illnesses must be treated by psychiatrists on the basis of Cheung Yuen Fan Sally v Hong Kong University of Science & Technology HCPI 106 & 107/2003.  The plaintiff there suffered an illness called “Sympathetic hyperreflexia manifesting asmusculo-fasciitis”.  Master Kwan stated that:

Psychosomatic illnesses are diseases of the mind.  The treatment of these conditions should be confined to medically qualified professionals.  Clinical psychologists are not normally medically qualified, and are referred to as “doctors” by virtue of their PhD degrees.  Therefore a non-medically qualified clinical psychologist’s report cannot be relevant or necessary in the circumstances. 

20. That case could not assist Ms. Yuen for two reasons.  Firstly, that case was about psychosomatic illnesses.  In our present case the Driving-related impairment was not “illness”, though it affected productivity and enjoyment of life.  Secondly, that case was about treatment only, not assessment of impairment or, if I might be more precise, psychological impairment.  A clinical psychologist would no doubt be qualified to make any psychological assessment and psychotherapy.  Actually in Prof. Lo’s letter dated 6 January 2008, he explained as follows:

[A]  psychiatrist will have less training in the theory and practice of psychotherapy than will registered clinical psychologist.  Even thought many psychiatrist do seek out such training, the majority of them increasingly focus on medication management.  Further, psychologists tend to have more training in psychological assessment.

21. Ms. Yuen challenged his explanation [per para. 42 of her Supplemental Skeleton Submission] as being “self-serving”.  I would not regard it the proper test here.  For the purpose of this summons, we could not go beyond the face meaning of the evidence. 

Conclusion

22. I would rule Prof. Lo’s Report admissible for what it canvassed as the assessment and psychotherapy of the Driving-related impairment.  The rest of the report would not be relevant.  I understood that the parties would soon attend a Checklist Review to deal with, among others, the issue of what experts, if any, to be called at trial. 

23. I order that the editing by the Plaintiff be done within 7 days from today.  The parties should try to agree on the edited version prior to the Checklist Review so that they can preserve that date.  If the parties disagree on the editing, they should apply before me for ruling.  I order no costs nisi.  This costs order shall become absolute after 28 days from today.