LAI YUK SHIM v. HUNG LING KWOK

HCPI 684/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 687 OF 2010

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PRACTICE NOTE

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1.  This matter came before me as an appeal from the decision of a master who refused the plaintiff’s application for leave to adduce psychiatric evidence. I had reserved my decision after hearing submissions. However, before I was able to hand down my decision, the parties reached a full and final settlement of the case. Notwithstanding the happy resolution of the dispute, it is pertinent for me to deal with the master’s reasons for refusing leave in order to clear up some common misconceptions and to provide guidance to personal injury practitioners.

2.  The plaintiff in this case suffered serious injuries in a road traffic accident, including fracture of the spine, ribs, right forearm and a large laceration, with glass fragments, over her scalp.  She was reported to suffer from low mood, anxiety, frequent sleep disturbances with dreams and nightmares, flashbacks of the accident, increased irritability, fear of travelling by public transportation, and feelings of grief for those who died in the accident. She was diagnosed to suffer from post-traumatic stress disorder (“PTSD”) related to the accident with depressive features.  She was treated for this condition and her treating doctor suggested that her prospects of recovery were optimistic.  It was recorded in the later medical notes that she was distressed by the legal proceedings and also by her relationship with her former solicitors.  It was also recorded in another medical note that she reported anxiety due to legal process, with sleep disturbance and muscle tension.  

3.  The master came to the view, after a perusal of the medical notes and records, that the plaintiff had suffered a relapse of her condition that was not caused by the accident but by her anxiety over litigation.  For this, and other reasons, the master refused leave to obtain a report from a single joint psychiatric expert.

4.  The principles governing the grant of leave for evidence to be obtained, and adduced, from a psychiatrist or psychologist have been set out in my decisions in Fung Chun Man v Hospital Authority & Anor[1], Tang Tik Ping v Kai Shing Construction Co.[2] and the decision of Master Ng in Lau Mei Wah v Li King Yin & Anor[3].

5.  The court has to make a case management decision and, in the exercise of its discretion, will refuse leave in cases where the causal link between the alleged tort and the psychiatric illness complained of was tenuous, where the cost of obtaining such evidence was disproportionate, or where the grant of leave to adduce such evidence would be contrary to the need to ensure cost-efficient and speedy resolution of the personal injury litigation.

6.  In this case, the master found that the plaintiff's relapse was not caused by the accident but by her anxiety over litigation.  For this reason, the master concluded that the plaintiff had failed to demonstrate a nexus between the accident and the psychiatric injuries.

7.  The master or the court must weigh the materials presented to it and make an assessment, based on those materials, of whether or not it can be suggested that there is a causal connection between the alleged tort and the alleged psychiatric condition.  Even if it can be suggested on those materials that there is such a causal connection, the master must come to a view, based on those materials, on whether that causal link is strong or tenuous, as part of the balancing exercise in the discretionary decision on whether or not to grant leave to obtain and adduce psychiatric or psychological evidence.  On such an interlocutory application, the master or court cannot, and should not, make a finding of fact, as apparently was done by the master in this case, that the plaintiff's relapse was not caused by the accident but by her anxiety over litigation.

8.  In any event, a relapse of a psychiatric condition as a result of anxiety generated by ongoing litigation is unlikely to be regarded as a new cause unrelated to the tort.  As I had observed in Fung Chun Man v Hospital Authority & Anor.[4]:

“Whilst the 2^nd defendant is not under any duty to admit liability in a timely fashion, the tortfeasor who prolongs litigation by failing to admit his responsibility at the first opportunity and, thereby, permits the victim’s loss and damage to continue, or to be aggravated, is responsible for the entirety of the loss and damage suffered, unless the tortfeasor can successfully establish that the victim has failed to mitigate his continuing or aggravated loss and damage. No such plea of failure to mitigate has been advanced in the present case, and rightly so. Despite the very early plea by Dr Ng for the provision of counselling and rehabilitation services to the plaintiff, none has been provided up to the present time. As Rogers VP said in Lam Pui Yi Anita v Secretary for Justice [2011] 1 HKLRD 56 :

‘46. … If in resisting [the plaintiff’s] rightful claim, the party in breach has aggravated the harm to the injured party and caused the sickness that came to the harmed party to linger and remain manifested, then if that sickness and manifestation are not contrived or feigned, the chain of causation from the original accident has not been broken; rather it is the party that has acted wrongfully that has failed to right the damage.’”