IP SAU LIN v. HOSPITAL AUTHORITY

DCEC584/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 584 OF 2007

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REASONS FOR DECISION

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I.  Introduction

1.  The Applicant is an enrolled nurse in psychiatry employed by the Respondent. He claims that on 19^th May 2004 he sustained work-related injury to his low back whilst lifting a patient onto the bed with co-workers (“Accident”). He also appeals against the Certificate of Review of Assessment issued on 16^th November 2006 (“Form 9”).

2.  The issue before me relates to whether psychiatric expert evidence is required. However, with the recent implementation of the Civil Justice Reform (“CJR”), I start with the chronology of this case because it gives useful illustration of the case management pitfalls that may befall parties/practitioners under the new litigation culture brought in by the new Rules of the District Court (“RDC”) and Practice Direction 18.2 (“PD18.2”). In particular, I wish to sound a note of caution to parties/practitioners that disobeying court-imposed case management directions and timetable without good reason is not only breach of court order, which of itself is no light matter, but is also a serious subversion of the entire case management system envisaged by the CJR. The court sets its face against conducting civil litigation in such manner, especially in employees’ compensation cases which should proceed with due expedition in accordance with the social nature of the legislation, and will not hesitate to impose, where necessary, appropriate sanctions.

II.  Progress of the proceedings

3.  On 19^th February 2008, judgment on liability was entered in favour of the Applicant against the Respondent for compensation to be assessed.

4.  At the directions hearing before me on 22^nd February 2008, I directed inter alia as follows :

(a)  the parties were to file and exchange all witness statements as to quantum within 28 days from the date thereof;

(b)  expert medical evidence be limited to 1 orthopaedic expert for each party;

(c)  the parties were to agree on the nomination of respective orthopaedic experts or single joint orthopaedic expert and to fix the date of the joint medical examination by such expert(s) within 21 days from the date thereof;

(d)  if the Respondent did not intend to adduce orthopaedic expert evidence, the Applicant shall within 21 days from the date thereof fix the date of the medical examination by the Applicant’s orthopaedic expert;

(e)  the parties were to write jointly to the court after 21 days and before 35 days from the date thereof to confirm whether (c) or (d) above had been complied with;

(f)   the Applicant was to file the joint orthopaedic expert report of the parties’ respective orthopaedic experts or single joint orthopaedic expert in (c) above or file the solo orthopaedic expert report of the Applicant’s orthopaedic expert in (d) above within 75 days from the date thereof.

5.  On 18^th March 2008, the parties by joint written application wrote to the court to confirm they had nominated Dr Jack Wong (“Dr Wong”) for the Applicant and Dr Arthur Chiang (“Dr Chiang”) for the Respondent as their respective orthopaedic experts, and sought directions for filing the joint orthopaedic expert report within 7 days of receipt and for adjourning the issue of assessment of compensation to a date at/about end of August 2008.

6.  On 20^th March 2008, I granted paper directions as follows :

(a)  the Applicant was to file the joint orthopaedic expert report of Dr Wong and Dr Chiang on or before 31^st July 2008 pursuant to their joint medical examination on 13^th June 2008;

(b)  the parties were to apply to the court on or before 21^st August 2008 by joint written application to set the case down for assessment of compensation by confirming the following :

(i)    whether the above deadline had been complied with;

(ii)  whether all previous directions had been complied with;

(iii)   the number of witnesses for each party;

(iv)  whether the experts were required to give oral evidence or whether their joint report could be adduced as evidence without calling the makers;

(v)  whether the assessment hearing could be set down in the running list;

(vi)  the date when the assessment of compensation could be warned for trial.

7.  On 14^th August 2008, the parties jointly wrote to the court stating that the orthopaedic experts foresaw the joint orthopaedic expert report would only be available by the end of August 2008, so the parties applied to postpone the filing deadline to on or before 19^th September 2008 and to adjourn “[the] application to set the case down for trial …… to a date to be fixed in around mid of October 2008”.  On 15^th August 2008, H H Judge Chow granted an order in terms of the proposed directions by paper disposal.

8.  On 12^th February 2009 (ie almost 5 months after the postponed deadline in paragraph 7 above and more than 6½ months after the initial deadline in paragraph 6 above), the Applicant filed the joint orthopaedic expert report dated 25^th September 2008 and the supplemental joint orthopaedic expert report dated 19^th January 2009 of Dr Wong and Dr Chiang (“1^st and 2^nd Reports”). On the same day, the Applicant’s solicitors invited the Respondent’s solicitors to attend before the Listing Clerk to fix the date for a directions hearing. Eventually the District Court registry scheduled a directions hearing on 20^th March 2009 before me.

9.  On 12^th March 2009 (ie almost a year after the initial deadline in paragraph 4 above), the Applicant filed his witness statement on quantum.

III.  Witness statement

10.  At the hearing on 20^th March 2008, I questioned why there was such delay in filing the Applicant’s witness statement and could not get any satisfactory answer. Of even greater concern is the fact that notwithstanding a court order that required filing and exchange of witness statements by 21^st March 2008, the Applicant did not make any effort (a) to inform the court of any anticipated or actual non-compliance of such court order or (b) to apply for extension of time for filing and exchange/service of witness statements.

11.  Parties/practitioners should note that under the new CJR regime failing to comply with court-imposed timetable for steps to be taken on good and sufficient grounds is tantamount to sabotaging the court’s case management function, and is and will be discouraged. In compliance with the case management directions and/or timetable, parties/practitioners are expected to proactively inform the court of any anticipated non-compliance prior to the court-imposed deadline or of any actual non-compliance immediately upon expiry of such deadline, and where appropriate to seek remedial directions. Since inter partes court directions (eg for filing/exchange of witness statements, for restoring the case for directions hearing, or for making joint written application on or before a specified deadline) bind both parties, it is incumbent not only on the party who anticipates non-compliance or is actually non-compliant to so inform the court and to apply for time extension, but the other party(ies) is(are) likewise required to assist the court in discharging its active case management function by bringing to the court’s notice of any anticipated or actual non-compliance of court-ordered case management directions or timetable. Parties should not to let time go by as a result of inaction or even by consent without approval by the court for the court’s active case management function should not be usurped by party-driven approach to litigation.

12.  Parties/practitioners who fail to comply with case management directions or timetable and let time go by without taking reasonable steps to deal with any non-compliance may be visited with short-scheduled self-executing orders with sanctions that automatically take effect unless the defaulting party applies to the court for relief (see Order 2 rules 4 and 5 of the RDC) or, in cases of serious delay without sound reason, the court is likely to refuse extension of time.

IV.  1st Report

13.  The 1^st Report should have been ready by 31^st July 2008 (see paragraph 6 above). This means that Dr Wong and Dr Chiang had more than 1½ months after the date of the joint medical examination to prepare the joint orthopaedic expert report, which period is not unreasonable. However, 31^st July 2008 came and went with no sight of the 1^stReport. It was not until 14^th August 2008 that the parties jointly wrote to the court for leave to postpone the court-imposed filing deadline to on or before 19^th September 2008. But apart from asserting that the orthopaedic experts asked for such postponement, there was no explanation why they would require 3 months after the date of the joint medical examination to compile the joint orthopaedic expert report.

14.  Parties/practitioners should bear in mind the following provisions in PD18.2 :

“51.  Any expert instructed by a party or parties should be able to produce an expert report …… within a reasonable time of the instructions given and/or having regard to the case management timetable.

52.   The case management timetable will be fixed in accordance to such time as may reasonably be required for preparation of the case for trial rather than according to experts’ diaries. Parties should not expect the Court to allow any prolonged timetable to suit the diary of any expert who is unable to …… complete the expert report within a reasonable time.

53.   A party or parties instructing a medical expert should :

(1)   inform such expert in writing of the matters in paragraphs 51 and 52 hereof;

(2)   secure confirmation in writing from such expert as to …… the date by which the expert report will be completed and available for filing on the basis of paragraphs 51 and 52 hereof;

(3)   notwithstanding paragraph 53(2) hereof, ensure that instructions are accepted on the basis that the date of examination of the injured claimant and the date for filing and/or serving the expert report specified in the case management timetable fixed by the Court are the relevant committed dates unless leave is granted to vary or set aside such dates; and

(4)   immediately inform such expert of the committed dates in paragraph 53(3) hereof and, if any of the committed dates is varied by the Court, the varied date(s) which shall then be the relevant committed date(s).

54.   The EC Judge shall be notified at once (but no later than 5 days in any event) by the party or parties instructing a medical expert if any of the dates or varied dates in paragraphs 53 and 55 hereof are not or will not be met, including, without limitation:

(1)   cancellation or adjournment of the date of examination of the injured claimant for whatever reason; and

(2)   receipt of notice that the medical expert cannot meet any of such dates.”

15.  If the events in paragraph 13 above had occurred after the implementation of the CJR, the parties would have been required to inform the court prior to 31^st July 2008 of the anticipated non-compliance of such committed date. Even if they failed to do so, they would have to do so latest by 5^th August 2008 (ie 5 days after the expiry of the original filing deadline). Further, since the original filing deadline of 31^st July 2008 would have been a committed date (see paragraphs 52-53 of PD18.2) notified to the orthopaedic experts, the court would have required clear and cogent reasons for consideration of their request for more time to compile the 1^st Report. Such information would probably have included whether and when Dr Wong and/or Dr Chiang had completed his part of the 1^st Report. Unless the parties exposed the reasons for the request for time extension, the court would not necessarily have entertained such inter partes or even joint request. Even if the court were minded to grant extension of time, it would have been open to the court to have imposed a short-scheduled self-executing order so that any non-compliance of the re-scheduled committed date/deadline would have resulted in the defaulting party being debarred from adducing orthopaedic expert evidence, and the other party would have been entitled to engross his expert’s opinion as a solo expert medical report.

16.  After the implementation of the CJR, parties/practitioners should not assume that the generosity reflected in the order of H H Judge Chow dated 15^th August 2008 will necessarily be continued. They must take special care that when the medical experts take up instructions, the instructions are explicitly clear on the duty to commit to court-imposed timelines.

V.  2nd Report

17.  In the corresponding action for common law damages between the same parties (ie HCPI462/2007, “PI Action”), Master B Kwan by her Check List Review Order dated 8^th December 2008 (“CLR Order”) gave directions for compiling supplemental orthopaedic expert report by Dr Wong and Dr Chiang to be ready on or before 2^nd February 2009.

18.  Obviously, the parties also intended to adduce the 2^nd Report at the assessment of compensation in the present proceedings. However, they did not seek leave from this court for obtaining and adducing the 2^nd Report until some time after the fact.

19.  Adducing expert medical evidence at trial or assessment hearing generally requires permission of the court (see paragraph 46 of PD18.2). In any event, the court as part of its case management function does have a say over (a) the admissibility of expert medical evidence intended to be adduced at trial or assessment hearing (ie whether such expert medical evidence is necessary, relevant and of probative value to the resolution of the disputed issues), and (b) as a corollary thereto how such evidence is to be usefully presented (and therefore obtained) that will be helpful to the adjudicating tribunal.

20.  Here, the parties not only did not seek prior leave from the court for obtaining/adducing supplemental orthopaedic expert report, they (a) ignored the court-extended deadline for filing the joint orthopaedic expert report on or before 19^th September 2008, (b) failed to alert the court of such non-compliance, and (c) proceeded to obtain the 2^nd Report without informing the court of such intention. Again, such delay and plain breach of court order were not satisfactorily explained. I find little excuse for the parties in not lodging the 1^st Report dated 25^th September 2008 as soon as it was ready and at the same time applying for leave to file the 1^st Report out of time and for directions for obtaining supplemental orthopaedic expert report. This would have allowed the court to exercise active case management by monitoring the proper progress of the case and determining whether supplemental orthopaedic expert evidence is necessary, relevant and of probative value. The parties’ failure to do so is tantamount to usurping the court’s case management function.

21.  Parties/practitioners should note that in exercising its discretion on whether to grant leave for filing/adducing supplemental expert medical report/evidence, the court is not fettered by any fait accompli caused by the parties having already obtained such supplemental expert medical report unbeknownst to the court. The court’s hand will not be forced, and in appropriate circumstances the court may even reject such supplemental expert report even though it has been jointly obtained by the parties, particularly where the court considers the matters canvassed in such supplemental report are not necessary, relevant and/or of probative value.

VI.  Directions hearing on 20^th March 2009

22.  At the directions hearing before me on 20^th March 2009, Mr Fu, solicitor for the Applicant, informed me the Applicant intended to adduce psychiatric expert evidence at the assessment hearing. Ms Chak, solicitor for the Respondent, objected. But as neither Mr Fu nor Ms Chak saw fit to place before me any of the treatment medical reports and/or other documents relevant to such issue, I had no alternative but to adjourn the argument with reminder to Mr Fu and Ms Chak to lodge all necessary and relevant medical reports and other documents in support of their respective contentions well before the adjourned hearing. Regrettably, the hearing on 20^th March 2009 was wasted, and I directed that there be no order as to costs of such hearing.

23.  Prior to the adjourned hearing before me on 27^th March 2009, the following documents were lodged :

(a)  letter from the Applicant’s solicitors dated 23^rd March 2009 with relevant medical reports;

(b)  skeleton submissions by the Respondent’s solicitors dated 24^th March 2009 with authorities and a bundle of documents;

(c)  letter from the Applicant’s solicitors dated 26^th March 2009 with authorities.

24.  Upon the advent of the CJR, parties/practitioners should bear in mind the following provisions of PD18.2 :

73.   Each party and his legal representatives shall give as much information (including, without limitation, information on the matters in Appendix D) and produce all such documents as the Court may reasonably require to enable the Court to give directions relating to the management of the case and to fix a timetable for steps to be taken. ……

……

75.   Without prejudice to the generality of paragraph 73 hereof and to any directions given by the Court for a party or parties to provide information and/or produce documents, each party if legally represented shall not less than 5 days before a Direction Hearing lodge with the Court and serve on the other party or parties a written letter giving information on :

……

(4)   unless such party gives reason(s) for not seeking directions or timetable on those matters, all matters in Parts IV …… of Appendix D; and

(5)   proposed directions for management of the case and/or proposed timetable for steps to be taken. ……

……

79.   If any party fails to give or adequately give information and/or produce documents on the matters in paragraphs 73 and/or 75(1) to (5) hereof within the time specified in paragraphs 75 …… hereof, and the absence or inadequacy of such information and/or documents leads to an adjournment of the Direction Hearing ……, such party may be visited with costs sanctions, including a wasted costs order.”

Paragraphs 33-35 of Part IV of Appendix D of PD18.2 set out an extensive array of questions on expert medical evidence in order to facilitate the parties in providing information to the court for giving appropriate expert directions.

25.  After the CJR, parties/practitioners have to lodge and serve written letters giving information on the directions they propose to seek, the basis for the proposed directions or opposition thereto, and the relevant primary information and documents for the court’s consideration prior to the hearing. A wasted hearing (as in the case of the hearing on 20^th Mach 2009 before me) may well be visited with costs and other sanctions.

VII.  Summary on procedural matters

26.  PD18.2 discourages non-compliance of court-imposed timetable for steps to be taken and/or breach of court case management directions. The court does not smile kindly on party-driven litigation that (a) keeps the court in the dark of any delay due to anticipated or actual non-compliance and/or (b) fails to seek remedial directions on good and sufficient grounds in a timely manner.

27.  Apart from the case management measures discussed above (eg short-scheduled self-executing orders and inter partes costs sanctions), the court may utilise its further case management powers under Orders 1B and 2 of the RDC (which include ordering the defaulting party to pay a sum into court pursuant to Order 1B rule 1(3) and (4) and Order 2 rule 3 of the RDC). In clear cases where legal representatives have caused wasted costs to be incurred, the court may, where it is just in all the circumstances, make a wasted costs order under Order 62 rule 8 of the RDC. Where there has been unwarranted and/or significant delay in bringing the matter to trial, the court may direct the issue of whether interest should be awarded over the relevant period be reserved to the trial judge or failing a trial such issue be brought before a judge for determination.

VIII.     Psychiatric expert evidence

(a)   Background

28.  By the Form 9 dated 16^th November 2006, the Applicant was assessed to have suffered 5% loss of earning capacity permanently caused by “sprain of back resulting in residual pain”, which the Labour Department confirmed did not include assessment on psychiatric/ psychological aspect.

29.  The Applicant relied on the psychological reports of Mr Tony Wong, Clinical Psychologist (Pain), New Territories East Cluster of the Hospital Authority dated 22^nd April and 22^nd July 2008, and the medical report of Dr Chu Ming Chi of the Pain Management Clinic (“PMC”) of Alice Ho Miu Ling Nethersole Hospital dated 18^th March 2008.

30.  According to such reports, the Applicant returned to work in late 2004, but experienced difficulties with childcare and housework, and had to give up swimming and sports with his pain. He developed depressive features, and had little coping skills even though he understood his pain would last. On 19^th January 2006, he was first seen (a) at the PMC on referral from the staff clinic of Prince of Wales Hospital for persistent back pain and (b) by the clinical psychologist on referral for assessment of suitability to participate in a comprehensive outpatient pain engagement (COPE) programme to enhance pain coping and functional improvement, and to reduce his medication usage and strengthen his social/occupational roles. The Applicant was deemed suitable to attend COPE, and eventually attended COPE from October to November 2006.Private MRI in November 2006 did not reveal any significant pathology.

31.  Thereafter the Applicant defaulted several appointments (presumably with the PMC). By May 2007, he had increased his activities including playing with his son briefly, and had retained some of the coping skills taught. He seemed able to keep on exercising and going out despite flare-ups. But his mood remained low (ie he might be undergoing a mood slump), and he still had to resort to medication for pain coping and there was a tendency to use more analgesics during flare-ups.

32.  Further psychological follow-up was given on 17^th March 2008 when the Applicant’s mood was assessed. The impression was that he had depression symptoms in relation to pain interference with his activities and marital relationship. It was deemed a few more sessions in this respect were needed. He was suggested to consult psychiatrist for assessment/treatment of any depressive disorder, but he did not report to have done so by 17^th July 2008. As at 22^nd July 2008, the Applicant was to be continually followed up for psychological treatment for his mood problem. But his file with the PMC was closed when he defaulted follow up in November 2007.

33.  According to the 1^st Report, the Applicant claimed he used to be a non-drinker, but took up infrequent drinking so that he would drink 5 bottles of beer in a row when he felt unhappy. His chief complaints were persistent pain, pressure feeling and soreness in his low back, pain in mid-back on forward bending, pulling pain radiating to lateral right calf, paraesthesia in right sole/toes after sitting for a long time with need to use a stick for about 15 days a month.

34.  Review of the Applicant’s medical records in the 1^st Report noted the following :

(a)  When he returned to work at/about the end of 2004, he was assigned to another ward which did not require him to transfer patients, and his colleagues were understanding and he avoided strenuous activities in his full-time work.

(b)  In January 2006, his mood was depressed with suicidal ideation a few months ago, but the impression was there was no definite physical cause to explain the pain.

(c)  He defaulted multiple sessions of COPE due to his wife’s premature labour.

(d)  By June 2006, the pain was static with more right lateral paraesthesia. He got more irritable with handling another child and being unable to play with his elder son.

(e)  By November 2006, he reduced his dosage of analgesics due to epigastric discomfort. There were some pain flare-ups which were manageable.

(f)   In February 2007 there were multiple defaults for post-COPE reviews.

(g)  He felt more depressed with pain flare-up in May 2007, but was still able to stretch and relax. But he was unable to desensitise, and still seemed worried about being unable to keep up looking after his children who were more active. He was aware of recent deterioration in mood.

35.  In the 2^nd Report, Dr Wong and Dr Chiang in responding to queries from the Applicant’s solicitors noted the Applicant had been visiting psychologists for mood problem, and possibly depression, since January 2006. “We agree with this, since the psychiatric aspect is out of the orthopaedic scope, we agree that he should also be assessed by psychiatrist”.

36.  The Applicant’s solicitors first invited the Respondent’s solicitors for joint medical examination (psychology) in May 2008. In May to June 2008, the Respondent’s solicitors objected to such request given the absence of (a) any court directions for adducing psychological expert evidence, and (b) any record in the treatment psychological report of any degree/extent of psychological impairment apart from attendance at COPE for 1 month and possibility of undergoing a mood slump. But the Respondent’s solicitors fairly suggested the Applicant to obtain an updated treatment psychological report if he attended the recommended further sessions of COPE or psychological follow up after March 2008 so as to properly assess the need for psychological expert evidence. On 8^th December 2008, Master B Kwan in HCPI462/2007 declined to grant leave for psychological or psychiatric expert evidence. On 19^th January 2009, the Applicant’s solicitors again invited joint psychological expert examination for the purpose of the present proceedings on the basis that the Applicant “has psychological problem and needed to receive psychological treatment because of the injury caused to him”.

(b)   Principles

37.  On the question of whether leave should be granted to adduce psychiatric expert evidence at the assessment hearing, the guiding criteria are necessity, relevance and probative value (see Chan Kwok Ming v Hitachi Service Co Ltd HCPI322/2002 referred to in Arfran Muhammad v MPS Engineering Ltd & ors HCPI457/2003 (unreported, 20^th June 2005)).

38.  H H judge Muttrie when considering admission or exclusion of expert medical evidence in Chan 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) Limited & anor HCA4576/2001 (unreported, 8^th October 2002). On the requirement of “relevance”, Chu J said at para.12 that expert evidence 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. The learned judge cited Baring plc (in Liquidation) & anor v Coopers and Lybrand & ors Lexis Transcript, 9^th February 2001, paras.44-45 where Evans-Lombe J said 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 an informed decision without such expert evidence. As explained in my decision in Lau Lai Shan v Hospital Authority DCEC784/2007 (unreported, 29^th February 2008), this means the court has to make a judgment on the usefulness of the expert evidence to be adduced (see the English case of Baldev Singh Mann v Messrs Chetty & Patel [2000] EWCA Civ 267 (26^th October 2000) on the Civil Procedure Rules, which suggested that some of the relevant considerations included (a) how cogent the proposed expert evidence will be; (b) how helpful it will be in resolving any of the issues in the case; and (c) how much it will cost and the relationship of that cost to the sums at stake).

(c)   Discussion

39.  In considering whether psychiatric expert evidence is required in the present case, I am not affected by the 2 matters  which Ms Chak sought to rely :

(a)  Whilst it is true that the Form 9 made no mention of psychiatric injury, I bear in mind there is an appeal by the Applicant against the assessment of loss of earning capacity in the Form 9. Therefore I cannot assume that the absence of any reference to psychiatric injury in Form 9 of itself means there was no such injury.

(b)  Again, whilst Master B Kwan declined to grant leave for psychiatric/psychological expert evidence in the common law damages claim, it does not necessarily follow that in the present proceedings (which are focused on somewhat different issues) psychiatric expert evidence is therefore irrelevant.

In short, the Form 9 and the CLR Order of themselves do not necessarily lead to the conclusion that psychiatric expert evidence is not required in the present case. The Form 9 is part of all the circumstances which the court will consider in determining whether psychiatric expert evidence is relevant, necessary and of probative value for the assessment of compensation.

40.  Here, the treatment medical reports show the psychological treatment received by the Applicant was focused on pain coping, and his presentation of low mood was a reflection of his frustration in dealing with his persistent back pain in the context of child care, housework and sports/swimming. But not only have these matters been discussed in the treatment medical reports, they were canvassed in some detail in the 1^st Report and in the Applicant’s witness statement dated 12^th March 2009. As the main issue is the severity of the back pain and its impact in affecting his work capacity (insofar as the present employees’ compensation proceedings are concerned), the ultimate conclusion will depend on the evidence of the Applicant as to the pain he felt and his ability to cope with such pain. It is obvious from the above there are plenty of materials to assist the judge hearing the assessment of compensation to adjudicate on this matter. Further explanations by psychiatrists are unlikely to be required as necessary in the sense of being useful to the judge.

41.  I am unable to place a lot of weight on the suggestion for assessment by psychiatrists by Dr Wong and Dr Chiang. Such suggestion does not appear in the 1^st Report and was a response to query by the Applicant’s solicitors. It was premised simply on the basis that the Applicant did attend psychological treatment and that psychiatric assessment was outside the scope of expertise of the orthopaedists. Such explanation does not address the true question before this court, ie whether psychiatric expert evidence is necessary and of probative value in the sense of being helpful to the judge hearing the assessment of compensation.

42.  It does not follow that whenever a party receives psychological treatment psychiatric/psychological expert evidence is required. Here the Applicant returned to work in 2004. The COPE programme for him lasted for about a month in 2006 with possibly a few more sessions. The PMC follow-up was terminated in late 2007. Although the clinical psychologist recommended him for psychiatric assessment, there is no evidence that he attended any such assessment. Indeed, even in his witness statement dated as recently as 12^th March 2009, the Applicant did not indicate any need for or willingness to attend psychiatric assessment. Mr Fu orally submitted that the failure to attend the proposed psychiatric assessment was fear of stigma, but there was no allusion to such reason in the Applicant’s witness statement.

43.  The court has a duty to restrict expert evidence to what is reasonably required for proper adjudication. I bear in mind the remarks by Seagroatt J in Wong Hin Pui v Mok Ying Kit & anor [2000] 1 HKLRD 856, 874-875, against proliferation of expert medical evidence which are not essential. Ms Chak refers to the strictures by Suffiad J in Ho Man Fong v Sime Darby Motor Services Limited HCPI196/2003 (unreported, 19^th July 2005) with which I agree, but I am not persuaded there is sufficient evidence before me to suggest that the application for adducing psychiatric expert evidence in the present proceedings was made in the hope of increasing quantum that may be recoverable at the end of the day.

(d)  Conclusion

44.  In the circumstances, I refused the Applicant’s application for leave to adduce psychiatric expert evidence at the hearing, and I gave consequential directions for setting the case down for assessment of compensation as follows :

(a)  the 1^st and 2^nd Reports be adduced as expert medical evidence at the assessment hearing without calling the experts to give oral evidence;

(b)  the assessment of compensation be set down in the running list not to be warned before 26^th May 2009 with an estimated length of hearing of 1 day;

(c)  costs of the hearing be costs in the cause;

(d)  order made by me need not be drawn up.

Representation: