WONG KAM LEE v. DRAGAGES ET TRAVAUX PUBLICS (HK) LTD AND OTHERS

HCPI 824/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 824 OF 2004

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D E C I S I O N

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1.  There are two issues on this Pre-trial Review.

(1)  Whether the psychiatric reports previously obtained from the Defendant’s former psychiatric expert, Dr C N Chen, should be placed before the trial judge; and

(2)  Whether the respective experts, Dr S Y Chan for the Plaintiff and Professor Lieh-Mak for the Defendant should be called to give oral evidence.

2.  The Plaintiff alleged he suffered a fall from height while walking along a beam on the site.  There is dispute as to the height he actually fell from.  They are the version of 12 feet or 15 to 16 feet on the Plaintiff’s side, and 1.5 or 2 metres from the Defendant’s side, gathered from different sources at different time. 

3.  The Plaintiff only sustained soft tissue injury with no fracture, but he is complaining of psychiatric disorder in the form of dysthymia (diagnosis by the government treatment psychiatrist, Dr K M Lo), pain disorder (diagnosis by Dr S Y Chan, the Plaintiff’s psychiatric expert) as well as adjustment disorder and with depressed mood (diagnosis by Dr C N Chen, the Defendant’s former psychiatric expert). 

4.  Leave was given by the Master for the Defendant to substitute Professor Lieh-Mak for Dr C N Chen.  Professor Lieh-Mak suggested that the Plaintiff did not and does not suffer from any psychiatric disorder at all.  Regrettably, Professor Lieh-Mak did not conduct a joint examination with Dr S Y Chan. 

5.  The reports of Dr CN Chen were previously adduced pursuant to the direction of the Master.  Mr Woo, for the Plaintiff, referred to O. 38,  r. 42, RHC:

“Putting in evidence expert report disclosed by another party

A party to any cause or matter may put in evidence any expert report disclosed to him by any other party in accordance with this Part of this Order.”

and submitted that one party is entitled to put in a report disclosed by the other party (Gurney Consulting Engineers v Gleeds Health & Safety Ltd & anor [2006] EWHC 43 per Judge Peter Coulson QC), and the previous report should be disclosed upon a substitution of expert to minimize the risk of expert shopping (Black v Ministry of Defence [2003] EWCA 1043).

6.  Miss Lee, for the Defendants, now does not object to the production of the reports of Dr CN Chen provided that the experts are called to give oral evidence.  Miss Lee submitted that the experts should be called in any case because their opinions are diametrically opposed, citing the Court of Appeal decision of Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd CACV 208/2007.

7.  I have previously set out the considerations where oral evidence of the experts may be dispensed with, such as the factual basis of even a diametrically opposed opinion being removed due to the view taken by the judge on the evidence, or internal inconsistencies in an expert report that can be resolved without oral evidence (Fung Suk Yin Florence v Yip Mun Chi HCPI 128/2007; Ng Yiu Wing v Chun Wo Construction Ltd HCPI 273/2007; Shrestha Kalyan v Acciona Infraestructuras SA HCPI 710/2007).

8.  Professor Lieh-Mak made the findings, inter alia, as follows:

(1)  The Defendant does not qualify for the diagnosis of Dysthymic Disorder under the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) because the requirement that the symptoms listed under criterion B of DSM-IV be not due to the direct physiological effects of general medical disorder and the symptoms cause significant distress or impairment in social, occupational or other areas of functioning is not met;

(2)  The Plaintiff was exaggerating or feigning his psychiatric condition based on:

(a)  observation at the examination that the Plaintiff was not under any depressed mood;

(b)  the Plaintiff inconsistent marking on the pain chart;

(3)  The Plaintiff is zealous in pursuing litigation/compensation;

(4)  Inconsistencies observed by Dr Johnson Lam, the orthopaedic expert for the Defendant; and

(5)  Inconsistencies in the statements by the Plaintiff and other witnesses of fact.

9.  Not all of the above require the calling of the experts.  But Dr SY Chan has not been given an opportunity of commenting on Professor Lieh-Mak’s observation on criterion B of DSM-IV.  

10.  This case highlights the undesirability of conducting separate examinations because part of the reasons of exaggeration as perceived by Professor Lieh-Mak was based on her observations at the examination.  Had the respective experts been examining the Plaintiff on the same occasion, such differences should hopefully have been avoided, or at any rate commented on by the experts after discussions amongst professionals.  Also, their diagnoses on a common criterion would have received mutual discussions and consideration.  So much said, the fact remains that there has not been joint examination and there are matters which has not been subject to discussions and cross considerations by the respective experts.

11.  In such circumstances,  I rule that the pervious reports of Dr CN Chen should be produced, and the psychiatric experts should be called to give oral evidence.  Of course, the trial judge may always see fit to dispense with calling them.

12.  I hope such excesses of the separate examinations may be reduced when the new practice direction on joint examination shall come into effect in April next year.