BAI SIBA KUMAR v. NISHIMATSU CONSTRUCTION CO LTD AND OTHERS

HCPI 883/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 883 OF 2012

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DECISION

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I.  BACKGROUND

1. At all material times, the plaintiff was employed by the 1^st defendant (“D1”) as a tunnel worker at a construction site in Tai Hang, Hong Kong.  On 23 June 2010, the plaintiff was assigned to work inside a tunnel using a compressed air pipe to clean the rock surface when he slipped and dropped his ear plug.  The lighting was insufficient, and he could not find his ear plug.  After working for another 15 minutes, he came out of the tunnel and found that he could not hear any sound in his right ear (“Incident”).

2. On 21 November 2012, the plaintiff commenced the present action against D1 and the 2^nd defendant (whom the plaintiff claimed to be the principal contractor, “D2”) for damages for personal injury and other loss/damages as a result of the Incident by reason of negligence, breach of contract and/or breach of statutory duty on the part of D1 and/or D2.  On 10 December 2012, D1 and D2 (collectively, “Ds”) filed their Defence disputing liability.

3. On the same day, the plaintiff filed inter alia the Statement of Damages (“SOD”) and the Medical Reports pursuant to Order 18 rule 12(1C) of the Rules of the High Court (“RHC”) (“Filed Medical Reports”).  The Filed Medical Reports included (a) a medical report by Western Psychiatric Centre (“WPC”) of Queen Mary Hospital (“QMH”) dated 18 April 2011 (“WPC 1^st Report”), (b) a medical report by QMH’s WPC dated 28 March 2012 (“WPC 2^nd Report”), and (c) the psychiatric expert report by Dr Char-nie Chen (“Dr Chen”) dated 3 September 2012 (“Psy Report”).

II.  PROCEDURAL HISTORY

4. On 27 February 2012, the plaintiff’s solicitors (“JMPC”) first invited the Ds through their solicitors (“Deacons”) to agree to jointly engage Dr Chen (or to engage a separate psychiatric expert) for joint examination of the plaintiff.  On the same day, Deacons asked for updated psychiatry treatment reports as well as all relevant psychiatry/psychology treatment notes/records for consideration.  On 17 April 2012, JMPC advised they were waiting for an updated psychiatry treatment report.  On 2 May 2012, they sent the WPC 2^nd Report to Deacons.  On 8 May 2012, Deacons replied to say that in light of the WPC 2^nd Report psychiatric expert evidence was unnecessary.  On 18 May 2012, JMPC urged Deacons to re-consider in light of the contents of the WPC 2^nd Report.  On the same day, Deacons reiterated their position and asked JMPC to “withhold obtaining any expert report from [Dr Chen] unless and until you have obtained leave to do so”.  But notwithstanding such reminder, the plaintiff went ahead to unilaterally obtain the Psy Report dated 3 September 2012.  The writ of summons was issued almost three months later on 21 November 2012.

5. On 23 April 2013 (ie shortly before the Checklist Review hearing (“CLR”) scheduled on 3 May 2013), Deacons complained to JMPC against the solo Psy Report, and asked whether the plaintiff would make formal application for leave to adduce psychiatric expert evidence.  On 29 April 2013, JMPC sent to Deacons a draft consent summons for paper disposal of the CLR, which draft consent summons proposed that expert medical evidence should include one psychiatric expert for each party.  On 30 April 2013, Deacons reminded JMPC that since the Ds opposed any psychiatric expert evidence, the plaintiff had to seek leave to adduce such expert evidence at the CLR, and even if such leave were granted, “parties will need to resolve the issue relating to the solo [Psy Report] before proceeding further”.

6. The issue of psychiatric expert evidence was canvassed at the CLR on 3 May 2013.  At the hearing, Master Leong ordered inter alia that expert medical evidence be limited to one otorhinolaryngology expert for each party, and granted usual case management directions for the further conduct of the present action (“Order”).  Implicit in the Order was the learned master’s dismissal of the plaintiff’s application for leave to adduce the psychiatric expert evidence (“Expert Order”).  No appeal against the Expert Order was lodged within the prescribed deadline that fell on 18 May 2013.

7. On 12 July 2013, the plaintiff filed the Revised Statement of Damages (“RSOD”).  Both the SOD and RSOD referred to (a) the WPC 1^st and 2^nd Reports, (b) the Psy Report (even though by the time of filing the RSOD Master Leong had already refused leave to adduce the Psy Report), and (c) the sick leave granted to the plaintiff.  On 17 July 2013, the Ds filed their Answer to the RSOD (“Answer”).  The adjourned CLR was scheduled to be heard before the PI Master on 4 October 2013.

8. On 22 July 2013, the plaintiff filed Notice of Appeal against the Expert Order (“Appeal Notice”), which was over two months late. The plaintiffs by the Appeal Notice applied for inter alia the following reliefs  at the hearing before me on 25 September 2013 (“Hearing”):

(a)   there be extension of time for the plaintiff to issue/serve the Appeal Notice (“Leave Application”); and

(b)   leave be granted for the plaintiff to adduce psychiatric exert evidence from Dr Chen.

III.  PSYCHIATRIC TREATMENT REPORTS

9. According to the WPC 1^st and 2^nd Reports, the plaintiff suffered significant hearing impairment, mainly over his right ear.  He regarded there was 50% hearing loss.  He became concerned when a doctor told him the hearing loss would be permanent.  There was also ear pain and asymmetric feeling over his face, and significant impact on daily life, eg he turned on the television set loudly without much awareness.  He tried using a hearing aid but it was not very helpful.  He was known to the public hospital mental health service since December 2010.

10. The WPC 1^st and 2^nd Reports noted the plaintiff became more depressed and irritable after the Incident.  He would be easily provoked by his children, and he would hit them with bare hands during conflicts.  He lost interest in cooking, and had poor appetite and subjective weight loss.  His concentration had decreased.  He lost his identity card and forgot to collect his money from the ATM machine.  He regarded himself worthless, and his future hopeless. “He could not resume his original job after the [Incident], and sick leave had been granted by our department.”

11. In the WPC 1^st Report, the treatment diagnosis was depressive episode. In the WPC’s 2^nd Report, the psychiatric diagnosis was major depressive disorder.  The plaintiff was started on antidepressant and as-required anxiolytic.  He had subsequent follow up at WPC on 14 January and 4 March 2011.  At the last follow up session before the WPC 1^st Report, he reported poor appetite, tense feeling, panic attacks, shortness of breath and dizziness.  Mental state examination revealed his speech was relevant and coherent.  His mood was slightly depressed.  There was no hallucination, delusion or any suicidal behaviour.

12. The WPC 1^st Report stated that prognosis would depend on drug compliance, progress of the hearing impairment, and social adjustments. “However, it is possible for the depressive illness to run into a chronic course. There was significant impairment in his vocational capacity, mainly related to his depressed mood, anxiety, irritability, lack of concentration, ear pain and hearing loss”.

13. The WPC’s 2^nd Report noted that during recent psychiatric follow-up, the plaintiff still reported to have hearing problem with ringing noises (especially in enclosed areas), which continued to affect his mood. His sleep and appetite had improved, and he started a new part-time job as a security guard. He was trying to exercise more and think in a more positive way. He had good drug compliance, and denied having any suicidal or psychotic symptoms when seen.

IV.  SICK LEAVE CERTIFICATES

14. The plaintiff attended QMH’s WPC on 24 December 2010, 4 March 2011, 13 May 2011 and 22 July 2011, and was granted continuous sick leave by QMH’s WPC from 24 December 2010 to 21 July 2011 for “depression” and from 22 July to 29 September 2011 for “hearing injury from work”.

V.  PLAINTIFF’S WITNESS STATEMENT

15. According to the plaintiff’s witness statement dated 28 June 2013, he attended the accident and emergency department (“AED”) of Ruttonjee and Tang Shiu Kin Hospitals (“RTSKH”) on 26 June 2010 (ie three days after the Incident).  After examination, the doctor referred him to QMH’s ENT department. He was admitted to QMH from 29 June to 6 July 2010.  During his hospitalisation, when he enquired with the attending medical personnel about his injury and difficulties in his right ear, they always told him his problems (including loss of hearing and irritating noise) were permanent.  He claimed he was unhappy, worried, frustrated and nervous.  His stressful moments started right after he heard about his future prognosis, and he became depressed.

16. The plaintiff claimed that after the injury, he could not stay in a room alone or watch television because of irritating noises in his right ear, which affected him and caused him to suffer from depression.  He had an appointment with WPC for his depression problem, but he could not wait.  So one evening he attended RTSKH’s AED.  A psychiatrist attended him, gave him some advice and prescribed some medication.

17. The plaintiff attended WPC on 24 December 2010 for his psychiatric problem.  By the time of his witness statement, his last follow up at WPC was on 3 May 2013 and his next follow up would be on 5 July 2013. WPC also referred the plaintiff for psychology treatment at QMH.  At the time of his witness statement, he was attending both psychiatry and psychology follow-up. He missed the appointment with the psychologist on 29 May 2013 because he had to urgently leave for Nepal due to his mother’s demise on 23 May 2013. At the time of his witness statement, his next appointment with QMH’s psychology department was on 17 July 2013.

18. The plaintiff claimed he was afraid and worried about his future and family due to his ENT problems, and he could not return to his pre-accident job.  In January 2012 he found work as a security guard.  He tried his best to hold onto this job despite his ENT and depression problems, but he could not.  He gave up such job because of such problems, and became unemployed. “Mentally [he was] disturbed and have not been able to do any kind of work at this stage ……”

VI.  PSY REPORT

19. The Psy Report recorded the plaintiff’s account of his psychiatric problems.  He complained that his hearing did not improve after the Incident, and he was hospitalised at QMH on 29 June 2010 for a week for further investigation.  He was given injection to his right ear to which he felt nervous.  After the injection, he developed vomiting and lost consciousness for three hours.  He was not explained what happened, and did not feel any improvement with his hearing.  After two weeks he felt he completely lost his hearing in the right ear, and thought he would become disabled.  He felt hopeless and began to worry about his future life. He had a hearing aid which he did not find useful as the sounds fluctuated from time to time.  He also had right eye pain after he listened to a long conversation or when he was confined to a narrow space.

20. The plaintiff told Dr Chen that in December 2010 he felt depressed.  On the night before his appointment to see a psychiatrist at Tung Wah Hospital he woke up at 3:00 am with a “heavy chest”, shortness of breath, dizziness, nausea and sweating, and he was unable to control himself.  He opened the window at 4:30 am without calling his wife.  He went out for a walk and felt better, but he was worried so he went to RTSKH’s AED.  He was referred to see a psychiatrist. Since then he would see a psychiatrist at WPC every three months.  He was on antidepressant and also on as-required anxiolytic.  He told Dr Chen he did not feel there was any improvement in mood, but there was slight improvement in appetite and sleep.

21. Dr Chen noted the plaintiff was gentle, cooperative and looked somewhat anxious.  He was not agitated or restless, and was spontaneous in speech, which was coherent and relevant.  His voice was soft and low in tone. The plaintiff told Dr Chen he did not want to talk too much about his problems as it only reminded him of more worries and problems.  During mental examination he was oriented in time, place and person.  He had mild problems in concentration, especially for one who was preoccupied by tinnitus and hearing problems.  At the interview, the plaintiff appeared helpless, but not sad or tearful.  He felt his mood did not change much after treatment, and he sometimes felt his life not worth living, but he reiterated that he “does not want to die”.  He said he had less sexual libido than before the Incident, especially after he had mood problems, and that he did not have sexual contact with his wife for the last three months.  Dr Chen assessed that the plaintiff suffered from mild level of depressive symptoms.  The plaintiff was worried about the future and the future of his family, and he was anxious about his aggressive temper could have affected his wife and children.  He felt ashamed of not being able to hear what people say as they might insult him in response to his hearing impairment.  Dr Chen assessed that the plaintiff suffered from moderate level of anxiety symptoms.

22. Dr Chen opined that following hearing loss in his right ear, the plaintiff developed a depressive episode which was treated in December 2010. According to the WPC 2^nd Report, his sleep/appetite improved, and he was able to exercise more and think in a more positive way.  Since January 2012 he started to work as security guard without the need to take up night shift, but he continued to be troubled by hearing impairment, which continued to affect his mood from time to time.

23. Dr Chen opined that the plaintiff was likely to suffer from “Adjustment Disorder with Mixed Anxiety and Depressed Mood”, and his hearing impairment was the main cause/stressor.  But since Dr Chen did not see the plaintiff in December 2010, he respected the professional opinion of WPC’s attending psychiatrists that the plaintiff suffered from a depressive episode in December 2010, so the proper psychiatric diagnosis was “Major Depressive Disorder”.  In any case, the treatment for both “Adjustment Disorder with Mixed Anxiety and Depressed Mood” and “Major Depressive Disorder” would be similar.  After psychiatric treatment, the plaintiff made a reasonable recovery even though his hearing impairment continued to trouble him.  Dr Chen said it was essential that the plaintiff should learn to accept the hearing loss, and begin to concentrate his mind on the future.

24. Dr Chen further opined that the plaintiff would not require any further sick leave for psychiatric reason, and should under normal circumstances be able to work with the current psychiatric disorder. But here, whether or not the plaintiff could return to his previous job depended on the following conditions, and Dr Chen concluded he was unsuitable to return to his previous job:

(a)   physical condition, ie whether his hearing impairment would in any way influence the way he would take up his previous work;

(b)   whether the environment in which he worked in his previous job was safe for him to work; and

(c)   from the psychiatric point of view, whether it was likely that the plaintiff might generate anxiety if he were asked to return to his previous job as a result of his suffering hearing loss in such a working environment.

VII.  NON-AVAILABLE DOCUMENTS

25. At the Hearing, I was informed that no Form 7 or Form 9 had been issued by the Commissioner for Labour.  However, the following documents were not discovered and/or made available (“Non-available Documents”):

(a)   four attendance certificates by WPC dated 30 September 2010, 9 December 2011, 2 March 2012 and 25 May 2012 (being documents already provided to Dr Chen);

(b)   medical notes/records of the psychiatric consultation at RTSKH’s AED (see paragraphs 16 and 20 above);

(c)   updated psychiatry treatment reports by WPC for the period after 28 March 2012 (ie after the date of the WPC 2^nd Report) ;

(d)   psychology treatment report by QMH (see paragraph 17 above); and

(e)   psychiatry and psychology treatment notes/records by QMH and WPC.

26. Both Mr Wright, counsel for the plaintiff, and Ms Wai, solicitor for the Ds, agreed that the Non-available Documents would be relevant not only to the appeal but also to the present action.  Regrettably, the parties had not even obtained items (b)-(e) of the Non-available Documents let alone made discovery of those documents.  I find it surprising because the Non-available Documents would have been necessary in any event either to assist the trial judge in light of the Expert Order that declined psychiatric expert evidence or, if the plaintiff were successful in the Leave Application and the appeal, to be provided to the parties’ respective psychiatric experts for their review as part of their forensic duty to give comprehensive psychiatric expert opinion.  The parties, especially the plaintiff, are therefore urged to take steps to obtain the Non-available Documents as soon as possible.

VIII.  LEAVE APPLICATION

27. Order 58 rule 1 (3) of the RHC provides inter alia that unless the court otherwise orders, the notice of appeal against a master’s decision or order must be issued within 14 days after the decision or order appealed against was given or made.  Under the proviso “unless the court otherwise orders” in Order 58 rule 1 (3) of the RHC and pursuant to Order 3 rule 5 of the RHC, the court has a discretion to grant enlargement of time to appeal.

28. In Postwell Ltd v Cheng Kap Sang,[1] DHCJ Wong Yan Lung SC stated that:

“…… Although I agree …… that the absence of an acceptable explanation for the delay does not preclude the court’s discretion to extend time, I am of the view that in applications for extension of time to appeal an adverse order or adjudication, as opposed to extension of time to remedy other procedural default, the court should be slow to accede to the application in the absence of an acceptable reason for the delay.”

29. In considering whether to extend time to appeal, the court has to consider all relevant factors, particularly: (a) the length of the delay; (b) the reasons for the delay; (c) the merits of the proposed appeal; and (d) the degree of prejudice to the other party.[2]

30. DHCJ Peter Ng SC (as he then was) in Hady v Bazar[3] reminded that in the post-Civil Justice Reform era, it is incumbent on the court to give effect to the underlying objectives of the RHC when exercising any of its powers (see Order 1A rules 1 and 2 of the RHC), but the court must always recognise that the primary aim in exercising the powers of the court is to secure the just resolution of disputes in accordance with the substantive rights of the parties (see Order 1A rule 2 (2) of the RHC).

31. Here, the plaintiff did not file any affirmation in support of the Leave Application.  At the Hearing, Mr Wright accepted there was no good reason for the delay in filing the Appeal Notice.  He said that after the CLR on 3 May 2013 the handling solicitor for the plaintiff failed to consider lodging an appeal against the Expert Order.  It was only when the matter was subsequently brought to the attention of her principal that it was considered the plaintiff should appeal.  After liaison between JMPC and the Director of Legal Aid, legal aid was granted on 2 July 2013 to cover such appeal. The Appeal Notice was therefore filed on 22 July 2013.  Mr Wright assured the court that the Director of Legal Aid was not to be blamed in any way, and JMPC accepted responsibility for the delay of just over two months.

32. Mr Wright argued that the Ds would suffer no prejudice by reason of the delay save for the disappointment that the plaintiff might be awarded higher damages at trial if psychiatric expert evidence were allowed under the Appeal. But this, Mr Wright contended, would not be true prejudice; rather it reflected the most critical and overriding consideration for granting time indulgence, ie that justice should be done.

33. Ms Wai opposed the Leave Application principally on the ground that the plaintiff did not give any acceptable explanation for his delay.  She reminded that the present action would be ready for setting down for trial at the next CLR scheduled on 4 October 2013 since witness statements had been exchanged and the RSOD/Answer had been filed.  The lateness of the Appeal Notice would postpone the setting down process, which would cause the Ds to suffer prejudice.

34. In my view, the lack of any satisfactory reason for the delay is only one factor to be taken into account in the exercise of my discretion.  I acknowledge that the delay was over two months, which on any account cannot be regarded as a short one, and indeed some steps had been taken in the course of the proceedings on the basis that there would be no psychiatric expert evidence. However, in the present circumstances, adverse consequences of such delay can be overcome by appropriate costs sanctions and, where appropriate, future order at trial to disallow interest on any award of damages over the period of delay. Thus, the primary consideration in the exercise of my discretion is to secure the just resolution of the ultimate dispute between the parties.  For reasons set out below, I consider the appeal meritorious, and I therefore grant leave for the plaintiff to file/serve the Appeal Notice out of time under the Leave Application.

IX.  MASTER’S DECISION

35. The transcript of the CLR on 3 May 2013 (“Transcript”) revealed that Master Leong considered psychiatric expert evidence to be of no benefit to the trial judge on the following grounds:

(a)   the psychiatric expert would not be able to add anything further to what had already been done by the treatment psychiatrist who (i) had taken the plaintiff’s account of his problems, (ii) had arrived at a diagnosis of the plaintiff’s condition and (iii) had considered the relevant prescription for psychiatric medication;

(b)   it was unnecessary to have a psychiatrist to tell the court that because someone suffered a minor or non-violent injury (eg lost his hearing, lost a finger, twisted his ankle or twisted his back) he would be a bit depressed, and “there’s not a lot more that we need to know besides that” since humans had coping mechanisms to handle such kind of stress;

(c)   the situation in (b) was to be contrasted to someone who had gone through a  major or violent accident with additional/extra fear factor (eg witnessing death or broken limbs in a train crash) when psychiatric expert evidence would be required;

(d)   since the present action came within (b) above, it was only necessary to obtain and produce updated psychiatry and psychology treatment reports/records;

(e)   it would be open for the Ds to cross-examine the plaintiff on the veracity of the alleged psychiatric symptoms when he gave evidence;

(f)   since the psychiatric expert would rely on a claimant’s subjective account of his symptoms to arrive at a diagnosis and such psychiatric expert would not cross-examine or challenge the history given by a claimant, the use of psychiatric expert evidence might be open to abuse by a claimant who knew how to “invent” the relevant symptoms.

X.  RE-HEARING

36. It is trite that an appeal from a master to judge in chambers is dealt with by an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him/her for the first time.  The judge will give the weight it deserves to the previous decision of the master; but he/she is in no way bound by it.[4]

XI.  LEGAL PRINCIPLES: EXPERT EVIDENCE

37. I repeat my observations in Ngai Ping Kwan v Choy Yat Hung[5] citing the guidance by Bharwaney J in Fung Chun Man v Hospital Authority & anor.[6]  In summary, expert medical evidence must be relevant, necessary and of probative value, ie it is likely to be of real assistance to the determination of the issues or, to put it in another way, it must be reasonably required to enable the court to resolve the issues in dispute.  The court also has regard to other circumstances, eg potential disruption to the trial, the prejudice to the other parties, the explanation given for a late application, and these matters have to be considered and weighed in light of and against the underlying objectives.  Ultimately, the court strives to do justice between the parties and to secure the just resolution of the dispute in accordance with the substantive rights of the parties.

XII.  LEGAL PRINCIPLES: PSYCHIATRIC EXPERT EVIDENCE

38. Ms Wai cited my decision Ip Sau Lin v Hospital Authority[7] and the Court of Appeal’s ruling in Leung Kang Wai v Dussmann Service Hong Kong Limited formerly known as P Dussmann Hong Kong Limited[8] in support of her submissions that psychiatric expert evidence should not be allowed in the present action.  I have discussed these cases in some detail in paragraphs 104-108 in my decision in Lau Mei Wa v Li King Yin & anor.[9]

39. Whilst it is true that psychiatric expert evidence is not required in every case, the refusal of psychiatric expert evidence in Ip Sau Lin was no more than an exercise of case management discretion on the general principles discussed in paragraph 37 above.  After all, each case turns on its own facts, and indeed I exercised case management discretion on the same principled basis to allow psychiatric expert evidence in Wong Ka Yee v Gay Giano International Limited.[10]

40. As regards Leung Kang Wai, I explained in Lau Mei Wa that it was a case that turned on its own facts, which facts were a far cry from thefacts in Lau Mei Wa (or indeed from the facts of the present action).  The emphasis by the Court of Appeal in Leung Kang Wai that the order under appeal was an interlocutory order made in the discretionary exercise of the case management powers underlines the principle that in each case the court has to make a case-specific determination as to whether expert medical evidence is required.  Such approach has been succinctly summarised by Bharwaney J in Tang Tak Ping v Kai Shing Construction Co:[11]

“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 HK Ltd (unrep., HCMP 2098/2011, [2011] HKEC 1713), 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 (unrep., HCPI 945 of 2003, [2012] HKEC 118) 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.”

XIII.  ADMISSIBILITY OF THE PSY REPORT

41. Here, the plaintiff obtained the Psy Report on solo basis almost three months before the commencement of the present action.  Mr Wright did not offer any satisfactory reason why the plaintiff proceeded to unilaterally obtain such psychiatric expert report when the Ds had clearly indicated to the plaintiff their opposition and had reminded him beforehand not to do so without leave of the court.

42. Paragraph 22 of Practice Direction 18.1 (“PD18.1”) provides a regime for obtaining expert medical reports prior to the commencement of legal proceedings under the pre-action protocol.  Such provision (bolstered by paragraphs 81 and 84 of PD18.1) advocated a single joint or joint approach to expert medical evidence.  If the intended plaintiff and the intended defendant are unable to agree on arrangements for joint examination and/or joint report by their respective medical experts before the commencement of proceedings, paragraph 71 of PD18.1 provides guidance on the approach to be adopted:

“…… if parties failed to reach agreement on arranging joint examination and/or compiling joint expert report by the parties’ respective experts before …… the commencement of proceedings …… a party shall apply (by inter parties Summons ……) or the parties shall jointly apply (by Consent Summons to expedite …… the hearing of the [CLR]) to the PI Master as soon as possible upon the commencement of …… proceedings …… for directions on obtaining expert evidence and/or for permission to adduce expert evidence.”

43. There is no doubt that here the plaintiff failed to follow the prescribed approach under paragraph 71 of the PD18.1 in unilaterally obtaining the Psy Report.  As a result, he did so at his own risk as to costs and/or eventual refusal of leave to adduce such expert evidence.[12]  Such non-compliance with paragraph 71 of PD18.1 may also “lead to adverse costs consequences and/or sanctions including but not limited to those provided in RHC, Order 62, rule 8 (wasted costs order) ……”

44. What the plaintiff should have done in face of the Ds’ opposition to psychiatric expert evidence was to apply by inter partes summons to the PI Master as soon as possible after the commencement of the present action to seek directions for obtaining psychiatric expert evidence. Bearing in mind that the plaintiff had initially requested for a joint approach to seeking psychiatric expert evidence by JMPC’s letter dated 27 February 2012[13] as well as the clear guidance since 2010 in Siu Fook Cheong v Siu Kwok Fai & anor[14] and Fung Chun Man,[15] such solo approach to obtaining the Psy Report was plainly unjustified.

45. Indeed, Bharwaney J in Tang Tak Ping[16] stated as follows:

“…… 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 paras.18 and 19 of my judgment in Fung Chun Man v. Hospital Authority, he should not do. If he does so, he is liable to suffer adverse costs consequences. The mandatory requirement in para.71 of Practice Direction 18.1, 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 para.70 of Practice Direction 18.1, a failure to comply with para.71 of Practice Direction 18.1 may result in adverse costs orders and/or eventual refusal of leave to adduce such expert evidence.”

46. In Siu Fook Cheong, I (as PI Master) granted leave for the plaintiff to rely on the solo report by his orthopaedic expert obtained in breach of paragraph 71 of PD18.1 and gave directions for the joint examination/report by the parties’ respective orthopaedic experts, but the plaintiff in that case was ordered to bear the costs of and occasioned by the solo orthopaedic expert report.  But in Siu Fook Cheong (which was decided more than 3½ years ago) I have reminded practitioners as follows:

“62. Before concluding, I should remind practitioners to fully familarise themselves with the provisions in PD18.1 that concern expert medical evidence and in particular the rationale behind these provisions as discussed in these Reasons. In future, parties (and where appropriate their legal representatives) who fail to follow the joint approach to expert medical evidence set out in PD18.1 without good and sufficient reasons may not be able to adduce in evidence any solo expert medical report so obtained and may have to bear the wasted costs of such polo expert report.

63. Permission in the present case for the Plaintiff to continue to retain Dr Tsoi as his orthoapedic expert and in due course to seek leave to adduce the Report in addition to any joint report by Dr Tsoi and Dr Lee is granted on exercise of discretion on the facts and circumstances of this case, and such permission does not set any precedent. Where there is risk of prejudice to the opposing party and/or where there is concern that any solo report is an attempt to overreach or to gain forensic advantage, the court in exercising control on how expert evidence should be obtained and presented in order to attain the goal of fairly disposing of the cause or matter will not hesitate to refuse leave for adducing any such solo report. Parties and/or practitioners should not expect the court to smile kindly on any unjustified attempt to sabotage the system of case management envisaged under PD18.1.” (my emphasis)

47. Given the reinforced guidance in 2012 by Bharwaney J in Tang Tak Ping, I see no justification at all for the plaintiff to unilaterally obtain the Psy Report.  Even if I were to grant leave for the plaintiff to file/serve the Appeal Notice out of time and to adduce psychiatric expert evidence, Mr Wright recognised and Ms Wai submitted that a joint approach would have been appropriate, and the Psy Report was therefore an unnecessary exercise in time and costs.  Further, since Dr Chen did not review the Non-available Documents in paragraph 25(b)-(e) above for the purpose of preparing the Psy Report, it is doubtful whether the Psy Report is sufficiently comprehensive to truly help the trial judge in his adjudication.  In such circumstances, even if the plaintiff were to succeed on the appeal, I would not grant leave for the plaintiff to adduce the Psy Report at trial.

48. But it still begs the question whether the plaintiff would be entitled to rely on the Psy Report for the purpose of the Leave Application and the appeal. It appears from the Transcript that this issue was not canvassed before Master Leong, and the contents of the Psy Report were not deployed at the CLR hearing on 3 May 2013.

49. In dealing with this issue, I bear in mind that any application for leave to adduce expert evidence from, say, a psychiatrist would have to be properly justified since expert medical evidence is allowed only if it is relevant, necessary and of probative value.  Sometimes the justification is apparent from the medical/psychiatric treatment notes/records/reports.  But in other cases, as explained by Bharwaney J in Fung Chun Man, such justification may be provided by submitting a written note from a relevant expert setting out brief reasons explaining why the expert opinion is necessary in the particular case, but a full report should not be commissioned without agreement from the other party or leave of court:

“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.”

50. Such guidance is reiterated in Tang Tak Ping in which Bharwaney J considered the admissibility of a full solo psychiatric expert report obtained by the plaintiff in face of opposition by the defendant:[17]

“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, 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.”

51. Quite apparently, the plaintiff in the present action had ignored such guidance and proceeded to obtain a full expert report by Dr Chen rather than a brief note that set out brief reasons why psychiatric expert opinion would be of assistance to the trial judge.  Again no or no satisfactory reason was given for not following the above guidance.  Mr Wright submitted that Dr Chen was the only psychiatrist in the private sector whom the plaintiff approached, but I do not see the relevance of such observation.  After all, it appeared plain from JMPC’s letter dated 27 February 2012 to Deacons[18] that the plaintiff did not approach Dr Chen for private sector therapeutic psychiatric treatment or for second opinion.  The plaintiff all along intended Dr Chen to be his psychiatric expert for forensic examination and evaluative opinion, and there was quite simply no basis for the solo approach adopted for obtaining the Psy Report (which was a full expert report) whether for the purpose of the trial or even for the case management application for leave to adduce expert evidence.  In the circumstances, I hold that the Psy Report is not admissible for the purpose of the Leave Application and/or the appeal.

XIV.  DISCUSSION

52. Ms Wai did not dispute that the plaintiff did seek psychiatric treatment and was prescribed psychiatric medication.  She referred to (a) the WPC 1^st Report which stated that mental state examination revealed that the plaintiff’s speech was relevant, his mood was slightly depressed, and there was no hallucination, delusion or any suicidal idea, and (b) the WPC 2^nd Report which stated that the plaintiff had good drug compliance and he denied having any suicidal idea and psychotic symptoms.

53. Ms Wai reiterated Master Leong’s observations that the plaintiff’s alleged psychiatric condition (which was not admitted) was mild, so psychiatric expert evidence was unnecessary and the plaintiff’s psychiatry treatment records/reports should be sufficient to enable the trial judge (a) to decide whether the plaintiff’s psychiatric injury (if any) was caused by the Incident, and (b) to make appropriate findings on his psychiatric condition and/or disabilities (if any).  It was suggested that psychiatric expert evidence would not add anything further to the public sector psychiatry/psychology treatment records/reports, which updated records/reports could be produced at trial.

54. Ms Wai further submitted that psychiatric expert evidence was also unnecessary because the plaintiff’s alleged psychiatric condition was not caused by the Incident and/or there was no sufficient nexus between the alleged psychiatric injury and the Incident.

55. In my view, to sustain a claim for damages for psychiatric injury (including compensation for psychiatric distress and costs of psychiatry/ psychology treatment), the burden is on the plaintiff to establish not only a diagnosable psychiatric condition that is legally attributable to the tort complained of but also a need for clinically recognised treatment consequent upon such condition.

56. It does not follow that because there exists psychiatric treatment records/reports psychiatric expert evidence becomes ipso facto unnecessary. It is but a factor in the overall consideration as to whether the trial judge will be assisted by psychiatric expert evidence otherwise there would be no need for psychiatric expert evidence whenever a plaintiff received psychiatry/ psychology treatment.[19]

57. Although I accept that it is normal human experience to feel ordinary emotions of unhappiness, anxiety and/or grief in face of adversity, which trial judges do take into account as a matter of common sense and which may trigger intrinsic coping mechanisms as suggested by Master Leong, it is also common knowledge that some individuals unfortunately develop psychiatric reaction to stressors that are not necessarily severely traumatic or, as suggested by the learned master, violent.  Diagnosable psychiatric reactions are also not limited to secondary victims who suffer an extreme stressor and/or extra fear from having observed violent or major accidents.

58. Much will turn on the circumstances of each case.  The presence of inappropriate conduct, distress or anxiety (or alternatively the absence of such behavior) after the index incident is usually telling.  Medical records as well as the frequency and nature of treatment received may help the court case manager to assess, on a broad arguable basis and without making a finding of fact, whether the symptoms may be ordinary adverse emotions that are likely to taper with physical recovery and passage of time, or whether they appear to be possible indicia of a more serious and/or chronic condition worthy of psychiatric expert evidence.  Bharwaney J in Fung Chun Man said as follows:

“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 illness, unless the distress, anxiety or fear is accompanied by a physical injury. 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 case. ……

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.”

59. Here, the plaintiff presented with psychiatric symptoms, and he received and continued to receive psychiatry/psychology treatment (including psychotherapy and pharmacological intervention) after the Incident. The treatment psychiatrists diagnosed that he suffered from depressive episode or major depressive disorder.  Although the Ds did not dispute these matters, it is quite plain they denied that any psychiatric injury/disability were attributable to the Incident.  Given that the plaintiff carried the burden of proving his claim, I find that at the very least psychiatric expert evidence would be required in the present action to address the causation issue.

60. Bharwaney J in Fung Chun Man said as follows: “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. …… 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”.[20]

61. In a more recent Practice Note, Bharwaney J also made the following observations:[21]

“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.

6. In this case, the Master found that the plaintiff's relapse was not caused by the accident but by her anxiety over litigation. For this reason, the Master concluded that the plaintiff had failed to demonstrate a nexus between the accident and the psychiatric injuries.

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.”

62. Ms Wai reiterated Master Leong’s observations that the forensic psychiatrist and the treatment psychiatrist would perform the same exercise by taking the plaintiff’s medical history and account of his problems, arrive at a diagnosis of his psychiatric condition, and consider the appropriate psychotherapy and/or pharmacological intervention.  It was further suggested that since the forensic psychiatrist would not question the plaintiff’s subjective account of his symptoms, a psychiatric expert report would be unnecessary and updated treatment records/reports alone would be sufficient.

63. In my view, such arguments failed to recognise the difference between therapeutic psychiatric factual evidence and forensic psychiatric expert evidence which distinction was succinctly summarised by Bharwaney J in Hung Sau Fung v Lai Ping Wai as follows:[22]

“46. A report of a treating doctor is always admissible to prove the fact that the injured person was receiving treatment, the nature of that treatment, and the opinion and diagnosis of the treating doctor which was communicated to the injured person. These are all matters of fact. Whilst the diagnosis reached and the treatment plan recommended by the treating doctor is the product of his expertise, his diagnosis and treatment plan and their communication to the injured person is a matter of fact. However, the opinions expressed by the treating doctor in his report are not admissible as expert evidence unless leave to admit it for that purpose has been obtained from the court. ……”

64. Such difference has been further explained in paragraphs 148-152 of my decision in Lau Mei Wa.[23]  Whilst it is correct to say that psychotherapists normally adopt a non-judgmental attitude within a doctor-patient relationship in respect of the patient’s account of his/her medical history, complaints and symptoms, the same cannot be said for the psycho-legal expert who is obliged to carry out an impartial evaluation in a forensic context for the purpose of litigation.  Such expert is ultimately answerable to the court and not to the patient, and is therefore bound to make an objective and dispassionate assessment of the psycho-legal issues relevant to the litigation by testing rival diagnostic hypotheses to ascertain the psychiatric fallout as a result of the index incident and by subjecting the information from and/or about the claimant to critical scrutiny, eg by seeking verification or corroboration from (a) historical/updated treatment notes/records and reports, (b) forensically-focused mental state examinations conducted by the expert, (c) collateral interviews with family members and/or (d) witness statements.  The object is to see whether the claimant’s assertions can be supported or should be refuted, and to consider whether the claimant is dissembling or not. Hence, as explained in Ngai Ping Kwan, it is not unusual for therapeutic and forensic decision-making to differ, and it is not a rarity to come across psychiatric expert reports that conclude that the claimant is a malingerer with no diagnosable psychiatric illness.  For example, critical evaluation by the defendant’s psychiatric expert in Ho Man Fong v Sime Darby Motor Services Limited[24] led her to the opinion that the plaintiff in that case had exaggerated her symptoms such that her complaints could not be relied upon for a useful diagnosis.  In that case, the trial judge preferred the opinion of the defendant’s expert that there was no psychiatric disorder, especially post-traumatic stress disorder.[25]

65. The aforesaid distinction between treatment and forensic psychiatric expert evidence should allay concerns that knowing claimants might “invent” subjective symptoms to fit in with the clinical presentation of recognisable psychiatric illnesses.  Whilst I accept that cross-examination of a claimant on his professed complaints/symptoms might to some extent expose any such “inventions” or alternatively affirm the veracity of such complaints, it is still often necessary to have the benefit of critical evaluation from a medical perspective to assist the trial judge in forming a view as to whether the criteria for a recognisable psychiatric condition have been satisfied.

66. In the circumstances, I do not agree that there is not a lot more that a psychiatric expert can add to the psychiatric treatment records/reports. In a case where there is real possibility of psychiatric consequence, absent such evidence the claimant may be handicapped in advancing claims for cost of future psychiatry/psychology treatment that may be caused by such psychiatric sequelae.  This is an important consideration in the present case because there is no suggestion that psychiatric treatment/medication have ceased.  In my view, the essential features of future psychiatric prognosis/treatment in the present case cannot be resolved by just considering the WPC 1^st and 2^nd Reports or even updated psychiatry/ psychology records/notes/reports from WPC and QMH on current treatment/medication.

67. Ultimately, the relevant consideration is whether on the particular factual and medical matrix of the present action psychiatric expert evidence is required to assist the trial judge in his adjudication.  In my view, there can be no doubt that psychiatric expert evidence is required.  Given the challenge by the Ds as to (a) the existence of any psychiatric condition on the part of the plaintiff, and (b) if there is such psychiatric condition, its causation, chronicity and future prognosis, psychiatric expert evidence is relevant.  If there is a recognisable psychiatric illness, there are further questions as to the scope and length of future treatment, the proper sick leave for psychiatric injury, and the impact of such condition on work capacity.

68. Both Ms Wai and the learned Master made light of the plaintiff’s mild psychiatric condition, but the matters Ms Wai referred to in paragraph 52 above are silent on the anxiety, temper and irritability symptoms that led to the psychiatric referral and treatment.  Whilst accepting that the genuineness of such complaints are in issue in this case, I am persuaded that psychiatric expert evidence in addition to testing the plaintiff’s evidence on his subjective account will aid the trial judge.  I also bear in mind that under the Order the learned Master also directed that “the reports of the Government hospital as to treatments and care of the Plaintiff are to be adduced as agreed evidence without calling the makers thereof”, so the treatment psychiatrists will not be giving live witness evidence to clarify any psychiatric issue arising from the Ds’ challenge under this head of claim.  Taking all matters into account, I consider that the need for a just determination of the dispute between the parties leads me to depart from the Expert Order made by the Master and to allow psychiatric expert evidence to be adduced in the present action.

XV.  CONCLUSION

69. In respect of the Leave Application, in light of my conclusion that the appeal is meritorious and psychiatric expert evidence is required, I grant leave for the plaintiff to file and serve the Appeal Notice out of time. I also allow the appeal and grant leave for psychiatric expert evidence to be adduced in the present action.

70. At the Hearing, I had already vacated the forthcoming CLR scheduled on 4 October 2013. I also grant the following case management directions:

(a)   Paragraph 4 of the Order be set aside.

(b)   Expert medical evidence be limited to one otorhinolaryngology expert and one psychiatric expert for each party.

(c)   For the avoidance of doubt, no leave is granted for the plaintiff to adduce the Psy Report.

(d)   Within 14 days from today, the parties shall write to the PI Master on the following:

(i)    state the names of the parties’ respective psychiatric experts;

(ii)   state when the parties anticipate that the Non-available Documents will be obtained;

(iii)   state the deadline for conducting joint examination of the plaintiff by the parties’ respective psychiatric experts;

(iv)   state the deadline for compiling the joint psychiatric report by the parties’ respective psychiatric experts;

(v)   propose directions for obtaining joint psychiatric expert report;

(vi)   state whether it is expected that the RSOD and the Answer may have to be further revised in view of the joint psychiatric expert report to be obtained;

(vii)   if so, propose directions for leave to further revise the RSOD and the Answer;

(viii)  propose all necessary and appropriate directions up to the stage of setting the case down for trial, including preparing the trial bundle index; and

(ix)   propose a date for restoring the present action for CLR hearing before the PI Master to set the case down for trial.

71. In respect of the Leave Application, JMPC by their letter dated 26 September 2013 after the Hearing confirmed to the court they would personally bear the costs of the Leave Application. In the circumstances, I grant a costs order nisi that JMPC do personally pay the costs of and occasioned by the Leave Application to the Ds to be taxed if not agreed.

72. In respect of the appeal, there is no reason why costs should not follow event.  The defendant failed to resist the appeal, and I therefore grant a costs order nisi that the Ds do pay the plaintiff costs of the appeal to be taxed if not agreed.  As for the costs below, I see no reason to disturb the costs order made by Master Leong that costs be in the cause.  Since the plaintiff is legally aided, I also order that the plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.