LEUNG KANG WAI v.DUSSMANN SERVICE HONG KONG LTD

HCMP 2098/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2098 OF 2011

(ON AN INTENDED APPEAL FROM DCPI NO. 297 OF 2010)

---------------------------

BETWEEN

---------------------------

_______________

DECISION

_______________

Hon Yeung V-P:

1.  The Plaintiff has failed to demonstrate that the Master and the Judge had wrongly exercised the discretion in the management of the conduct of a case. I too would refuse leave and make the orders as proposed by Kwan JA.

Hon Kwan JA:

2.  This is an application for leave to appeal an order made by Deputy District Judge Shipp on 29 July 2011 in which he refused leave to the plaintiff to adduce expert psychiatric evidence in an action for personal injuries. The Judge’s order was made in an appeal from Master J Chow’s order of 25 May 2011 refusing leave to adduce such evidence.

3.  The plaintiff applied to the Judge for leave to appeal his order to the Court of Appeal. This was refused on 11 October 2011. He renewed his application by issuing the summons in the present proceedings on 21 October 2011 seeking leave from the Court of Appeal. This summons is determined on the basis of the written submissions filed on both sides without a hearing, as the Court of Appeal is empowered to do under Order 59 rule 2A(5) of the Rules of the High Court.

The plaintiff’s case

4.  I will first set out the plaintiff’s case. This is taken largely from the statement of claim and the statement of damages both filed on 16 March 2010.

5.  On 27 March 2007, the plaintiff, who was employed by the defendant as a cleaner, had an accident at work. He stepped on a plastic sheet with a plastic film roll underneath and slipped and fell on the ground landing on his buttocks and spraining his left shoulder. He attended the Accident & Emergency Department of Princess Margaret Hospital for treatment. It is not pleaded in the pleadings but as noted by the Judge, he received treatment at the Accident & Emergency Department and was discharged the same day.

6.  Thereafter, he attended various government hospitals and clinics for outpatient treatment. As he also complained of mental distress after the injury, on 14 March 2008, the Orthopaedics & Traumatology Department of Princess Margaret Hospital referred him to the psychological trauma clinic for further management. During 23 April 2008 to 19 January 2009, he attended the Caritas Medical Centre for clinical psychology services as an outpatient on 13 occasions. He was given sick leave from 28 March 2007 to 26 April 2009. He has not returned to employment and since March 2009, he has been receiving Comprehensive Social Security Assistance.

7.  According to a “New Case Triage Form” of psychiatric outpatient of the Hospital Authority, on 21 April 2009 the plaintiff was referred to psychiatric treatment and assigned an appointment date of 23 February 2010. He had a consultation with a psychiatrist, Dr Cheng Kin-shing (“Dr Cheng”), at the West Kowloon Psychiatric Centre on 23 February 2010. Thereafter he was followed up on 9 occasions up to the last available medical report of Dr Cheng on 29 July 2011. 

8.  In the pleadings, it is pleaded that as a result of the accident, the plaintiff “suffered serious injuries to his back and left shoulder and subsequently developed post-traumatic stress disorder (“PTSD”)”.

9.  The medical reports served with the statement of claim included the psychological report dated 25 February 2009 of the clinical psychologist, Ms Valda Cho (“Ms Cho”), of the Caritas Medical Centre. Dr Cheng’s reports were not included as they were prepared after the statement of claim was filed. It is however apparent that Dr Cheng’s reports are relied on by the plaintiff as part of the medical evidence in support of his case, and his reports have been included in the bundles placed before the Master and the Judge.

10.  In the statement of damages, it is pleaded that due to the plaintiff’s medical and psychiatric condition, he could not resume his pre-accident employment as a cleaner and, on account of this, he claims damages for pre-trial loss of earnings, loss of earning capacity and loss of future earnings.

The application to adduce expert psychiatric evidence

11.  The plaintiff issued a summons on 11 March 2011, seeking leave to adduce expert psychiatric evidence at trial, leave to the parties to appoint their respective psychiatric experts to conduct a joint examination on him and to prepare a joint medical report[1], and that the joint report is to address the following issues:

“(1) the extent of psychiatric damage sustained by the Plaintiff attributed to or caused by the Accident;

(2) the extent of the Plaintiff’s pre-accident psychiatric condition, if any, and whether the Accident triggered such psychiatric condition;

(3) whether or not the sick leave period granted is reasonable;

(4) appropriateness of treatment received by the Plaintiff so far;

(5) the Plaintiff’s ability and tolerance as to resumption of his pre-accident employment;

(6) the effect of psychiatric damage on the Plaintiff’s daily living activities;

(7) likeliness of further improvement on the Plaintiff’s psychiatric condition; and

(8) recommendation of further treatment and the costs of the same.”

12.  In his affirmation filed in support of the application, the plaintiff deposed that as a result of the accident, he subsequently developed psychiatric illness and that since 23 February 2010, he was diagnosed to be suffering from “recurrent depressive disorder, moderate with somatic syndrome.” He exhibited the reports of Dr Cheng, which gave an account of his previous treatment for psychiatric illness between 1995 and 2002.

13.  The plaintiff had a traffic accident in 1993. He lost consciousness when his bus turned over. He was diagnosed to be suffering from PTSD and depression in 1995. From 1995 to 2001, he attended outpatient psychiatric clinics for treatment. In June 2001, the diagnoses were revised to mild cognitive disorder and organic mood disorder. He defaulted follow up sessions since January 2002 as he found himself mentally stable and he had to work.

The Master’s decision

14.  The Master decided the summons on the submissions filed without a hearing. The parties are in agreement that the criteria to be satisfied for the court to grant leave to adduce expert evidence are necessity, relevance and probative value, as stated by Suffiad J in Chan Kwok Ming v.

Hitachi Electric Service Co. Ltd., HCPI 322/2002.

15.  Upon consideration of the available medical reports, the Master reached the view “it is evident that the Plaintiff has psychiatric symptoms” but did not find “such symptoms were Accident-related” and there is no sufficient nexus of the plaintiff’s symptoms with the accident. She found the plaintiff has pitched his case too high to say that the fall has contributed to PTSD. As the allegation of psychiatric injury was made on shaky grounds, a psychiatric expert report would not be of any assistance to the trial judge, so the plaintiff’s summons was dismissed.

The Judge’s decision

16.  The Judge gave reasons for his ruling on 29 July 2011 and expanded on his reasons in his decision on 11 October 2011 in refusing leave to appeal to the Court of Appeal.

17.  The Judge noted it is the plaintiff’s pleaded case he subsequently developed PTSD and that the only basis for that pleading is Ms Cho’s report of 25 February 2009. Ms Cho only mentioned in her report that the plaintiff “was found to be suffering from symptoms of PTSD” and has not made any clinical diagnosis that the plaintiff was suffering from PTSD. Moreover, according to the Diagnostic and Statistical Manual of Mental Disorders, 4^th ed., page 435, for PTSD to develop, a person would have experienced or witnessed or was confronted with an unusually traumatic event that has both these elements: (1) the event involved actual or threatened death or serious injury to that person or others; and (2) the person felt intense fear, horror or helplessness. The Judge referred also to the expert evidence to similar effect accepted by Suffiad J in Ho Man Fong v. Sime Darby Motor Services Limited, HCPI 1096/2003, 19 July 2005, paras. 54 to 56. This was in the context of a plaintiff who had a similar accident from a slip and fall. The Judge opined that in the present case, the plaintiff’s accident can by no stretch of imagination come within a trauma of such magnitude for PTSD to develop. He held that it is clear the plaintiff was not suffering from PTSD now or at the time when the statement of claim was filed.

18.  The plaintiff’s case was then argued on the basis he had been diagnosed by Dr Cheng with “recurrent depressive disorder, moderate with somatic syndrome” and that this is attributed to the pain caused by the accident. Having considered Dr Cheng’s reports and his case summaries, the Judge was unable to find any relevance between the plaintiff’s depression and the accident.

19.  Quite apart from the issue of relevance, the Judge did not think expert psychiatric evidence is necessary or cost-effective here. He noted that the psychological treatment received by the plaintiff concentrated on pain treatment and depression “arising from his relationship with his employer and stress from litigation.” He took the view that “further explanation by psychiatrists are unlikely to be required as necessary in the sense of being useful to the trial judge”. Furthermore, the trial judge can come to a decision of the issues of pain and suffering and loss of amenities and the plaintiff’s loss of earning capacity by looking at the medical reports.

The application for leave to appeal

20.  The order being the subject of the intended appeal is an interlocutory order made in the discretionary exercise of the powers of case management. For leave to appeal to be granted, the court must be satisfied that the appeal has a reasonable prospect of success or that there is some other reason in the interests of justice why the appeal should be heard. Reasonable prospects of success involves the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable” (SMSE v. KL [2009] 4 HKLRD 125 para.17). Merely showing the appeal is “arguable” and “not fanciful” would not be sufficient in an interlocutory appeal, as it is not conducive to the due administration of justice by allowing interlocutory skirmishes which would only serve to increase costs and delay the adjudication of the litigation (Ho Yuen Ki Winnie & Anr. v. Ho Hung Sun Stanley & Anr., HCMP 1009/2009, 24 August 2009, paras. 16 and 22).

21.  The parties are in agreement that the court should consider the criteria of relevance, necessity and probative value in deciding whether expert psychiatric evidence should be admitted. I will turn to the arguments taken by the parties on these criteria. 

The criteria of relevance, necessity and probative value

22.  It was contended by the plaintiff there is prima facie evidence of sufficient nexus between the accident and his psychiatric illness and that the trial judge cannot dispose of the issue of the cause of his psychiatric illness without the assistance of further expert psychiatric evidence.

23.  On the question of prima evidence of sufficient nexus, the plaintiff’s solicitor submitted that the test is satisfied if the accident was a possible link to the accident and when the available medical reports are examined for this purpose, the comments made in the reports should be accepted at face value, citing Farman Khan v. Lau Lai Hong & Anr., HCPI 850/2008, 29 April 2009 for the proposition that it would suffice where the accident is a “possible cause” for the depression, and the words of Suffiad J in Chan Kwok Ming v. Hitachi Electric Service Co. Ltd. that during the interlocutory stage, the disputed report must only be “looked at on its face value, with the weight of the report being reserved to the Trial Judge”. These were the arguments addressed to the Judge and were rejected by him in paragraphs 6 to 8 of his decision on 11 October 2011.

24.  I agree with the Judge that Farman Khan is of no assistance to the plaintiff.

25.  A ruling that sufficient nexus has not been made out for the purpose of deciding whether leave should be given to adduce specific expert evidence is a but tentative ruling. The court at this stage is concerned with whether there is prima facie evidence of causation on the available material. That ruling is not binding on the trial judge and what weight should ultimately be attached to the medical reports is reserved to the trial judge. That said, in considering whether there is prima facie evidence of causation, the court is not bound to accept everything stated in a medical report at face value. The words of Suffiad J quoted above should not be taken to mean that the court at this interlocutory stage should look at the medical reports placed before it with a wholly uncritical eye, or that a “possible link” would qualify as prima facie evidence establishing sufficient nexus between the accident and the injuries no matter how tenuous it is.

26.  Here, the Master and the Judge have considered the medical reports and records placed before them in some detail. Both were of the view that sufficient nexus has not been made out on the available material.

27.  The Master has observed that the current psychiatric complaints were noted almost one year after the accident, that there is no evidence the current psychiatric symptoms were or might be a relapse of the previous psychiatric illness in the 1990s for which the plaintiff had ceased treatment since January 2002, and that the comments of Ms Cho and Dr Cheng that the plaintiff seemed excessively occupied with the ongoing litigation cast serious doubts if his current psychiatric symptoms were accident related.

28.  As mentioned earlier, the Judge has held it is clear that the plaintiff was not suffering from PTSD now or at the time when the statement of claim was filed. He noted the statement of Dr Cheng that when the plaintiff was seen in September 2010, the plaintiff “was not depressed clinically”. Even assuming that the plaintiff is suffering from depression, he failed to see any relevance between the plaintiff’s depression and the accident, in the light of Dr Cheng’s medical reports. According to Dr Cheng’s case summaries, the plaintiff had no depressive features in the first two years after the accident in March 2007 despite experiencing some degree of pain. It was only in 2009 when he was not successful in resuming work with his former employer after his sick leave pay for two years had ended that the plaintiff began to have “depressive features” because he was bothered by financial problems.

29.  In this intended appeal, the plaintiff’s solicitor pointed to a number of matters so as to cast doubt on the ruling of the Master and the Judge that there is no prima facie evidence of sufficient nexus between the accident and the plaintiff’s symptoms. It was submitted that the mere fact the plaintiff was diagnosed with “recurrent depressive disorder” would, by its very definition, imply that this condition is related to the accident in question in 2007 as well as the first accident in 1993. I fail to see why that should be the case. As the Master had observed, there is no evidence the current psychiatric symptoms were a relapse of the previous psychiatric illness. Even if the depression was recurrent, this does not necessarily imply that the symptoms were caused by the accident.

30.  It was further contended that a fair reading of the reports of Ms Cho and Dr Cheng would link the accident as a possible cause for the plaintiff’s psychiatric symptoms, even though this was not expressly stated in the reports. The plaintiff’s solicitor submitted that this was because no other incident apart from the accident in 2007 was mentioned in Ms Cho’s report and in all Dr Cheng’s reports, it was mentioned that the plaintiff was bothered by pain from the physical injuries he suffered in the 2007 accident.

31.  I have reservations if that is the right way of reading those reports. For present purpose, it is not necessary to resolve this. Whether the plaintiff’s psychiatric symptoms were caused by the accident in 2007 is essentially a matter for the trial judge and not for the medical experts. Insofar as any further assistance from medical experts is required, the best assistance would come from Ms Cho and Dr Cheng, the clinical psychologist and the psychiatrist who had the plaintiff under their care from April 2008 to January 2009, and from February 2010 to June 2011, according to the last available report. There is no indication that Ms Cho or Dr Cheng would not be available to give evidence at the trial. The court is unlikely to be assisted by a further couple of psychiatric experts, who would not have the advantages of Ms Cho and Dr Cheng in that they would have no firsthand knowledge of the plaintiff’s symptoms and would not have examined and assessed the plaintiff over an extended period.

32.  The parties are in disagreement over Dr Cheng’s reports whether the plaintiff has made a recovery from his psychiatric symptoms. The plaintiff’s solicitors contended that it is evident from the reports the plaintiff’s condition has been unstable and he has not recovered. The defendant’s counsel submitted from the reports there is clear diagnosis that the plaintiff’s condition remains stable, controllable with medication only when it is necessary. Again, the best way to resolve this is to clarify with the treating doctor, Dr Cheng, who will be called to give evidence, instead of seeking an opinion from two new psychiatric experts.

33.  For the above reasons, I do not think there are reasonable prospects of establishing the criteria of relevance, necessity and probative value for the proposed expert psychiatric evidence to be admitted. I also agree with the defendant’s submission that the cost of obtaining such expert evidence would be disproportionate to the benefit that might be obtained. There is no ground to interfere with the discretionary exercise of case management power by the Master and the Judge. I would refuse leave to appeal to the Court of Appeal.

34.  As the application for leave to appeal is totally without merit, I would make an order pursuant to Order 59 rule 2A(8) of the Rules of the High Court that no party may under rule 2A(7) request the determination to be reconsidered at an oral hearing inter partes.

35.  I would make an order nisi that the plaintiff is to pay the defendant’s costs of this application, to be taxed if not agreed, and that the plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.

[1] This is to comply with Practice Direction 18.1 paras. 81 to 83