Susan Brown Clift for Herself and on behalf of Other Family Members of Mark Owen Clift, Deceased and As Sole Executrix of the Estate of the Said Deceased v. Hong Kong Cyberport Management Co Ltd

DCEC 1582/2018

[2020] HKDC 26

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1582 OF 2018

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IN THE MATTER OF AN APPLICATION BETWEEN:

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Before: His Honour Judge Kent Yee in Chambers (Open to Public)

Date of Hearing: 5 November 2019

Date of Decision: 6 January 2020

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DECISION

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Introduction

1.The Applicant intends to adduce the psychiatric expert evidence of Dr Jennifer Chan by way of her report dated 7 November 2018 (“the Report”). The Respondent opposes the application. Judge Andrew Li directed the parties to fix a hearing for argument and the matter came before this court.

2.For the purpose of this Decision, the background facts can be very briefly stated. Mr Clift, the late husband of the Applicant, was employed by the Respondent as Chief Operating Officer. On 16 July 2016, Mr Clift slipped and fell when he was having an inspection tour at Cyberport managed by the Respondent. As a result of this accident (“the 1^st Accident”), he sustained a bone fracture of his left leg.

3.After discharged from the Adventist Hospital on 31 July 2016, Mr Clift and the Applicant were arranged to reside in a suite at Le Meridien Cyberport Hotel, managed by the Respondent and worked from the hotel to afford maximum convenience to him. Eventually, Mr Clift returned to his office to work on 1 March 2017.

4.On 24 May 2017, Mr Clift slipped and fell on the floor at the car park of his office (“the 2^nd Accident”). He alleges that there were some grease on the floor and as a result he wrenched his left leg.

5.On 16 July 2017, Mr Clift passed away. The autopsy report stated that his cause of death was dilated cardiomyopathy.

6.The Application was made on 13 July 2018 pursuant to the Employees’ Compensation Ordinance, Cap. 282 (“The ECO”).

The purported relevance of the Report

7.The immediate question is how the 1^st and 2^nd Accidents are related to the death of the Applicant. Dr Hu, the specialist cardiologist for the Applicant, explained in his expert report that dilated cardiomyopathy means that the myocardial chambers are dilated with reduction in contractile function and there can be many causes giving rise to this condition. By elimination, Dr Hu arrived at the conclusion that the cause was Takotsubo Cardiomyopathy (“TCM”), commonly known as “broken heart syndrome”.

8.Dr Hu continued to explain that TCM is a condition where there is temporary weakening of the muscular portion of the heart where there can be apical balloning triggered by emotional stress. The Applicant reckons that Dr Hu is not an expert on stress and is unable to say to what extent Mr Clift suffered from stress. Mr Hu recommended to her that the Applicant should consult a psychiatrist and look into the emotional state of Mr Clift prior to his death.   

9.Thus, Mr Sakhrani, for the Applicant, submits that the report of a psychiatrist is necessary adjunct to Dr Hu’s final conclusion of TCM and provides better understanding of the stress in this particular case.

10.Mr Sakhrani pertinently refers this court to the following dictum of Judge Ng (as she then was) in Ip Sau Lin v Hospital Authority [2009] 2 HKC 383 at §38:

“… some of the relevant considerations included (a) how cogent the proposed expert evidence will be; (b) how helpful it will be in resolving any of the issues in the case: and (c) how much it will cost and the relationship of that cost to the sums at stake.”

The Respondent’s objections

11.In the opposing affirmation filed by the Respondent, it is denied that Mr Clift suffered any significant stress as a result of the 1^st and/or 2^nd Accidents and they had no bearing on the death of Mr Clift. The Respondent contends that the present application to adduce psychiatric expert evidence is unnecessary, irrelevant and of no probative value.

12.Mr Shum, for the Respondent, in an attempt to illustrate the irrelevance of psychiatric expert evidence, identifies the two major issues in these proceedings. First, whether or not Mr Clift suffered stress and if so what the cause of the stress was. Second, whether the stress caused TCM.

13.For the latter issue, Mr Shum submits that it falls within the discipline and expertise of cardiologists and is outside the realm of psychiatry. In other words, the psychiatric evidence of Dr Chan on the latter issue must be unnecessary, irrelevant and of no probative value.

14.Mr Sakhrani does not demur. The differences actually arise from the role of psychiatric evidence on the first issue.

15.As to whether Mr Clift suffered stress and the source of such stress came from the Accidents, Mr Shum submits that psychiatric evidence has no bearing and is unnecessary. His argument runs as follows.

16.Mr Clift did not consult any psychiatrists in his lifetime. The Applicant merely relies on the factual evidence of her witnesses testifying about the behavior of Mr Clift after the Accidents and Dr Chan’s retrospective review of such behaviour.   

17.Dr Hu has reviewed the same evidence and managed to reach the conclusion that the tremendous stress of the Accidents, in particular the 2^nd Accident, triggered the TCM and this turned out to be the fatal cause, see §§8.1.2.10 - 11 of his report.

18.Mr Shum then argues that the issue of stress could well be determined by way of resolution of factual evidence in the absence of psychiatrist’s opinion. He refers to Yu Po Ching v China State Construction Engineering (Hong Kong) Limited and Anor. (unreported, DCEC 1673/2013, 13.2.2017) where he acted for the applicant. There, the applicant’s work-related stress was established solely on factual evidence and the proceedings involved cardiologists’ expert evidence only. He submits that, by the same token, the trial judge could determine the stress issue without psychiatric expert evidence.

19.He further submits that any psychiatric diagnosis of the stress suffered by Mr Clift such as posttraumatic stress disorder does not add anything to the case of the Applicant and hence of no assistance.

20.Indeed, in the Report, Dr Chan said this at §99,

“the Deceased did not suffer from any psychiatric disabilities prior to his first accident. From the above information, my opinion is that he suffered from a Posttraumatic Stress Disorder as a direct result of the first accident, and that this has been complicated and worsened by the second accident. The Deceased experienced severe emotional distress which worsened his PTSD about six weeks prior to his myopathy due to his second accident, upon the backdrop of suffering from symptoms of an established PTSD from the first accident. In addition the Deceased died on at exactly the one year anniversary date of his first accident, and there is evidence from literature that anniversary reactions are associated with stress and symptoms a range of psychiatric symptoms. In my opinion these psychiatric injuries were caused and attributable by both the first and second accidents”

21.Mr Shum even suggests that this court should consider this application on the assumption that the factual evidence adduced by the Applicant relating to the alleged stress is accepted and Mr Clift was so stressful as alleged. Hence there is no place for psychiatric expert evidence.

22.Lastly, he asks this court to bear in mind the underlying objectives of the Civil Justice Reform in particular the need to ensure the cost-effectiveness of the proceedings, to ensure that the case should be dealt with expeditiously and ensure reasonable proportionality having regard to the amount of money involved: see Fung Chun Man v Hospital Authority and Anor. (unreported, HCPI 1113/2006, 24.6.2011) at §9.

Analysis

23.However attractive Mr Shum’s submissions are, I am of the view that the expert evidence of a psychiatrist is of relevance and necessity to the core issues of these proceedings.

24.In the first place, I do not think I can work on the assumption that the stress of Mr Clift is accepted by the parties (even if I pay no regard to the challenge in the affirmation of the Respondent) and hence it is a non-issue. Whether Mr Clift suffered from stress and the source of such stress are matters for the trial judge to decide on the factual evidence adduced. It is open to challenge by the Respondent and even if the Respondent says nothing, the trial judge is entitled to reject such factual evidence.

25.Mr Sakhrani submits that psychiatric expert evidence must be relevant to the assessment of the stress level of Mr Clift in light of factual evidence of his behavior after the 1^st and 2^nd Accidents. It would be of assistance to this court to understand the extent, severity and duration of the stress.

26.I agree to his submission. Mr Clift passed away only one year after the 1^st Accident and more than 1 month after the 2^nd Accident. The Applicant has to prove the alleged stress resulting from the Accidents did cause the TCM and hence dilated cardiomyopathy. It is necessary to find out the true nature of the stress and its quality so as to understand the effect of any stress remaining operative immediately prior to his death. Lay witnesses cannot be expected to provide this kind of assistance.

27.I certainly cannot dismiss psychiatric expert evidence as irrelevant, unnecessary and of no probative value at this stage. This is particularly so given the recommendation of Dr Hu.

28.The facts of the Yu Po Ching case are materially different. In that case, the deceased collapsed due to ischaemic heart disease on 5 April 2012. The case was built on the fact that there had been an increase on his workload since the end of 2011 and the factual evidence to the effect that the deceased had been overworked. The trial judge (DDJ Elaine Liu) accepted these factual evidence and concluded that the deceased was exhausted by his workload and his inability to pay worship to his ancestors at the Ching Ming Festival upset him and caused frustration to the him.

29.The trial judge further accepted the expert evidence of the applicant that the work related stress and anxiety suffered by the deceased was due to his increased workload, fatigue, the denial of the chance to worship ancestors in the mainland on the date before his death, and these contributed to the cause of his death.

30.I can well understand why the trial judge was able to accept that the stress of the deceased actually originated from the increased workload without psychiatric expert evidence. It is no rocket science that heavy workload could cause stress. The proximity of his stressful work to his death would suggest causation readily.

31.Here, the Applicant does not have the benefit of such a proximity. A full investigation into the extent and the quality of the stress resulting from the Accidents in light of psychiatric evidence is warranted.

32.Moreover, I firmly believe that my discretion should be exercised in favour of the Applicant to allow psychiatric expert evidence for the following reasons. First, it is still at a very early stage of the proceedings. Second, it is of fundamental importance to the claim of the Applicant under section 6 of the ECO. Third, it is premature to say that such evidence would unnecessarily prolong the trial. The Respondent is yet to engage a psychiatrist and this court has no idea what his evidence is and how and to what extent it would differ from those of Dr Chan.

33.Lastly, Mr Shum criticizes certain contents of the Report for being irrelevant. I agree to his observations but this cannot be the reason to exclude the Report altogether.

Conclusion and order

34.By reason of the foregoing analysis, I am satisfied that psychiatric expert evidence is both necessary and relevant. I should accede to the application of the Applicant to adduce psychiatric expert evidence in respect of the alleged stress suffered by Mr Clift. I direct the parties to make a joint written application for directions for this purpose within 28 days.

35.I also make a costs order nisi that costs of this application should be in the cause including certificate for counsel.

36.It remains for me to thank Mr Sakhrani and Mr Shum for their succinct and helpful submissions.

Mr. Ashok Sakhrani, instructed by Boase, Cohen & Collins, for the applicant

Mr. Erik Shum, instructed by Munros, for the respondent