CHAN SUET YAN BONNIE v. LIU SIU PING t/a ZENITH KINDERGARTEN & INTERNATION NURSERY

HCPI 984/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 984 OF 2006

____________

____________

____________________________

REASONS  FOR  RULING

____________________________

1.  The defendant appeals against Paragraph 5 of the order of Master Kwan on the Checklist Review, which reads:

“The plaintiff may insert the report of Dr Tommy Chan, Clinical Psychologist dated 26^th January 2007 into the trial bundle for the perusal of the trial judge who can attach whatever weight he may to it.”

2.  The defendant seeks to have this part of the order set aside, or alternatively that leave be granted to the defendant to adduce a psychological expert’s report in reply to that of Dr Chan.

3.  The order appealed against is made in the context of other orders that the medical evidence is to be limited to one neurological and one psychiatric consultant for each party.  The plaintiff’s neurologist is Dr Brian Choa and the defendant’s is Dr Edmund Woo.  The plaintiff’s psychiatrist is Dr Chung See Yuen and the defendant’s is Dr Benjamin Lai.  The reports are to be adduced without oral evidence.

4.  The plaintiff is a kindergarten teacher.  She met with an accident at work on 21 November 2003, when a clock fell on her head as she sat at her desk.  She says her vision went dark for a few moments but she never lost consciousness.  She suffered from headaches during the next few days, and they got worse; she was taken into hospital on 27 November, after a severe headache with vomiting.  A CT scan was done but no abnormality detected.  She went back to work, taking painkillers and tablets for dizziness as required.  However in early 2004 she developed depressive symptoms which led to further treatment and absence from work.  Eventually she gave up kindergarten teaching.

5.  The psychiatric experts saw the plaintiff on 13 April 2007 for a joint examination.  They agreed, and I take this from the table that appears in the bundle, that:

(1)     The plaintiff has some symptoms of post-concussional disorder.

(2)     She does not have post-traumatic stress disorder or bipolar disorder; both were ruled out.

(3)     She is fit to return to pre-accident employment with mildly affected work efficiency.  She is fit to work during the period of psychiatric treatment.

(4)     Her mental problems have improved after treatment and the residual symptoms were mild.  The treatment received in the public sector was adequate and could be tailed off after one year.

6.  Dr Chan, the clinical psychologist, gave his opinion that:

(1)     The plaintiff is suffering from post-concussional disorder.

(2)     She is suffering from post-traumatic stress disorder.

(3)     She cannot return to her pre-accident employment.

(4)     Significant improvement is not likely, and she should be in regular psychotherapy in the private sector.

Dr Chan also includes an assessment of whole person impairment and an assessment of loss of earning capacity but of course these are regarded as irrelevant in a common law claim.

7.  In her Statement of Damages dated 14 February 2007, the plaintiff pleads and relies on the report of Dr Chan.  Clearly, his report does not agree with what the plaintiff’s own psychiatrist now says, in the later joint report.  Dr Chung sees the plaintiff’s condition as rather less serious than does Dr Chan; and Dr Lai generally agrees with him on the diagnosis though he also says that the plaintiff is exaggerating her complaints.

8.  It is difficult to see that the plaintiff can continue to rely on Dr Chan’s report for the purpose of assessing damages.  It would make sense for her to file a Revised Statement of Damages, relying on the psychiatric evidence.  There would then probably be no need to put Dr Chan’s report into the bundle at all.  I have not been told that this will happen but I suspect from what Ms Lau has said that it probably will. 

9.  The terms of the Master’s order, which gives the plaintiff the option to put the report before the judge if she wishes, suggests that the Master did not think that the judge would give much weight to the report, once before him.  Neither do I.  At the same time, no doubt the Master felt that the judge should not be blinkered, particularly since Dr Chan’s report is relied on in the Statement of Damages.  No doubt she thought the judge could be trusted to take a sensible approach to it.  So do I.

10.  I cannot see that there is any injustice to the defendant in letting the judge see the report of Dr Chan.  Really the only question is whether the defendant should be allowed to adduce a report from its own clinical psychiatrist.  I cannot see any point in this.  It would be like buying chain mail, when faced with an opponent armed only with his fists.

11.  I therefore dismiss the appeal.

12.  I turn to the question of costs.  On 12 April 2006, the defendant’s solicitors gave notice that, since it had been agreed that only neurological and psychological experts would be instructed, they would object to the plaintiff adducing Dr Chan’s report.  When the defendant filed the notice of appeal, his solicitors asked the plaintiffs’ solicitors whether they would oppose the appeal.  Their reply was that they did not object to the defendant adducing its own psychological evidence in response, as sought in the alternative in the Notice of Appeal.  However the defendants’ solicitors insisted on proceeding.

13.  Unfortunately, as so often happens, no one asked the sensible question; everyone fell into the automatic aggressive stance.  This is often unnecessary.  The system is adversarial but the participants sometimes do not have to be.  That question is, will the plaintiff put Dr Chan’s report in the bundle, as the Master has said she may, or will she not?  Of course I am applying hindsight here but I expect that, if the defendant’s side had asked the sensible question, or if the plaintiff’s side had made the sensible decision early, and simply indicated that it would leave out Dr Chan’s report, then the appeal would not have proceeded.

14.  In the circumstances, I will make no order as to costs.