CHEUNG YUEN FAN SALLY v. HONG KONG UNIVERSITY OF SCIENCE & TECHNOLOGY

HCPI 106 & 107 /2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTIONS NO.106 & 107 OF 2003

(Consolidated pursuant to Order of Master Woolley dated 6.2.04)

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D E C I S I O N

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1. This was an application by the plaintiff for leave to obtain various expert medical and quasi-medical reports.  The application was resisted by the defendant.

Background

2. The plaintiff (“P”) was employed by the defendant (“D”) as a “student dormitory attendant” between June 1996 and February 2000.  The main duty of a “student dormitory attendant” is to clear away the rubbish from the dormitories. P claims that she suffered personal injuries on two occasions whilst working for D.  In the 1^st alleged accident, on or about 30 January 2000. P says her right wrist was injured as a result of having to throw 57 bags of rubbish into 4 ft-high dumpsters.  About two weeks later, on or about 14 February 2000.  P says she injured her right upper limb and neck throwing around 10 bags of rubbish on to fully laden dumpsters.  At the material time P was 35 years old.

3. P was treated privately by orthopaedic specialist Dr Gary PK Ng on 14 February 2000.  He noted that her chief complaint was right upper limb pain, and examination showed limited right shoulder and right wrist movement. She also complained of “diffuse tenderness”.  However the X-ray of the cervical spine was “normal”.  Later, the MRI of the right shoulder taken on 3 May 2000 was “normal, with no obvious tear”.

4. P was also treated by Dr David Fang the well-known orthopaedic surgeon.  He saw her on many occasions between June 2000 and May 2001.  In his reports dated 14 September 2000 and 22May 2001 Dr Fang relates a series of symptoms ranging from spastic gait, pain of the right arm, shoulder, neck and hand, to restricted movement, diminished sensation and numbness of the right arm, to dizziness and nausea.  Dr Fang did not give a diagnosis of the cause of P’s symptoms.

5. P was also seen and treated by psychological, urological and “pain” experts of various government hospitals.  It is P’s case that the psychological, urological and pain symptoms were all caused by injuries sustained in the two accidents in January and February of 2000.

6. In January 2006, P’s solicitors obtained a report from Professor PC Leung of the Department of Orthopaedics & Traumatology, Faculty of Medicine, Chinese University of Hong Kong.  Professor Leung made a diagnosis that P was suffering from a condition called “Sympathetic hyperreflexia manifesting as musculo-fasciitis”.

7. Professor Leung explained that this condition “is well known to be resistant to any standard form of treatment since it has a strong musculo-skeletal origin and yet is also psychosomatic.  Orthopaedic treatment does not offer much.  Physical therapy might help, just like chiropractice would help.  Once heavy pain medicine is started, it is really difficult to wean off.”

8. At the Check List Review on 10 January 2006 solicitors for P sought leave to adduce reports from the following medical experts and quasi-medical experts: (1) Urologist; (2) Clinical Psychologist; (3) Pain Expert; (4) Chiropractor; (5) Orthopaedic consultant. D objected to leave being given for all expert medical reports applied for, save orthopaedic reports, and so the matter had to be adjourned for argument.

9. At the hearing on 1 March 2006, P withdrew the application for an urologist’s report, and asked instead for a report from an expert in Ergonomics & Biometrics.

Chiropractor

10. After a short discussion, it was agreed that leave be given to P for the report of Dr Albert Leung dated 18 June 2004 to be adduced for perusal by the trial judge in the same manner as government hospital reports, without oral evidence from the maker.  It would then be for the judge to afford that report whatever weight he considered to be appropriate.

Ergonomics & Biometrics “Expert”

11. Experts’ reports on liability are not normally allowed in personal injury cases.  In this application, P relied on the authority of Lai Wah Wai v Castco Testing Centre Limited HCPI 422 of 1995 in support of an ergonomics and biometrics’expert’s report.  Having considered the authority, I find that the Castco case cannot assist the P because it can be easily distinguished.  Here the work involved the action of placing garbage bags into dumpsters.  The disposal of bags of garbage is an everyday activity, and one that the trial judge will be quite able to decide, using his general knowledge and common sense.  The P cannot make out a prima facie case for an expert’s report on liability, and I am reminded of the comments of Suffiad J in Tong Ho Wing v Wong Fuk HCPI 1369 of 1999.  He said at paragraph 10 of the judgment

“	[Counsel] has not even begun to tell me how this case is an exception to the general rule, thus necessitating expert evidence.”

12. The application for an expert’s report on Ergonomics & Biometrics is refused as P has not shown that this case is an exception to the general rule.

Other Expert Reports

13. The criteria in relation to the obtaining of expert reports (which includes psychologist’s and pain specialist’s reports) were restated by Mr Justice Suffiad in Chan Kwok Ming v Hitachi Electric Service Co Ltd HCPI 322/2002.  That is, any party making an application for an expert’s report must show that the criteria of “necessity”, “relevance” and “probative value” have been satisfied.

14. In the present circumstances the principles stated in the case of Ho Man Fong v Sime Darby Motor Services Ltd HCPI 1096 of 2003 should also be borne in mind.  At paragraphs 99 and 100 of that Judgment, the PI Judge ruled that the plaintiff be disallowed the costs of the psychiatric report of Dr Peter Ho Pang Nin and the costs of calling him to give oral evidence because

“	that evidence was wholly unnecessary and the plaintiff’s case could very well have been brought on the basis only of the psychiatric reports from North District Hospital outpatient psychiatric department.”

The Judge went on to observe that

“	There has been a growing tendency in Personal Injuries litigation whereby plaintiffs have been alleging psychiatric impairment quite unnecessarily as in this case, probably in the hope that it will increase the quantum which they will recover at the end of the day.”

15. In this case the P is in possession of many reports from various government hospitals dealing with the treatment given by clinical psychologists and “pain experts”.  Therefore consideration must be given to whether P’s case could be brought on the basis of the government hospital reports alone.

Clinical Psychologist’s report

16. Mr Wan’s submissions can be summarized thus: Prof. Leung had made a diagnosis of “Sympathetic hyperreflexia manifesting as musculo-fasciitis”, therefore a clinical psychologist’s report can assist the court. Such a report can show what treatment is required by P, and also show the duration of the treatment. 

17. Having studied his report I find that Prof. Leung did not suggest in his report that P should obtain a clinical psychologist’s report.  This is what the professor said:

“	Psychotherapy
	Psychotherapy will help but would not be full guarantee to her complete recovery.  She had to realize that her present state could have been triggered off by the episode of wrist injury and yet could not be solely explained by the injury alone.  She had to try to overcome her own problems rather than relying on passive support, compensation or other forms of therapy.”

18. Hyperreflexia is a condition of the nervous system, and usually relates to the spinal cord after injury.  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.  I am emboldened in this view because the P is recorded as having told the doctor at Queen Mary Hospital that she “did not want to have further clinical psychological service”  (page C57 of the Bundle).  It would be throwing costs away to force a reluctant P to undergo psychological treatment.

Pain Specialist’s report

19. In dealing with personal injury actions every single day, I know there is a paucity of so-called “pain specialists” in Hong Kong, and none is prepared to compile an expert’s report.  In another PI action, the parties had to find pain experts abroad.  Given that “pain specialists” are expensive and difficult to find, one must be quite sure of the necessity of such a report before leave is given.

20. The P is being treated in local government hospitals for “pain”.  The various reports in the hearing bundle show that no one is quite sure whether she is genuinely suffering from pain; and if she is, what sort of pain she is suffering from, and in which part of her body P feels the pain.  I have prepared a chart of the many references to “pain” in the documents in the hearing bundle.

Page of Hearing Bundle	Description of Pain/Condition	Location
C4	Chronic pain syndrome	Neck
C5	Tendenitis	right wrist
C6	pain & hypersensitivity	right arm
	Reflex sympathetic dystrophy	right arm
C7	pain	neck
C9	chronic pain syndrome	neck & R arm
C11	chronic pain syndrome	R side of body
C13	chronic back pain syndrome	back
C14	neuropathic pain	neck & L upper limb
C16	pain	R wrist & side
C19	pain	R wrist, R upper limb, neck
C23	severe pain	neck, L upper limb
C25	pain	neck, R upper limb
C26	pain	entire body
C32	pain	shoulder
C37	neuropathic pain	neck, R upper limb
C38	pain	neck
C46	severe pain	neck, R upper limb
C50	radicular pain	Neck
	RSDS (reflex sympathetic dystrophy syndrome)	R upper limb
C51	psychomatic pain	R upper & lower limb
C56	pain	neck & back
C57	pain	R wrist, R upper limb, neck Generalized, upper limbs & Lower limbs
C58	pain	R arm, hand, neck
C61	Pain	neck, back, R shoulder & arm
	Autonomic hyperflexia	R arm, R hand
	Sympathetic hyperflexia	neck & back

21. It is difficult to see how P can show that a pain report is of relevance when P’s solicitor is unable to identify or show the kind or type of pain allegedly suffered.  The “pain” suffered by P could be psychomatic, (according to the opinion of Professor Leung) and not the result of trauma.  If it is a form of psychosomatic pain, then a psychiatric report might be more appropriate than a pain specialist’s report.

22. Even if a “pain specialist’s” report is obtained, the report cannot be used to prove that P is in fact suffering pain, or the degree of pain, and disprove malingering. “Pain” and “Suffering” are subjective.  Despite our advanced technology, no “pain thermometer” exists to take an accurate measurement of how much pain a person is suffering.  The “pain expert” draws his material from two sources, (1) from medical records, treatment records and records of drugs and medication prescribed; and (2) information gathered from the patient through questionnaires, for instance the “BAP” or Behavioral Assessment of Pain, as described in the American Journal of Pain Management (1992) Vol 2 No 4 p 181-191.  Therefore even if the trial judge is satisfied that the pain specialist’s report is unimpeachable, the issue is still whether P’s claim that she is suffering from pain is credible.  The trial judge will not need to rely on the opinion of a pain specialist to decide whether a witness is credible.  In the circumstances, as P’s claim can be brought on the basis of the government hospital reports, I rule that a report from a “pain specialist” is not necessary.

Conclusion

23. For all the reasons given herein, I rule in favour of the defendant in relation to all the contested matters argued.

(a)	The application for an Urologist’s report has been withdrawn by P at the hearing.
(b)	The application for a Clinical Psychologist’s report has been dismissed for the reasons given in paragraphs 17 & 18 above.
(c)	The application for a Pain Expert’s report has been dismissed for the reasons given in paragraphs 21 & 22 above.
(d)	The application for a Chiropractor’s report was settled by agreement.
(e)	The application for orthopaedic reports has been resolved. By consent, each party has leave to adduce the report of one orthopaedic expert.

Costs

24. I shall hear submissions on the costs of the applications at the adjourned hearing of the Check List Review.

25. The parties shall proceed to fix a date for the adjourned hearing of the Check List Review within 7 days, so that this case can proceed to trial as soon as practicable.