Ale Thak Prasad v. Tsang Chin Keung and Another

HCPI 579/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 579 OF 2012

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D E C I S I O N

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1.This is the plaintiff’s application for “further directions on neuropsychological testing of the plaintiff”.

Background of the case

2.This is a Personal Injury claim arising out of an alleged road traffic accident at a bus stop. The plaintiff alleged that a bus owned by the 2^nd defendant and driven by the 1^st defendant hit the plaintiff whilst he was queuing at a bus stop.  The defendants claimed that the plaintiff ran out from the pavement into the path of the incoming bus as it was pulling up to the bus stop.

3.The parties had leave to adduce expert evidence from orthopaedics and psychiatric specialists.

4.In the Joint Medical Report of the psychiatrists (the “JMR”), Dr. Barry Connell, the plaintiff’s expert, opined that:

“It would be very helpful in further understanding ATP’s (i.e. the plaintiff’s) possible symptom magnification, for him to undergo testing with a neuropsychologist qualified and experienced in administering those recognised psychological tests that are held to be valid in detecting possibly malingered psychiatric symptoms as well as chronic pain and disability symptoms such as he appears to experience.”

5.Dr. W.T. Law, the defendant’s expert, however, opined that:

“I believe psychological / psychometric tests are not needed or they will add any further information. They are usually as adjuncts in formulating the diagnosis. Psychiatric assessment lacks valid objective instruments because most psychiatric symptoms are subjective. In forensic setting how reliable patient’s complaints are genuine needs to be taken into consideration. Rating scales just based on patient’s report and complaint will not give valid result.”

6.Mr. Burke, the plaintiff’s solicitor, then approached Dr. Connell who proposed a neuropsychological test called “MMPI-2” to be performed by a private clinical psychologist called Dr. Suzanne Meenan.

7.The defendant opposed this testing.

8.On at least 2 occasions (at a direction hearing on 23 February 2017 and in a written direction dated 6 April 2017), Master Roy Yu has given direction that this neuropsychological test amounted to an expert opinion therefore the plaintiff should take out an application for leave to adduce expert evidence.

9.Despite this, Mr. Burke went ahead and instructed Dr. Meenan and submitted her test report in this application.

MY PRELIMINARY VIEWS ON MR. BURKE’S SUBMISSION

10.Firstly, I agree with Mr. Gidwani, counsel for the defendants, that, given the directions already given by Master Roy Yu, it is not open to Mr. Burke to “re-argue” that :-

“MMPI report is not “expert” evidence and is only prepared for the purpose of permitting the psychiatric experts to complete their report…” (paragraph 7 of Mr. Burke’s letter to the court dated 17 November 2017).

11.Secondly, I am concerned whether Mr. Burke has misquoted my directions in another case in support of this application.  He stated in paragraphs 4 and 5 of this letter:-

“Similar application is being made in another PI claim in which we act for the plaintiff (HCPI No. 183 of 2016) and on that case Master Leong had directed the MMPS report should be obtained first – for review by the Court.

…We have accordingly obtained such a report in this case…”

12.Unless I am very much mistaken, I did not direct Mr. Burke to obtain the MMPI report in HCPI No. 183 of 2016.

13.In that case (as in the current case), I would have informed Mr. Burke that the court was not familiar with the MMPI test.  On one hand, there were many widely accepted and practised “objective” medical investigations like X-rays, MRI scans or blood tests for which there were plenty of local experience and expertise. On the other hand, I was concerned whether the MMPI test actually required “subjective interpretation” by an expert and further, as one of many neuropsychological tests, this might be not widely accepted or practised by experts in Hong Kong.

14.Mr. Burke insisted that the MMPI test was the type of investigation like an X-ray or MRI scan.  As I have no way of telling, I informed Mr. Burke that if he proceeded to perform a MMPI test, it would be for him to convince the court that this was a widely practiced and accepted “objective” test in Hong Kong.  He might need supportive views from both psychiatric experts on this.  (This is clearly not the case here: Dr. Connell stated that neuropsychological test “…is not the common practice in Hong Kong…”)  What the court wished to avoid was an academic debate between the experts as to the merits, methodologies, efficacies etc. of various uncommon or controversial “tests”.  The judge, not being an expert in psychiatry, might not be a position to adjudicate on such matters.

15.Otherwise, if the court found that the MMPI test was more like expert evidence, the plaintiff would need to seek leave to adduce it.  As a general rule, the court could not stop a party incurring its own costs to obtain expert evidence, but if that party wished to adduce those expert evidence, he would need to seek leave from the court and take the risk of an adverse costs order should the application fail.

16.As such, this court did not direct that “the MMPI report should be obtained first – for review by the Court”.  I am very concerned whether Mr. Burke has misled the Director of Legal Aid, by advising that obtaining the MMPI report in a “pre-emptive” manner was justifiable based on that alleged direction (“we have accordingly obtained such a report in this case”).

17.Of course, I would expect that Mr. Burke would have fully informed the Director of Legal Aid of the risk of adverse costs order before embarking on instructing Dr. Meenan.

IS THIS EXPERT EVIDENCE?

18.I have perused the MMPI report. I note that Dr. Meenan herself opined that “the results of this assessment should be interpreted with caution…”.

19.Throughout the report, Dr. Meenan was stating what the plaintiff “endorsed” “feels” and “believes” etc. and there were discussions like :

“it is felt that there are some items endorsed that can be understand as pertaining to his life situation rather than actual symptoms of psychosis. However, while it is possible that some of these questions were misunderstood or miscommunicated…

In terms of validity…it was felt to be questionable….

There is certainly evidence of some psychological distress…but I believe that severe psychological / psychiatric issues would have been detected at this point.”

20.As I now understand it, the MMPI test is a set of some 500 questions which the test subject is required to understand properly and to answer.  And an expert clinical psychologist like Dr. Meenan is required to express her opinion in interpreting these answers.

21.The MMPI test is therefore not like an x-ray or a blood test etc. where a finding of bone fracture or a high cholesterol level would not normally be open to different interpretations.

22.I would therefore fully agree with Master Roy Yu that the MMPI test report is in form of expert evidence.

ISSUES IN DISPUTE

23.As such, the plaintiff’s summons should be considered as an application for leave to adduce expert evidence.

24.The legal principles of adducing expert evidence is trite and need not be repeated in details here.  The court needs to be satisfied that the expert evidence satisfies the tests of “necessity”, “relevance” and “probative value”.

25.Mr. Burke submitted that there was disagreement between the psychiatric experts: Dr. Connell diagnosed “moderate degree of depressive disorder” and Dr. Law diagnosed “adjustment disorder with depressive mood”.

26.In my view, whilst doctors are trained to give a diagnosis on an illness thus see that as one of the main goals in the consultation process, the court is less interested in the actual diagnosis than what disabilities that the plaintiff actually suffered from.  The extent of the plaintiff’s actual proven disabilities, not the medical terms that doctors or psychiatrists may label such disabilities, would form the basis of the award of PSLA.

27.For example, under the claim for PSLA, a plaintiff might be compensated for, say, a depressed mood, insomnia, frequent nightmares and his inability to play his weekly game of badminton.  The calculation of the compensation would not be altered just because one psychiatrist labelled that group of symptoms as “depressive disorder” and another labelled them as “adjustment disorder with depressed mood”.

28.The “diagnostic labels” might have some implications with prognosis and future treatment and, as such, might affect the claim for future costs of medical expenses to some extent.  But this head of claim is usually relatively small (especially for psychiatric treatment) and one must take into account the time / costs proportionality to decide whether there is a “necessity” to seek further expert evidence.

29.Further, Mr. Burke suggested that if the neuropsychological test was not allowed, Dr. Connell would be prevented from discharging his duty to the court in completing his expert report.

30.I think Mr. Burke has overstated his case: Dr. Connell was perfectly able to arrive at a diagnosis, opine on prognosis, treatment and discuss his agreements and disagreements with Dr. Law in the JMR. His only comment concerning the neuropsychological test (as stated in paragraph 4 above) was that “it would be very helpful” for understanding “possible symptom magnification”, “possibly malingered psychiatric symptoms” and “chronic pain and disability symptoms”.

31.Dr. Law, of course, made a similar observation on the difficulty (from a doctor’s point of view) in assessing the existence of malingering “when symptom is largely subjective without objective yardstick to measure”.

32.I can understand why a doctor finds it difficult to assess the veracity of “subjective” evidence told by a patient.  A medical consultation process is built upon a “doctor-patient trust”.  It is not the duty of a treating doctor to cross-examine his patient or challenge the medical history, symptoms and signs of his patients.  It is not in the doctor’s training to do so.  This is understandable since, most of the time, a treating doctor must assume that a patient’s self interest lies in prompt recovery of his illness.  Thus, the patient is expected to be open and perfectly honest with the doctor.

33.On the other hand, the self-interest of the “patient” is clearly different under the context of a personal injury claim.  Under such circumstances, doctors may find persistence of various complaints or discrepancies of symptoms “unexplainable” or “difficult to assess”. Instead, these are matters within the trainings and expertise of lawyers and the judges to assess.

34.The finding of the veracity of any evidence in litigation proceedings has always been the role of the court in a fact-finding exercise.  Assessment of any “subjective” evidence adduced by a witness will often be a matter of assessment of his credibility under the “tried-and-tested” system of cross-examination at trial.

35.I do not see any particular distinction between “subjective” evidence adduced by a plaintiff in a personal injury claim (including the question of “symptoms magnification” and “malingering”) and “subjective” evidence from a witness in any other civil claim.  The court has no reason to treat such any differently.

36.District Judge Marlene Ng (as she then was) stated in the case of Wong Ka Yee v Gay Giano International Ltd DCEC 436 of 2007:

“If the present case were a mere matter of assessment of credibility of the allegation of lingering pain (i.e. a subjective complaint) not accompanied by objectively demonstrable clinical abnormalities, it is arguably a matter of veracity of the Applicant which the trial judge can safely deal with on the existing medical and expert reports and on witness evidence from the Applicant, and no further expert medical evidence is required.”

37.Further, this court made similar observations in Yuen Macie v Yeung Ying Kit HCPI 528 of 2015:

“Whether the plaintiff was truthful or not is a matter of fact finding for the court, not for the medical experts. Thus, whilst the court must rely on the experts on the objective evidence on physical examination and interpretation of various x-rays and MRIs etc., for these are areas of their expertise, the court is still able to determine whether any of the subjective symptoms told by the plaintiff to the experts should be accepted as truthful or not.”

38.It follows that if the plaintiff’s “subjective” evidence was not accepted by the court, any expert opinion and diagnosis based on such “subjective” complaints would also be disregarded.  The court may, in the appropriate circumstances, deal with expert psychiatric opinions in this way because psychiatric “symptom is largely subjective without objective yardstick to measure”.

39.The fact-finding role of the court is well established and has served justice well all along.  It is difficult to see why there is a “necessity” to introduce another system like a neuropsychological test, especially when there is no consensus between the psychiatric experts whether this is “very helpful” or “not needed”.

40.Indeed, Dr. Connell stated that neuropsychological test is “not commonly practised in Hong Kong”.  Until (if and when) there is a consensus as to its practise amongst the psychiatric experts in Hong Kong, I have concerns whether it is “relevant” and has “probative value”.  In the meantime, I do not think that the court is the appropriate forum for any academic debates on the merits of any “uncommonly practised” medical or psychiatric tests.

TIME AND COSTS CONSIDERATIONS

41.Even if there is common consensus amongst the relevant experts in Hong Kong regarding the MMPI test, like any applications regarding adducing expert evidence, the court must still consider the issue of time / costs proportionality.

42.I observe the trend that many plaintiffs in personal injury claims are almost invariably claiming psychiatric damages, even in what may appear to be simple “everyday” injuries and accidents.  As such, the costs of the legal proceeding are already escalating with the “need” for psychiatric expert evidence.

43.The question of possible “symptoms magnification” or “malingering” is inevitably raised in many of these claims.  As such, one should be careful in allowing another layer of expert evidence like such neuropsychological tests which would only increase the costs further.  I am not, of course, excluding the possibility that there may be special circumstances when such neuropsychological tests can be justified, but the court will need to hear convincing reasons as to why, under those circumstances, the “tried-and-tested” system in trial proceedings is inadequate to answer this question and that the extra time and costs needed is justifiable.

Order

44.I would accordingly direct that no leave be granted to the plaintiff to adduce the neuropsychological test report by Dr. Suzanne Meenan and award cost of and occasioned by the application be to the defendant with certificate to counsel.

45.As to whether I should allow Legal Aid taxation for the plaintiff’s own costs, I have raised my concerns in paragraphs 11 to 17 of this decision.  I would therefore direct that a copy of this decision be released to the Director of Legal Aid and for them to reply to the court with any comments if needed within 28 days.  Mr. Burke may further write to this court to make any further submissions on this matter within 28 days before the court makes its decision.

Mr. Patrick Burke of Burke & Company assigned by Director of Legal Aid, for the plaintiff

Mr. Victor Gidwani, instructed by Mayer Brown JSM, for the defendants