LAM PO YEE AND ANOTHER v. DR. CHAN YEE SHING

HCPI 62/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 62 OF 2011

BETWEEN

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D E C I S I O N

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I.  BACKGROUND

1.  The 1^st and 2^nd plaintiffs (collectively, “Parents”) in the present action (“Parents Action”) are the parents of Law Yin Bok Bosco (“Bosco”), who is now 5 years old. When he was a 14-month baby, he sustained significant laceration to his right ring finger involving the soft tissue of the distal phalanx. He was brought to Prince of Wales Hospital (“PWH”) for assessment and treatment. Subsequently, Bosco’s father (ie the 2^nd plaintiff in the Parents Action, “Father”) contacted the defendant doctor, and as a result Bosco was admitted to the Baptist Hospital under the defendant’s care. Some days after the application of a medical adhesive known as Dermabond Bosco’s finger deteriorated. He was admitted to Queen Elizabeth Hospital (“QEH”) for assessment and treatment, but eventually part of the right ring finger had to be amputated. In this Decision, the above medical incident shall be called the “Incident”.

2.  In HCPI369/2010 (“Bosco Action”), Bosco by his mother and next friend, ie the 1^st plaintiff in the Parents Action (“Mother”), claimed against the defendant for damages for personal injuries. The defendant admitted liability in the Bosco Action, and the assessment of damages was heard before DHCJ Seagroatt on 14 November 2012. In his judgment dated 20 November 2012, the learned judge awarded damages in favour of Bosco in the sum of HK$314,608.00 with interest and costs (“Bosco Judgment”). I am given to understand that the Bosco Judgment is presently under appeal in CACV276/2012 (“Bosco Appeal”).

3.  In the Parents Action, the Parents claimed they were secondary victims who suffered nervous shock arising from “the negligent treatment and management by the [defendant]” in relation to the Incident (see paragraphs 7-15 of the Consolidated Revised Statement of Damages filed on 30 September 2011 (“CRSOD”)). The CRSOD pleaded that on 21 August 2009 at the defendant’s clinic the Parents suffered initial shock upon (a) sight of Bosco’s gangrenous finger and the defendant being astonished and “dumbfounded”, and (b) receipt of the news that it was likely the finger had to be amputated. Such shock was prolonged and aggravated by the Parents witnessing the remedial treatment given to Bosco. They suffered a further shock when on 29 September 2009 (i) they were advised by doctors at QEH that Bosco’s finger could not be saved and an amputation was inevitable whereupon any hope of preserving Bosco’s finger was shattered, and (ii) they had to make the decision to proceed with surgical amputation. The Parents further alleged that as a result of exposure to the aforesaid shock they suffered and still suffer psychiatric illnesses and/or impairment.

4.  On 28 April 2011, interlocutory judgment on liability in the Parents Action was entered by consent leaving damages to be assessed. In the Answer to the Consolidated Revised Statement of Damages filed on 24 October 2011 (“Answer”), the defendant agreed inter alia that (a) the Parents were exposed to the sight and sound surrounding the discovery of the gangrenous change in Bosco’s finger on 21 August 2009 and were witnesses to the clinical course thereafter, (b) as a result of the initial shock on 21 August 2009 the Parents suffered psychological impairment, and (c) the Parents suffered psychological impairment as a result of the Incident.

5.  The Bosco and Parents Actions were consolidated pursuant to the order of Master Roy Yu dated 13 July 2011 (“Consolidated Action”). On 11 October 2011, DHCJ Seagroatt refused the plaintiffs’ application to adjourn the assessment hearing due to commence in November 2012, and also dismissed their further application for leave to appeal against such decision. On 31 October 2012, the Court of Appeal dismissed the plaintiffs’ renewed application for leave to appeal (“Leave Judgment”).

6.  DHCJ Seagroatt proceeded with the assessment of damages in the Bosco Action.[1] The Bosco Judgment was handed down on 20 November 2012, which effectively de-consolidated the Parents Action from the Bosco Action.

7.  On 14 March 2013, the defendant’s solicitors wrote to advise DHCJ Seagroatt that no hearing date had been scheduled for assessment of damages in the Parents Action, which hearing they estimated would take 3 days, and they sought directions from the learned judge.

8.  On 21 March 2013, the Personal Injuries Judge (“PI Judge”) directed that unless the parties applied for directions for further conduct of the Parents Action, he intended to direct the Parents’ solicitors to set the case down for assessment of damages within 14 days before a master with 3 days reserved.

9.  On 22 March 2013, the defendant’s solicitors wrote to persuade the PI Judge to set the Parents Action down for assessment of damages before DHCJ Seagroatt with 3 days reserved. Pursuant to the PI Judge’s directions on 8 April 2013 requiring them to respond to such proposal, the Parents’ solicitors wrote on 22 April 2013 to urge the PI Judge to have the assessment of damages heard by a master. On 23 April 2013, the PI Judge assigned me to hear the assessment of damages in the Parents Action, and to deal with all applications connected with such action. He further directed that the Parents’ letter application for directions (ie for leave to adduce psychiatric expert evidence and to seek ancillary case management directions – see Part V below) and the defendant’s letter application for discovery of documents (see Parts III and IV below) be fixed to be heard before me in chambers with 1 hour reserved (“Direction”). Such hearing came before me on 12 July 2013 (“Hearing”).

10.  For the purpose of the Hearing, Mr Ko, counsel for the Parents, lodged his written skeleton submissions on 4 July 2013. On 9 July 2013, Ms Mohamed, counsel for the defendant, lodged her written skeleton submissions. Up to this stage, the hearing bundle prepared by the Parents’ solicitors comprised sections A (CRSOD and Answer), B (bundle of inter partes correspondence) and C (bundle of psychological and psychiatric treatment reports).

11.  Strangely, the available joint psychological expert reports, which must be relevant to the Parents’ letter application for leave to adduce psychiatric expert evidence, could not be found in the hearing bundle. I therefore caused my clerk to ask for the same to be included. On 11 July 2013, a bundle of medical reports which had been used at the assessment hearing in the Bosco Action was hastily lodged. But for the purpose of the Hearing, the expert reports in respect of Bosco found in such bundle were not reviewed.

12.  In the last paragraph of Ms Mohamed’s written skeleton submissions, an application for forensic accounting expert evidence was made by way of her written submissions as follows:

“20. The Defendant does however seek leave to adduce evidence from a forensic accountant to go through details of bank accounts ordered by the court. The expert will be required to take a look at the accounts and comment on the entries. The Plaintiffs can cover their evidence regarding the forensic expert report orally. It will only take a few weeks to compile the reports so it would not affect the trial date fixed by the court.”

13.  Prior to Ms Mohamed’s written skeleton submissions, there had been no intimation to the Parents or to the court of any intended application for leave to adduce forensic accounting expert evidence. Indeed, no hearing bundle or document was lodged in support of such application, and the defendant did not even inform the court of any basic particulars of the “bank accounts ordered by the court” (eg the holders, nature and number thereof) or the extent/scope of any “details of bank accounts” and/or “entries” that, according to the defendant, required forensic accounting expert evidence.

14.  Bearing in mind that (a) the Direction limited the scope of the substantive matters for argument at the Hearing, (b) the Hearing had been set down for 1 hour only, (c) the defendant had access to the bank account documents since November 2012, and (d) the application for leave to adduce forensic accounting expert evidence was not supported by any particulars or documents, the raising of such application by the defendant only after Mr Ko had already served his written skeleton submissions cannot help but give the impression of a belated ambush.

15.  Nevertheless, the Parents and their legal representatives rose to the occasion. On 11 July 2013, Mr Ko submitted his written reply submissions part of which was in response to the defendant’s application for forensic accounting expert evidence, and the Parents’ solicitors lodged additional hearing bundle (“Additional Bundle”) comprising the following for such purpose:

(a) extracts of the transcript of the assessment hearing before DHCJ Seagroatt in the Bosco Action;

(b) the witness statements of the Parents (which were adduced at the assessment hearing in the Bosco Action) and the witness statement of Lam Kit Ming (Bosco’s aunt) filed in the Consolidated Action;

(c) the death certificate of Mr Tam Yat Cheong Erich (the Father’s former employer), written confirmations by the Inland Revenue Department (“IRD”) in relation to the Parents’ tax return status, and a schedule summarising the Parents’ bank accounts and bank statements produced under subpoena (collectively, “Section E”).

16.  To save time and costs, Mr Ko was prepared to deal with the defendant’s application for leave to adduce forensic accounting expert evidence at the Hearing on the basis of his written reply submissions and the Additional Bundle. But this elicited a complaint from the defendant’s solicitors in their letter to the court dated 11 July 2013 that (a) Mr Ko’s written reply submissions were misconceived since the Hearing was a “directions hearing” and the Parents had no right of reply, and (b) the Additional Bundle was filed “too late” and the defendant did not have time to adequately (or at all) consider the additional documents. They asked the court to disregard Mr Ko’s written reply submissions as well as the Additional Bundle.

17.  But having reviewed the Additional Bundle myself, I am not persuaded the documents therein would have caused any difficulty. Mr Ko assured me the transcript referred to in paragraph 15(a) above was merely for background information, and indeed he made no further reference to such transcript at the Hearing save for those references set out in his written reply submissions. Ms Mohamed herself referred to the Parents’ witness statements in paragraph 7 of her own written skeleton submissions, so I am sure she would not be unfamiliar with them. Further, Section E only comprised 7 pages.

18.  In any event, since the defendant chose to bring the application for leave to adduce forensic accounting expert evidence to the Hearing at the eleventh hour, it does not lie in his mouth to complain against the Additional Bundle which the Parents required to oppose such application. In the end, Ms Mohamed conceded the defendant would not take any issue on the Parents relying on the Additional Bundle.

19.  I should add that the Parents also submitted a bundle of documents (collectively, “Section D”) comprising a summons and various affidavits/affirmations. But at the Hearing, Mr Ko confirmed that the Parents would not rely on Section D, and further conceded that the Parents would not seek costs of and occasioned by Section D.

20.  Finally, before I turn to the various applications, I should mention that initially Messrs Ip, Kwan & Co were the assigned solicitors for the legally aided Parents. On 14 May 2013, they were replaced by Messrs WH Chik & Co. But on 10 July 2013 (ie two days before the Hearing), Messrs Ip, Kwan & Co were re-assigned as solicitors for the Parents. In this Decision, I shall refer to the solicitors on record for the Parents at the relevant time as the Parents’ solicitors.

II.  DISCOVERY: LEGAL PRINCIPLES

21.  Order 24 rules 7-8 of the Rules of the High Court (“RHC”) provide as follows:

“7(1) Subject to rule 8, the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described is, or has at any time been in his possession, custody or power, and if not then in his possession, custody or power when he parted with it and what has become of it.

8   On the hearing of an application for an order under rule …… 7 the Court, if satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, may dismiss or, as the case may be, adjourn the application and shall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter of for saving costs.”

22.  Although the defendant did not file any affidavit in support of his discovery applications[2] pursuant to Order 24 rule 7(3) of the RHC, it was common ground that the Parents were/are in possession of the documents being sought. The question therefore turned on the relevance of the requested documents to the issues in the Parents Action, and whether such documents would be necessary either for disposing fairly of the cause or matter or for saving costs. Since these matters had been canvassed in inter partes correspondence and counsel’s submissions, both counsel were content to proceed on such basis.

23.  I refer to the legal principles for specific discovery discussed in paragraphs 23-43 of my Decision in Wong Hon Wai v The Secretary of Justice (for and on behalf of the Government of the Hong Kong SAR) HCPI664/2009 (unreported, 24 February 2011), which I shall rely but not repeat here.

24.  Suffice to say that on the matter of relevance, it is for the party seeking specific discovery to demonstrate a prima facie case for inter alia the relevance of the documents being sought to the “matter in question”. The real question under the well-known Peruvian Guano test is whether the documents sought to be discovered are relevant to the issues between the parties in the litigation or, putting it in another way, to the “questions in the action”.

25.  On the question of necessity, it is for the party objecting to the order for discovery to satisfy the court that the discovery is not necessary either for fairly disposing of the cause or matter or for saving costs under Order 24 rule 8 of the RHC. One should consider whether the documents sought are central to the pleaded issues or at least are likely to contain or yield information of such evidential materiality to the pleaded case of the parties as to make their disclosure necessary for the fair disposal of the proceedings or to save costs.

26.  There is no doubt that discovery will not be ordered for the purpose of “fishing” or to enable a party to turn a non-issue into an issue. “…… It is not the purpose of discovery to give the plaintiffs an opportunity to hunt around the documents in the hope that they will reveal some improprieties on the defendants’ part or will provide information for them to pursue more enquiries”.[3] “…… [Discovery] solely for the purpose of impeaching credit of the opposing party …… will not be ordered; it probably does not “relate to a matter in question” within r.1 and in any event should be refused as a matter of discretion under [Order 24 rule 8 of the RHC]”.[4]

27.  As regards redaction of discovery documents, the making of an order for specific discovery does not prevent the party required to make such discovery from covering up irrelevant parts.[5] Indeed, parts of documents disclosed on discovery can be blanked out as irrelevant since discovery is restricted to documents or entries in documents relating to a matter in question.[6]

III.  DEFENDANT’S REQUEST FOR DISCOVERY: IDENTITY CARDS

28.  On 25 January 2013, the defendant’s solicitors wrote to the Parents’ solicitors to ask for colour copies of the Parents’ identity cards “[to] assist them in their further investigation of [the Parents Action]”. On 2 February 2013, the Parents’ solicitors served black-and-white copies of the Parents’ identity cards with “COPY” stamps over the holder’s face and “COPY” stamp that straddled the photocopy paper and the image of the identity card (“Redacted Copies”).

29.  On 7 February 2013, the defendant’s solicitors complained that the Redacted Copies were not clear and unobstructed, and threatened to apply to the court (and to seek indemnity costs) for the Parents’ failure to comply with discovery obligations. On 8 February 2013, the Parents’ solicitors pointed out that the defendant should have no difficulty in verifying the Parents’ respective age despite the “COPY” stamps, so unless the defendant’s solicitors were to provide details of the issue(s) relevant to the quantum of the Parents’ claim that could not be verified from the Redacted Copies they were reluctant to advise the Parents to waive their rights and protection under the Personal Data (Privacy) Ordinance Cap.486 (“PDPO”).

30.  On 12 March 2013, the defendant’s solicitors wrote to say that the defendant was entitled to clear copies of the Parents’ identity cards, and neither the PDPO nor the Code of Practice issued by the Office of the Privacy Commissioner bestowed statutory rights on the Parents to obscure their identity cards. The defendant’s solicitors further said the defendant was entitled to investigate the Parents’ claim for over HK$4.3 million, and they threatened to seek specific discovery and indemnity costs if the Parents persisted in their failure to disclose clear colour copies of their identity cards.

31.  On 14 March 2013, the Parents’ solicitors asked for time until the end of the month to respond since their handling solicitor would be out of Hong Kong. But on 15 March 2013, the defendant’s solicitors replied to say it was unacceptable and demanded the requested documents within 7 days.

32.  On 8 April 2013, the Parents’ solicitors wrote to the PI Judge to confirm they had no instructions to accede to the defendant’s request since liability had been admitted in the Parents Action and the documents sought were not relevant to the remaining issues. By their letter of 22 April 2013 to the PI Judge, the defendant’s solicitors claimed the defendant had a right to discovery of relevant documents “in the usual way”, and they even suggested that the Redacted Copies raised doubt as to whether the Parents had something to hide. They argued that since the requested documents were “disclosable under the normal discovery rules” and should have been disclosed upon their earlier requests, the Parents should be ordered to provide unobscured copies of their identity cards with costs against them.

33.  Ms Mohamed in her written skeleton submissions suggested that discovery of “clean and clear copy” of the Parents’ identity cards had “not been specifically sought by the [defendant]”, but went on to complain that despite the substantial claim in the Parents Action the Parents systematically refused to provide inter alia clean and clear copies of their identity cards or disclose any document/information relating to their tax returns, their correspondence with the IRD, their employment and their bank account details. Ms Mohamed argued that the defendant “is entitled to investigate these allegations”. But in the course of her oral submissions at the Hearing, Ms Mohamed confirmed the defendant no longer asked for colour copies of the Parents’ identity cards, and unobscured black-and-white copies would suffice.

34.  Mr Ko submitted that such discovery request was clearly unnecessary, irrelevant and oppressive. After all, the holder’s name, Chinese name character code, and identity card number were legible on each of the Redacted Copies.

35.  Upon careful consideration, I dismiss the defendant’s application for unobscured black-and-white copies of the Parents’ identity cards as being irrelevant and/or unnecessary either for disposing fairly of the cause or matter or for saving costs. From the aforesaid correspondence and Ms Mohamed’s oral and/or written skeleton submissions, it is obvious that the defendant had not been able to identify any matter in question in the Parents Action to which unobscured copies of the Parents’ identity cards (in contra-distinction to the Redacted Copies) might be relevant. The defendant had admitted liability, so the Parents necessarily had locus standi and were the proper plaintiffs in the Parents Action. Their names, identity card numbers and age are all discernible from the Redacted Copies, and Ms Mohamed had not been able to identify any reason for requiring unobscured copies save for the sake of insisting on having them.

36.  I am also unable to see how the unobscured copies of the Parents’ identity cards had anything to do with any need (as claimed) to investigate their allegations as suggested by Ms Mohamed.[7] First, it is not the purpose of discovery to seek documents to impeach credibility or to provide an opportunity for the defendant to hunt around the documents in the hope that they would provide information for him to pursue more enquiries.[8] Secondly, it was plain that by now the defendant already had access to the written confirmations from the IRD, the death certificate showing that the Father’s former employer had passed away, and bank documents obtained by subpoena. I am unable to understand how unobscured copies of the Parents’ identity cards will aid investigation. In my view, such discovery request is unnecessary, and the application is without merit.

IV.  DEFENDANT’S REQUEST FOR DISCOVERY: CORRESPONDENCE WITH MEDICAL COUNCIL AND COMPLAINTS TO THE POLICE

37.  On 5 February 2013, the defendant’s solicitors requested for (a) copies of the Parents’ correspondence with the Medical Council to date, and (b) all documentation relating to the Parents’ complaints to the police about the defendant on the basis that “they are relevant to matters at issue in [the Parents Action] and will assist in determining these issues and in saving costs”.

38.  On 8 February 2013, the Parents’ solicitors replied to say they were unable to see how the requested documents would be relevant to the issues in the assessment of damages in the Parents Action. They claimed that complaints to the Medical Council and to the police by their very nature would only contain information pertaining to the defendant’s wrongdoings which were no longer in issue due to his admission of liability. The Parents’ solicitors stated that if the defendant insisted on seeking discovery of these documents, they should identify the issue(s) that he had in mind, the information such documents would likely contain that could have been relevant, and why discovery of such documents would be necessary for the fair disposal of such issues.

39.  On 12 March 2013, the defendant’s solicitors replied to say that:

“[they] cannot comment on the issues to which these documents are relevant, as [they] have not seen them. [They] do not accept [the Parents’ solicitors’] contention that, by their nature, complaints to the Medical Council and the police would only contain information pertaining to what [the Parents’ solicitors] refer to as [the defendant’s] “wrong doing”. For example, a complaint to the Medical Council may touch upon issues relevant to the [Bosco Appeal]. For the avoidance of doubt, the documents requested should be disclosed, as they are clearly relevant to the treatment provided by [the defendant] and to the consequences of such treatment.”

In the case of complaints to the police, the defendant’s solicitors claimed that disclosure of the requested documents could not interfere with the manner in which the authorities conducted the investigation since such investigation had been concluded.

40.  On 14 March 2013, the Parents’ solicitors asked for time until the end of the month to respond since their handling solicitor would be out of Hong Kong. But the defendant’s solicitors replied on the following day to demand the requested documents within 7 days. On 8 April 2013, the Parents’ solicitors wrote to the PI Judge to confirm they had no instructions to accede to the defendant’s request for the documents sought as liability had been admitted and those documents were not relevant to the remaining issues in the Parents’ Action.

41.  By their letter of 22 April 2013 to the court, the defendant’s solicitors claimed that the defendant had a right to discovery of relevant documents “in the usual way”, and since the requested documents were “disclosable under the normal discovery rules” and should have been disclosed upon their earlier requests, the Parents should be ordered to provide the requested documents with costs to the defendant.

42.  Ms Mohamed in her written submissions suggested that discovery of the requested documents had “not been specifically sought by the [defendant]”, but submitted that the Parents’ correspondence with the Medical Council was relevant as it would save costs and assist the parties in determining the issues before the court at the assessment of damages. Further, they might touch upon issues relevant to the Bosco Appeal, and they would show what treatment was provided by the defendant and the consequences to such treatment. Ms Mohamed also contended that the Parents should disclose their complaints to the police as these documents would be relevant to the matters to be decided.

43.  Mr Ko submitted that it still remained to be seen how the Parents’ correspondence with the Medical Council and their complaints to the police would be relevant, proportionate and/or necessary for the fair disposal of the cause or matter or for saving costs.

44.  In the course of her oral submissions at the Hearing, Ms Mohamed conceded she was not able to identify any particular quantum  issue in the Parents Action that would require disclosure of the requested documents. Given that the Bosco and Parents Actions had been de-consolidated, I am unable to see how the defendant could seek discovery of the specified documents in the Parents Action in aid of the Bosco Appeal, especially in view of the implied undertaking not to use documents disclosed under compulsion for extraneous purpose.[9] Further, since the defendant had conceded liability in the Parents Action, I also cannot see how the treatment given to Bosco by the defendant and the consequences of such treatment could be relevant to the assessment of damages in the Parents Action, especially in view of the admissions by the defendant in the Answer. After all, there is no dispute that the defendant’s tort caused the Parents to suffer nervous shock and psychological injury. As for the Parents’ complaints to the police, I am unable to fathom the relevance and/or necessity of such documents, especially when the defendant’s solicitors themselves admitted they were unable to identify the issues to which these documents would be relevant.[10] Ms Mohamed made some tentative suggestions that the requested documents would be relevant to witness credibility, but discovery of documents should not be ordered for the purpose of impeaching credit. In my view, these discovery requests by the defendant are fishing requests that are neither relevant nor necessary for the purpose of fairly disposing of the cause or matter or for saving costs. They are without merit, and must be refused.

45.  Before I move on to deal with the plaintiff’s applications, I must say I am unimpressed by Ms Mohamed’s suggestion in her written skeleton submissions that discovery had not been specifically sought by the defendant. The inter partes correspondence belies this, and the letter from the defendant’s solicitors to the PI Judge dated 22 April 2013 clearly asked that the Parents be ordered to provide them with “unobscured copies of their ID cards and with copies of the other documents requested, and that the costs of and occasioned by the [defendant’s] discovery requests should be ordered in favour of the [defendant]”. It was on such basis that the PI Judge granted the Direction in respect of inter alia the defendant’s discovery applications, and thereby formalised such applications. But even up to the Hearing the defendant did not in any way abandon such discovery applications. Further, notwithstanding Ms Mohamed’s oblique suggestion in her written skeleton submissions that discovery of the requested documents had “not been specifically sought by the [defendant]”, her written and oral submissions went on to support the discovery applications. In the circumstances, the defendant’s discovery applications were plainly before me, and they fell to be dismissed.

V.  PARENTS’ APPLICATION FOR PSYCHIATRIC EXPERT EVIDENCE

46.  On 8 April 2013, the Parents’ solicitors wrote to the PI Judge to seek the following directions in the Parents Action:

(a) the Parents do have leave to adduce psychiatric expert evidence (and if leave were granted, directions for obtaining joint psychiatric expert report);

(b) the Parents do file and serve an updated Re-Revised Statement of Damages in the Parents Action within 28 days after the psychiatric expert report is available;

(c) the defendant is to file and serve his Revised Answer, if any, within 28 days thereafter;

(d) unless otherwise directed by the PI Judge, the Parents do have leave to set the Parents Action down for assessment of damages before a master with 3 days reserved;

(e) costs in the cause and the Parents’ own costs be taxed in accordance with Legal Aid Regulations;

(f) liberty to apply.

(a)  Application

47.  In their letter dated 8 April 2013, the Parents’ solicitors claimed that since 26 September 2012 the Parents had been principally treated by psychiatrist Dr Josephine Wong (“Dr Wong”) for their aggravated and relapsed mental condition. According to such letter, the Parents consulted Dr Wong on 26 September, 17 October and 15 November 2012 and 2 January, 23 January and 18 March 2013, the Father consulted Dr Wong on 1 November 2012, and the Mother consulted Dr Wong on 31 October 2012 and 18 February 2013. The Parents also consulted clinical psychologist Dr Amy Fung (“Dr Fung”) on 24 October and 8 November 2012. After the Bosco Judgment was handed down on 20 November 2012 and for reasons explained in Dr Wong’s report dated 8 April 2013, the Parents requested Dr Wong to refer them for public psychiatric care, so on 2 January 2013 Dr Wong issued referral letters for them. But despite priority arrangements by PWH the earliest available appointment was 29 April 2013, so the Parents’ solicitors in their letter said as follows:

“5. We submit that the incidents discussed in Dr Wong’s report which have caused aggravation of the [Parents’] psychiatric conditions are closely related to the [defendant] and his tort. Based on the Practice Note [issued in HCPI684/4010 dated 12 December 2012] and the authorities referred to therein, the [Parents] should be given leave to adduce psychiatric expert evidence to re-formulate their claims. ……”

The Parents’ solicitors in their letter to the PI Judge dated 22 April 2013 urged the court to allow psychiatric expert evidence to enable the Parents to properly prepare and plead their claims.

48.  Mr Ko reiterated that the Parents were all along treated by Dr Fung who referred them to Dr Wong on 25 September 2012. He argued that the latest condition of the Parents in the findings contained in Dr Wong’s reports clearly showed that psychiatric expert evidence would be required for the Parents to properly plead their claim for damages.

49.  On the other hand, the defendant’s solicitors in their letter dated 22 April 2013 to the PI Judge claimed that psychiatric expert evidence should be refused since (a) it would delay the assessment of damages in the Parents Action, and (b) there was no causal link between the Parents’ current psychiatric condition/injury (which was either caused by acts of other parties and/or self-inflicted) and the defendant’s tort. Since the defendant had admitted liability at an early stage and the Parents had rejected “every potential avenue to reach settlement” and insisted on proceeding with the Bosco Action despite the defendant’s payment into court in early 2012 and the advice given to the Parents to settle after the Pre-trial Review (“PTR”), the Parents had failed to mitigate loss and hence their alleged additional psychiatric condition did not flow from the defendant’s tort. Ms Mohamed reiterated the above arguments by the defendant’s solicitors.

50.  But before I consider the merits of the Parents’ application, it is necessary to turn to the available psychological expert reports as well as the psychological and psychiatric treatment reports.

(b) Available psychological expert reports and psychological/psychiatric treatment reports

51.  On 25 October 2010, 8 August 2011 and 1 and 9 August 2012, the Parents were examined by their psychological expert Prof Peter WH Lee (“Prof Lee”) and the defendant’s psychological expert Prof Wong Chee Wing (“Prof Wong”) (collectively, “Experts”). They interviewed the Parents once each year since 2010, and produced joint expert reports on the Mother and the Father on 10 December 2010, 14 September 2011 and 6 September 2012 with some supplementary reports. They had no disagreement on their psychological opinion in respect of the Parents.

52.  For the purpose of preparing their joint reports, the Experts had access to a wide range of documents, including Bosco’s medical records/documents, the pleadings and court documents, the Parents’ witness statements, and clinical psychology treatment notes/reports. The joint reports described (where appropriate) the examinees’ personal background and relevant life condition, examination behaviour, account of the Incident, emotional state, other ailments, effect on vocational life, current psychological/emotional condition (ie worries, emotional state, physical condition, marital/spousal relationship, relationship with and management of children, leisure interests, social adjustment, aspirations, social life, future plans, and psychological help), and the Experts’ opinion and conclusions.

53.  In the 2010 joint report, the Experts found the Mother’s mood state had tapered since the Incident. She tried hard to pull herself together, and there were positive signs in her continuous strive to get better. But she was still quite depressed and could not come to terms with the damage inflicted on Bosco. She was worried about his future. She was still suffering from a depressive disorder with unresolved grief towards Bosco’s injury. The Experts urged the Mother to continue to seek psychological help with regard to her depression and unresolved guilt. But insofar as her depressive mood was largely contained by her commitment to look after her children to the best of her abilities, she might not require psychiatric intervention at that point.

54.  In the 2010 joint report, the Experts found the Father was still guilt-ridden with his mother-in-law still blaming him for the Incident. He was stressed and strained. He could not come to terms with Bosco’s injury, and was worried about his future. The Experts opined that the Father needed to wriggle out of his heavy blame burden and start making positive plans with regards work and family life. The Experts further opined he was suffering from an adjustment disorder with mixed anxiety, depressive and guilt reactions of a mild to moderate intensity, and a substantial course of psychological counselling (15 sessions) would be beneficial towards his emotional coping. A positive psychological status in the Father would be influential in Bosco’s and the Mother’s long term well-being and adjustment. With adequate psychological support and treatment, the Experts envisaged that the Father would improve emotionally and become more engaged in his work.

55.  In the 2011 joint report, the Experts found the Mother’s mood state had improved mildly although she still presented with adjustment and depressive symptoms. She had great difficulties in coming to terms with the damage inflicted on Bocso, and had multiple worries about his future. She harboured a pervasive sense of dread and fearfulness of further mishaps happening to her children. As long as her depressed mood, heightened alertness, anxiety and fearfulness of further mishaps remained, the Experts considered it would be difficult for her to resume her previous plan to help her relative run a fashion shop. The Experts opined that the Mother presented with varying unresolved adjustment difficulties, and still suffered from residual symptoms of a depressive disorder with unresolved guilt towards the loss of Bosco’s finger. They recommended she should continue to seek psychological help from an experienced clinical psychologist (preferably from the private sector) at bi-weekly intervals for at least the next 12 months.

56.  In the 2011 joint report, the Experts noted the Father still remained guilt-ridden and emotionally burdened with Bosco’s problems, and he had to deal with the Mother’s pervasive sense of danger and insecurity. The psychological cost of trying his best, subduing his own emotional needs, tolerating the blame by his mother-in-law, and trying to support every member of the family left him emotionally drained. Emotionally, his non-acceptance of the loss of Bosco’s finger led to unresolved grief and continual instability in mood. The Experts opined that the Father was still suffering from an adjustment disorder with mixed anxiety, depressive and guilt reactions of a mild to moderate intensity. They maintained their previous recommendation of a substantial course of psychological therapy for the Father.

57.  In their reports of 16 September and 13 October 2011, the Experts opined it would be difficult to say when the Mother could return to work given her fickle emotional condition and pervasive sense of danger concerning her children’s safety and well-being, and further given her stresses which would predictably be further compounded as the children face up to the outside world. She needed to overcome her psychological difficulty (with the help of psychological treatment) of being unable to deal with her worries and negative emotions, her over-vigilence about her children’s safety, her overwhelming sense of insecurity and danger, and her anxiety about having to explain the injury to Bosco and others. The Experts hoped that with recommended psychological treatment, the Mother might be able to consider part-time employment in September 2012 by which time Bosco should be well settled in class in the new school term, and better adapted to his injury. But the Experts also noted that the Mother made minimal progress since the index assessment despite psychological help, so the predicted treatment outcome would be dependent on factors such as the effectiveness of the psychological treatment and the Mother’s response to such treatment.

58.  According to Dr Fung’s psychological treatment report dated 7 June 2012, she had seen the Mother for 8 sessions of psychological treatment on a monthly basis since 28 September 2011. Dr Fung noted that the Mother showed good progress in her emotional control, and was more relaxed and composed as treatment progressed even though she remained touchy and easily tearful. She showed good motivation to learn, and was receptive and responded positively to psychological advice. She was noted to have improved mood with reduced worries and apprehension about Bosco’s school adjustment, and made satisfactory progress as far as her negative moods and excessive worries were concerned. She had improved her coping skills in dealing with others’ queries about Bosco’s injury, but it would take time for such skills to be mastered. She still found herself frustrated and upset from time to time when Bosco was not responding to her. In the absence of report of incident that Bosco was teased or questioned about his finger by his classmates, she would be quite relaxed about the school situation as the teachers were generally helpful. Dr Fung considered that so long as Bosco continued to attend his then kindergarten, it was likely that both Bosco and the Parents would for the time being not be unduly stressed given the familiarity and support of the physical and social environment at school.

59.  Dr Fung noted that the Father was unhappy with his job, but the Parents knew they had to bear with this for the sake of the overall needs of the family. But the Incident had brought their family members closer together. The Mother was better aware than the Father (who had only attended a few psychological treatment sessions) of the psychological implications of parents’ behaviour on children. She was vigilant of the risk of spoiling Bosco and of creating undue reaction from her younger daughter (and she had discussions with Dr Fung on methods to handle the situation), and with discussion and advice she had talked to family members to caution them of the risks.

60.  Dr Fung considered that the Mother should continue with psychological treatment (and preferably the Father should join in more consistently) in view of (a) the competition for attention from their younger daughter and demand for proper handling of both children, especially when the Father did not always have a consistent attitude and handling method, and (b) the Mother’s anxiety about Bosco’s adjustment to the move to primary school in 2 years’ time and his future reconstruction surgery. Dr Fung suggested that the follow up in the remaining time of 2012 could be more spaced out to once every 6-8 weeks and once very 3 months in 2013 for monitoring and management of any untoward difficulties. But in 2014 it would be beneficial for the Mother to take Bosco to the treatment sessions to prepare him for dealing with future unwelcome/undesirable social interactions in relation to his injured finger when he moves to primary school (and this was expected to take up 12-15 sessions).

61.  In the 2012 joint report, the Experts also noted significant and positive improvement in the Mother’s mood state in that she made good response to psychological treatment. She was in better control of her emotions and had grown stronger in facing up to ongoing life adversities. She had learned and accepted the importance of building up Bosco’s self confidence and in treating the children fairly. She had become more positive and proactive, and there was an increase in energy level in home-making and looking after the children. But she was still plagued by occasional worries and anxieties about future challenges such as Bosco’s school life and the prospect of future surgery, and occasional feeling of isolation because people around the home (especially the Father) gave Bosco preferential privileges and failed to exercise a fair deal between the children. The Experts opined that the Mother’s condition no longer warranted a diagnosis of depressive disorder, and it should be revised to adjustment disorder of a chronic nature with mixed anxiety and depression. They further considered that the Mother should continue with psychological treatment aiming at further consolidating her emotional control and forward-looking mentality. They maintained their previous suggestion of bi-weekly psychological sessions for the next 12 months.

62.  As for the Father, the Experts noted he was still guilt-ridden and emotionally burdened with Bosco’s problems. He used work as a way to occupy himself and at home he tried to compensate by being over-indulgent to Bosco, which created friction between him and the Mother. The Experts opined that the Father was suffering from adjustment problems with emotions of anxiety, depression and guilt reactions of a mild to moderate intensity, which satisfied the diagnostic criteria for adjustment disorder with mixed anxiety and depression. The Experts opined that the Father would benefit from psychological counselling (15 sessions) so that he could be helped to achieve a more positive outlook towards the future and be better relieved of his emotional and psychological burden.

63.  The above summaries of the 2010, 2011 and 2012 joint expert reports and Dr Fung’s psychological treatment report documented positive motivation and satisfactory progress of the Parents, especially the Mother, in being able to achieve better emotional control and enhanced ability to deal with hassles in daily life and psychological issues related to Bosco’s injured finger so much as that Experts revised the Mother’s diagnosis to adjustment disorder of a chronic nature with mixed anxiety and depression.

(c)  Psychological setback

64.  According to Dr Fung’s psychological treatment report dated 27 September 2012, the Father informed her on 18 September 2012 that the Mother was greatly distressed and dismayed after reading a letter from the Medical Council which set out their conclusion that there was no evidence of professional misconduct on the part of the defendant and no further hearings would be held (“Council Letter”). At that time, the Parents were due to attend the assessment hearing of the Consolidated Action in early November 2012, and was about to engage in various pre-trial preparations.

65.  Dr Fung saw the Parents on 20 and 25 September 2012. Although the Mother was calmer in the second session, she presented with persistent clinically significant symptoms of emotional disturbance. She was deeply aggrieved and emotionally unstable, and was often in tears as she spoke. She expressed a sense of extreme helplessness with the situation, and periodically spoke in anger and agitation. Dr Fung stated in her report that:

“…… the recent incident of the Council has clearly brought about a significant setback in her psychological condition. The Council’s letter served as an acute blow and undermined her previous progress attained in therapy in dealing with the emotional anguish associated with her son’s trauma; the anxiety in relation to the uncertainty for her son’s treatment, recovery and adjustment in the future; and preparation for the trial hearing. Currently her psychological condition is overwhelmed by anger, upset, powerlessness, helplessness, despair, sense of injustice, and guilt (for being unable to fight for fairness for her son).” (my emphasis)

66.  Dr Fung considered that although the Mother had “demonstrated the ability to benefit from appropriate psychological treatment given to her in the past year”, her persistent emotional disturbance and hyper-physiological arousal clearly indicated a need for pharmacological management, hence psychiatric intervention was recommended so that she could receive appropriate medication to bring down her overactive physiological reactions, allowing her to sleep and rest better and hopefully restore a calmer and clearer state of mind. Dr Fung considered that the Mother’s then psychological condition rendered her unsuitable to cope with the stresses of the assessment hearing in the Consolidated Action.

67.  In her report dated 8 October 2012, Dr Wong noted that the since the Mother received the Council Letter she had been emotionally unstable, and at the first consultation on 26 September 2012 she presented with a crisis situation. She could not eat or sleep. She was preoccupied with the Council Letter, and was angry and frustrated that their efforts to seek justice for Bosco were futile since the defendant was prepared to lie to the Medical Council and got away with it. She felt desperate and thought of dying with the Father. She felt ashamed and guilty in that she would be unable to face Bosco as he grew older because she and the Father could not get justice for him. Dr Wong considered that with psychological treatment with Dr Fung the Mother had gradually got better, but “receiving the letter on 18^th September had led to a major setback in her emotional state. [Dr Wong’s] impression is that she was reacting to acute stress, with a diagnosis of an adjustment disorder, with a mixed anxiety and depressive reaction ……” (my emphasis), and she started the Mother on medication. When Dr Fung saw her on 3 October 2012, the Mother could sleep better with medication and she took medication from time to time for her anxiety symptoms in the day. She still had major preoccupation with Bosco’s injury, the Council Letter and feelings of guilt. She also had a lot of worries about Bosco’s future psychological adjustment, and her concentration was poor.

68.  When Dr Wong saw the Father on 26 September 2012, he was worried about the Mother’s emotional instability, and was upset, angry and frustrated with the Council Letter. He was guilt-ridden as he was the one who decided to take Bosco to see the defendant, and felt shame and guilt in not being able to seek justice for him. Dr Wong noted that “[the Council Letter] hit him hard psychologically since it seemed to indicate that their efforts had been futile. It had shaken his beliefs in the justice system. [Dr Wong’s] impression was that he was reacting to an acute stress, with a diagnosis of an adjustment disorder, with a mixed anxiety and depressive reaction ……” (my emphasis) Dr Wong started the Father on some medication to help him sleep.

69.  Dr Wong was concerned that the Parents might develop a depressive episode and might require longer treatment with an antidepressant. For the Mother, Dr Wong suggested that ongoing psychiatric follow up and evaluation were imperative. For the Father, Dr Wong suggested he would require further psychological treatment to work through his guilt regarding Bosco’s injury. Dr Wong supported an adjournment of the assessment hearing in the Consolidated Action.

70.  When Dr Wong saw the Parents on 17 October 2012, neither of them was able to grasp her explanation that the court’s decision in civil litigation would not be influenced by the decision of the Medical Council. According to Dr Wong’s report dated 30 October 2012, they were preoccupied with the Council Letter, which came as a shock to them, and they were devastated by this turn of events.

71.  Dr Wong noted that the Mother was preoccupied with and felt hopeless and guilty about Bosco’s case. She was tearful and upset, unable to concentrate, and was absent-minded on daily matters. She reported irritability and lack of patience with her children. Her sleep was poor and she was tired all the time. In view of the persistence of the above symptoms for at least 1 month, Dr Wong revised the Mother’s diagnosis to a moderate depressive episode and started her on antidepressant in addition to her previous medication, and advised her to continue with psychological counselling.

72.  The Father reported to Dr Wong significant depressive symptoms which had been persistent for more than 1 month. But despite the above, he felt he had to maintain a strong front for his family. He started smoking recently to cope with the stress, and his work performance deteriorated. Dr Wong revised his diagnosis to moderate depressive episode, and started him on an antidepressant. He was advised to continue with psychological treatment.

(d)  Leave Judgment

73.  As discussed above, DHCJ Seagroatt refused the plaintiffs’ application to adjourn the assessment hearing in November 2012. In the Leave Judgment, Fok JA in giving the reasons of the court for refusing to grant leave to appeal against such decision referred to the plaintiffs’ assertions as follows:

“4. It is said now that the plaintiffs are in a situation of crisis and are suffering severe emotional turmoil such that they are in no fit state to prepare for or attend at the trial. This is because, by letter dated 13 September 2012 which was received on or about 17 September 2012, the Medical Council of Hong Kong informed the mother that her complaint of professional misconduct against the defendant doctor was not made out and that no further disciplinary action would be taken against the defendant.

5. In the father’s affirmation in support of the adjournment application, he describes the receipt of this letter as having devastated his wife and him, in particular his wife who expressed thoughts of suicide and suggested this to him, albeit the father acknowledges this is irrational. They consider that the defendant doctor misled the Medical Council and made untruthful statements in response to the plaintiffs’ complaints to the Medical Council against the defendant.

6. Subsequent to the receipt of the Medical Council’s letter, the plaintiffs were examined by the psychologist who is currently treating them (Dr Amy S.M. Fung) and also by their treating psychiatrist (Dr Josephine G.W.S. Wong).

7. The psychologist’s report notes that the mother is in a deeply aggrieved and emotionally unstable condition and that the recent decision of the Medical Council has brought about a significant setback in her psychological condition. She opines that the mother’s current psychological condition is such that her psychological fitness to cope with the stresses of the scheduled court hearing in general and cross-examination in particular is in doubt. She opines that the father also needs psychological help and support. She asserts that it would be beneficial if the court hearing could be deferred for at least three months to allow ample time for psychological and psychiatric interventions to take effect on the couple.

8. The psychiatrist opines that both the mother and father are reacting to an acute stress, each with a diagnosis of an adjustment disorder, with a mixed anxiety and depressive reaction for which antidepressants have been prescribed.  She opines that if the court hearing was to proceed in early November as scheduled, the stress of pre-trial preparations and the pressure associated with the court hearing would be detrimental to their mental health, leading possibly in the case of the mother to the development of a depressive episode which might require longer term treatment with an antidepressant.  She therefore supports a deferment of the court hearing for at least three months.”

74.  In refusing leave to appeal, Fok JA held as follows:

“15. First, it would be all too easy for plaintiffs in general to dictate the pace of personal injury litigation simply by claiming mental anxiety over the proceedings and so the court must look critically at the evidence adduced in support of an application to vacate the trial dates on this ground. …… The very nature of the plaintiffs’ claim for damages against the defendant is such that their fragile mental state is recognised, since liability has been conceded, and the trial judge will no doubt make allowances for any mental ill-health and litigation anxiety they may be suffering when he comes to assess any evidence they may give at trial. Judges hearing trials of personal injury actions are well used to dealing with parties and witnesses under disabilities, whether physical or mental, and to making appropriate allowances for those disabilities. It is also not uncommon for parties or witnesses to give evidence whilst on medication and, again, this is a matter which the trial judge can take into account and for which he can make such allowance as may be necessary and appropriate.

16. Secondly, given that liability has been conceded and that the trial is simply for the purpose of assessing the quantum of damages to which the plaintiffs are entitled, the outcome of the Medical Council’s investigation is, objectively, wholly irrelevant to these proceedings. Whether the defendant is guilty of professional misconduct or not will not affect the quantum of the damages recoverable by the plaintiffs from the defendant since liability for such negligence has been conceded and the trial is proceeding simply for the purposes of quantifying the damages flowing from such negligence. This is a matter which can and should be made clear to the plaintiffs, lest there is any misapprehension on their part that the recent communication from the Medical Council has in any way prejudiced the outcome of their damages claim. It has not done so. Insofar as their anxiety flows from a sense that they cannot get justice as against the defendant doctor, there is some force in the point that the solution to that anxiety is for the quantification exercise to proceed to a conclusion so that the plaintiffs can feel satisfied that they have sought and recovered the appropriate monetary compensation for the harm done to them and their son.

17. Thirdly, the evidence in Dr Amy Fung’s report exhibited in support of the application for an adjournment is to be contrasted with the joint psychological report prepared by Professor Wong Chee Wing and Professor W.H. Lee dated 6 September 2012 which indicates that the mother is showing good improvement in her emotional regulation. The Professors note significant and positive improvement in the mother’s mood state after the course of psychological treatment. Their opinion is that her present psychological and mental condition no longer warrants a diagnosis of depressive disorder but instead the diagnosis should be revised to adjustment disorder or chronic nature with mixed anxiety and depression in a mild intensity range. In the case of the father, their diagnosis is adjustment disorder with mixed anxiety and depression. In short, whilst the joint psychologists’ report pre-dates the receipt of the letter from the Medical Council, there is nothing in that report to suggest any reason why, notwithstanding those diagnoses in respect of the parents, the trial could not commence as presently scheduled. Furthermore, those diagnoses are consistent with the diagnoses contained in the psychiatric report of Dr Josephine Wong exhibited in support of the adjournment application.

……

23. It was further submitted that the Judge was wrong to observe that the outcome of the Medical Council’s investigation should not affect the plaintiff mother at all and that this showed he had failed to appreciate the severity of the situation and to take account of the actual emotional disturbance to the plaintiffs. We do not accept that the Judge erred in this regard. As we read it, the transcript of the ruling indicates that the Judge was making the point that any emotional disturbance caused to the plaintiff mother by the Medical Council’s letter is not objectively based and that its irrelevance to the outcome of these proceedings can be explained to her, thereby perhaps reducing or eliminating that emotional disturbance.

……

28.  …… These Reasons for Judgment will be available to the trial judge and there is no reason to doubt that he will not be alive to the plaintiffs’ vulnerable circumstances and will make such allowance as may be appropriate in the circumstances.  Hopefully, by the time the trial commences, the additional time that will have passed since the initial receipt of the Medical Council’s letter will have allowed the plaintiffs’ initial reaction to that letter to have lessened to some extent.”

(e)  Updated psychiatric treatment reports

75.  In her report dated 8 April 2013, Dr Wong provided an update in respect of the Parents’ mental condition since her last report. She noted that prior to September 2012, Dr Fung’s diagnoses for both Parents were adjustment disorder. Dr Wong herself gave them the same diagnoses, but revised to moderate depressive episode on 17 October 2012 due to persistence and severity of mood symptoms.

76.  Dr Wong considered the Parents to have been under extreme stress from preparing for the assessment hearing in the Consolidated Action. The Experts considered the Parents were then not suitable to handle the litigation. The Parents held the belief that justice would be done and the defendant would be sanctioned, but the Council Letter was “like a slap to their faces” and “a major blow to both of them. It precipitated a significant worsening of their distress”, hence Dr Fung urgently referred them to Dr Wong.

77.  Dr Wong saw the Mother on 31 October 2012 when she received news that the court declined to adjourn the assessment hearing in November 2012 and that the Director of Legal Aid would not support her intended judicial review against the decision of the Medical Council. She reported having poor sleep and being low in mood despite being on psychiatric medication. She felt blank, had no energy, could not concentrate, and had no enjoyment in anything:

“She felt worse than when Bosco’s finger was first injured because the finding of the Medical Council made her think that justice would not be done and all their efforts had been futile. She was particularly aggrieved by the fact that the Medical Council had exonerated the [defendant] doctor on the latter’s statement that he was not the one responsible for putting the bandage on Bosco’s finger which had caused it to be gangrenous. She was adamant that the statement was not true. She felt helpless and depressed. …… She reported that her husband was also struggling. …… She was depressed and tearful on examination.” (my emphasis)

78.  On 1 November 2012, Dr Wong saw the Father, who was on medication and had many worries about Bosco’s case and his wife’s confused state. “[The Father] felt that all their efforts seemed futile for the [defendant] doctor could get away by making untruthful statements. He felt that they were being oppressed.”  At about the same time, they were under pressure to settle the case as their lawyers had changed their advice after attending the hearing in September 2012. He was also under pressure to disclose his previous bank records. He had to coordinate to get the documents when the judge ordered it even though he did not understand why this was relevant. He felt harassed. He had a lot of unhappiness but could not burden his wife or talk to his friends. He was tearful and despondent. Dr Wong changed his antidepressant due to side effects.

79.  On 5 November 2012, Dr Wong saw the Parents. They reported having a tough weekend preparing for the assessment hearing, and had to send the children to their maternal grandmother’s place. The Mother could not think or concentrate, and felt negative and that the system was against them. She was tearful and despondent. As for the Father, he was upset as some of his colleagues complained when he took 3 days off work for the assessment hearing. He felt they were punished even though they were not in the wrong, and his guilt feeling was aggravated He could not sleep well, but struggled to try and hold it together for his wife. Supportive counselling was given, and the Parents were advised to continue with their medication.

80.  On 15 November 2012, the Parents attended Dr Wong’s clinic. They had to switch lawyers in the course of the court hearing and had the impression that the judge favoured the defendant doctor. They were particularly upset that the court had allowed the defendant access to all their bank records covering many years and on irrelevant matters. But they were relieved that the hearing was over, and their sleep was fair. “Both of them seemed calm and seemed euthymic during the session.” They were both given counselling and were advised to continue with their medication.

81.  Dr Wong noted that the assessment hearing was very difficult for them with change of lawyer during its course and adverse media reports implicating them as greedy parents. As discussed above, the Bosco Judgment was handed down on 20 November 2012.

82.  According to Dr Wong’s report dated 8 April 2013, the Parents did not see her until 2 January 2013 because of financial concerns. They were disappointed with the award and decided to appeal. At that consultation, they said they were busy trying to sort out an appeal against the Bosco Judgment, and were frustrated with the Legal Aid Department, which they felt did not give them timely assistance such that they had to engage the services of another solicitor just before the deadline. The Mother was depressed with feelings of guilt for not being able to seek justice for Bosco, lack of pleasure, irritability, poor sleep, poor appetite, and thoughts (but no plan) of suicide. “Bosco was reported to be more aware of his right hand being different from others. He had been teased by his classmates at school. [The Mother] is very worried about Bosco’s ability to cope. She was tearful and distressed on examination”. The Father was also depressed in mood with sense of struggling each day. He did not want to plan too far ahead. He had thoughts (but no plan) of suicide and pressure from having to be strong for his wife who was more upset and distressed. The Parents had run out of medication but could not cope without it, so Dr Wong prescribed psychiatric medication for both of them and wrote referral letters for them for public psychiatric care.

83.  On 23 January 2013, the Parents attended the follow up with Dr Wong. The Mother was very depressed and burst into tears as soon as she walked into the room. She was again upset about Bosco being more aware of his injury and difference to other children. She had a lot of worries about Bosco’s physical and mental health, and his future. She also had insomnia and poor concentration. On that day, an interview that the Parents gave to the Next Magazine came out in print, which made the Mother more emotional to be reminded of all the adversities that had happened since Bosco’s injury. The Mother said “they needed to report the unfair outcome of the Medical Council to the press as the system had been disappointing them. [She] said she could not stop crying even in a bus full of other passengers when reading the report as she found some relief that the wrongdoing of the [defendant] doctor was finally revealed”. As for the Father, he reported feeling overwhelmed and extremely stressed, especially as they felt the Legal Aid Department had been unhelpful. He was upset that the judge treated the Parents as if they were in the wrong during the trial and made them appoint the Legal Aid Department to be their lawyers. The Father was disappointed that the legal aid lawyer did not even respond to their calls for enquiry on progress of the case. The Mother did not dare use hypnotics since they were planning to lay off the domestic helper and she would need to look after the children full time. Dr Wong continued the Parents’ medication with hypnotics as required.

84.  On 18 February 2013, the Mother attended follow up whilst the Father looked after the children since the services of the domestic helper were terminated in early February due to financial reasons. The Mother was due to appear in court for the legal aid lawyer’s application to replace her with the Official Solicitor as Bosco’s next friend. She did not understand and felt oppressed. The Official Solicitor’s office told her there was no apparent conflict of interest, and she was upset that despite all her work for Bosco’s interest she was being attacked as a mother. She was worried that if the Official Solicitor was appointed as Bosco’s next friend she would have no say in Bosco’s case. She was very concerned about Bosco’s case. She was in a low mood, and was tearful and depressed. She could not sleep, and her appetite was poor. Due to sleep difficulties, the Mother’s hypnotic dose was increased, and she collected medication for the Father.

85.  On 18 March 2013, the Parents attended follow up with Dr Wong. They no longer had any domestic helper. The Mother appeared in court twice, and she was upset and frustrated with the uncertainty of the pending outcome. She had a strong sense of helplessness and felt under immense pressure. She tried not to think too much, but was at a loss to understand why she needed to provide irrelevant documents which the defendant was still demanding. She reported being irritable and impatient with the children. But her mood was a bit better after medication, and her appetite and concentration were fair. Her sleep was better with higher dosage of hypnotics. As for the Father, he tried to drown himself in work, and wanted to avoid thinking about the litigation because he could do nothing except get angry and frustrated. His mood, sleep and appetite were fair, and he felt the medication was helpful in lessening his preoccupation with the case.

86.  Dr Wong noted that the Parents had remained persistently depressed since her last report. Both were on medication with the Mother having a dose increase in January 2013 and the Father 2 changes of antidepressants due to side effects. The Mother continued to suffer from a moderate depressive episode although she had shown some improvement (eg lessened suicidal ideation, better sleep) after the medication. “The uncertainties over the judicial process of the ongoing legal action (stemmed from their experience since the [Council Letter] in mid September) and other subsequent litigation matters (eg regarding whether she can continue to act as Bosco’s next friend, whether they need to disclose more of their personal information to the [defendant]) are perpetuating her depressive illness”. As for the Father, he had shown some response to medication (eg being less preoccupied with the litigation, in sleeping and focusing a bit better). He had to support his wife and family as well as to deal with his own depressed mood. He was with the Mother all the way in the litigation, and had to support her although he was also facing depressed feelings, immense stress from work and uncertainties over the remaining litigation himself. His guilt reactions worsened as he and his wife were being pressurised at court. The injury suffered by Bosco and the stress of the subsequent litigation (still unconcluded) was a major aetiological factor in the Parents’ depressive episode. They still suffered from moderate depressive episode, and needed to be on medication for at least 6-9 months even after they got better, hence they were likely to need medical and psychological treatment at least for another year or more. The Parents told Dr Wong they would continue follow up at the public psychiatric clinic, but the first appointment (even on priority basis) would be on 29 April 2013.

87.  Dr Wong assessed the Mother on 23 May 2013 and reported on the Mother’s updated mental condition in her report dated 30 May 2013. The Mother was then under public psychiatric care and remained on medication (no change since under Dr Wong’s care):

“…… She reported that her mood was improving overall. There are no suicidal ideas. She takes hypnotics to sleep about 2 nights a week. On the other nights, she could sleep reasonably well without medication. Her appetite was normal. She was particularly relieved to hear that the parents could choose their own lawyers for Bosco’s appeal and that there would be a different judge to hear their own case in seeking compensation. She was able to discuss various aspects of Bosco’s litigation in detail. She expressed worries about upcoming challenges in Bosco’s litigation process. The level of worry is understandable and reasonable. She is not overwhelmed by such worries. She was confident she could be Bosco’s next friend …… On examination of her mental state, she was relaxed, smiling, normal in mood and affect. She showed good understanding of the legal process in Bosco’s litigation and had Bosco’s interests as her prime concern. Based on [Dr Wong’s] assessment, her depressive illness appeared to be well-controlled. [Dr Wong concludes] that she is capable of being her son Bosco’s next friend in litigation.” (my emphasis)

(f)  Discussion

88.  Expert evidence must be relevant, necessary and of probative value. It must be relevant in the sense that it is helpful to the court in arriving at its decision on one or more issues to be resolved.[11] The court can exclude expert evidence if it is of the view that calling such evidence will not be helpful to the court in resolving any issue in the case justly, eg where the issue to be decided is one on which the court can come to informed decision on the available evidence without the requested expert evidence.[12]

89.  Bharwaney J in Fung Chun Man v Hospital Authority & other [13]

gave further guidance on the court’s power to grant leave for a party to adduce expert medical evidence:

“9. The enactment of the CJR did not result in a change to O.38, r.36 of the [RHC] …… However, after the enactment of the CJR, it is clear that the court’s discretion, whether or not to grant leave to a party to adduce expert evidence, is to be exercised within the ambit of the court’s management powers. Those powers must be exercised in the light of the underlying objectives of the CJR, including the need to ensure the cost effectiveness of the proceedings; to ensure that the case is dealt with expeditiously; to ensure reasonable proportionality having regard to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party; to ensure procedural economy in the conduct of the proceedings; and to ensure fairness between the parties.

10. The courts recognise that the primary aim of its case management powers is to secure the just resolution of the dispute in accordance with the substantive rights of the parties. However, the substantive rights of the parties to a personal injury action do not include a legal right to call experts of their choice.

11. The expert evidence can only be adduced with leave of the court and, in deciding whether or not to grant leave, the court must ensure that such evidence is admitted only if it is likely to be of real assistance to the determination of the issues, and that it is adduced in the most effective and economic way consistent with the objectives of the CJR.

……

15. In summary, the expert evidence must be in a recognised discipline, reasonably required to enable the court to resolve the issues in dispute, and proportionate.”

90.  Likewise, Bharwaney J in Tang Tak Ping v Kai Shing Construction Company & anor[14] held as follows:

“11. The court’s discretion, whether or not to grant leave to a party to adduce psychiatric expert evidence, is to be exercised within the ambit of the court’s management powers. The court must ensure that such evidence is admitted only if it is likely to be of real assistance to the determination of the issues, that its costs is proportionate to the importance of the issue in question and the amount involved, and that it is adduced in the most effective and economic way consistent with the objectives of the Civil Justice Reform……”

91.  In dealing with the principles governing the granting of leave for evidence to be obtained and adduced from a psychiatrist or psychologist, Bharwaney J in Lai Yuk Shin v Hung Ling Kwok (Practice Note)[15] reiterated his observations in Fung Chun Man and reminded as follows:

“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.

……

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. ……” (my emphasis)

92.  On the basis of the above principles and for the reasons elaborated below, I am not convinced that psychiatric expert evidence is required for the assessment of damages in the Parents Action, and I refuse the Parents’ application for leave to adduce psychiatric expert evidence.

93.  There is no dispute that the Parents suffered psychological injury as a result of the Incident, so there is no dispute on the question of primary causation. On the basis of the Experts’ joint reports as to the Parents’ psychological condition from the time of the Incident up to June 2012 as set out in Part V(b) above, it is plain the Parents made progress psychologically with improvement of mood state and coping skills.[16] The Experts’ reports also documented that with psychological treatment the Parents, especially the Mother, were able to achieve better emotional control and better ability to deal with daily life issues as well as psychological issues related to Bosco’s injury. Indeed, the Experts were able to revise the Mother’s diagnosis from depressive disorder to adjustment disorder of a chronic nature with mixed anxiety and depression. Both Drs Fung and Wong agreed that the Mother demonstrated ability to benefit from appropriate psychological treatment given to her.[17]

94.  It is well further documented that the Parents, especially the Mother, suffered psychological setback in September 2012 upon reading the Council Letter informing them of the decision of the Medical Council,[18] which was variously described as an “an acute blow” that undermined progress attained in therapy,[19] a “crisis situation” with reaction to “acute stress”, emotional instability and preoccupation with the Council Letter,[20] and “a slap to their faces” which precipitated significant worsening of their distress.[21] It was also noted that the Council Letter “hit [the Father] hard psychologically”; he “reacted at an acute stress”, and was “upset, angry and frustrated”.[22] According to Dr Wong, the Parents were devastated by the turn of events, and by mid-October 2012 they were still preoccupied with the Council Letter which came as a shock to them.[23] Due to the persistence of the depressive symptoms for at least 1 month (ie since mid-September 2012 which was when the Parents received the Council Letter), Dr Wong revised her diagnoses for the Parents to moderate depressive episode and started them on antidepressants.[24] Indeed, when Dr Wong so revised her diagnosis on 17 October 2012, the Parents’ condition was largely maintained by preoccupation with the Medical Council’s decision, and they were unable to grasp the fact that court adjudication would not be affected by the Medical Council’s decision despite explanation by Dr Wong.[25]

95.  Mr Ko argued that the diagnosis of moderate depressive episode indicted that the Parents’ psychiatric condition had changed since the Experts’ 2012 joint report, so psychiatric expert evidence would be required to address their changed condition in order to re-formulate their claims. But according to the Leave Judgment, the triggering of psychological setback upon receipt of the Council Letter is objectively irrelevant to the assessment of damages in the Parents Action.[26] Indeed, after I have shown the Leave Judgment to Mr Ko and Ms Mohamed at the Hearing, Mr Ko conceded that the Parents would not rely on any argument insofar as their psychiatric condition was caused or contributed to by the decision of the Medical Council not to pursue disciplinary proceedings against the defendant or by their receipt of the Council Letter.

96.  Mr Ko reminded that Dr Wong did prescribe psychiatric medication and the Parents were still on such medication, which he said provided justifiable basis for psychiatric expert evidence. However, I note that it was the Parents’ “persistent emotional disturbance and hyper-physiological arousal” upon receipt of the Council Letter that required pharmacological management (and hence psychiatric intervention) to bring down the overactive physiological reactions and to allow sleep/rest in order to restore a calmer state.[27]

97.  This is to be contrasted to the Parents’ psychological state before the objectively irrelevant decision by the Medical Council and the Council Letter. Indeed, even at an early stage after the Incident, the Experts in 2010 opined that the Mother might not need psychiatric intervention at that point,[28] and it was envisaged that with psychological support and treatment the Parents would improve emotionally.[29] The Parents responded positively to psychiatric counselling, and there was no subsequent recommendation for psychiatric intervention prior to the Council Letter. Such contrast between the Parents’ psychological state before and after receipt of the Council Letter was also noted in paragraph 17 of the Leave Judgment,[30] which noted that the diagnoses contained in Dr Wong’s psychiatric report dated 8 October 2012 (ie before the persistence of symptoms resulting from the acute stress of the Council Letter which led to the maintenance for pharmacological management and revision of the Parents’ diagnoses to moderate depressive episode) were consistent with the Experts’ diagnoses for the Parents in their 2012 joint reports, ie adjustment disorder with mixed anxiety and depressive reaction.[31]

98.  Further, for the same reasons as explained in the Leave Judgment, I am unable to see how the Director of Legal Aid’s refusal to support the Parents in seeking judicial review of the Medical Council’s decision, their dissatisfaction with the Bosco Judgment and/or their difficulties with their legal advisers and the Director of Legal Aid[32] would be objectively relevant to the assessment of damages in the Parents Action.

99.  Even though the Practice Note by the PI Judge[33] suggested that 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, in the particular circumstances of the Parents Action (even though I need not come to come to specific findings for present purpose), and on the materials before me the presence of extraneous triggering events suggest that the causal connection between the defendant’s tort and what Mr Ko described as the changed psychiatric condition of the Parents is tenuous, and in any view undeserving of psychiatric expert evidence.

100.  In coming to this view, I have also taken into account the Mother’s alleged distress as a result of the report that appeared in the Next Magazine on 23 January 2013 and the suggestion in the letter dated 22 April 2013 by the defendant’s solicitors that such distress was self-inflicted and reflected a failure to mitigate loss in that the Parents themselves contacted the magazine and voluntarily gave an interview to that publication. Again, there is no need for me to make any finding in this respect for present purpose. But I note that Dr Wong documented an association of such interview with the Council Letter because the Mother said “they needed to report the unfair outcome of the Medical Council to the press as the system had been disappointing them”,[34] and I bear in mind that the Parents had conceded that the decision of the Medical Council was objectively irrelevant to the assessment of damages. I am not persuaded that the Mother’s alleged distress as a result of the press report justified psychiatric expert evidence.

101.  Mr Ko submitted that the Mother noted Bosco was more aware of his right hand being different from others and he had been teased by his classmates at school, and psychiatric expert evidence was justified because the Mother was worried about Bosco’s ability to cope.[35] But it must be remembered that the Parents’ Action is not concerned with compensation for Bosco but with damages for the Parents. Insofar as the Mother’s worries are concerned, the Experts had already taken into account the Mother’s anxiety about Bosco’s adjustment to the move to primary school and his future reconstructive surgeries, and they had already recommended a psychological treatment plan that involved both the Mother and Bosco to prepare the Mother as well as Bosco on dealing with future unwelcome/undesirable social interactions in relation to his injured finger.[36] I am not persuaded that psychiatric expert evidence is justified.

102.  Insofar the Parents are affected by anxiety as a result of dealing with the Parents Action (but putting aside objectively irrelevant matters), I am not persuaded that psychiatric expert evidence is required for such purpose.  As explained by Fok JA, trial judges hearing trials of personal injury actions are well used to dealing with parties and witnesses under disabilities, physical and mental, and to make appropriate allowance for those disabilities.[37] Indeed, there is much to be said for progressing with the assessment of damages quickly rather than spending time and effort on unnecessary expert evidence that will not truly be helpful in assisting the court in its adjudication. I bear in mind the observation by the Court of the Appeal that insofar as the Parents’ anxiety flowed from a sense that they could not get justice from the defendant doctor, there was some force in the point that the solution would be for the quantification exercise to proceed to a conclusion, and hopefully by the time the assessment of damages commences the additional time that will have passed will have allowed the Parents’ initial reactions to have lessened.[38]

103.  More significantly, notwithstanding the anxiety and distress suffered by the Parents following the decision of the Medical Council and their sight of the Council Letter (which matters are objectively irrelevant to the assessment of damages in the Parents Action), there were recent promising signs of improvement as noted in Dr Wong’s report dated 23 May 2013. In particular, the Mother was able to discuss about the litigation, and she was not overwhelmed by her worry in this respect, which worry Dr Wong considered was reasonable and understandable. Indeed, the Mother was relaxed, smiling and normal in mood and affect, and her depressive illness was well controlled.[39] Such improvement also spoke against the need for psychiatric expert evidence.

104.  In light of the above considerations and bearing in mind the availability of several detailed witness statements from each of the Parents, the 2010, 2011 and 2012 joint reports by the Experts, and the detailed treatment reports by Drs Fung and Wong, further psychiatric expert evidence is not reasonably required, and such evidence is disproportionate and unnecessary for the purpose of enabling the court to resolve the quantum issues in dispute. I dismiss the Parents’ application for leave to adduce psychiatric expert evidence.

VI. PARENTS’ APPLICATION: RE-REVISED STATEMENT OF DAMAGES

105.  In their letter dated 8 April 2013, the Parents’ solicitors said the Parents would require leave to further revise the CRSOD (which was prepared for the Consolidated Action) to inter alia update the pleas therein. They claimed that due to the de-consolidation of the Bosco and Parents Actions, some items of claim would have to be properly apportioned or moved from the Bosco Action to the Parents Action (eg claims for “Value of Care of Father” and “Domestic Helper”expenses), particularly in view of the Bosco Judgment (but without prejudice to the Bosco Appeal).

106.  In their letter dated 22 April 2013 to the PI Judge, the defendant’s solicitors claimed there would be no need for any Re-Revised Statement of Damages since there were no claims that required apportionment. Although the defendant agreed that the claim for “Value of Care of Father” should be sought in the Parents Action (which the defendant  further acknowledged would not require further revision to the CRSOD), it was argued that the Parents should not be allowed a second opportunity to further revise the CRSOD to bring a new head of claim for domestic helper expenses (which was part of Bosco’s claim and adjudicated in the Bosco Judgment) in the Parents Action “to compensate for the Court’s refusal to make such an award in the [Bosco Action]”.

107.  In my view, for the claim for “Value of Care of Father”, which was originally part of Bosco’s claim against the defendant in the CRSOD, DHCJ Seagroatt held in paragraph 32 of the Bosco Judgment that such claim “occasioned by [the Father’s] need to care for Bosco and/or undertake work closer to home or on a part-time basis …… falls to be considered in the context of [the Parents Action]”. Since Mr Ko and Ms Mohamed agreed that such claim should be pursued in the Parents Action, further revision of the CRSOD would not be required merely to plead this head of claim in the Parents Action if it were the sole item of revision.

108.  As for domestic helper expenses, paragraph 34 of the CRSOD pleaded that “[in] May 2011, a Foreign Domestic Helper was employed to assist the Mother in looking after [Bosco] and attending to household chores, which was not the original plan of the family”, and damages for such head of claim were sought in the Bosco Action in the sums of HK$105,000.00 (ie HK$7,000.00 per month x 15 months from 11 March 2011 to 10 June 2012), and HK$840,000.00 (ie HK$7,000.00 per month x 12 x 10 (multiplier until Bosco is 17 years old)).

109.  In the Answer, the defendant pleaded that the alleged need for a foreign domestic helper was not caused by Bosco’s injury but by the subsequent birth of Bosco’s sister in August 2010 and/or the Mother’s wish to work outside the home. It was further contended that the foreign domestic helper would have been employed in any event, and there was no evidence that additional assistance in looking after Bosco was required as a result of the Incident to take care of him up to the age of 17.

110.  In paragraph 34 of the Bosco Judgment, DHCJ Seagroatt held as follows:

“Even though the father and mother may have been substantially involved in the care of Bosco their commitment can only be justified for a relatively short period and even then it would not have been unreasonable for both of them to have been involved at the same time. If a domestic helper was required that was not directly attributable to Bosco’s situation. In any event no records have been produced and it would not be reasonable to make any award under this head.”

111.  Ms Mohamed submitted that domestic helper expenses had not been part of the claim in the Parents Action, so there was no justification for the Parents to raise such claim at this stage when the court had rejected this head of claim in the Bosco Action. In short, the Parents should not have a second bite of the cherry.

112.  In my view, the suggestion of having second bite of the cherry is inapt. In the CRSOD, the claim for domestic helper expenses was made on a two-fold basis, ie to look after Bosco and to attend to household chores. Of course, when such expenses were pleaded as part of Bosco’s claim against the defendant in the Consolidated Action, the Parents could not within the same action make any duplicative claim even if they contended that they also required domestic helper services. DHCJ Seagroatt’s finding in the Bosco Judgment that “[if] a domestic helper was required” it was not “directly attributable to Bosco’s situation” only concerned Bosco’s claim, and he did not by his finding shut the door against the possibility that domestic helper services were/are required by the Parents and/or either of them. The question therefore remains whether there is any arguable basis for a plea to be made for domestic helper expenses being attributable to the Parents’ situation.

113.  The 2010 joint report by the Experts stated that the Mother told the Experts she had plans to hire a domestic helper “so that she can gradually increase her social life” and “she could have more time to herself” even though she was not sure if she could feel secure enough to leave Bosco to the helper if she should go out. In the 2011 joint report, the Experts opined that the Mother needed to lessen her pervasive and foreboding sense of risk and danger about her children, to have more trust in inter alia the domestic helper, and to widen her social circle to the point she might contemplate venturing out to do some limited part-time work whilst leaving Bosco in the trusted hands of inter alia the domestic helper. In the 2012 joint report, the Experts noted that the Mother was dissatisfied with the first domestic helper, but she was quite satisfied with the second domestic helper. Compared to previously, “[she] feels now being more in control of her emotions, and is less worried when she has to be leave her children in the hands of …… carers [and the domestic helper]”. “She could also place her younger daughter under the care of her domestic helper, while she was attending to Bosco’s needs such a taking him to and from school.”

114.  In her supplemental witness statement dated 11 January 2011, the Mother said that after the Incident, she was not as good as before physically and mentally, and she often had insomnia and was very worried. She did “not take care of the household chores and [she] felt [she had] neglected in taking care of [her] 2^nd daughter”. Although the Parents’ flat was small they still decided to hire a domestic helper “to assist looking after [their] 2^nd daughter and other household chores”. In her 2^nd supplemental witness statement dated 31 July 2012, the Mother explained she was dissatisfied with the first domestic helper who was dismissed, but she felt the second domestic helper put more effort into looking after the children. After the second domestic helper had worked for the Parents for 2-3 months, the Mother was confident to let her look after the 2^nd daughter herself for a short period of time.

115.  In my view, there is just about enough evidential basis to raise the possibility that certain domestic helper expenses may be attributable to the Parents’ or at least the Mother’s situation. The Mother claimed she suffered psychological impairment and was stressed as a result of the Incident. On the basis of the above expert reports and witness statements, it is arguable that the Mother was able to cope better emotionally with the help of a domestic helper. In the circumstances, I am of the view that leave should be granted for the Parents to transfer this head of claim (with possible reduction due to apportionment) to the Parents’ claim.

116.  I therefore grant the following directions:

(a) leave to the defendant to further revise the CRSOD by:

(i) subject to (b) below, deleting all averments that are solely in respect of the Bosco Action;

(ii) subject to (c) below, transferring the claim for “Value of Care of Father” in paragraph 41 in the CRSOD to the section under the Father’s claim in the Parents Action;

(iii) subject to (d) below, transferring the claim for foreign domestic helper expenses in paragraphs 43 and 47(a) in the CRSOD to the section under the claim by the Mother and/or the claim by the Father in the Parents Action with apportionment between the Father’s claim and the Mother’s claim where appropriate;

(b) for the avoidance of doubt, the revision to the CRSOD in paragraph (a)(i) above shall be by deletion only, and no leave is granted for adding any new plea/averment or varying any existing plea/averment;

(c) for the avoidance of doubt, the revision to the CRSOD in paragraph (a)(ii) above shall be by transfer of  the existing pleas in respect of the claim for “Value of Care of Father” in its entirety without amendment to the section under the Father’s claim;

(d) for the avoidance of doubt, the total claim for foreign domestic helper expenses to be pleaded in the section under the claim by the Mother and/or the claim by the Father in the Parents Action pursuant to the transfer of such claim by revising the CRSOD in (a)(iii) above shall not exceed the claims presently pleaded in paragraphs 43 and 47(a) in the CRSOD, but the Mother and/or the Father are at liberty to reduce the amount claimed upon the aforesaid transfer of such claim;

(e) the Parents shall file and serve Re-Revised Statement of Damages within 14 days from today, ie on or before 3 September 2013, and such Re-Revised Statement of Damages shall be accompanied by its statement of truth;

(f) leave to the defendant to consequentially revise the Answer and to file and serve Revised Answer within 14 days thereafter, ie on or before 17 September 2013, and such Revised Answer shall be accompanied by its statement of truth;

(g) time shall run during court vacation.

VII. PARENTS’ APPLICATION: SUPPLEMENTAL WITNESS STATEMENTS

117.  According to the letter by the Parents’ solicitors dated 22 April 2013 to the PI Judge, the assessment of damages in the Bosco Action before DHCJ Seagroatt on 14 November 2012 was a “paper trial” in that the Parents “did not give any oral evidence. Other witness which concerns the [Parents’] claim has not been called. ……”

118.  Mr Ko in his written submissions suggested that supplemental witness statements would be required “to deal with relevant matters which have not been covered by the [Parents’] last witness statements”. But in their letter dated 8 April 2013, the Parents’ solicitors noted that at the PTR in respect of the Consolidated Action on 14 September 2013 the Parents sought leave to serve supplemental witness statements to update various ongoing expenses and Bosco’s condition after school started in June 2011, which leave was granted at such PTR but was rejected by DHCJ Seagroatt who suggested that any update evidence could be given by the Parents orally at the assessment hearing. The Parents’ solicitors went on to say in the letter that “[on] basis that the said arrangement is still in place (and therefore compliance with O38 r2A is waived), the [Parents] are not seeking leave to serve further witness statement. ……”

119.  In the Parents Action, the Mother and the Father have respectively served 3 and 2 supplemental witness statements. In my view, there is little justification for another round of witness statements, especially when the defendant does not seek to adduce factual witness evidence, and there is no need to deal with matters arising from the other side’s statements. If it is merely a matter of updating special loss incurred to date, one expects the ongoing obligation for discovery and eventual production of such discovered invoices and receipts would take care of the documentary evidence. There is no suggestion that any further supplemental witness statement will canvass completely new dimensions (eg the Mother’s actual return to work) other than the Parents’ situation since their last witness statements. That being the case, it is for the Parents to seek leave of the court at the assessment hearing to “give evidence in relation to new matters which have arisen since the witness statement was served on the other party”. [40] If such application is made at the assessment hearing, the court will consider the merits of such application in light of (a) Order 38 rule 2A(7A) of the RHC, (b) the need to assess damages down to the assessment hearing, (c) the consideration that objectively irrelevant matters are not admissible, and (d) any other pertinent considerations at the time of the application.

120.  In all the circumstances, as a matter of case management discretion, I decline the Parents’ application for serving supplemental witness statement(s).

VIII.  DEFENDANT’S APPLCATION: FORENSIC ACCOUNTING EXPERT EVIDENCE

121.  Ms Mohamed submitted that forensic accounting expert evidence would be required to ascertain the pattern of fund movements and transfers in the Parents’ bank accounts, and suggested that this exercise would only take 2-3 weeks.

122.  Whether to grant leave to adduce expert evidence turns on whether such expert evidence is necessary, relevant and/or of probative value. As explained above, the defendant did not adduce any bank statement/document/record or other information about the bank accounts in support of the application. The Parents helpfully produced a schedule summarising the bank statements disclosed in respect of the Parents’ bank accounts with 4 banks, some dating back to mid-2007. There were about 30 accounts but about a dozen of them had been closed. No information had placed before me in respect of (a) the relevance of reviewing all the available bank statements of all known bank accounts, (b) any difficulty in reviewing the available bank statements, and/or (c) the necessity of studying all entries of the available bank statements.

123.  Bearing in mind that the Parents had given detailed witness statements of their employment and earnings, they would be subject to cross-examination at the assessment of damages, the production of the written confirmations from the IRD as to their tax return status, the death certificate confirming that the Father’s previous employer had died, the availability of the Mother’s former employer as witness for cross-examination, the quantum of the Parents’ pre-trial earnings as claimed, and the matters set out in the above paragraph, there is quite simply a lack of probity and/or necessity in having any forensic accounting expert evidence. The defendant’s application for forensic accounting expert evidence is dismissed.

IX.  WAY FORWARD

124.  There is no reason why the Parents Action should not be set down for assessment of damages. I therefore grant the following directions:

(a) the reports of the government hospitals as to the treatment and care of the Parents (if any) shall be adduced at the assessment hearing without the makers thereof;

(b) the treatment reports by Dr Fung dated 7 June, 27 September and 30 September 2012 and by Dr Wong dated 8 October and 30 October 2012 and 8 April and 30 May 2013, and the 2 referral letters by Dr Wong to the Hospital Authority Psychiatric Clinic  dated 2 January 2013 shall be adduced at the assessment of damages without calling Drs Fung and Wong;

(c) a composite bundle of medical records is to be agreed between the parties, fully paginated and indexed, with any original illegible entries in typed transcribed form in addition to the original entries and lodged with the court with the trial bundle and separate therefrom;

(d) the joint reports by the Experts dated 10 December 2010 in respect of the Mother and the Father respectively, the joint notes  by the Experts dated 4 and 8 January 2011 respectively, the joint reports by the Experts dated 14 September 2011 in respect of the Mother and the Father respectively, the joint reports by the Experts dated 16 September and 13 October 2011 respectively in respect of the Mother, the joint report by the Experts dated 6 September 2012 in respect of the Mother and the Father respectively (but exclusive of pages 4-15 of such report in respect of Bosco) shall be adduced at the assessment of damages without oral evidence;

(e) no further or additional expert medical reports shall be obtained or adduced without the leave of the judge hearing the assessment of damages;

(f) within 21 days of the Revised Answer, ie on or before 8 October 2013, the parties shall agree the index (or indices) of the contents of the assessment bundle, which index (or indices) shall exclude any and all bank statements;

(g) copy of the index (or indices) of the assessment bundle shall be initialled by the solicitors for the parties and shall be submitted to the judge hearing the assessment of damages within 7 days thereafter, ie on or before 15 October 2013;

(h) the Parents and the defendant shall respectively file and serve certificate of estimate of time for the assessment of damages on or before 15 October 2013, and the total estimated time for such certificate by the Parents shall not exceed 1¼ days and by the defendant shall not exceed 1¾ days;

(i) upon compliance with (f) – (h) above, the Parents shall on or before 31 October 2013 (and failing which the defendant shall on or before 7 November 2013) (i) set the Parents Action down for assessment of damages before me in the fixture list and (ii) fix a PTR before me with 30 minutes reserved on a date no later than 6 weeks before the assessment hearing;

(j) upon application to set down, the Parents’ solicitors (or where appropriate, the defendant’s solicitors) shall provide the Listing Clerk with a letter that all directions (save for (k) to (o) below) have been complied with;

(k) no later than 21 days before the PTR in (i)(ii) above (excluding Saturday, Sunday and public holiday), the Parents shall serve on the defendant an index of all directly relevant bank statements that they will refer to at the assessment of damages, and the defendant shall serve on the Parents an index of all directly relevant bank statements that he will refer to at the assessment of damages;

(l) no later than 14 days before the PTR in (i)(ii) above (excluding Saturday, Sunday and public holiday), the Parents shall compile a Bank Statements Core Bundle with a combined index comprising bank statements specified in the indices in (k) above chronologically listed under each bank account;

(m) no later than 7 days before the PTR in (i)(ii) above (excluding Saturday, Sunday and public holiday) the Parents shall lodge and serve the assessment bundle agreed by the parties and the Bank Statements Core Bundle;

(n) the estimated length of the assessment hearing is 3 days using the assessment bundle agreed by the parries and the Bank Statements Core Bundle;

(o) the parties do within 56 days from the date hereof try to agree on the English translations of all Chinese documents and/or witness statements to be relied on at the assessment of damages, and failing such agreement the parties shall obtain certified English translations of all such Chinese documents and/or witness statements as soon as practicable and in any event no later than 21 days before the PTR in (i)(ii) above;

(p) the Parents’ solicitors shall send a copy of this order to the Legal Aid Counsel in charge of this case to ensure there is no delay in compliance with these directions due to late assignment of counsel or late issuance of an appropriate certificate;

(q) liberty to apply.

125.  In respect of the Bank Statements Core Bundle, it is important that the parties should give careful thought as to what is truly required for the purpose of the assessment of damages in good time prior to the assessment hearing, and that there shall be clear focus on the true matters in contention without disproportionate clutter of unnecessary bank statements that are of little or marginal relevance. Parties are reminded that the available bank statements appear to span over an extended period, and inclusion of an abundance of material that is disproportionate to the disputed issues and that unnecessarily takes up valuable assessment hearing time may have costs and other consequences.

126.  As will be seen in Part I above, the parties have adopted a practice of unilaterally writing to the court (albeit on notice to the other party) on inter partes matters. This is inappropriate, and I trust this practice will desist. If the parties agree that a dispute between them can be placed before the court for paper adjudication or directions, they can jointly write to the court for such purpose by setting out their respective stance and requesting for the court’s decision. If they are not in a position to do so, then the proper course is to take out an inter partes application.

127.  On the matter of costs, apart from the matter of the revision of the CRSOD, neither party succeeded in any of their applications before me. I consider that a fair order as to costs is that there will no order as to costs in respect of all the applications before me save and except that the Parents do pay costs of and occasioned by the revision to the CRSOD but costs of the hearing in respect of the Parents’ application to so revise the CRSOD shall be to the Parents in any event to be taxed if not agreed.[41] I grant a costs order nisi to such effect and the Parents’ own costs be taxed in accordance with Legal Aid Regulations. I further direct the Parents’ solicitors to draw up the court order in respect of all of the above matters.