TANG TAK PING v. KAI SHING CONSTRUCTION CO AND ANOTHER

HCPI 539/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 539 OF 2011

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BETWEEN

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REASONS FOR DECISION

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1.  After hearing the parties on 18 January 2012, I directed the parties to jointly appoint and instruct Dr Chung Si Yuen as the single joint psychiatric expert in this case to examine the plaintiff and to prepare a report on his condition, its cause, and his future prognosis, and for such examination to take place only after Dr Chung was provided with all available treatment and examination notes of the plaintiff. I also ordered that there be no order as to costs in respect of the cost of the psychiatric expert report obtained by the plaintiff’s solicitors from Dr Leo Chiu dated 22 November 2011, that is to say that those costs that were incurred by the plaintiff ought not to form part of the plaintiff’s costs of the action. Further, I ordered that 50% of the costs of and occasioned by the hearing on 18 January 2012 be to the defendants in any event and that the balance 50% of those costs be costs in the cause. These are my reasons for giving this direction and making these costs orders.

2.  The plaintiff commenced these proceedings on 29 July 2011 to claim damages for personal injuries as a result of an accident at work on 18 June 2009, when he fell from a height. The plaintiff was admitted to Tuen Mun Hospital after x-rays revealed a fracture of the L3 vertebra.  He received physiotherapy and attended work rehabilitation sessions after his discharge from hospital.  He was assessed to be suitable for light work.  He continued to attend accident and emergency departments, government clinics and private doctors.  He was referred to a psychiatrist at Castle Peak Hospital and given an appointment on 4 April 2011.

3.  In the course of the proceedings, the parties obtained a joint orthopaedic expert report prepared by Drs Wong Man Shun and Chun Siu Yeung dated 19 October 2011. The doctors were an agreement that an examination of the plaintiff by other specialists was not required. After this report was obtained, the plaintiff’s solicitors obtained a report from Dr Daniel Chui Kwong Sin of the Tuen Mun Mental Health Centre of the Castle Peak Hospital dated 31 October 2011. It was stated in the report that he was diagnosed to have suffered a mild depressive episode with differential diagnoses of adjustment disorder or post-traumatic stress disorder when he was first seen on 4 April 2011. He was given medication and was seen again on 30 May 2011, 25 July 2011 and 16 September 2011.   It was also stated in the report that the plaintiff suffered from depression which was related to the accident on 18 June 2009, that he had minimal impairment and loss of vocational capacity from the depression, no sick leave being granted by the Tuen Mun Mental Health Clinic, and that his prognosis depended on the progress of this physical illness.

4.  On 4 November 2011, the plaintiff’s solicitors wrote to the defendants’ solicitors to propose that a joint psychiatric examination be conducted either by a single joint expert or by two experts and that, in the absence of a reply, they would proceed to instruct their own expert to conduct an examination and prepare a report. The defendants’ solicitors replied on the same day stating that the report from the Tuen Mun Mental Health Centre of the Castle Peak Hospital dated 31 October 2011 was sufficient for the purposes of the proceedings and that, if the plaintiff insisted on obtaining expert psychiatric evidence, he should seek leave of the court before proceeding to do so. On 10 November 2011, the plaintiff's solicitors replied that expert evidence from a psychiatrist was necessary, and invited the defendants’ solicitors to agree to a joint examination. The defendants’ solicitors replied on the same day, reiterating their stance and inviting the plaintiff to apply to court for leave before obtaining any such report. On 15 November 2011, the plaintiff’s solicitors wrote to inform the defendant solicitors that the psychiatric examination was fixed to take place on 22 November 2011 and that they would seek leave of the court to adduce their expert psychiatric report "if so required". The defendants’ solicitors replied on the same date expressing their regret and reiterating that the plaintiff should seek leave of court before proceeding to obtain any report. On 21 November 2011, the defendants’ solicitors informed the PI Master of these developments.

5.  In response the PI Master issued written directions on 23 November 2011, fixing a directions hearing to take place on 29 November 2011 and drawing the parties’ attention to §§71 and 75 of PD.18.1 and the decisions in Siu Fook Cheong v. Siu Kwok Fai (HCPI 768/2009, 2 February 2010) and Fung Chun Man v. Hospital Authority (HCPI 1113/2006, 24 June 2011).  At the hearing on 29 November 2011, having learned that the psychiatric examination had already taken place on 22 November 2011 and that a report was being prepared, Master Ng directed that the issue, of whether, in these circumstances, the plaintiff should have applied to court to seek leave before proceeding to obtain such a report, be reserved for determination by the PI Judge.

6.  I have dealt with this issue quite extensively in my judgment in Fung Chun Man v. Hospital Authority (HCPI 1113/2006, 24 June 2011) where I stated:

“6. The court’s control over medical evidence in personal injury cases was evolving long before the court’s case management powers were created by the CJR. The evolutionary process, initiated by the need to ensure cost efficient and speedy resolution of personal injury litigation, resulted in the adoption of a joint approach, both at the pre-action and at the post-writ stages, of obtaining and deploying expert medical evidence for use at trial. The tri-partite benefit of such an approach, to the courts and to the parties concerned, cannot be denied. As Fung J explained in Mok King Sun v Turn Round Company Limited (HCPI865/2007, 25 March 2009) at §26, a joint approach has the following virtues :

“(1)	avoidance of different observations on different occasions, or disputes on observations under single examination;
“(2)	discussions amongst the experts to narrow down the issues;
“(3)	specifying matters agreed and matters not agreed and the reasons for any non-agreement;

“(4)	avoidance of numerous supplemental reports commenting on the reports of the other side;
“(5)	minimizing the need to call the experts to deal with matters which could have been dealt with under (1) to (4) above.”

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9. The enactment of the CJR did not result in a change to O.38, r.36 of the Rules of the High Court (“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.

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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.

16. However, even if a prima facie case is made out for the admission of expert evidence, in every case, the court must also have regard to other relevant circumstances...[and]... the underlying objectives of the CJR: to ensure cost effectiveness and economy, expedition, proportionality, and fairness between the parties. Ultimately, the court strives to do justice between the parties and, in cases where the court permits the parties to call expert evidence, the court strives to ensure a level playing field with fair access to proper experts for all parties.

17. These objectives and the joint approach are reflected in the protocol for commissioning expert reports set out in section I of the Personal Injuries List Practice Direction PD18.1. Of particular relevance are the general provisions §§69-71, reproduced as follows :

“69. As a general rule, leave of the court or consent of the parties is required before any expert evidence can be adduced at trial.

“70. A party who obtains expert evidence before obtaining leave, other than from a single joint expert or pursuant to joint examination and joint expert report with the expert(s) of the other party or parties, does so at his own risk as to costs and/or eventual refusal of leave to adduce such expert evidence.

“71. As soon as it is realized there exists a need or an anticipated need for adducing expert evidence at trial or if parties failed to reach agreement on arranging joint examination and/or compiling joint expert report by the parties’ respective experts before or after the commencement of proceedings or if no agreement can be reached as to directions on obtaining expert evidence and/or for permission to adduce expert evidence, a party shall apply (by inter partes summons or by restoring the case for Check List Review Hearing) or the parties shall jointly apply (by Consent Summons to expedite or restore the hearing of the Check List Review) to the PI Master as soon as possible upon the commencement of or in the course of proceedings, as the case may be, for directions on obtaining expert evidence and/or for permission to adduce expert evidence.”

18. It must be emphasised that the courts do not purport to control or inhibit a party’s right to consult experts and to obtain reports from them. The party with means may do so. The party, not under disability, who has obtained an interim payment, may deploy part of that payment towards the costs of such experts. In a recent case involving a plaintiff who was either in a permanent vegetative state or minimally conscious state, I indicated that I might be willing to grant leave for part of the interim payment received to be used in obtaining a functional MRI report to ascertain the true level of consciousness of the plaintiff. In a legal aided case, such as the present one, the plaintiff or his legal advisers may be able to persuade the Director of Legal Aid to grant permission to obtain an expert’s report. However, the point to emphasise, as reflected in §70 of PD18.1, is that, whilst a party is free to obtain his own expert report, he does so at his own risk as to costs and possible refusal of leave to adduce such expert evidence. In addition, parties need to know that non-compliance with PD18.1 and the pre-action protocol set out therein without good reason may result in adverse costs consequences and sanctions, including wasted costs orders (see §9 of PD18.1).

19. Another point to emphasise is that the party who obtains an expert’s report, without agreement of the other party and without leave of court, runs the risk of disqualifying that expert from appointment by the court as the single joint expert. The risk may not be high at the beginning of proceedings when the court, although refusing leave for the party to adduce his solo expert report, may be amenable, nevertheless, to grant leave for a joint examination to be carried out by the expert concerned in conjunction with the expert nominated by the other party, and for a joint report to be prepared by them. However, if application is made, late in the day and when trial is imminent, for expert evidence to be adduced, the court may refuse the application or may only allow it on the basis of a single joint expert being appointed.

20. Another point to note is that the party who obtains an expert’s report without agreement of the other party and without leave of court runs the risk of losing his right to claim privilege over such a report, if leave is later granted to appoint the same expert as one of the 2 joints experts to examine the plaintiff and to report on the case.

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23. There appears to be a misconception that the courts will not readily grant leave for evidence from a psychiatrist or a psychologist to be adduced. The law of negligence does not provide a remedy for distress which does not amount to a recognised psychiatric illness¹, unless the distress, anxiety or fear is accompanied by a physical injury.² The courts award damages where a party has suffered a recognisable psychiatric illness over and above emotional distress and disquiet. The court will almost invariably require expert evidence to determine whether or not this is the case³. Even where it is not disputed that the plaintiff suffers from psychiatric illness, there may be a dispute as to causation: was the psychiatric illness caused or contributed to by the tort complained of. A trial judge who has to determine this issue of causation may need assistance from an expert in this field.

[1] Wainwright v. The Home Office [2004] 2 A.C. 406; Hinz v. Berry [1970] 2 QB 40; Hicks v. Chief Constable of South Yorkshire Police [1992] 2 All ER 65; Reilly and Reilly v. Merseyside Regional HA [1995] 6 Med LR 246

2 Berhens v. Bertram Mills Circus Ltd. [1957] 2 QB 1; H. West & Son Ltd. V. Shepard [1964] AC 326, Kralj v. McGrath [1986] 1 All ER 54

3Mullins v. Gray [2004] EWCA Civ 1483, at para. 12

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

25. In other cases, where there is no apparent indicia of a psychological component in addition to the physical injuries suffered by the plaintiff, the request for leave to adduce evidence from a psychiatrist or a psychologist will need to be properly justified. Such justification may be provided by submitting a written note from the intended expert setting out brief reasons explaining why the expert opinion is necessary in the particular case. However, for the reasons set out in §§18 and 19 above, a full medical examination and report should not be commissioned without agreement from the other party or leave of court.”

7.  The last sentence quoted above was advisory in nature.  Although a party is free to obtain an expert report on quantum without leave of court and without the agreement of the other party, for the reasons set out in §§18 and 19 of my judgment in Fung Chun Man v. Hospital Authority (HCPI 1113/2006, 24 June 2011), he should not do.  If he does so, he is liable to suffer adverse costs consequences.  The mandatory requirement in §71 of PD18.1, to obtain leave of the court or the agreement of the other party before obtaining expert evidence, does not take away a party’s right to do so. However, as is made clear in §70 of PD18.1, a failure to comply with §71 of PD18.1 may result in adverse costs orders and/or eventual refusal of leave to adduce such expert evidence.

8.  In this case, the defendants’ solicitors were clearly right to require the plaintiff’s solicitors to apply to court for leave to obtain expert psychiatric evidence and the plaintiff was clearly wrong, and in breach of §71 of PD18.1, to commission the expert psychiatrist of his choice to carry out an examination and to prepare a report without the agreement of the defendants and without leave of court.   The consequences, if any, that may flow from this breach must depend on whether or not psychiatric expert evidence is required in this case, in the sense that it is reasonably required for the court to resolve the issues in dispute and is proportionate, having regard to the importance of the issue in question and the amount involved.  If the answer to that question is in the affirmative, then the further question arises whether such expert evidence is best adduced from a single joint expert, or from experts nominated by each party conducting a joint examination and preparing a joint report, or from experts nominated by each party conducting separate examinations and preparing separate reports.

9.  In medical negligence cases, and in industrial accident cases where expert evidence on liability is required, sequential exchange of expert reports, as opposed to a joint approach, was and continues to be the norm (see §§ 24 to 32 of the judgment of Chu J, as she then was, in I & L & Anor [2005] 4 HKLRD 301). Indeed, §66(10) of PD 18.1 replicates its predecessor in §5.2(v) of the previous PD 18.1 in requiring the plaintiff to serve with his statement of claim “in all medical negligence cases, a copy of any expert medical report relied upon as to liability and causation".  Clearly, in such cases, and in industrial accident cases where expert evidence on liability is required, the plaintiff can commission an expert report from his liability expert without leave of court and without agreement of the other party, and can do so without risking the adverse consequences set out in §70 of PD18.1, unless, of course, the circumstances of the case are exceptional and warrant a joint report on liability.  I made it clear in Liu Ka Chun v. Hong Kong Airport Services Ltd & Ors (HCPI 416/2009, 11 November 2011) that, where a joint approach is taken, the parties lose their right of private access to their respective nominated experts, at least until such time as the court grants leave for the nominated experts to give oral evidence at trial, but not in cases where each nominated expert prepares his separate report.  In the latter event, the parties are permitted to communicate privately with their respective experts at any time, and even if the court directs that a without prejudice meeting be held by the experts in the absence of legal representatives.  Whilst there may be exceptional cases where a joint approach may be warranted, it is generally clearly right that the parties, and their legal representatives, should enjoy continuous private access to their respective nominated experts on liability.

10.  On the other hand, where medical expert evidence is required on quantum issues, a joint approach is the norm, for the good reasons given by Fung J in Mok King Sun v Turn Round Company Limited (HCPI865/2007, 25 March 2009).  There can be no complaint of denial of access in such cases where the plaintiff’s nominated expert will be carrying out a medical examination of the plaintiff, albeit jointly with the other party’s nominated expert.  In cases where a joint approach is warranted, a party who commissions an expert report on quantum, without leave of court and without the agreement of the other party, may be faced with an order denying him the cost of obtaining such a report and a refusal of leave to adduce such report into evidence, even if the court were to conclude that such expert evidence was reasonably required.

11.  The court’s discretion, whether or not to grant leave to a party to adduce expert psychiatric 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 cost 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.  In Leung Kang Wai v. Dussmann Service Hong King Ltd. (HCMP 2098/2011, 29 December 2011), the Court of Appeal refused to grant leave to appeal against the master’s exercise of discretion in what was essentially a case management decision in a case where the causal link between the alleged tort and the psychiatric illness complained of was tenuous, the cost of obtaining such evidence was disproportionate, and 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 in that District Court case.

12.  In other cases, such as the recent case of Maxwell v. Keliston Marine (Far East) Ltd. & Anor (HCPI 945 of 2003, 20 January 2012) and this one, where the treating doctor simply makes a bald assertion that the depression or other psychiatric condition was caused by the alleged tort, the court may require the assistance of a forensic assessment by an expert psychiatrist before it can be satisfied that a causal link between the tort and the psychiatric illness has been established.  Even so, the court should not grant leave, if the cost of obtaining such evidence was disproportionate and the grant of leave to adduce such evidence would be contrary to the need to ensure cost efficient and speedy resolution of the action.

13.  If the only material before me had been the report from the Tuen Mun Mental Health Centre of the Castle Peak Hospital dated 31 October 2011 stating that that the plaintiff had minimal impairment and loss of vocational capacity from the depression, and that his prognosis depended on the progress of this physical illness, I might not have granted leave to adduce psychiatric evidence in this case.  However, I was also provided with the report of Dr Leo Chiu dated 22 November 2011 stating that the plaintiff suffered, and continues to suffer, from major depressive disorder creating a disability of 10% and impairing his ability to work to the extent that he can only work part-time in future, and requiring psychiatric treatment for at least one more year.  I am persuaded by the contents of this report that I ought to grant leave for the parties to adduce psychiatric evidence in this case, given the not insubstantial increase in the quantum of the plaintiff’s claims if these matters were to be established at trial. However, as explained in Fung Chun Man v. Hospital Authority (HCPI 1113/2006, 24 June 2011), it is not necessary for a party to obtain a full psychiatric report to support an application for leave to obtain and adduce such evidence: a written note from a psychiatrist setting out brief reasons why psychiatric expert opinion would be of assistance to the trial judge will generally suffice.

14.  Ms Vivian Chih, counsel for the plaintiff, sought to persuade me to grant leave for a joint examination to be carried out by the Dr Leo Chiu in conjunction with the psychiatric expert to be nominated by the defendants, and for a joint report to be prepared by them, which is what Master Ng directed in Siu Fook Cheong v. Siu Kwok Fai (HCPI 768/2009, 2 February 2010), holding that original sole examination by one party’s expert did not constitute a material forensic disadvantage to the other party.  However, I came to the conclusion that the most cost efficient and speedy way forward would be to direct the parties to instruct a single joint expert to carry out the necessary examination and to prepare his report.  The fact that Dr Leo Chiu had already carried out this exercise on the instructions of the plaintiff’s solicitors disqualified him from acting as the single joint expert in this case.  In the event, the parties were agreeable to jointly instruct Dr Chung Si Yuen and I gave an appropriate direction in that regard.

15.  My orders as to costs reflected the defendants’ success on the issue reserved for my determination by Master Ng and the fact that part of the hearing before me was devoted to giving case management directions for the further conduct of this litigation.