HE ZHIJUAN v. HONG YIP SERVICE COMPANY LTD

DCEC 2451/2022

[2025] HKDC 2183

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 2451 OF 2022

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DECISION

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The Summons

1.  The Applicant (“A”), having obtained the approval of the Director of Legal Aid, took out a Summons on 18 September 2025 under O38 r4 of the Rules of the District Court for leave to adduce medical expert evidence in psychiatry (“Summons”).

2.  The Respondent (“R”)  opposes the Summons.

3.  This Court has read the case files and considered the supporting Affirmations and written submissions of the parties.  I have considered carefully in particular the medical evidence adduced.

The Accident

4.  A was working for R as a security guard. Her pleaded case is that on 11 January 2021, in the course of patrolling/walking in the place of work, she accidentally stepped into a ditch on the ground and fell, thereby sustaining injuries to her left ankle, knee and leg (“Accident”).

Injuries/Medical Evidence

5.  A sought treatment for the injuries and was granted (mainly by Tuen Mun Clinic and Tuen Mun Wu Hong GOPC)  sick leaves on and off from 13 January 2021 up to this year, i.e. for more than 4 years, for the diagnosis of “left ankle sprain”and“leg pain”.

6.  Medical evidence shows that by March to April 2021, A was noted by the treating doctors to “walk unaided; gait Normal; ankle – no swelling, AROM nearly full”.[1]

7.  A medical report by Tuen Mun Hospital dated 7 November 2021 (exhibited in R’s Affirmation)  states that A “did not complain of left knee and left leg pain … on 13/1/2021 (other than left ankle sprain)… Her knee and leg symptoms are not related to the (Accident)  on 11 January 2021”.

8.  Apart from the left ankle and leg injuries, A’s evidence is that after the Accident, she had unstable mood and insomnia due to the persistent pain and discomfort at her left ankle.  She had made such report of insomnia and requested for prescription of sleeping pills to the treating doctor(s)  a number of times starting about a month after the Accident.

9.  However no such record of report or request for sleeping pills is shown in the medical records.

10.  Medical evidence shows that A had first reported during follow up on 16 August 2022, i.e. 19 months after the Accident, to the treating doctor depressed mood since the Accident and was referred for immediate psychiatric intervention at the Castle Peak Hospital (“CPH”).  The referral letter dated 16 August 2022[2] records “c/o persistent depressed mood which affecting sleep and ADL after injury…suicidal ideation of jump from height last year… no active suicidal ideation in this year or now”.

11.  A has since been under the care and treatment of the psychiatrists of CPH, mainly Dr Kenneth Ngan, since 17 August 2022 and until now.[3]  Dr Ngan records that A was initially impressed to have suffered “a severe depressive episode with psychotic symptoms”, and has since been prescribed with daily antidepressant as well as antipsychotic drugs until now.  Sick leaves on psychiatric ground were granted by Dr Ngan since 17 August 2022 for depression or medical condition for more than 3 years up to 19 October 2025.[4]

12.  Medical Board assessments took place in January to April 2023 certify permanent loss of earning capacity (LEC)  at 1.3% in respect of left ankle sprain resulting in left ankle pain, weakness and psychiatric impairment, with intermittent sick leaves endorsed from 13 January 2021 to 17 April 2023 as set out in the Form 7[5] issued on 3 May 2023.  The assessment was revised to LEC 1.5% per the Form 9[6] issued on 4 December 2023, with sick leaves endorsed up to 20 November 2023.

13.  The parties have obtained and A has filed, without leave of the court, a medical expert report from single joint expert (“SJE”)  in orthopaedics Dr Danny Tsoi dated 7 March 2025.  Dr Tsoi considers A’s left ankle sprain injury minor and well recovered, with excellent prognosis.  He assesses LEC at 1%, and considers a sick leave of 5-6 months up to the conclusion of physiotherapy programme on 28 June 2021 adequate.[7]

14.  Dr Tsoi has specifically noted that A has been granted long sick leaves and may need further sick leave for her psychiatric illness.  Given the apparent left foot and lower limb disabilities are grossly disproportional to the objective physical and radiological findings, Dr Tsoi strongly recommends assessment by psychiatrists with the view to determining whether A’s symptoms were psychosomatic in nature.[8]

The Legal Principles

15.  The legal principles regarding adducing expert evidence are trite. It must be shown to be relevant, necessary and of probative value. As stated in the decision of Hon Bharwaney J in Fung Chun Man v Hospital Authority (unreported, HCPI 1113/2006, 24 June 2011), it must be reasonably required to enable the court to resolve the issues in dispute, and proportionate (§16).

16.  First it will have to be made out from the evidence a prima facie case for the admission of expert evidence. The court must then also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant in cases where a late application is made for expert evidence to be adduced.  These matters have to be considered and weighed in the light of and against the underlying objectives of the CJR: to ensure cost effectiveness and economy, expedition, proportionality, and fairness between the parties.

17.  Regarding obtaining medical expert evidence from a psychiatrist/psychologist, His Lordship states (§§23-24):

“23. There appears to be a misconception that the courts will not readily grant leave for evidence from a psychiatrist or a psychologist to be adduced. The law of negligence does not provide a remedy for distress which does not amount to a recognised psychiatric illness, unless the distress, anxiety or fear is accompanied by a physical injury. The courts award damages where a party has suffered a recognisable psychiatric illness over and above emotional distress and disquiet. The court will almost invariably require expert evidence to determine whether or not this is the case. Even where it is not disputed that the plaintiff suffers from psychiatric illness, there may be a dispute as to causation: was the psychiatric illness caused or contributed to by the tort complained of. A trial judge who has to determine this issue of causation may need assistance from an expert in this field.

24. …Prolonged sadness, excessive anxiety, unusual irritability and temper tantrums are all indicia of possible psychiatric illness.  These are often recognised by treating doctors and nurses and the patient referred to a psychiatric unit, whether in-patient or out-patient, for assessment and treatment.  Even if the hospital records or treating doctors and nurses make no mention of a plaintiff’s psychiatric illness or possible psychiatric illness, orthopaedic or neurological experts examining a plaintiff in order to prepare expert medical reports on his physical condition will often recognise the presence of a psychological or psychiatric component and recommend that reports be obtained from relevant experts in that field.  Each case must depend on its own facts and a mere recommendation without supporting reasons by an expert from another field may be insufficient, but where the need for psychiatric or psychological evidence is clear and obvious, there can hardly be any realistic challenge to a request for relevant expert examination and reporting.”

18.  Ultimately, the court strives to do justice between the parties and, in cases where the court permits the parties to call expert evidence, the court strives to ensure a level playing field with fair access to proper experts for all parties.

Discussion

19.  A’s evidence is that she began to have psychiatric symptoms since about one month after the Accident.  Medical evidence on the other hand supports A’s first report of psychiatric symptoms and referral for psychiatric treatment since 16 August 2022 (about 19 months after the Accident), continuous psychiatric treatment and sick leaves granted on psychiatric ground for more than 3 years.

20.  R argues that A’s left ankle injury sustained in the Accident should not be serious, as she did not seek treatment until 2 days later on 13 January 2021. Dr Tsoi considers a sick leave of only 5-6 months up to June 2021 upon completion of physiotherapy should be adequate.[9]

21.  In light of the mild physical injury, R submits that the psychiatric diagnosis, treatments and assessments should be very minor and mild.  As such the medical reports and records by the treating psychiatrist Dr Ngan of CPH since August 2022 and to date should suffice in enabling the court to determine the medical issues in the absence of psychiatric expert evidence.

22.  R’s arguments against obtaining expert evidence in psychiatry also go to genuineness, authenticity and credibility of A’s complaints of psychiatric symptoms allegedly made shortly after the Accident, but not supported by medical records.  R queries that A’s alleged complaints were self-serving, and were only first made on 16 August 2022,[10] a week after the 9 August 2022 follow up consultation during which she was advised by the treating doctor that no further sick leave would be granted after discharge from occupational therapy and physiotherapy.[11]

23.  These arguments on genuineness and credibility are mixed questions of fact and medicine to be resolved by the trial judge with the assistance of medical expert evidence.

24.  This Court is not in a position to come to a decision on matters of credibility now or at the interlocutory stage.

25.  On the present medical evidence, it would be wrong in my view for the court to making findings of credibility now, such as whether A had made the alleged report of psychiatric symptoms back in early 2021 or whether they are genuine, and shut the door/ deprive A of the right to adduce psychiatric expert evidence.  She has a substantive right to put forward psychiatric expert evidence to prove that her mental illness was caused by and arose out of the Accident, causing her loss and damage.

26.  The trial judge will require the assistance of medical expert in psychiatry in considering the medical issues of genuineness of the psychiatric complaints and symptoms, causation and the extent of psychiatric injury and impact, if established. SJE Dr Tsoi endorses and recommends the need for such evidence.

27.  Reference is made to this Court’s recent decision on the topic and application of the principles discussed in Kwok Carman v Cheng Sai Wah [2025] HKDC 1719 at §§41-56.

28.  On the present medical evidence, I accept A’s submissions that the evidence of manifestation of psychiatric symptoms shortly or even more than one year after the Accident, requiring more than 3 years of continuous psychiatric treatment, establishes a prima facie case.  The proposed psychiatric expert evidence would be relevant, necessary and of probative value to enable the trial judge to resolve the issues in dispute.

29.  I also accept that the need for adducing psychiatric expert evidence is made apparent upon Dr Tsoi’s recommendation with a view to investigating causation and the nature of the prolonged physical symptoms complained of by A, but not supported by medical or pathological findings.

30.  I have next considered other factors such as proportionality of the cost of obtaining psychiatric expert evidence, delay, potential disruption to trial and prejudice to R, if any.

31.  No submissions are made by R on these other factors justifying refusal of leave.

32.  These other factors do not in my view tip the balance towards depriving A of the opportunity to adduce medical expert evidence in psychiatry.  I conclude that it is appropriate to grant leave for the same.

ORDER

33.  I make the following order:

(i)  Retrospective leave be granted to the parties to obtain and file the medical expert report dated 7 March 2025 by SJE in orthopaedics Dr Danny Tsoi on 1 August 2025; and

(ii)  Leave be granted to the parties to adduce medical expert evidence in psychiatry.

34.  Further case management directions will be given by this Court regarding obtaining of medical expert evidence in psychiatry.

COSTS

35.  Costs should follow the event.  I further make a costs order nisi that costs of the Summons be to A, payable by R, to be taxed if not agreed.  A’s own costs be taxed in accordance with the Legal Aid Regulations.

36.  In the absence of application from the parties to vary this costs order within 14 days, the costs order nisi will become absolute.  If any party wishes to vary the costs order nisi:

(i)  The applying party shall lodge and serve written submissions within 14 days from the date hereof;

(ii)  The other party shall lodge and serve written submissions within 14 days thereafter;

(iii)  The applying party shall lodge and serve written submissions in reply within 7 days thereafter; and

(iv)  The application will then be disposed of on paper unless otherwise directed.