Mr Ravi Gidumal and Others v. Dr Richard Wing Chiu and Another

HCPI 411/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 411 OF 2012

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Before: Deputy High Court Judge Marlene Ng in Chambers

Dates of Joint Submissions: 8 and 22 August 2017

Date of Handing Down Decision (Paper Disposal): 20 September 2017

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D E C I S I O N

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1.The 2^nd plaintiff (“P2”) and the 3^rd plaintiff (“P3”) (collectively, “Ps”) are the parents of Zubin Mahtani Gidumal (“Zubin”). Zubin was 3 years old when he passed away on 31 May 2009 from pneumococcal meningitis. In the present action, the estate of Zubin (“P1”), P2 and P3 sued the 1^st defendant (“D1”) and 2^nd defendant (collectively, “Ds”) for damages in respect of their alleged medical negligence in failing to properly diagnose and treat Zubin’s condition. P1 and Ds had since reached settlement in respect of P1’s claims against Ds, and the outstanding proceedings concerned Ps’ claim against Ds.

2.On 17 April 2013, Ps’ psychiatric expert Professor Michael Trimble (“Prof Trimble”) gave reports on quantum in respect of P2 and P3. On 23 March 2014, Ds’ psychiatric expert Dr Josephine Wong (“Dr Wong”) gave reports on quantum in respect of P2 and P3.  Pursuant to joint instructions dated 5 August 2015 by the solicitors for Ps and Ds, Prof Trimble and Dr Wong (collectively, “Experts”) gave joint reports on quantum in respect of P2 and P3 dated 9 September 2015.

3.On 28 February 2017, I granted an order that Ps and Ds shall prepare joint instructions (“Joint Instructions”) for the Experts to prepare a supplemental joint psychiatric expert report for each of P2 and P3 to comment on their respective psychiatric condition and work capacity, having regard to the discovery and further witness statements as ordered (“Additional Disclosure”) within 35 days, ie on/before 4 April 2017 (“Order”). The Order was sealed on 20 March 2017.

4.On 8 August 2017, solicitors for Ps and Ds jointly wrote to advise the court they were unable to agree on certain parts of the Joint Instructions, hence they sought the court’s directions on their disputes as outlined in a marked up draft of the Joint Instructions (“Draft”) that set out their respective contentions.

5.On 21 August 2017, this court directed Ps to lodge a bundle of relevant documents in respect of the application, and further directed Ps and Ds to jointly clarify their respective stance.

6.On 22 August 2017, Ps lodged the bundle of documents and Ds clarified their stance.

7.Since Ps and Ds are well familiar with the available reports of the Experts and the Draft, I do not propose to set out the background for the purpose of resolving the case management question placed before this court. Instead, I will deal directly with the disputed aspects of the Draft.

8.First, in paragraph 1.1(a) under the section on “Diagnosis” in the Draft, the Experts will be asked as to whether there is any change to their diagnoses since the last joint reports in light of the Additional Disclosure, and if so, what are the changes. D1 wished to go on and ask the Experts (but Ps disagreed) whether, having regard to the adoption papers for Devyn (who should be about 7 years old by now) whom Ps adopted after Zubin’s death, it is possible/likely that Ps “only started to suffer from a psychiatric illness or condition three years after Zubin’s death”.

9.I see no basis at all for posing such question to the Experts. As Ps pointed out, the adoption papers were enclosed to the joint instructions dated 5 August 2015 for the Experts to prepare their joint reports of 9 September 2015. Indeed, the adoption papers had been provided to Dr Wong for her preparation of her solo reports dated 23 March 2014 (see items (l)‑(m) of the documents supplied to Dr Wong and paragraphs 50, 78 and 80 of her report on P2, and also items (n)-(o) of the documents supplied to Dr Wong and paragraphs 54, 83 and 90 of her report on P3). Not only had Dr Wong referred to the adoption papers, she had explored with P2 and P3 about their adoption of Devyn and had discussed with them the contents of the adoption papers during her examination interviews. Obviously, Dr Wong as forensic expert in psychiatry had taken these matters into account when she came to her diagnoses in paragraphs 81-93 of her solo report on P2 and in paragraphs 104-116 of her solo report on P3 that did not even remotely suggest that Ps’ psychiatric conditions arose years after Zubin’s death. On the contrary, Dr Wong (who stated that her views were similar to those of Dr Barry Connell and Prof Trimble) opined that Zubin’s death was causative of the diagnoses she made, and the presentation of symptoms satisfied diagnostic Criterion B being intense symptoms that “have persisted for at least 12 months after the death” (see paragraph 84 of Dr Wong’s solo report on P2 and paragraph 107 of Dr Wong’s solo report on P3). Dr Wong’s stance was affirmed in the Experts’ subsequent joint report of 9 September 2015 which referred to the traumatising circumstances and suddenness of loss as features of the diagnoses given, and to Zubin’s death and the circumstances of his death as causative of Ps’ respective psychiatric condition.

10.Secondly, on the matter of “Causation” under the original paragraph 1.1(b) of the Draft, D1 noted the Experts were previously asked under the joint instructions dated 5 August 2015 to list every event which they considered had made a material condition to their respective condition. D1 claimed this was not done, so clarification was required.

11.I disagree. The Experts did identify the events for both P2 and P3, ie those specified in paragraphs 47-48 of P2’s statement of 15 October 2012 and paragraphs 86-142 of P3’s statement of 14 October 2012. It must be remembered that the Experts interviewed Ps and explored with them the background and relevant events, and have studied Ps’ statements. There was no need for the Experts to repeat in long-hand what they regard as having been pertinently described in Ps’ witness statements.

12.Thirdly, on the matter of “Prognosis” under new paragraphs 1.1(b) and 1.1(c) of the Draft, Ps proposed to ask the Experts whether it is necessary for them to reconsider their opinion on prognosis in light of the Additional Disclosure, and if so, to explain with reference to specific fact(s) and/or medical record(s) in the Additional Disclosure which support their current opinion.

13.I disagree with D1’s proposal to ask the Experts the specific question of whether Ps’ activities are consistent with persons suffering from PCBD and who are “significantly affected by his/her condition”. This is something very much within the Experts arena of expertise, and it is for them as experts to give opinion. The Experts are well aware of their forensic duty to the court to spell out matters that support or detract from their opinion.

14.Fourthly, on the matter of P3’s “Return to Work”, the Experts in their joint report opined they did not believe P3 “will be able to return to work”.  Apart from asking whether the Additional Disclosure will lead the Experts to reconsider their opinion, in the new paragraph 1.1(f) of the Draft, D1 wanted to tell the Experts that whilst P3’s position is set out in her witness statements, Ds’ contention is that P3 has returned to work and that the work which she now undertakes for the Zubin Foundation, which she has described as a “social policy think tank”, is very similar to that which she has been undertaking in her previous organisation, CBL. Ps objected to the proposed inclusion of such matters in the Joint Instructions.

15.In my view, the starting point is to let the Experts have a proper understanding of what is meant by “work” in the present context. Usually, one views work as “employment” (as seen in the questions posed to the Experts in their joint report), eg working as a chef or an architect. But prior to the indexed incident, P3 had the fortuity of choosing and shaping her own “work” and also the extent of her involvement in such “work”. Even after the indexed incident, P3 had her say (or it might have been dictated by her psychiatric condition) in shaping the Zubin Foundation and the nature/extent of her involvement. Thus, “work” for P3 is not in the conventional sense of an employed position. The question of actual or notional return to work therefore turns on the nature, scope and intensity of the role/involvement in the relevant organisations (eg networking, public speaking, social interaction, corporate management etc) that P3 is capable of handling now and in future, and whether her performance in relation these matters can reach the pre-incident par. Thus, the Experts should consider P3’s pre-incident “work” (as explained above) in its entirety, and consider from a psychiatric perspective whether she can return to the pre-incident par (either incrementally or otherwise), and if not, whether it is that she cannot at all or she can hope to return to what level. I believe that once this is explained to the Experts, they will be properly guided on the general question and there is no need to put Ds’ stance or P3’s stance to them. After all, the Experts will have access to and will study the Additional Disclosure.

16.Fifthly, in the new paragraph 1.1(g) of the Draft, the assumed scenario is that the Experts maintain their previous view on “Return to Work”. It is proposed to ask them to explain the “cognitive / performance issues caused by their respective psychiatric conditions, if any” (Ps) or “clinical reasons” (Ds) that prevent P2’s from performing to the same level he did before Zubin’s death. I am not inclined to accept either option. Unlike physiological ailments, psychiatric conditions and their impact on the person require detailed and nuanced evaluations of a diversity of phenomena. It is inappropriate for lay instructions to the Experts to constrain the scope of their expert explanations. The appropriate question is to ask the Experts to give their reasons from a psychiatric perspective as to why Ps’ psychiatric conditions, if any, would prevent P2’s progress in work performance to pre-incident level and P3’s “return to work” as explained above. After all, it is the Experts rather than the legal professionals who are skilled in the art and science of psychiatry.

17.Sixthly, on the question of “Alternative Employment” in the new paragraph 1.1(h) of the Draft on the assumed basis that the Experts maintain their previous view, Ps proposed to ask them to explain the clinical reasons which would prevent each of P2 and P3 from seeking “alternative employment”. On the other hand, Ds were concerned about the Experts’ opinion in their joint report of 9 September 2015 that (a) the question of “alternative employment” for P2 “is not relevant since [he] is working in a family business”, and (b) they cannot envisage “alternative employment” for P3. Thus, D1 wanted to ask the clinical reasons for these views.

18.In my view, the better approach is to explain to the Experts the purpose of asking questions about “alternative employment”. There is no dispute that both pre-incident and post-incident P2 actually worked in his family business at different performance levels and/or directions. As a matter of fact, his family circumstances made/make it unnecessary for P2 to work elsewhere. I also explained in paragraph 15 above that P3 is in a similar position in that she could/can set up and choose her own pre‑incident work and (subject to constraints of her psychiatric condition, if any) her post-incident work. However, in considering the impact of psychiatric disability on future work, the expert issue for the Experts is not any factual matter, eg whether P2 would actually stay with the family business in future or whether P3 would actually stay with particular charity work. This is a factual matter for the trial judge.

19.What is pertinent for the Experts is what sort of work (and its the nature, scope and intensity) that P2 and P3 are and/or will be capable of undertaking from the perspective of their psychiatric diagnosis and prognosis irrespective whether he/she is actually engaged in or will actually proceed to engage in such work.  Thus, for P2, the Experts’ consideration should not necessarily be constrained by their belief or surmise that because he was/is in the family business “alternative employment” is therefore to be ignored.

20.I note the Experts’ explanations in paragraph (i) of the joint report of 9 September 2015 that there was potential for P2 to increase his working hours in the coming 2-3 years if he continues to improve with treatment but he will not be able to completely return to his previous level of work before Zubin’s death. Since the Experts’ view as at the time of their joint report was that P2 will not be able to return to his “previous employment” in the sense that he will not be able to reach the pre-incident performance level in a position within the family business, the question from a psychiatric point of view for the Experts will be: (a) what sort of performance level can P2 achieve now and in the longer term in a position within the family business, (b) whether P2 is psychiatrically able to take up work unrelated to his family business, and (c) if so, what sort of notional “alternative work” he can do now and in the longer term.

21.As an illustrative (but hypothetical) example, is P2 psychiatrically able to be, say, a part-time business consultant with a range of responsibilities but less working hours or a full-time senior business manager with longer working hours but more circumscribed duties? Will his choice of notional “work” be constrained by, say, psychiatric inability to tolerate frequent international travel on business due to pathological fear/concern of being away from his children?

22.The answer if any (and it is very much for the Experts to say), may help (but it cannot dictate) the tribunal of fact in its deliberations on the measure of loss. Thus, in the above illustrative example, even if P2 is capable of such notional “alternative employment”, it will be up to the tribunal of fact to consider whether it is reasonable or appropriate in all the circumstances for him to take up such work if at all. Further, it is, of course, open for the Experts in their skill and expertise to come to a view that psychiatrically speaking such notional “alternative employment” cannot be envisaged or if envisaged is psychiatrically unsuitable, and to give their reasons therefor.

23.The above observations apply mutatis mutandis to P3. Ps and Ds should re-work new paragraph 1.1(h) and Ds’ proposed paragraphs 1.1(i)-(j) of the Draft to explain the purpose of this expert issue to the Experts.

24.Having clarified the above matters, Ps and Ds should see their way to finalising the Joint Instructions for dispatch to the Experts as soon as possible.

25.I further grant a costs order nisi that costs of the joint application be costs in the cause.

Freshfields Bruckhaus Deringer, for the 2^nd and 3^rd plaintiffs

Howse Williams Bowers, for the 1^st defendant

Norton Rose Fullbright Hong Kong, for the 2^nd defendant