KWAN TAT KUEN v. CHEUNG CHOI t/a HO TSUN CO AND OTHERS

HCPI 899/2006

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 899 OF 2006

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REASONS  FOR  JUDGMENT

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1.  This was an appeal against part of the P I Master’s order of 8 March 2007 which dealt with expert evidence.  The order was that the expert evidence be limited to:

(1)     that of the psychiatrists, Professor Tang Wai Kwong for the plaintiff and Dr K Singer for the defendants, and that their reports be adduced without further evidence;

(2)     the report of the plaintiff’s orthopaedic expert; and

(3)     the parts of the report of the plaintiff’s clinical psychologist, Dr Anita Leung, which relate to the treatment needed by the plaintiff.

The defendant appealed against the last provision and sought to have it struck out.  I allowed the appeal.  I now give reasons.

2.  The plaintiff, who was an electrician met with an accident at work when he touched a live wire and suffered a shock and electric burns.  He also fell off a ladder and suffered injuries thereby.  Liability is in issue.

3.  It is not in dispute that the plaintiff suffers from post-traumatic stress disorder (PTSD).  He says that he cannot return to work, because he is afraid of working with electric wires.  Professor Tang says that the plaintiff has a major depressive disorder as well as PTSD, but Dr Singer does not agree with that.  Both psychiatrists agree that psychiatric and psychological treatment are needed.

4.  Professor Tang says that psychological treatment “would be highly desirable”, on a weekly basis for 10 sessions, and this is only available in the private sector.  Dr Singer says that treatment in the private sector treatment would be for four sessions at $1,250 per session and would include desensitization and exposure procedures.  Professor Tang replies that at least 10 sessions are needed to receive a 60% response rate.

5.  Dr Anita Leung, the clinical psychologist instructed by the plaintiff, also diagnosed PTSD.  The part of her report to which the Order relates says that with a course of about 20 sessions of psychological treatment, the plaintiff’s symptoms of PTSD can be further alleviated and his family and social relationships can be enhanced.  The treatment can help him to eliminate fear of seeing and working with electric wires, though it may not revive his trust in other people’s respect for industrial safety to enable him to return to his old trade, and vocational retraining may be necessary.  The psychological treatment would cost $1,500 per session in the private sector. 

6.  The defendant argues that this part of Dr Leung’s report is unnecessary.  Further, if the rest of the report, which shows the basis for the recommendation as to treatment is not to be admitted, the probative value and relevance of this part are in question.  In brief, the court has enough evidence from the psychiatrists on which to make up its mind as to what psychological treatment is needed, if any. 

7.  I note that in a later report, not then disclosed or covered by the Master’s order, Dr Leung accepted that 15 sessions of treatment might be sufficient.  So we are looking at, on the plaintiff’s side, opinions that either 10 sessions or 15 sessions are necessary; the difference in cost is $7,500.  On the defendant’s side there is an opinion that four sessions at $1,250 per session, i.e. a total price of $5,000 are necessary, and that those four sessions could and would be provided by a psychiatrist anyway.

8.  The plaintiff’s counsel argued, first of all, that the order had been made by consent and therefore the defendant is bound by it.  This was, apparently, a new point not raised in correspondence.  The plaintiff’s second argument was that the evidence concerned is relevant, necessary and of probative value.

9.  There was also some argument about an order made in the related employee’s compensation proceedings.  HH Judge Ng ordered that the expert evidence be limited to orthopaedic and psychiatric evidence, and awarded costs of and thrown away by the plaintiff’s replacement of Dr Leung with a psychiatric expert.  However I do not think that this really concerns me here. 

10.  I noted that the Master’s Order was not expressed to be “by consent” and that the costs involved in adjourning the hearing and investigating the matter would far outweigh the cost of the psychological treatment which is in issue, and declined to investigate the matter.

11.  It is well known that expert evidence should not be allowed to proliferate.  In Chan Kwok Ming v. Hitachi Electric Service Co. Ltd, HCPI 322/2002, Suffiad J held that the proper criteria to determine whether any expert medical report can or should be admitted into evidence are necessity, relevance and probative value.

12.  In this case, the two psychiatrists both deal with the necessity or desirability of psychological treatment.  As far as I can see there is no dispute that the plaintiff should have it.  There is some dispute as to whether the psychological treatment should or would be included in the psychiatric treatment anyway; but apart from that, the dispute between them on psychological treatment is on the number of sessions needed.

13.  There is sufficient material in the psychiatrists’ evidence for the court to make up its mind on this point.  The evidence of the psychologist on the number of treatment sessions required contradicts that of the plaintiff’s own psychiatrist.  It was in any event varied by the psychologist’s later report which was in existence, should have been put before the Master, and in my view would have to be put before the trial judge.  The psychologist’s report does not give the court any more assistance.  It is quite simply unnecessary.

14.  For this reason I allowed the appeal.