FONG BUN MO v. HONG KONG AIRPORT SERVICES LTD

DCEC1200/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1200 OF 2005

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REASONS FOR DECISION

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Introduction

1.  The Applicant claims against the Respondent for employees' compensation in respect of an accident allegedly caused to the Applicant on 7^th November 2003.

2.  The Applicant claims that on 7^th November 2003 at about 7pm he was in the course of employment with the Respondent unloading luggage at the aircraft rear bulk hold at W44 of the Hong Kong International Airport, Chek Lap Kok, Lantau Island. A luggage suddenly fell off from the top layer and the Applicant raised his hands to stop it from dropping onto him. He was hit by the luggage and suffered injuries to his back and both thumbs.

3.  The Respondent in its Answer admits that the Applicant was its employee at the material time, but puts the Applicant to proof in respect of the accident and the injuries he allegedly suffered. But on 17^th January 2006 the Respondent filed a notice of admission of liability. On 25^th January 2006, judgment on liability was entered against the Respondent.

Issue

4.  The question before me is whether psychiatric expert evidence should be adduced for the assessment of compensation. After hearing the parties, I made the following orders :

(a) leave be granted to the parties to file and serve psychiatric expert reports within 98 days from the date hereof;

(b) expert medical evidence be limited to one joint orthopaedic expert Dr Danny Tsoi and one psychiatric expert for each party;

(c) the Application be adjourned sine die with liberty to restore;

(d) costs of the hearing be in the cause of the assessment of compensation; and

(e) the Applicant's own costs be taxed in accordance with Legal Aid Regulations.

I have informed the parties that I will hand down my reasons for decision in due course and this I now do.

Forms 7 and 9

5.  By a certificate of assessment dated 14^th July 2005 (“Form 7”), the Employees’ Compensation (Ordinary Assessment) Board (the “Board”) certified that in respect of the Applicant’s injuries, namely, “back and both thumbs injury resulting in back and right thumb pain and weakness; depression”, (a) the period of absence from duty necessary as a result of the injuries were intermittent periods between 7^th November 2003 and 30^th June 2005 and (b) the loss of earning capacity permanently caused by the injuries was 3%.

6.  By a certificate of review of assessment dated 10^th November 2005 (“Form 9”), the Board certified that in respect of the Applicant’s injuries, namely, “back and both thumbs injury resulting in (i) back pain and stiffness; (ii) right thumb pain and weakness; and (iii) depression”, (a) the period of absence from duty necessary as a result of the injuries were intermittent periods between 7^th November 2003 and 30^th September 2005 and (b) the loss of earning capacity permanently caused by the injuries was 5.5%.

7.  On 7^th January 2006, the Applicant lodged an appeal against the assessments stated by the Board in Form 9.

Orthopaedic expert evidence

8.  Both parties jointly instructed Dr Danny Tsoi (“Dr Tsoi”) who prepared his orthopaedic expert report dated 11^th December 2005 (“Dr Tsoi’s Report”). In Dr Tsoi’s Report, it was noted that by mid-2004 the Applicant developed insomnia and had low mood. He was referred to the psychiatric department of the Princess Margaret Hospital for management and regular medication was given to him since. As at the time of Dr Tsoi’s Report, the Applicant’s next psychiatric follow-up would be on 30^th December 2005.

9.  Dr Tsoi stated as follows in his report : “It was noted that [the Applicant] developed mental illness in 2004. From his own description, he probably suffered from depression. Please seek opinion from a psychiatrist to determine whether this was a case of post-traumatic stress disorder.” Dr Tsoi also said “…… I strongly recommend him to continue his psychiatric treatment. I believe that the psychosomatic pain will improve a lot once the illness is under control.”

Psychiatric expert evidence?

10.  On 1^st February 2006, the Applicant's solicitors wrote to the Respondent’s solicitors to advise that they would instruct Dr K Singer as the Applicant’s psychiatric expert and invited preparation of a joint expert report.

11.  On 6^th February 2006, the Applicant's solicitors provided a copy of the discovered medical report of the Applicant prepared by Dr Tam Wing Hong Danny (“Dr Tam”) of South Kwai Chung Psychiatric Centre (the “Centre”) dated 10^th December 2005 (“Dr Tam’s Report”).

12.  According to Dr Tam's Report, the Applicant was referred to the Centre by the orthopaedic unit of the Princess Margaret Hospital. His chief complaint was pain, which disturbed his sleep and mood.  The Applicant first attended the Centre on 30^th August 2004.

13.  Dr Tam's Report recorded that the Applicant gave a history of the accident. The Applicant complained that his pain was not much alleviated by analgesics. He had reduced appetite/sleep as a result of the pain and suffered from poor concentration. He became pessimistic and gloomy about the future. Fleeting suicidal idea was noted. The Applicant was diagnosed with Mild Depressive Episode and treated with medication and supportive psychotherapy. No sick leave was granted. The Applicant attended regular psychiatric out patient follow-ups and did not refuse medical treatment. According to Dr Tam, prognosis was good and 0-1% disability anticipated. He opined that whether the Applicant could resume his pre-accident work depended on the degree of recovery of his orthopaedic problems.

14.  On 8^th February 2006, the Respondent's solicitors wrote to the Applicant's solicitors referring to the strictures of Suffiad J in Ho Man Fong v Sime Darby Motor Services Limited HCPI196/2003 (unreported, 19^th July 2005). They warned the Applicant's solicitors that the court might well query the necessity of engaging psychiatrists on a private basis to compile psychiatric expert reports in the present case and that there would likely be adverse costs consequences. The Respondent's solicitors urged the Applicant's solicitors to seek updated reports from the psychiatric medical personnel who were treating the Applicant, which they said should be sufficient given the minor nature of the alleged symptoms.

15.  The Applicant's solicitors replied by letter on 10^th February 2006 insisting on seeking psychiatric expert evidence. They pointed out that the Board and the Centre both confirmed that the Applicant suffered from psychiatric problems including depression. Dr Tsoi's Report also recommended seeking psychiatric expert opinion. The Applicant's solicitors suggested that the Ho Man Fong case was distinguishable and drew attention to the case of Arfran Muhammad and MPS Engineering Limited & ors HCPI457/2003 (unreported, 30^th June 2005).

16.  The Respondent's solicitors in their reply letter dated 3^rd March 2006 suggested that the Arfan Muhammad case was irrelevant and that Wong Hin Pui v Mok Ying Kit & anor HCPI763/1997, Seagroatt J (unreported, 21^st December 1999) and the Ho Man Fong case were more pertinent. The Respondent’s solicitors were of the view that the court would disallow costs incurred in obtaining expert psychiatric reports and/or calling such experts as witnesses at the trial. The Respondent's solicitors again urged the Applicant's solicitors to obtain an updated psychiatric report from the treating hospital.

17.  The Applicant's solicitors confirmed their position in their letter of 6^th March 2006. They pointed out that in light of the Respondent's stance, the Applicant would proceed with the examination by the Applicant’s own psychiatric expert solely. They did not see the need to inform the Respondent’s solicitors of the details of the examination unless the Respondent wished to participate in a joint medical examination.

18.  The Applicant restored the case for directions by the court. The call-over hearing was returnable before me on 17^th March 2006. By a letter dated 11^th March 2006 the Respondent's solicitors informed the Applicant's solicitors that they intended to seek directions from the court that the expert medical evidence be limited to one joint orthopaedic expert for both parties. They also urged the Applicant's solicitors to withhold medical examination by the Applicant's psychiatric expert unilaterally pending directions by the court. At the hearing on 17^th March 2006, I adjourned the question of directions for psychiatric expert evidence for argument before me on 23^rd March 2006.

Legal principles

19.  The starting point is the nature of the directions sought. The issue at hand is not whether leave should be granted for the parties to obtain psychiatric expert reports. That is a matter for the parties. The court is only concerned with whether leave should be granted for the parties to adduce psychiatric expert evidence. As pointed out by Deputy High Court Judge Muttrie in the Arfan Muhammad case, the court does not have power to forbid a party to obtain an expert report. If he wants one, it is a matter for him though of course he takes the risk that, if he is not given leave to adduce it, he will never recover the cost.

20.  Bearing in mind that the issue before me is whether psychiatric expert evidence should be adduced, the guiding criteria for answering the question are necessity, relevance and probative value (see Chan Kwok Ming v Hitachi Service Co Ltd HCPI322/2002 referred to in the Arfan Muhammed case).

21.  H H Judge Muttrie when considering the admission or exclusion of expert medical evidence in Chau Muk Chi v Chinagold Transportation Limited DCEC506/2002 (unreported, 1^st April 2003) adopted the principles articulated by Chu J in Wong Hoi Fung v American International Assurance Co (Bermuda) Ltd & anor HCA4567/2001 (unreported, 8^th October 2002) as follows :

“With regard to the admission or exclusion of expert evidence the principles are usefully set out by Chu J in Wong Hoi Fung v American International Assurance Co. (Bermuda) Ltd. & Anor, HCA 4576 of 2001 (unreported) as follows:

11) Modern judicial authorities recognize that the court has inherent power to rule on the admissibility of expert evidence at a pre-trial stage : Woodford and Ackroyd v. Burgess [2000] CP report 79, Ko Chi Keung v. Lee Ping Yan Andrew [2001] 2 HKC 63 and Annabell Kin Yee Lee & Others v. Lee Wing Kim (May Lee) & Anor (unreported), HCA9522/1997. Where the proposed expert evidence is plainly inadmissible or irrelevant, the court ought to exercise its discretion to refuse the admission of such evidence. But where the court cannot form a clear view on the relevance of the proposed expert evidence or where it considers that the proposed evidence is clearly relevant, then it should grant leave for the evidence to be adduced at the trial : Ko Chi Keung v. Lee Ping Yan Andrew (supra), at p.67 and Annabell Kin Yee Lee & Others v. Lee Wing Kim (May Lee) & Anor (supra), at p.15.

12) In deciding whether certain proposed expert evidence should be received, the relevant test has been stated to be a two-stage one. Firstly, the evidence has to be admissible as "expert evidence" for the purpose of section 58 of the Evidence Ordinance, Cap.8. Secondly, the evidence must be relevant, in the sense that it is helpful to the court in arriving at its decision on one or more of the issues to be resolved : Barings plc (in Liquidation) & Anor v. Coopers and Lybrand & Ors, Lexis Transcript, 9 February 2001, Evans-Lombe J at paras.44-45.”

Analysis

22.  In the present case there is no doubt the Applicant suffered from psychiatric problems since 2004 and that he had been regularly receiving psychiatric treatment. Ms Ho, solicitor for the Respondent, accepts that an issue for the assessment of quantum is (a) whether the pain allegedly suffered by the Applicant is genuine and (b) if so, what is the extent or degree of pain suffered.

23.  Although Dr Tam’s Report alludes to some symptoms (eg reduced appetite and sleep) being the result of the pain which was not alleviated by analgesics, Dr Tam has not described in any detail the correlation (if any) between the Applicant’s pain and his psychiatric problems. In fact, Dr Tam’s Report suggests the psychiatric prognosis is good with minimal disability expected and that resumption of pre-accident work depends on the progress of recovery of orthopaedic problems.

24.  However, Dr Tsoi’s Report seems to suggest that the Applicant's psychiatric problems might be affecting his orthopaedic condition. Dr Tsoi accepts there is genuine laxity of the MCP joint of the right thumb, but there is no abnormality over the left thumb. Dr Tsoi opines that the Applicant's low back pain and limited back motion cannot be explained by simple musculotendinous strain. Dr Tsoi is “of the opinion that the mental disorder caused magnification of the back pain”. Later on in his report, Dr Tsoi refers to “psychosomatic pain”.

25.  I also note that originally Form 7 describes “depression” as one of the Applicant’s injuries. But Form 9 revises the description of the Applicant’s injuries to back and thumb pain resulting in (amongst other things) depression.

26.  Dr Tam's Report notes that the diagnosis by the Centre was Mild Depressive Episode. Forms 7 and 9 also refer to depression. Following the medical history taken from the Applicant, Dr Tsoi suggests that there may be a possibility of post-traumatic stress disorder and recommended seeking psychiatric expert opinion. I note of course that the trauma as described in the Application does not appear to be severe. Ms Ho reminds me that Suffiad J in the Ho Man Fong case prefers the expert medical evidence to the effect that post-traumatic stress disorder is a psychiatric disorder that arises only from very severe trauma such as a life-threatening event. I believe that Suffiad J's comments turn on the medical evidence and literature in the case before him and they are not intended to be binding. At this stage, subject to expert opinion, there is little to suggest a diagnosis of post-traumatic stress disorder. Of more relevance will be the issue of the genuineness and causation of the pain allegedly suffered by the Applicant.

27.  Against the above analysis, there is no doubt that psychiatric expert evidence is relevant. But is it necessary and probative? The presently available evidence does not suggest that the Applicant’s psychiatric problems are serious, but they do require continued treatment. Dr Tsoi, an orthopaedic expert, suggests that they might impact on the Applicant's orthopaedic problems. In my view, bearing in mind that the Applicant is appealing against the assessments in Form 9 and therefore carries the burden of proof in establishing the relevant medical foundation for the appeal, once he is able to establish a psychiatric condition/disorder which may impact on his pain (and hence his working ability) that is not fully addressed in his treating hospital's medical report, the opinion of a psychiatrist becomes necessary. I do not see why the Applicant's appeal should be stifled or tied by the absence of appropriate expert medical evidence.

28.  Ms Ho argued forcefully that there should not be proliferation of expert reports. I respectfully agree with the remarks by Seagoratt J in the Wong Hin Pui case and by Suffiad J in the Ho Man Fong case. In the former case, Seagroatt J expressed strong views on the excessive, expensive and wholly unjustified use of occupational therapists in personal injury cases. In the latter case, Suffiad J wisely warned against alleging psychiatric impairment unnecessarily with a hope that it would increase the quantum that might be recovered at the end of the day. Each case turns on its own facts and neither case assists much here.

29.  Having considered the matter globally, I cannot say that psychiatric expert evidence will not be helpful to the court in arriving at its decision at the end of the day To put it in another way, it is not possible to form a clear view at this stage that such expert evidence is irrelevant, unnecessary or not probative. In the circumstances, it is appropriate and I grant leave for psychiatric expert evidence to be adduced.

30.  Last but not least, I am grateful to Ms Ho and Mr Chiu, solicitor for the Applicant, for their helpful submissions, which are presented with a good deal of common sense and moderation.