Ryan Alexander Soh By His Father and Next Friend, David Soh and Others v. The Incorporated Owners of Palm Court and Another
Read the full judgment text of HCPI 359/2017 on BabelCite. This High Court CFI judgment was delivered on 27 November 2020.
1. On 14 August 2014, Zhang Qin (“ Mother ”) was walking along the pavement outside Palm Court at No 55 Robinson Road, Hong Kong to take public transport when a tree on a slope of Palm Court collapsed, fell towards the pavement and hit the Mother who therefore suffered serious injuries (“ Accident ”). The Mother, who was pregnant, was sent to Queen Mary Hospital (“ QMH ”), but efforts to resuscitate her were in vain. Ryan Alexander Soh (“ P1 ”) at 38 weeks’ gestation was delivered by perimortem
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HCPI 359/2017 [2020] HKCFI 2980 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 359 OF 2017 ________________________
________________________ Before : Hon Marlene Ng J in Chambers Date of Hearing : 15 September 2020 Date of Handing Down Judgment : 27 November 2020 ____________________ J U D G M E N T ____________________ I. INTRODUCTION 1.On 14 August 2014, Zhang Qin (“Mother”) was walking along the pavement outside Palm Court at No 55 Robinson Road, Hong Kong to take public transport when a tree on a slope of Palm Court collapsed, fell towards the pavement and hit the Mother who therefore suffered serious injuries (“Accident”). The Mother, who was pregnant, was sent to Queen Mary Hospital (“QMH”), but efforts to resuscitate her were in vain. Ryan Alexander Soh (“P1”) at 38 weeks’ gestation was delivered by perimortem Caesarean Section at QMH’s accident and emergency department (“AED”). P1 suffered hypoxic-ischaemic brain injury and was diagnosed with cerebral palsy that manifested in various neurodisabilities. 2.On 7 April 2017, P1 by his father and next friend David Soh (“Father”) as the 1st plaintiff, the deceased Mother as the 2nd plaintiff (“P2”), and the Father on behalf of himself and other dependents of the Mother as the 3rd plaintiff (“P3”) sued the Incorporated Owners of Palm Court (“D1”) and Hang Yick Properties Management Limited (property management company that managed Palm Court, “D2”) for damages for personal injuries for P1, damages under the Law Amendment and Reform (Consolidation) Ordinance Cap 23 (“LARCO”) for P2, and damages under the Fatal Accidents Ordinance Cap 22 (“FAO”) for P3. 3.On 19 April 2017, Master Leong appointed the Father to represent the estate of the deceased Mother for the purpose of carrying on the present action against D1 and D2 (collectively, “Ds”). On 9 June 2017, P1, P2 and P3 (collectively, “Ps”) filed their Statement of Claim, Statement of Damages (“SoD”) and medical reports pursuant to Order 18 rule 12(1A)(a) of the Rules of the High Court. 4.On 22 September 2017, interlocutory judgment was entered in favour of Ps against Ds for damages to be assessed. On the same day, Master R Yu also granted case management directions in relation to discovery and witness statement on quantum. On various dates between 2017 and 2020, Ps filed their 1st to 6th Lists of Documents.[1] On 4 December 2017, Ps filed the Father’s witness statement on quantum (“WS”). 5.On 1 June 2020, Master R Yu granted inter alia the following case management directions:
6.On 30 June 2020, this court fixed the CLR for hearing on 15 September 2020 with 1 hour reserved (“Hearing”) as there was no consensus as yet among the parties on the discipline(s)/name(s) of the experts for compiling reports on quantum. Several extensions of time were granted for the parties to comply with the directions in paragraph 5(a)-(b) above. By 26 August 2020, the parties’ solicitors jointly informed the court that the parties were unable to agree on the discipline(s) for obtaining expert opinion/report(s), and asked for such issue to be addressed at the Hearing. On 14 September 2020, Ps filed the 4th affidavit of the Father (“Father’s 4th Aff”). 7.At the Hearing, the parties agreed that expert opinion/reports on quantum were required for the disciplines of occupational therapy, speech therapy and paediatric neurology, but the requirement for paediatric neurological expert opinion/report depended upon whether the paediatric neurologists would be able to give expert opinion on projected life expectancy of young children affected by cerebral palsy and other medical conditions as in the case of P1 (“Life Expectancy Opinion”). So I granted inter alia the following order:
8.Subsequently, the parties jointly applied for and this court granted extensions of time for compliance with the directions in paragraph 7(a)-(b) above. To date, the parties had not jointly written to this court substantively on the matters in paragraph 7(a)-(b) above. II. DISPUTE OVER EXPERT EVIDENCE ON QUANTUM 9.Apart from the disciplines of occupational therapy, speech therapy and paediatric neurology in respect of which this court granted the order in paragraph 7 above, the parties disagreed over whether expert opinion/report(s) should be sought on other discipline(s) for the assessment of damages. The parties’ respective stance is summarised below. 10.Ps proposed to seek expert opinion/reports from (a) paediatricians specialising in neurodisability and child development (with expertise in advising on need for nutritionists and educational psychologists), (b) physiotherapists, (c) psychiatrists, and (d) psychologists (with experience in assessing children with physical impairment and cerebral palsy). At the Hearing, Mr Sakhrani, counsel for Ps, submitted the court should additionally direct that expert opinion/ report be obtained from educational psychologists. 11.D1 agreed there was need for (a) expert opinion/reports by development-behavioural (“DB”) paediatricians specialising in neurodisability and child development, and for (b) expert opinion on P1’s physiotherapy requirements, but for (b) above D1 considered such expert opinion was well within the expertise of the paediatric neurologists and/or DB-paediatricians, so there was no need for expert opinion/report from physiotherapists. D1 suggested expert evidence from psychiatrist, psychologist and educational psychologist was not required. 12.D2 considered it unnecessary to seek expert opinion/reports from the following disciplines for the reasons set out below:
13.In short, all parties agreed to obtain expert opinion/report from DB-paediatricians,[2] but (a) Ds considered expert opinion/report from physiotherapists and psychologists unnecessary, (b) D1 considered expert opinion/report from educational psychologists unnecessary, but D2 considered it to be an alternative to expert opinion/report from DB-paediatricians, which meant D2 took the view that the former would be unnecessary if the latter was to be obtained, and (c) D1 considered expert opinion/report from psychiatrists unnecessary, but D2 considered whether or not it was necessary depended on recommendation(s) of paediatric neurologist or DB-paediatrician, but no such recommendation was forthcoming from Drs Lam, Ko and/or Liu (see paragraph 12(c) above). Mr Kwok, counsel for D1, also submitted Drs Lam and Liu and the treating or assessing therapists did not recommend psychiatric intervention for P1.[3] Mr Sakhrani submitted such recommendation was at hand by way of Dr Lam’s letter dated 12 September 2020 (“Lam Note”), but Mr Kwok took issue over the admissibility of the Lam Note. I will return to this below. III. FAMILIAL, MEDICAL AND OTHER BACKGROUND 14.The familial, medical and other background information came largely from the SoD, the WS and the Father’s 4th Aff, and the various medical/therapy/school reports. For the present purpose (and without prejudice to the parties’ respective stance at the assessment of damages), it is sufficient for me to set out a summary of P1’s injuries and rehabilitation, which had been canvassed and summarised in counsel’s written submissions. I propose to focus on matters pertinent to the presently disputed disciplines for expert opinion/reports, and (unless otherwise required) to put aside matters pertinent only to (a) the agreed disciplines for which I granted the case management directions in paragraph 7 above, and (b) the other disciplines not presently sought for expert medical evidence/opinion in relation to the assessment of damages. 15.The Father grew up with his family in Vancouver, Canada. He was a native English speaker with intermediate spoken Cantonese, but could not read or write Chinese. He came to work in Hong Kong, but his family remained in Canada. The Mother grew up and worked in Mainland China, and she moved to Hong Kong when she married the Father in 2004. According to the SoD, the Mother then became a housewife, learned Cantonese and improved on her English skills. The Father and the Mother had 2 sons, the 1st son Jeremy David Zi-long Soh (“Jeremy”) was born in 2012, and P1 was born in 2014. They planned for their children to be bilingual (English/Chinese), and for the Mother to tutor them for as long as she could. According to the SoD, they had no relatives in Hong Kong except for an uncle of the Father. 16.The Father and the Mother had planned for (a) the family to live in Hong Kong with the Mother continuing as a housewife until P1 would turn 3 and start kindergarten (August 2014 to August 2017), (b) the family to continue to live in Hong Kong but the Mother would work as part-time Mandarin tutor until P1 would turn 5 being the entry age for Canadian schools (September 2017 to August 2019), and (c) the family thereafter to migrate to Vancouver, Canada to enjoy the lifestyle and free schooling there but the Mother would work until her retirement at 65. 17.As explained above, shortly after the Accident, P1 was delivered by perimortem Caesarean Section at QMH’s AED with very poor Apgar Score. P1’s initial assessment showed no breathing movements and no palpable pulse. Cardiopulmonary resuscitation was immediately performed. P1 was admitted to the Neonatal Intensive Care Unit for hypothermia treatment and correction of acidosis in the blood. He suffered brain injury, which was not the worst of its kind. In particular, P1 no longer had convulsion at day 12 of life and was taken off phenobaritone. 18.According to the SoD, the Father visited P1 on a daily basis, and he took 4 months off work to look after P1 and to attend to his doctors/therapists. Magnetic resonance imaging (“MRI”) and serial ultrasound confirmed P1 suffered from hypoxic-ischemic encephalopathy, and the affected brain areas were thalami, centrum semiovale and corona radiate, and splenium and anterior aspect of optic radiations, but the brain stem was spared. As a result, P1’s motor functions (especially of his legs) and his vision were impaired, and he had swallowing/feeding problems which required gastronomy feeding for about a year. He was diagnosed with cerebral palsy/dysfunction, and was advised to receive intensive rehabilitative training. P1 remained at QEH until 12 December 2014, and upon discharge was referred to The Duchess of Kent Children’s Hospital (“DKCH”) for rehabilitation training until July 2016. According to the SoD, when P1 was transferred to DKCH (which had more flexible visiting hours and which permitted visits by helpers), the Father returned to work. P1 continued to receive treatment/therapies in the public sector at DKCH, Grantham Hospital and MacLehose Rehabilitation Centre. 19.According to the Father’s WS, P1 received physiotherapy, occupational therapy and speech therapy with 3-5 daytime sessions per week before he was discharged from DKCH:
20.After P1 was discharged home, he lived with the Father, Jeremy, their domestic helper who stepped up to become P1’s nanny/carer, and another live-domestic helper who was hired to deal with household chores. As the original family home was not large enough to accommodate all of them and to provide additional space for P1, the family moved to a larger rented flat. 21.In September 2016, P1 was enrolled at a special child care centre, ie Heep Hong Society Catherine Lo Centre (“CLC”). CLC used Cantonese as its language medium for teaching. The Father (who worked full-time) was the only one in the family who could understand intermediate Cantonese, but the carer and domestic helper could not teach P1 Cantonese for his home exercises. Eventually, a senior teacher of CLC suggested P1 should consider an English-speaking special needs (preschool/primary) school in light of the language issue at home. At the time of the Father’s WS, the Father was actively looking for an English-speaking special needs school for P1. 22.According to the SoD, the Father, having regard to P1’s special needs, established/maintained a care regime for P1 to attend all medical follow-ups and rehabilitation services in the public sector, and the Father actively discussed with the doctors/therapists in the hope P1 would receive the intensity of the therapies he required. The Father acted as ad hoc case manager, and arranged/provided extra care and attention for P1’s special needs. The Father was also responsible for P1’s educational needs,[4] for ensuring P1’s home exercises were properly/ regularly carried out, and for dealing with helper’s duties (if needed) on the helper’s day off. It was said the loss of the Mother and the grief the Father and Jeremy suffered as a result, P1’s special needs, the fact Jeremy was also very young, and the stress of ensuring financial ability to meet the family’s needs all served to place emotional/mental strain on the Father who had to struggle to keep his job in the financial services industry whilst bringing up 2 very young children without the Mother and without other relatives in Hong Kong to assist, which the Father claimed left little opportunity or decent mindset to provide quality time for the family, to properly bring up Jeremy who missed the Mother, and to deal with P1’s disabilities and their effect on his future development/career. 23.According to the SoD, since March 2015 the Father arranged for Jeremy and himself to obtain grief counselling from SPOT, but they were only counselled by a PhD student for a limited number of sessions, which was sub-optimal, but the expense and the Father’s other financial obligations limited the number of sessions they attended. 24.According to the Father’s WS, P1 suffered several milestone development delays and dystonia of 4 limbs, but the rehabilitation and training programmes in occupational therapy, physiotherapy and speech therapy that DKCH offered to P1 had been sub-maximal and were gradually stepped down. After lengthy search for a specialist to carry out a thorough assessment of P1, in June 2017 the Father took P1 (then 2 years and 10 months) to England to be assessed by Dr Ko at Portland Hospital, London. The assessment took place on 15 June 2017 at the NeuroDevelopmental Clinic of Portland Hospital. With Dr Ko’s recommendation/assistance, P1 was also assessed by a multi-disciplinary team of ophthalmologist, audiologist, physiotherapist, speech and language therapist and occupational therapist in June 2017. 25.According to Dr Ko’s report dated 28 July 2017, which the Father summarised in his WS,
26.Mr Kwok in his written submissions noted Dr Ko made the following findings:
I further note Dr Ko’s report found P1’s locomotor, personal-social, hearing and language, eye-hand co-ordination, and performance levels all substantially delayed with age equivalents as follows:
27.The Father’s WS also summarised Dr Ko’s recommendations as follows, which the Father claimed would suggest a multi-disciplinary approach to P1’s rehabilitation in Hong Kong:
28.According to the MDT Report dated 11 July 2017 by Elizabeth Maunder (clinical team lead and clinical specialist for paediatric occupational therapy), Aneeta Gandekar (senior specialist paediatric physiotherapist) and Laura Voigt (clinical lead paediatric speech and language therapist), the multi-disciplinary team at Portland Hospital noted the following:
29.The integrated recommendations in the MDT Report dated 11 July 2017 concerning inter alia occupational therapy, physiotherapy, speech and language therapy and referral to dietician, which was also summarised in the Father’s WS, were as follows:
30.The SoD averred that the Father wished to engage (a) a specialist in paediatric neurodisability as a lead doctor to supervise and advise on P1’s medical care and rehabilitation, and (b) a case manager to formulate and supervise a functional daily schedule and care regime for P1 that would include intensive physiotherapy, sensory integration and speech therapy so as to maximise P1’s rehabilitative potential. 31.It was said the above recommendations in Dr Ko’s report and the MDT Report in 2017 guided the Father on setting up P1’s treatment and rehabilitation in Hong Kong.[5] As Mr Leung SC, senior counsel for D2, noted in his written submissions, since about 2018 the majority of the treatment and assessment for P1 in Hong Kong had been procured from the private sector. 32.Before I turn to such treatment and assessment for P1 in Hong Kong, 2 matters were of note. First, a case manager was appointed in 2018 (according to Mr Sahkrani) or no later than May 2019 (according to Mr Leung SC). But according to Mr Sakhrani’s written submissions, it eventually transpired the appointed case manager did not provide the assistance it was hoped she would, and the role was then later taken up jointly by the physiotherapist and occupational therapist at SPOT, which regime worked well and met P1’s needs. 33.Secondly, according to Ps’ PI Questionnaire filed on 1 September 2020, the Father would bring P1 to England every summer for his annual assessment by Dr Ko who (assisted by a multi-disciplinary team of therapists at Portland Hospital, including a consultant ophthalmic surgeon Ms Jane Leitch, therapists in occupational therapy, speech and language therapy and physiotherapy, and others such as audiologist etc) compiled annual report (together with annual MDT Report). Due to public health considerations, P1 did not have such annual assessment for 2020 as yet. 34.Mr Kwok made reference to the following findings by Dr Ko in his report dated 1 August 2018:
According to such report, Dr Ko was pleased to note P1 progressed in all areas and had improved in his percentile levels for age as compared with a year ago. P1 demonstrated very nice speech and language developmental progress, but he was noted to have short attention span. P1 needed frequent focusing by the Father and the doctor in order to accomplish the tasks required, and P1 would not have been able to reach the scores and performance that he did without such adult support. Dr Ko stated the findings would indicate P1 was a child with encouraging cognitive potential, but also needed significant adult support in order to function due to poor attention control. Dr Ko also noted P1 made progress in his physical development, and there was at that time no fixed deformity in his major joints and no significant spasticity from his calf complexes. Dr Ko made the following recommendations:
35.According to the MDT Report of July 2018,
36.It appeared that since October 2018 P1 was enrolled at The Harbour School, which was operated by The Children’s Institute of Hong Kong Limited (“The Children’s Institute”) to cater for children with special education needs. It further appeared P1 changed to full-day school in August 2019 with one-to-one coaching and other support. 37.The Father arranged for integrated multi-disciplinary care for P1 from the private sector in Hong Kong. P1 consulted Drs Lam and Liu, and started multi-disciplinary therapy (eg occupational therapy,[6] physiotherapy,[7] and speech and language therapy [8]) sessions at SPOT upon recommendation from the multi-disciplinary team from Portland Hospital. P1 also consulted other doctors/therapists such as audiologist, ophthalmologist, optometrist, orthoapedist, podiatrist, ENT specialist, dietician etc. 38.Mr Leung SC submitted (a) Ps had not explained the choice of Portland Hospital and need for annual assessment thereat, which overlapped with the “army” of Hong Kong treating or assessing doctors and therapists, and (b) it was unclear whether any of such assessors would be called as expert witnesses for P1. D2’s PI Questionnaire filed on 2 September 2020 reiterated such concern, and reserved the right to take issue on the reasonableness of the “battery” of medical reports obtained by Ps and the costs thereof. Mr Leung SC argued that whilst it was a matter for those advising Ps, the preparation of full reports for every aspect of treatment or therapy was rather unusual, especially as a case manager had been engaged for P1 no later than May 2019 (or since 2018 according to Mr Sakhrani – see paragraph 32 above) for a fee of $29,000/month. 39.But Mr Sahkrani drew attention to Mr Ko’s recommendations in paragraph 27 above, and submitted such private care in England and Hong Kong not only focused attention on P1’s multiple primary disabilities and developmental delays, but also allowed proper investigation into other disabilities and complications. Mr Sahkrani agreed that on medical advice P1 was examined by ophthalmologist, dietitian, orthopaedist, podiatrist and ENT specialist, but contended that despite the complaint of P1 having an “army” of doctors/therapists, there was no specific criticism of these consultations, and there was no denial P1 suffered other disabilities and complications. Of concern was the suspicion of cortical visual impairment for which P1 had been referred to the Ebenzer School & Home for the Visually Impaired (“Ebenzer School”), and this required further investigation to reach a final diagnosis (see paragraph 55 below). Mr Sakhrani pointed out that additionally (a) P1 was tongue-tied and had difficulty in opening his mouth, and (b) Dr Lam in her latest assessment in June 2020 found evidence indicative of a disorder characterised by attention deficits, such as ADHD, which required psychiatric intervention and behavioural disability. 40.The latest assessments showed P1 had made some progress. P1 was assessed by Dr Lam on 29 January 2019 (4 years 5 months). According to Dr Lam’s report dated 11 February 2019, P1 was then attending The Harbour School with one-on-one coaching, and he was also attending intensive speech therapy, occupational therapy and physiotherapy in the private sector. Comprehensive developmental assessment using validated questionnaires completed by caregivers and school teachers as well as standardised comprehensive mental assessment was performed. Mr Kwok in his written submissions pointed out that Dr Lam made the following findings:
Dr Lam stated the results demonstrated P1 was affected by global development delay with mental age of around 3 years and 6 months. There was discrepant delay in gross and fine motor development, but P’s strength was in his language development and gentle temperament. In summary, P1 was affected by mild spastic cerebral palsy and global developmental delay, and he exhibited early features of attention working memory related problems. Dr Lam gave counselling and anticipatory guidance to help the Father and caregivers to understand P1’s development profile. Dr Lam was of the view that P1 would continue to benefit from multi-disciplinary and intensive training programme including physiotherapy, occupational therapy and speech therapy with regular review of P1’s developmental needs by DB-paediatrician. Dr Lam also recommended P1 be monitored by a paediatric neurologist for spasticity management and epileptic tendency. Melatonin might be used for sleep related problems, and it was noted P1 would be referred to Ebenezer School for evaluation of cortical visual impairment and outreach school visit by the Early Intervention Programme. P1’s caregivers were encouraged to continue positive parenting and attachment-rich feedback while exercising firm and consistent limit setting to reinforce acceptable and appropriate behaviour. Guidance was given on activities to enhance communication and verbal expression development, to promote auditory attention, and to promote development of executive function. Recommendations were made for activities to promote oral language development and to facilitate P1 to enjoy reading early, and for steps to take in P1’s education setting to address his special education needs. 41.According to Dr Liu’s report dated 6 March 2019, P1 (4 years 7 months) still had significant impairment in all developmental domains to variable degrees. His motor coordination was obviously affected rendering him the clinical diagnosis of cerebral palsy. Sensory perceptual impairment with poor interpretation of visual cues was also likely. P1’s developmental behavioural aspect was also affected with impaired social interaction and reciprocity. Nevertheless, Dr Liu noted P1 made progressive improvements at all fronts. Mr Kwok noted the following findings by Dr Liu (with Mr Kwok’s observations italicised below):
Dr Liu recommended carrying out (a) baseline investigations, (b) nutritional assessment/advice by dietician, (c) comprehensive training with input from physiotherapist, occupational therapist and speech therapist, and (d) regular follow up to review P1’s development and training plan. Dr Liu was of the view that educational psychologist participation would be important in coordinating P1’s training at school. 42.According to feeding assessment by SPOT on 10 May 2019, Urvi Kamdar (occupational therapist) and Joice Almeida (speech and language therapist) reported that P1 presented with oromotor dysfunction with (a) low oral muscle tone (muscle tone), (b) trunk control, core strength and proximal stability affected (postural control), (c) jaw grading movement reduced, tongue lateralisation reduced, and tongue elevation not observed (oromotor skills), and (d) deceased registration of “proprioception, vestibular, tactile and input” (sensory processing). The therapists recommended that (i) P1 would benefit from participating in weekly individual feeding therapy using specified programmes, (ii) P1 should continue his then therapies including occupational therapy to work on sensori-motor development, speech-language development, muscle tone, strength and overall coordination, and (iii) P1 should follow a regime for meals/snacks, eg eating on schedule, improving postural stability during meals/snacks, offering appropriate food at every meal/snack, engaging in a set routine for all meals/snacks, minimising adult verbalisation during all meals/snacks to the foods and desired behaviour, engaging P1 in oromotor exercises twice a day, and providing P1 with safe foods of increased texture. 43.According to the physiotherapy report dated 29 May 2019 by SPOT, Susan Moriaty summarised P’s condition as follows:
44.According to the occupational therapy report of June 2019 by SPOT, Serene Cheong, Cameron Dalling and Clare Watt set the occupational therapy goals of bilateral integration, emotional regulation, fine motor coordination, sensory processing (body awareness), motor planning and praxis, and projected action sequences for P1. The occupational therapists found P1 to be a friendly, affectionate and enthusiastic child. During therapy, he continued to develop his bilateral integration skills. He still found it challenging to coordinate the appropriate motor movements in both hands efficiently (eg in scissor skills), but his resilience and focus during tasks improved. Challenges in areas of postural control and endurance and in visual processing influenced his performance in bilateral integration activities, and therapy should continue to focus in these areas. His fine motor skills continued to improve, but showed preference for his right hand during fine motor activities, so therapy input would continue to build upon improvements made. Ongoing therapy was recommended in area of motor planning and praxis as P1 still required support to develop his play repertoire and expand on play ideas. In relation to body awareness, P1 remained impulsive in his movements at times, and required prompting and encouragement to slow down to plan movements prior to executing them, so further therapy was required to develop relevant skills to facilitate reduced trips, bumps and falls. Whilst P1’s motor-reduced visual perceptual scores were within average range for his age group, his eye-hand coordination and copying skills were below average, which would influence his writing and drawing skills. Recommendations were made to continue occupational therapy sessions at least once a week. 45.P1 was assessed again by Dr Lam on 8 June (when P1 was 4 years and 10 months) and 9 November (when P1 was 5 years and 2 months) 2019. Mr Kwok noted the following findings in the report:
Dr Lam assessed P1 at level I of the Gross Motor Function Classification System (“GMFCS”), which was the highest score in the scale for children between 4th to 6th year old.[9] Dr Lam noted P1 was still affected by global development delay that affected motor coordination, eye-hand coordination and cognitive development. She noted P1 was functioning in the range of borderline intellectual functioning. At the re-assessment on 9 November 2019, Mr Kwok noted the following findings in the report:
The report went on to state the Father reported overall improvement in behavior and attention, and Dr Lam diagnosed discrepant gross and fine motor delay. Similar recommendations and guidance as set out in Dr Lam’s earlier report were given to the Father and caregivers. 46.In Dr Liu’s report dated 8 June 2019, it was noted P1 (4 years and 10 months) had been assessed by Dr Lam. Mr Kwok noted the following findings in Dr Liu’s report:
Dr Liu in his report further noted P1’s motor abilities were improving, “fair wt gain as not eating too well (not much wt gain last 6 months)”, and “not walking onto obstacle”. Dr Liu’s plan was to have repeat MRI brain in 1-2 years, ad hoc ECG if required, follow up with dietician for dietary advice, strengthen P1’s social cues awareness, and treatment for P1’s nasal allergy. In Dr Liu’s report for the review assessment on 9 November 2019, Mr Kwok noted the following findings in the report:
In the report, Dr Liu noted P1 (5 years and 2 months) had made good overall improvement with his motor, speech, cognitive, social and communication functions. P1’s gross motor functional level was assessed to be at GMFCS Level I. P1 was still weaker over the left side in all gross motor, fine motor and perceptual functions, but had shown gradual and steady improvement. He had restricted range of mouth opening which could hinder his chewing and speech articulation, which issue was then attended to by his maxillofacial surgeon. Dr Liu’s plan was for P1 (a) to continue with the multi-disciplinary and intensive training programme, (b) to have a school setting with higher teacher to student ratio that would facilitate the implementation of an individualised education programme to address P1’s needs, (c) to have social interaction with peers to enrich his social and communication skills, (d) to have his nutritional status followed up by dietician in view of his fair oral intake, and (e) to be reviewed in 4-6 months to monitor his neurological and developmental status. 47.According to the speech therapy report by May Poon dated 14 June 2019, P1 was diagnosed with “moderately-severe disorders in oromotor function and oral-preparatory phase of swallow, mild articulation disorder and marginal language development”. I adopt Mr Leung SC’s useful summary of May Poon’s report as follows:
48.According to Dr Ko’s 3rd report dated 17 July 2019, P1 was assessed on 11 July 2019 at age 4 years and 11 months. I can do no better than adopt the useful summary in Mr Leung SC’s written submissions:
49.According to the MDT Report of July 2019,
50.At the assessment of P1 by SPOT on 4 December 2019, occupational therapy goals were set for fine motor skills, visual motor skills, regulation/impulse control, bilateral motor coordination and body awareness by occupational therapists Bree Crockett and Browyn Timson; speech and language therapy goals were set for oromotor skills, sensory awareness, sequencing and narrative skills, ability to follow instructions and play skills by speech and language therapists Joice Almeida and Janice Leung; and physiotherapy goals were set for improving lower limb strength, balance and stability, improving core-stability and coordination by physiotherapists Jessica Tuohy and Millie McClelland. 51.On 24 December 2019, Dr Sit Ka Fai Eric (specialist in oral and maxillofacial surgery) penned a referral letter about P1’s functional problem of being not able to open wide his mouth such that the limited width of mouth opening was not quite adequate for daily normal eating although P1 could still manage to have a normal diet. Dr Sit was of the view this was mainly due to soft tissue (jaw muscle) deficiency, possibly a result of cerebral palsy, so he suggested jaw muscle training instead of extensive jaw surgery, and he referred P1’s case to other suitable medical professional for further management. 52.On 29 May 2020, P1 (5 years and 10 months) was re-assessed by Dr Liu. Mr Leung SC helpfully summarised Dr Liu’s report as follows:
Mr Kwok submitted the pertinent findings by Dr Liu included the following:
Dr Liu suggested that more attention be given to P1’s left upper limb rather than using it just as a helping limb, and he would advise the physiotherapist to provide more training to P1 with regard to using his upper left limb more. Dr Liu also recommended P1 to have MRI brain with EEG repeated in view of poor left hand function noticed during assessment, and routine blood tests could be arranged on the same occasion for checking nutritional status. Dr Liu recommended regular assessment and monitoring of P1’s visual disabilities to see if he had cortical visual impairment. Dr Liu urged close monitoring by school teachers and gradual guidance upon resumption of school activities with possible modification of his original individualised education programme. Dr Liu suggested review of P1’s neurological and developmental status in 4-6 months, particularly about his left upper limb, his behaviours, and adjustment to school environment upon return to school. 53.P1 (5 years 10½ months) was re-assessed by Dr Lam on 19 June 2020. Dr Lam’s report was also helpfully summarised by Mr Leung SC:
Mr Kwok submitted further pertinent findings in the report were as follows:
54.On 21 August 2020, SPOT’s director of psychological services Dr Armanda Oswalt Visher (“Dr Visher”) penned a referral letter as follows:
55.There were reports dated 14 June 2017 and 23 July 2018 by the consultant ophthalmic surgeon in England Ms Jane Leitch about P1’s visual processing issues. P1 also had primary eye examination on 9 October 2019 and binocular vision assessment on 4 May 2020 by optometrist at The Hong Kong Polytechnic University. Dr Lam referred P1 to the Early Intervention Programme of the Ebenzer School for cortical visual impairment. The report by Minnie Tang of the Ebenzer School dated 25 May 2020 suggested P1’s condition might have to be further assessed before making final conclusion whether he had cortical visual impairment, but she made recommendations on P1’s functional use of vision. The optometrist at The Hong Kong Society for the Blind also compiled a report dated 5 June 2020 on P1’s visual acuity. Since the disciplines for expert opinion/report sought by Ps on this occasion did not include ophthalmology, I will not discuss the views expressed in the above reports in any further detail. Indeed, Mr Sakhrani in his oral submissions at the Hearing suggested it might well need another 6 months before the issue of whether P1 suffered any cortical visual impairment would become clearer. 56.P1 was also assessed by doctors and therapists of other disciplines (for different aspects), eg dietetic assessments on 1 February, 22 May and 4 November 2019,[10] audiogram and typanometry by the audiologist at Portland Hospital on 27 March 2017, 14 June 2017, 23 July 2018 and 10 July 2019, orthoapedic assessments for pelvis by child orthopaedist Dr King-lok Liu on 20 February 2019 and 6 March 2020, orthotic/gait reviews for insole fitting by podiatrist Brock Healy on 28 March 2019 and 20 May 2020, and ENT examination by otorhinolaryngology consultant Dr Gordon Soo on 29 July 2020. 57.D2’s PI Questionnaire raised another concern, ie that it was unknown where, if not Hong Kong, P1 would be brought up in the long term (bearing in mind it was pleaded in the SoD that Ps’ family would have emigrated to Vancouver, Canada – see paragraph 16(c) above). Subsequently, Ps filed the Father’s 4th Aff to explain that after the Mother passed away, given P1’s medical needs and later his educational needs, and the practical consideration that full-time live-in domestic helpers were (unlike in Vancouver, Canada) available in Hong Kong, the Father considered it would be better for the family to stay in Hong Kong for the foreseeable future. The Father noted a regime had been set up to provide for P1’s medical and educational needs, eg (a) P1’s multi-disciplinary therapy regime was established in place and working well, and the treating physiotherapist / occupational therapist at SPOT acted as de facto case managers, and (b) a substantial degree of certainty was secured for P1’s educational path by enrolling him at The Harbour School. Further, although the Father lost his previous job in November 2019, he found new employment which commenced on 31 August 2020, so his job situation had also stabilised. The Father confirmed he intended the family to remain in Hong Kong for the foreseeable future. IV. LEGAL PRINCIPLES 58.There was no disagreement among the parties as to the relevant legal principles. The leading authority is the judgment of Bharwaney J in Fung Chun Man v Hospital Authority & anor,[11] and counsel also referred to my judgments in Ngai Ping Kwan v Choi Yat Hung,[12] Lau Mei Wa v Li King Yin & anor,[13] Catrin Caryl Anderson by her father and next friend Richard Paul Anderson v Dr Derek Lo Chak Cheung,[14] and Pak Siu Hin Simon v J V Fitness Limited.[15] I adopt the principles discussed in such cases, and will not add to the length of this Decision by repeating them here. 59.The starting point is that the forensic medical expert is different from the treating doctor/therapist in that the former’s role is to critically evaluate the plaintiff’s complaints and medical narrative based on relevant science to assist the court in its legal adjudication, and the latter’s role is to give therapeutic diagnosis and treatment. The tension between these 2 roles means that experts and therapists may disagree on diagnosis, treatment and/or prognosis, and the former may in appropriate cases raise medical issues/considerations not canvassed by the latter.[16] 60.In broad terms, in deciding how expert medical evidence on quantum issue is relevant, necessary and of probative value in the context of a particular case,[17] the core question is how cogent and helpful such expert evidence will be in resolving any of the disputed issues in the case, and if a prima facie case is made out for such expert evidence, the court will go on to have regard to the underlying objectives and other case management considerations in deciding whether to grant leave for obtaining expert evidence for the trial. Ultimately, it is a matter of doing justice between the parties to enable them to reasonably and properly present/support the claim or defence at trial, and to assist the court in its evaluative and adjudicative function. 61.In assessing damages, psychiatric or psychological expert evidence is often relevant where the court has to determine whether or not (a) a plaintiff has suffered a recognisable psychiatric illness over and above emotional stress and disquiet, and/or (b) the tort has caused the psychiatric illness.[18] The difference between psychiatrists and psychologists essentially turns on the former being medical doctors who can prescribe drugs and admit patients to hospital, and the latter being therapists who can administer psychological tests and give psychotherapy.[19] In Catrin Caryl Anderson by her father and next friend Richard Paul Anderson, I explained the scope of expertise for paediatric neuropsychology (paragraph 40) and paediatric psychiatry (paragraph 41). Their difference also ran along similar line as explained above except both of them deal with children/adolescents and their families. 62.Quite often the need for psychiatric treatment or psychological counselling is apparent before the relevant litigation (eg the plaintiff may present indicia of psychiatric illness and/or has received psychiatric/psychological treatment), but if there is no apparent indicia, application for leave to adduce psychiatric or psychological evidence will have to be justified (eg a written note from an expert setting out the brief reasons why such expert opinion is necessary in the case).[20] 63.In Catrin Caryl Anderson by her father and next friend Richard Paul Anderson, I also explained the role of an educational psychologist as follows:
V. PRELIMINARY MATTERS (a) Timing of assessment of damages on expert evidence 64.Mr Leung SC in his written submissions expressed concern over what he described as the “battery” of full treatment or assessment reports prepared by P1’s treating or assessing doctors/therapists (see paragraph 38 above), and wondered whether various minor aspects attendant upon the caring of a young child such as P1 would have been sufficient if presented in a summary form by the Father (supported by receipts) or by the case manager.[21] 65.Mr Leung SC further noted P1’s average monthly expenses[22] (as evident from his solicitors’ letter dated 19 June 2019) came to $232,418, but
66.Mr Leung SC urged the court to take note of the above matters, and submitted it would be in the interest of P1 (who was a minor) to proceed with the assessment of damages as soon as practicable so that a realistic and efficient care and treatment regime could be provided for him, and that there was no reason to “hold things up”. But Mr Sakhrani submitted it was important that the assessment of damages should not be undertaken prematurely, but rather at a time when there was sufficient confidence that P1’s condition had crystallised sufficiently to predict his evolving future condition with a reasonable degree of certainty, and he further suggested the experts would likely receive much assistance from Dr Ko’s annual assessment/observations. 67.I have a few observations on the above contentions. First, at this stage I am concerned with what categories of expert medical evidence/reports should be obtained for the purpose of the assessment of damages, so I need not deal with the substantive dispute among the parties as to the reasonableness or otherwise of the overall treatment or assessment reports by doctors/therapists that had been obtained and/or to be obtained by P1, which issue should more appropriately be considered at the assessment of damages and/or costs in relation thereto. I also bear in mind the function of the court in personal injury litigation. As a matter of general principle, apart from the court’s oversight of interim payment paid into court for use by a mentally incapacitated claimant in respect of which I express no view for the present purpose, it is not for the court to dictate how a plaintiff should seek therapeutic treatment, consultations, second medical opinions and/or medical reports. After all, the plaintiff (and his parent/guardian on behalf of a child plaintiff) has full patient autonomy, and can seek whatever medical/other advice and/or treatment as he considers appropriate. Rather, the court’s role is to determine whether such plaintiff having sought such treatment, consultation, advice and/or report is entitled to claim compensation in relation thereto against the defendant, or whether the defendant can justifiably argue that such treatment, consultation, advice and/or report exceed what is reasonable and/or foreseeable.[23] 68.Secondly, at this stage when no expert medical evidence on quantum had been obtained as yet, it would be premature for this court to say whether Ps’ case was ready to be set down for assessment of damages. This would likely arise for consideration only after core expert medical reports were obtained and reviewed by the parties/court. But the parties agreed that paediatric neurology, occupational therapy and speech therapy expert reports could now be obtained, and that (subject to Mr Leung SC’s suggestion that educational psychology expert evidence/report be obtained as an alternative) joint DB-paediatrician expert report could also be obtained now. Likewise, notwithstanding the dispute over other disciplines of medical/therapy expert evidence on quantum that are relevant, necessary and of probative value, there was no disagreement that upon this court’s determination of the required disciplines, expert medical/therapy reports could now be obtained for the court-directed disciplines. 69.Thirdly, apart from a claim for provisional damages (of which there was none averred in Ps’ SoD), assessment of damages is a once-and-for-all exercise covering all past and prospective loss/damages suffered and/or to be suffered by the plaintiff as a result of the subject tort. This means that if a plaintiff suffers permanent disability, he has to seek compensation under this once-and-for-all assessment of damages notwithstanding uncertainty in relation to the future years. If such prospective loss/damages turn on or partially turn on factual matters (eg whether the plaintiff would have been promoted in his job but for the tort), relevant factual evidence (eg past work performance, past appraisal reports, employer’s promotion scheme/criteria, promotion data for employees of the same grade, etc) will have to be adduced for the court to make findings on future loss. If such prospective loss/damages turn on or essentially turn on expert matters (eg permanent physical/mental disability, future treatment/medication required etc), relevant expert evidence will have to adduced for the court to make findings on future loss (eg pain, suffering and loss of amenities, cost of future medical/ therapy treatments, etc). After all, the lay plaintiff is not in a position to give evidence on such prospective disabilities and medical/therapy needs, and expert evidence is required for fair presentation of his claim for future loss. Indeed, the defendant may also need expert evidence to counter such heads of claim. 70.Fourthly, the considerations for assessing future loss of an adult plaintiff (as compared with a child plaintiff) may be less complicated because there will be less “unknown” matters. After all, an adult plaintiff usually has settled patterns in personal, marital, familial, work and leisure settings that give insight as to the likely consequences of the subject tort in his future years. Further, and perhaps more importantly, an adult plaintiff’s pre-accident physical/mental condition has usually attained a level of maturity (and hence certainty) that adulthood brings, which in turn provides a settled backdrop for the court to assess the consequences of the subject tort on inter alia (a) the physical/mental well-being, (b) the personal, marital, familial and social relationships, and (c) the work capacity of such adult plaintiff. 71.This is to be contrasted to the situation of a minor plaintiff (especially one of tender/young age) who has to transition from, say, infancy to childhood, adolescence and adulthood. Each life stage has different physical, mental and other attainment levels and needs. As an example, the frustration felt by a toddler struggling with basic motor skills in not being able to crawl towards a toy and/or to pick it up is wholly different from the impairment experienced by an adult having gross/fine motor disabilities that affect his activities of daily living, limit the kind of jobs he can undertake, and/or restrict the sports and leisure activities he can enjoy. As another example, a schoolchild’s ability/need for social interaction at school and at home is quite different from those of an adult who may have need to deal with the complexities of higher education, living away from home, workplace relationships, romantic relationships, possibility of marriage and having children etc. 72.Thus, the longer-term impact of a tort on a child plaintiff will have to viewed through the prism of its possible consequences, which may present differently at different times, throughout various life stages over his future years. As an example, a slight limp may be overcome upon reaching adulthood when there is greater muscle development to strengthen the legs. As another example, minor socio-behavioural limitations at school/play in a young child may have more far-reaching concerns when he has to face more demanding, complex and/or nuanced personal/social interaction in work, familial and social settings during adulthood. 73.Fifthly, given the difference between the adult plaintiff and child plaintiff as explained in paragraphs 70-72 above, the relevant evidence necessary and probative for assessing prospective loss/damages may also be different. Whilst an adult plaintiff can often himself articulate or adduce evidence in respect of his stabilised factual background to aid projection into his future years for enabling the court to assess the consequences of the subject tort, the child plaintiff does not have the benefit of such stabilised background to aid such projection as he grows up and passes through different life stages. The relevant evidence is likely to come from experts who speak from knowledge, skill and experience as to what the child plaintiff may suffer and/or may need (if at all) at different life stages, eg likely improvement or deterioration of particular condition as the plaintiff grows up, his growing awareness of existing/future disabilities and how to cope with his limitations, his future needs for permanent disabilities, etc. Indeed, even if the relevant expert is unable to formulate any expert conclusion on the consequences of the subject tort for the future years, this inability of itself will be a relevant consideration in the court’s assessment of future loss. This may explain why, in the context of a child plaintiff, justification for expert evidence may not be constrained necessarily by post-incident diagnosis made or treatment received in his tender years, but may turn on apparent indicia and/or justified need for relevant evidence to inform on the longer-term consequences of the subject tort (if any) over different life stages to aid the court’s assessment of damages (see also paragraph 62 above). 74.Sixthly, I bear in mind the difference in nature between treatment medical evidence and forensic expert evidence as explained in paragraph 59 above, so the range of disciplines/specialties for forensic medical experts should not slavishly follow or match the disciplines/ specialties for treatments, assessments and therapies actually received by the plaintiff. As an example, a plaintiff may consult a neurologist to, say, exclude neurological concerns for headaches and is prescribed some medication to deal with the symptoms, but if the investigation results are non-controversial and the treatment is limited, it does not necessarily follow that neurology expert evidence/report is required. Indeed, it is sometimes sufficient to rely on reports/records by treatment doctors/ therapists. I reiterate the principles in Part IV above. 75.But conversely, it also does not necessarily follow from the existence and availability of historical and/or updated treatment medical/therapy notes, records and reports of a particular specialty that expert evidence for that specialty therefore will not be required. After all, treatment doctors/ therapists view the plaintiff’s condition from a therapeutic perspective, and their prognosis is to enable care and treatment. They do not engage in forensic analysis of medical sequelae over different life stages nor do they give opinion on causation.[24] Even if they do, that becomes opinion (and not factual albeit skilled evidence) for which leave is required to adduce to same. Ultimately, the issue is whether expert medical/therapy evidence is necessary, relevant and of probative value, and if so, the medical notes, records and reports will become part of the materials to be reviewed by the experts. 76.With the above observations in mind, I turn to consideration to the disputed disciplines of expert evidence/reports in Parts VII-IX below. (b) Size of Ps’ claim 77.Mr Sakhrani submitted Ps’ claim was a large one, and it would be significantly contested. He pointed out Mr Leung SC already flagged the complaint that the current level of therapies was over and above the regime recommended by the multi-disciplinary team in Portland Hospital, so there were foreseeably multiple areas of dispute (eg nature/extent of residual disabilities, prognosis and future treatment plan) on which the relevant experts would be required to give opinion/reports. Whilst I agree with Mr Kwok that the scope and nature of expert evidence to be adduced are not necessarily guided by the size of the claim, oftentimes a large claim (if properly pleaded) results from injuries and disabilities that are more severe or complex and/or that have more significant sequelae. If this is so, it may feed the reasonable requirement for obtaining expert evidence that is necessary, relevant and of probative value to assist the court under the relevant legal principles in Part IV above. VI. RECENT LETTERS BY DRs LAM AND LIU 78.Mr Sakhrani submitted Mr Kwok’s and Mr Leung SC’s written submissions dated 11 September 2020 showed Ds disagreed with P’s stance on expert evidence but confused the specialties, so to assist the court Ps asked for clarification from Drs Lam and Liu. 79.Consequently, on the following day (ie 12 September 2020), Dr Lam gave the Lam Note to Ps’ solicitors as follows:
80.And on the following day, ie 13 September 2020, Dr Liu wrote to Ps’ solicitors as follows (“Liu Note”):
81.The Lam/Liu Notes were disclosed just prior to the Hearing on 15 September 2020. Mr Kwok asked the court to disregard such belated attempts to meet the issues raised in Ds’ written submissions, but if the court were minded to consider the Lam/Liu Notes, he invited the court to assess their weight with circumspection. Mr Kwok argued that as P had no factual basis to support recommendations for expert evidence/ report in psychiatry and psychology, the last-minute Lam/Liu Notes would not take Ps’ application any further. 82.As explained by Bharwaney J in Fung Chun Man, which approach this court adopted in Lau Mei Wa, the need for expert evidence is often apparent before the relevant litigation (eg a paraplegic may need occupational therapy expert evidence to project his future needs, an injured person already diagnosed in the aftermath of the subject tort to suffer psychiatric illness which is not in remission may need psychiatric/psychological expert evidence to project his future disabilities and treatment needs), but it is not always the case. If there are no apparent indicia (eg injury that does not require immediate care and treatment but is likely to present with developmental sequelae in later years), application for leave to adduce expert evidence of particular specialty(ies) will have to be justified, and such justification often comes in the form of a written note from a relevant doctor setting out brief reasons why such expert opinion is necessary (see paragraph 62 above). 83.In paragraph 73 above, I have further explained why in the case of a child plaintiff, there may be real possibility that expert evidence is required to assist the court in understanding how disabilities at a tender age may manifest themselves at later life stages. This may, in appropriate cases, justify the need for expert medical evidence under the broad principles of necessity, relevance and probative value, without infringing case management considerations of efficiency and effectiveness. After all, these considerations are not meant to compromise the substantive rights of the parties to fairly present their claim or defence. VII. EXPERT EVIDENCE IN DB-PAEDIATRICS, PSYCHIATRY AND PSYCHOLOGY (a) Psychiatric expert evidence – parties’ stance 84.Mr Sakhrani submitted that the risk of ADHD was noted in Dr Lam’s report dated 29 June 2020, and the Lam Note advised therapeutic assessment of P1 by a child psychiatrist to ascertain the diagnosis of ADHD and to prescribe interventions, including medication and behavioral therapy. Mr Sakhrani further contended that psychiatric expert evidence was required for (a) Jeremy and the Father in relation to their grief and the possibility of prolonged grief disorder, and for (b) P1 to ascertain whether in relation to the trauma there was any underlying psychiatric disorder(s) that need to be treated. Ps therefore invited the court to allow expert psychiatrists to assess P1 and to assess Jeremy and the Father for different reasons. 85.Mr Kwok argued that to allow psychiatric expert evidence, there should be diagnosis of a psychiatric illness or sufficient symptoms of a psychiatric diagnosis, but Mr Kwok and Mr Leung SC noted none of the reports of Drs Lam, Liu and Ko disclosed any psychiatric features in P1 nor recommended assessment by psychiatrist despite their own relevant expertise as follows:
86.Mr Kwok submitted the only recommendation for psychiatric opinion came from the occupational therapist and the speech therapist (who acted upon referral from Dr Ko), but their recommendation was for family support without further elaboration (see, eg, paragraphs 35(b) and 49(b)-(c) above). Mr Kwok argued such mere recommendation without supporting reasons would not amount to reasonable requirement for obtaining psychiatric expert evidence/report, so there was no indication for psychiatric evidence in this case. As referred to in paragraph 81 above, Mr Kwok asked me to view the Lam/Liu Notes with circumspection. 87.Mr Kwok further contended a “high likelihood …… risk” of ADHD as expressed by Dr Lam was not the same as a diagnosis of ADHD. Both Mr Kwok and Mr Leung SC noted that although Dr Lam in June 2020 referred to ADHD, she did not then recommend that P1 be assessed for ADHD by a paediatric psychiatrist. Mr Kwok argued that Dr Lam as DB-paediatrician and/or Dr Liu as paediatric neurologist could have assessed such condition[28] and that Drs Lam and/or Liu could have made a diagnosis and prescribed treatment/medication if required,[29] and hence they should not shy away from their expertise. Mr Kwok accepted that whilst causation would probably be disputed, it would not be a sufficient ground for obtaining psychiatric expert evidence/report. 88.Still further, Mr Kwok submitted there was no evidence or indication that psychiatric expert evidence/report was reasonably required for Jeremy and the Father, which remained a mere recommendation without elaboration. (b) Psychological expert evidence – parties’ stance 89.Mr Kwok again submitted that psychological expert evidence must be reasonably required and properly justified before leave would be granted. Mr Kwok submitted psychiatric expert evidence would only be reasonably required if there were indicia of psychological components to physical injuries, but notwithstanding continuous assessments by Drs Ko, Lam and Liu and other doctors/therapists over the years, the treatment or assessment reports canvassed in Part II above showed P1 to be a lively and happy boy without identification of psychological conditions, features and/or symptoms. Mr Kwok submitted it was well within the expertise of Drs Ko, Lam and Liu to detect psychological symptoms and, if necessary, to make a referral, but this did not happen, and instead the indication so far was that P1 was mentally stable, had a gentle temperament and progressing well. Mr Kwok pointed out it was only in Dr Visher’s letter dated 21 August 2020 that it was noted P1 was brought to see a psychologist (ie Dr Visher) who described P1 as his “current patient” presenting with emotional and behavioural disturbances, but still there was no recommendation for treatment, and none seemed to have been given. 90.Mr Kwok reminded that P1 was presently receiving special education in The Habour School headed by top educational psychologist and cared for by teachers with experience in special needs and behavioural analysis on an individualised progmamme with one-on-one teaching, but there was nothing in the term reports, which covered “Personal, Social and Emotional Growth”, to indicate P1 suffered from the issues stated in Dr Visher’s letter or P1 was otherwise than stable mentally and psychologically. The remarks were positive, so it was said Dr Visher’s letter, which should be read with circumspection, was insufficient to justify psychiatric and/or psychological expert evidence. 91.Dr Lam in the Lam Note recommended psychometric evaluation to be performed by a psychologist experienced with assessing children with physical impairment and cerebral palsy. Mr Kwok referred to the meaning of psychometric test by the Institute of Psychometric Coaching (Australia) as follows:
Mr Kwok suggested Dr Lam did not provide elaboration on the relevance/reasons for such test for P1. In any event, it was said DB-paediatrician with specialist interest in DB and neurodisability or educational/behavioural experts of The Harbour School and/or The Children’s Institute could perform this standard test if they thought necessary. 92.Likewise, Mr Leung SC submitted that if psychometric test was the reason for psychological expert evidence, then it was at best a tool to assist the experts in DB-paediatrics and paediatric neurology to reach a diagnosis for P1 and to map out his needs (if any). It was said in the absence of substantive explanation in the Lam/Liu Notes by the treatment DB-paediatrician and/or treatment paediatric neurologist as to why psychometric test was required, there was no justification for full-blown psychological expert evidence/report, which would fly against the case management objectives under the CJR. 93.Mr Kwok noted it was the occupational therapist and the speech therapist who recommended psychological support of family, but this was mere recommendation by therapists rather than doctors without elaboration/basis. So in all, Mr Kwok submitted there was no indication to justify psychological expert evidence. 94.On the other hand, Mr Shakrani submitted Dr Visher’s letter dated 21 August 2020 specifically stated that P1 “presents with Emotional and Behavioural Disturbances due to several factors ……”, and Dr Lam in her latest assessment on 19 June 2020 advised that P1 would need psychometric evaluation by a psychologist experienced with assessing children with physical impairments and cerebral palsy. Mr Sakhrani noted the occupational therapist and the speech therapist also recommended psychologist support. It was submitted that the court would benefit from expert opinion as to P1’s present and future emotional vulnerability. 95.Mr Sakhrani submitted D1 did not state how a DB-paediatrician or a paediatric specialist in neurodisability could perform psychometric test given the Lam Note clearly stated that whilst “the Developmental Paediatrician and Paediatric Neurologist may order the tests and must be familiar with the interpretation of the test results, they are not licensed to conduct of the tests, such as the Weschler Intelligence Tests”, and hence the standard psychometric test “should be conducted by the clinicians, who are trained and licensed to conduct the designated tests”, so the “clinical psychologist …… will be working together with the team to conduct the testing”. 96.Further, given the difference in expertise between an educational psychologist and a paediatric neuropsychologist as explained in paragraphs 57-59 in Catrin Caryl Anderson by her father and next friend Richard Paul Anderson (see paragraph 63 above), Mr Sakhrani submitted it was outside the remit of educational psychologists to express psychological opinion on later life. Mr Sakhrani reminded that the Lam Note also carefully explained the difference between neuropsychological and psycho-educational evaluations (see paragraph 79 above), so he argued P1 would benefit from assessment by clinical psychologist and educational psychologist “at this critical stage of education”. 97.But Mr Kwok submitted the observations in Catrin Caryl Anderson by her father and next friend Richard Paul Anderson would not make good Ps’ arguments since P1 was and would be well looked after by a school experienced in dealing with children with special education needs that was run by a top educational psychologist and a large team of behavioural analysts who would monitor and deliver regular assessments on P1 on all fronts including education progress and mental development. Mr Kwok reminded that the Father had confirmed P1 was to continue his studies in this educational setting. (c) ADHD 98.At the Hearing, Mr Sakhrani accepted the possibility of ADHD was first raised by Dr Lam in June 2020, and he was prepared to park this factor for more mature consideration, but reserving Ps’ right to seek expert medical evidence in relation to ADHD. Thus, I need not delve too deeply into Mr Sakhrani’s disagreement with Mr Kwok’s submissions that DB-paediatricians were well-versed in the diagnosis/ treatment of ADHD, and that they were well-positioned to give expert medical evidence on such matters without need to commission psychiatric expert evidence. 99.But bearing in mind there was general consensus amongst the parties to seek expert evidence/report from DB-paediatricians (which I agree should be obtained despite Mr Leung SC’s submissions that experts in educational psychology could be engaged in the alternative), I see no reason why the issue should not be raised with the parties’ DB-paediatric and paediatric neurology experts given that:
and to ask such experts (whom Ds considered to have requisite expertise to diagnose and treat ADHD condition in children) to consider and opine on the following in their forthcoming expert reports to avoid the risk of time/cost for future supplemental reports:
100.Even though there was no formal diagnosis of ADHD, I find there was enough historical and persistent indicia of P1’s attention deficits to look into the matter. But at this stage I am not persuaded I should assume, as Mr Kwok would have me do, that DB-paediatricians and paediatric neurologists would necessarily be able to give forensic expert opinion on such matters during P1’s childhood and in later life (see also discussion in Part VII(d) below). Hence, the questions in paragraph 99(a)-(b) above should be put to the experts for their views. 101.Should the DB-paediatric and/or paediatric neurology experts regard themselves as the right category(ies) of experts to give such opinion and should they rule out ADHD, then nothing more need to be said. But if they regarded themselves as not the right category(ies) of experts and/or P1 was not at the right stage for assessing possibility of ADHD, then it would reduce dispute and the parties would know what to do when P1 was ready for assessment. (d) DB-paediatricians 102.DB-paediatrics appeared to be a medical specialty or sub- specialty with emphasis on the function of managing comorbidities and enabling multi-disciplinary treatment and rehabilitation. This was borne out by the actual functions of Drs Ko and Lam, and it also appears from the criteria for knowledge/skills in the curriculum of the course programme of Hong Kong College of Paediatrics for such sub-specialty:
Likewise, the Royal College of Paediatrics and Child Health explained that a neurodisability paediatrician is a clinician who specialises in the management of children and young people with disabilities resulting from congenital or acquired long-term conditions. It was said that “[although] they are involved in the diagnosing, the neurodisability paediatrician’s emphasis is in managing the complex comorbidities seen, targeting the patients’ rehabilitation and enablement. While working closely with local teams in the hospital and community (such as genetics, neurology, community paediatrics, surgical specialities and palliative care, as well as NGO’s and education and social services), they often provide specialist regional advice in a model of shared care ……” (my emphasis).[30] 103.In my view, the knowledge/skills a DB-paediatrician acquires in different medical areas to facilitate his/her function in managing comorbidities and coordinating multi-disciplinary treatment and rehabilitation, which include not just ADHD but also inter alia hearing impairment, visual impairment, “developmental language delay & specific language impairment” etc,[31] would not necessarily dispense with the need for, say, ENT specialists, opthamologists and/or speech and language therapist to address corresponding disabilities and their sequelae in appropriate cases. Indeed, all parties in the present case agreed to obtain expert evidence/report from speech and language therapists and from occupational therapists in addition to expert evidence/report from DB-paediatricians. 104.To put it in another way, DB-paediatric expert opinion would not ipso facto exclude expert evidence from other disciplines even though DB-paediatricians might have received some training and have acquired some knowledge/skills in these areas. In my view, all would depend on the circumstances of the particular case. But that said, by the very nature of DB-paediatrics as explained above, I find it necessary and relevant to have expert opinion/report for this discipline because P1 as a child with cerebral palsy presented with various neurodisabilities that required holistic management and treatment. (e) Psychological expert evidence on P1 105.Upon the aforesaid analysis, I turn to Mr Sakhrani’s submissions that here psychiatric and psychological expert evidence/ report would be necessary and pertinent. Mr Kwok referred to P1 as a lively and happy boy with gentle temperament, but I am not confident that mere lack of outward symptoms in a young child could be equated to absence of inherent psychiatric/psychological issues. But I agree that at least for now there was no actual diagnosis of psychiatric disorder for P1, and Dr Lam’s report for his re-assessment on 19 June 2020 and his Lam Note did not identify any apart from high likelihood of ADHD which I have discussed above. 106.Dr Visher’s letter dated 21 August 2020 stated P1 presented with emotional and behavioural disturbances due to various factors, including inter alia P1’s grief about the Mother, but Dr Visher did not make any diagnosis of psychiatric disorder or suggest any treatment for P1’s grief about the Mother. Indeed, Dr Visher ruled out (ie “R/O”) “Reactive Attachment Disorder: Diminished Type, Adjustment Disorder, Complicated Grief, etc”. 107.Nevertheless, I find it of note that P1 presently had: (a) various neurodisabilities, including developmental (including speech and language skills) delay, behavioural issues, feeding disorder, and affected gross/fine motor skills (and possible concerns over visual ability) as explained in Part II above, and (b) specialised learning requirements with on one-on-one learning and need to repeat/continue Prep instead of advancing to Grade 1 from September 2020. Even though Dr Liu did not notice any dysmorphic features in/about March 2019, against the background of such neurodisabilities as a result of cerebral palsy, Dr Visher in the letter dated 21 August 2020 confirmed P1 presented with emotional and behavioural disturbances due to (i) processing his own disabilities, which showed P1 knew he was different from others, and (ii) “regulation and self-expression of emotion due to language and sensory concerns”. Plainly, a child with cerebral palsy like P1 would have to undergo and address psychological challenges as he grows up. In August 2020, P1 (young as he was) had already begun to question his condition. In my view, this suggested there may well be emotional vulnerability that may be negatively exacerbated in the context of peer comparison when P1 transitions from childhood to adolescence and then to adulthood (which later life stages ordinarily will require enhanced social/behavioural skills and gross/fine motor requirements, appreciation of more intricate language nuances, and ability to deal with more complex interactions in personal, social, higher education and work settings) with increased self-awareness of his disabilities that even as a young child P1 was able to describe as having “booboo in his brain” and being “sad and mad that his brain and body do not do what he tells them to do”. 108.In light of the above analysis and the background of P1’s neurodisabilities as a result of his cerebral palsy, I do not agree, as Mr Kwok suggested, that I should view Dr Visher’s letter dated 21 August 2020 with circumspection. Mr Kwok asked me to refer to the term reports by The Harbor School and The Children’s Institute, especially the section on “Personal, Social and Emotional Growth”, but it was clear that their contents were education-oriented (eg dealing with interaction with peers at school, progress made during his lessons and learning groups, and encouragement with tasks and being at school) rather than clinical-oriented. 109.A relevant question for the court at the assessment of damages would be whether and if so what support P1 would require to mentally prepare and help him to come to terms with and to manage his frustrations over his disabilities already felt now in his childhood when he transitions to later life stages. P1’s cognition and intellect were not so severely damaged that he would obviously (a) not appreciate his disabilities and differences from his peers and/or (b) not benefit from such psychological assistance (if needed). Indeed, even in his initial assessment in mid-2017, Dr Ko expressed concern regarding P1’s longer term progress of his executive functioning, eg attention control, emotional regulation and organisation skill (see paragraph 25(d) above). P1 would not be able to articulate such needs, and I am not persuaded the Father as lay person will be able to give useful evidence on these matters. The treatment/assessment reports were insufficient as they dealt with current treatment/assessment. Indeed, Dr Lam as DB-paediatrician consistently conclude her reports with the following:
In my view, this would be an area in which psychology expert evidence would be helpful and necessary, and such experts with particular expertise in dealing with children with conditions/disabilities as P1 would be able to say from their skilled knowledge and experience as to P1’s future emotional and psychological needs in order to cope with or adjust to his disabilities and limitations to minimise psychological complications at critical points in his life and to formulate/cost provision for any needed psychotherapy. On such basis, I would allow psychologist expert evidence/report in relation to P1. 110.There was complaint that the request for psychological expert evidence was premised on the following recommendation in Dr Lam’s report in June 2020 as follows:
It was said this was repeated in the Lam Note which referred to P1 “attending the final year of preschool and is pending elementary school placement”, which suggested neuropsychological and psycho-educational assessment be done to help formulate P1’s individualised learning programme. 111.But, as seen in Part II above, Dr Visher’s letter dated 21 August 2020 showed that the need for psychological opinion was not confined to facilitating formulation of P1’s individualised education programme. I accept an individualised education programme had been put in place for P1’s present education by The Harbour School, and a decision had been taken for P1 to continue with Prep for this academic year instead of moving on Grade 1. But it is of interest to note (a) the information in the Lam Note that according to the clinical report of the American Academy of Paediatrics on providing a primary care medical home for children and youth with cerebral palsy, 50% of children with cerebral palsy have higher cognitive impairment resulting in mental retardation, and (b) the explanation in the Lam Note that neuropsychological assessment focuses on “different domains of brain functions including memory, information processing, executive function and emotional regulation” (my emphasis). Psychological assessment would be useful for addressing on the matters in paragraphs 107-109 above as well as to provide clinical foundation for the educational psychologists to formulate/cost their management plan for P1’s learning difficulties as he transitions from Prep all the way through to higher education. Whether this includes psychometric tests on P1 that only psychologists and not DB-paediatricians and/or paediatric neurologists can administer will be a matter for the psychology experts to determine when they conduct examination and render expert opinion. 112.For all the above reasons, I grant leave for expert evidence/reports on paediatric neuopsychology or psychology with relevant expertise or experience on children with cerebral palsy and/or related neurodisabilities. (f) Psychiatric expert evidence for P1 113.The application for psychiatric expert evidence/report must now be viewed against the leave granted by the court for obtaining psychological expert evidence/report. From the discussion in Part VII(e) above, there appeared to be no diagnosis or apparent indicia of psychiatric disorder, and Dr Visher highlighted P1’s emotional and behavioural disturbances (ie psychological vulnerability) rather than fundamental psychiatric disorder. The tenor of the reports on P1’s condition and disabilities was also not indicative of need for psychiatric support, and the mere suggestion of family support in the reports by the occupational therapist and the speech therapist would not take the matter further. I am not persuaded that the particular circumstances of P1 warranted psychiatry expert evidence/report. 114.The letter dated 13 August 2020 by Ps’ solicitors to Ds’ solicitors reminded that Dr Ko’s report dated 1 August 2018 raised concern over P1’s separation anxiety. But I note that at/about the same time, the report dated 17 July 2018 by the speech therapist May Poon stated as follows:
Thus, any separation anxiety would have been mild, and would not have justified psychiatric expert evidence for P1. Expert views on this should be sufficiently covered by the expert DB-paediatricians and expert psychologists. (g) Psychiatric expert evidence for Jeremy and the Father 115.Mr Sakhrani submitted Jeremy and the Father should be assessed “for their grief and (and the possibility of a prolonged grief disorder)”. In my view, such application must be rejected because quite simply there was no personal claim by Jeremy and the Father for their own grief and/or any grief disorder. P2 and P3 made estate (LARCO) claim and dependency (FAO) claim in relation to the death of the Mother. There was no personal claim by Jeremy and/or the Father for their own personal loss as secondary victims or otherwise in relation to the subject accident. There was no basis to seek psychiatric expert reports for their personal conditions. 116.If it were suggested that Jeremy and the Father should receive forensic psychiatric assessment to encourage their support for P1 to facilitate his growth and development, I find the tenor of the available reports showed that P1 was close to Jeremy and the Father with close bonding among them as a family unit. There was also no suggestion that the support by Jeremy and the Father was wanting in any respect notwithstanding the earlier suggestion by Dr Ko in 2017 (see paragraph 27 above) and the further suggestions by the occupational therapist and speech therapists (see, eg, paragraphs 35(b) and 49(b)-(c) above). I also bear in mind that notwithstanding earlier uncertainties which might have affected the Father, the family situation had stabilised with P1 settled in The Harbour School and the therapy regime at SPOT, Jeremy remained close to his sibling, the Father settled in his new job, and decision was made for the family to remain in Hong Kong in the foreseeable feature. I am not persuaded there was any sufficient basis for psychiatric expert evidence for Jeremy and the Father. VIII. EXPERT EVIDENCE ON EDUCATIONAL PSYCHOLOGY (a) Parties’ stance 117.Mr Kwok noted Dr Liu recommended consulting an educational psychologist for P1’s training at school, and the occupational therapist and speech therapist also made the same recommendation, but Dr Lam did not. 118.Mr Kwok reminded that Dr Ko in his 2017-2018 reports explained that if P1 were in the United Kingdom, normally P1 would have been placed in a mainstream school with full-time one-on-one adult support and later reduced to part-time, but such support would need to be tailor-made according to P1’s progress and response to medical/ therapeutic intervention over time. But since 2019 P1 started to study at The Harbour School with learning support by The Children’s Institute, and Dr Ko was aware of this arrangement. In his July 2019 report, Dr Ko was pleased that P1 was accepted by The Harbour School, which was a mainstream school with experience of special education needs and with curriculum according to P1’s level of functioning/needs as P1 needed one-on-one adult support in educational setting due to immature attention control and self-directedness (and it would be difficult for P1 to engage and participate in the activities expected of him in the school environment). 119.Dr Lam in her report dated 11 February 2019 was of the view P1 would require a school with higher teacher to student ratio and provision for special educational needs and individualised educational programme. Mr Kwok noted that in her reports dated 11 February and 19 June 2019, her report for review of assessment on 9 November 2019, and her report dated 19 June 2020, Dr Lam recommended inter alia (a) structured classroom environment, preferably with visual and auditory cues, (b) learning buddy to model prosocial behaviour and to foster friendship, and (c) the Father to keep close contact with school’s learning support team to implement consistent coaching strategies at home. 120.Mr Kwok further noted The Harbour School did implement an individualised learning programme for P1 with (a) class consisting of 5 students, 6 applied behaviour analysis teachers and 1 head teacher, (b) one-on-one individualised special instruction using applied behaviour analysis, and (c) weekly group lessons, weekly physical education class and weekly art class.[32] Prep term reports for 2019-2020 were available, and Mr Kwok submitted it appeared P1 was making steady progress and was mentally stable. Mr Kwok noted it had been decided P1 would continue Prep instead of advancing to Grade 1 in September 2020. Mr Kwok further noted Dr Jadis Blurton, head of The Harbour School, was said to be a top educational psychologist in Hong Kong with an exemplary background,[33] and had worked in the fields of education, child psychology and educational psychology for more than 30 years. Dr Blurton also headed The Children’s Institute with staff members that included specialists in behavourial analysis. 121.On such basis, Mr Kwok argued it appeared the recommendations by Dr Lam were being implemented in full, so P1 was receiving all the educational needs he required, and he would in all likelihood continue to do so. Bearing in mind the role of an educational psychologist as explained in paragraph 63 above, Mr Kwok submitted no further benefit would be derived from further assessment and recommendations by expert educational psychologists as P1’s needs were all covered by the educational services delivered by Dr Lam, Dr Blurton, The Harbour School and The Children’s Institute, and there were no circumstances over and above the present state of P1’s education to justify leave for such expert evidence. 122.Mr Leung SC submitted that expert evidence from educational psychologists would overlap with that from DB-paediatricians and psychologists, and that there was no point having 2-3 experts opining on the same matters. He urged this court to view the matter holistically to enhance efficiency and economy to avoid overlap by experts of various disciplines. 123.On the other hand, Mr Sakhrani submitted that expert assessment by educational psychologists was required because, as explained by Dr Lam, it was for the educational psychologists rather than clinical psychologists to focus on “intelligence, phonological and morphological attributes of literacy acquisition and educational achievement”, especially when bearing in mind the difference between an educational psychologist and a paediatric neuropsychologist explained in paragraph 63 above. 124.Mr Sakhrani submitted that although D1 drew attention to P1’s attendance at The Harbour School and the individualised learning programme devised and implemented for him, P1 still had to repeat the last year of his Prep and not advance to Grade 1 as he should. 125.As for Mr Kwok’s emphasis on the qualifications of Dr Blurton and his suggestion that Dr Lam’s recommendations had been implemented in full, Mr Sakhrani said it was for the forensic expert to provide the court an independent assessment of P1’s educational needs and schooling over the whole period of his formal learning, possibly to university. Further, not only had Dr Lam recommended the need for an educational psychologist, the report of the occupational therapist Nikki Queton for her assessment on 10 July 2019 also confirmed the need for further assessment by an educational psychologist. (b) Discussion 126.There was no dispute that P1 had learning difficulties otherwise he would not have needed an individualised learning programme with special arrangements and one-on-one teaching. In a nutshell, Ds’ resistance to expert evidence/report from educational psychologists were essentially based on the contentions that (a) such expert evidence was not necessary as it overlapped with expert evidence from DB paediatrists and psychologists, and (b) P1 was receiving what he needed education-wise (including individualised education programme, one-on-one teaching, and headmistress/teachers with specialised training) at The Harbour School and The Children’s Institute where he would continue his studies. 127.I have explained the distinction between educational psychologist and paediatric neuropsychologist in Catrin Caryl Anderson by her father and next friend Richard Paul Anderson, and the Lam Note explained the distinction between neuropsychological and psycho- educational evaluations. In a nutshell, the educational psychologist’s focus is in teaching/education and the clinical psychologist’s focus is primarily in mental health. Educational psychologists are “learning experts” who use their training in psychology and knowledge of child development to assess education-related difficulties that children may have with their learning, and they recommend education-related methods/ strategies to help children learn more effectively, eg advice on curriculum materials, teaching approaches, adult education support, improvements in learning environment, education-related behavioural support, etc. In short, educational psychologists are focused on how to help children with learning difficulties to optimise their learning and reach their potential at school, and how learning can be adjusted so that education material is understood, retained and used by the child. On the other hand, clinical psychologists assess and make recommendations on the emotional and social well-being of children to foster positive behaviour to help them function well generally whether at home or at school. The function of clinical psychologists is to understand the disabled child’s broad range of emotional, social, interpersonal and learning strengths and difficulties, and the psychological disabilities that may get in the way of his confidence and/or ability to reach full potential. As explained in paragraph 42 of Catrin Caryl Anderson by her father and next friend Richard Paul Anderson, “[whilst] it is expected that an educational psychologist will evaluate learning difficulties, he/she is not generally expected to diagnose learning and/or behavioural disorders caused by altered brain function or development”. 128.Given the different functions of educational psychologists and clinical psychologists, I am not persuaded that expert evidence from the latter would thereby dispense with expert evidence from the former, especially in the case of P1 when his primary, secondary and tertiary education is still ahead of him. But what about the suggested overlap with expert evidence from DB-paediatrician? In my view, there was no material overlap. Whilst DB-paediatrians have the trained knowledge and skill to identify on an overall basis a need for specialised learning, they would not be formulating/costing the specific individualised programme with particular learning methods/strategies for the child with learning difficulties over his student years. 129.This brings me to other argument that P1’s learning needs had been addressed by his attending and continuing his studies at The Harbor School with support from The Children’s Institute with individualised education programme and one-on-one teaching by teachers with specialised training. I note that the term reports by The Harbour School dealt with P1’s present education-related issues/development and learning goals for the immediate next stage. They did not deal with (and as factual reports they could not opine on) the education-related limitations, needs and management plan up to the time P1 was expected to finish his education, which might be at tertiary level if his learning could be so optimised. In my view, The Harbor School reports were quite insufficient to aid the court in the assessment of P1’s needs and the costings of such needs for his entire education, especially when Ds urged the court to proceed with the assessment of damages as soon as practicable. 130.There would be inevitable questions that would need to be answered by the forensic educational psychologists, eg (a) whether P1 could cope with more complex curriculum as he progresses through the grades, and if not, how his learning can be optimised at different stages of education, (b) what level of education is P1 likely to attain, (c) whether he can at some stage (and if so at what stage) he can change from “full-time 1 to 1 support by an adult initially, and later reduced to part time” as Dr Ko suggested, (d) whether he can sit for public examinations, (e) what educational institutions (including local or overseas universities, if appropriate) will be available for P1 with his disabilities and learning methods/strategies, and (f) whether P1 can ever transition back to maintain school or university without one-on-one teaching, etc. These are not matters that can be forensically addressed by DB-paediatricians. But in my view, these are important matters as P1’s education would also affect the court’s evaluation of what P1 would be able to achieve in later life, eg the jobs available to him, his ability to manage finance, etc 131.I have no hesitation in coming to the view that expert evidence/report from educational psycologists would be required. IX. EXPERT EVIDENCE FROM PHSIOTHERAPY EXPERTS (a) Parties’ stance 132.Mr Kwok argued that opinion on physiotherapy needs should be within the expertise of paediatric neurologists and/or DB-paediatrians, and the parties could instruct such experts to cover such matter in their reports with costing to be provided by the occupational therapy experts. Mr Kwok suggested that advising on need for physiotherapy should be within the expertise of paediatric neurology as some commonly encountered conditions in this field included “Ataxia or Unsteadiness and gait impairment”, “Movement disorders”, “Muscle weakness”, “Floppy infants & hypotonia”, “Neuromuscular disease”,[34] and “impairment in the nervous or musculoskeleton systems”.[35] Mr Kwok pointed out that in Dr Liu’s various reports in 2019-2020, he assessed “muscle, limbs, face, spasticity, clonus, reflexes, planter responses, muscle tone, grip”, and then recommended P1 to receive physiotherapy training for his left upper limb. 133.Mr Leung SC submitted that P1’s rehabilitation was a joint effort of treatment doctors/therapists of various specialties, but forensically physiotherapy was not a specialised area that would require separate or independent assessment. He agreed with Mr Kwok’s suggestion that it would be sufficient for paediatric neurology experts to assess P1’s neurodisabilities and physiotherapy needs, and then for the experts in occupational therapy to provide the relevant regime/costings. 134.Mr Sakrani submitted Ds’ refusal to obtain expert physiotherapy evidence/report was inconsistent with their agreement to obtain expert occupational therapy and speech therapy evidence/reports. In any event, the Liu Note revealed P1 suffered from motor and postural deficits, which would require examination and assessment by qualified physiotherapist, who would then furnish assessment reports covering areas on treatment requirement, treatment frequency, equipment needed, duration of treatment protocol and cost of such treatment protocol. The clinician would review reports from various specialists and propose the best management approach for P1 and to assist the court on cost decisions. Mr Sakhrani also asked this court to refer to the report of the orthopaedic surgeon Dr King-lok Liu dated 20 February 2019 who also recommended physiotherapy support for P1. 135.Mr Sakhrani submitted the therapy goals put forward by SPOT on 4 December 2019 (see paragraph 50 above) clearly distinguished the unique goals in each area, and expert physiotherapists would be best placed to comment on the therapy goals set out by SPOT, and the appropriateness and efficacy of the treatment. He argued there was no basis to assume paediatric neurologists would be able to propose the best management approach and assist on cost decisions without input of qualified physiotherapists on the areas identified above in the SPOT therapy goals. (b) Discussion 136.Mr Sakhrani referred to Catrin Caryl Anderson by her father and next friend Richard Paul Anderson where this court opined there was “no doubt that physiotherapy expert opinion is required for [the plaintiff’s] future care regime” (paragraph 142). But in that case, the plaintiff suffered severe disabilities as a result of her cerebral palsy as described in paragraph 7 of the judgment. She was quadriplegic with significant dystonic or athetoid component, and suffered from a multitude of associated conditions, including frequent uncontrolled unpredictable involuntary movements where she could go from a totally relaxed and floppy position into a strong extended position where she was stiff as a board, which was painful and distressing. It was unsurprising she had ongoing intensive and extensive physiotherapy needs which required particular physiotherapy expert input. 137.But P1’s condition was far different from that of the plaintiff in Catrin Caryl Anderson by her father and next friend Richard Paul Anderson. His condition was in fact much better, and physiotherapy was essentially focused on improving range of movement, muscle tone and gross motor skills (see physiotherapy report by SPOT dated 29 May 2019 and also physiotherapy report by Portland Hospital in July 2019 – paragraph 49(a) above). In fact, a quick reading of Dr Liu’s reports would show that these were the very areas on which he identified neurological and developmental impairment. It appeared the main physiotherapy needs were due to neurodisabilities as a result of P1’s cerebral palsy. Indeed, Dr Liu in his report dated 6 March 2019 stated that P1’s motor coordination was obviously affected rendering him the clinical diagnosis of cerebral palsy (see paragraph 41 above). It was also Dr Liu who managed P1’s left side weakness, and who gave advice to the physiotherapist on the relevant training (see paragraphs 46 and 52 above). 138.There was no disagreement P1 would need physiotherapy treatment for his motor and postural deficit. In a therapeutic setting, by reason of the need for physiotherapy, the paediatric neurologist (and/or DB-paediatrician) will of course review the physiotherapy treatment regime and/or report for a coordinated management plan for P1’s comorbidities. But this did not mean that forensic expert evidence from physiotherapists would ipso facto be required. In my view, given the more limited physiotherapy regime required by P1 (at least as compared for the plaintiff in Catrin Caryl Anderson by her father and next friend Richard Paul Anderson), I find the treatment physiotherapy reports as well as the expert input by paediatric neurologists and occupational therapists would be sufficient assistance for the assessment of P1’s physiotherapy needs and costings. 139.Again, the fact that Ds agreed to expert evidence/reports from occupational therapists and speech therapists did not necessarily mean that forensic expert evidence would be needed for all categories of treatment therapists. The broad range of disabilities that required occupational therapy for attainment of the different goals set out by SPOT (see paragraph 50 above), which were different from the more limited physiotherapy goals, justified the need for expert evidence in this area. Speech therapy dealt with some of the more significant and particular feeding and language disorders that afflicted P1, and hence expert input was required. 140.In all the circumstances, I am satisfied there would be sufficient expert evidence to address P1’s disabilities and needs without particular need for physiotherapy expert evidence/reports. X. CONCLUSION 141.Thus, I grant leave for the parties to obtain expert medical evidence/reports in the areas of (a) DB-paediatrics, (b) clinical neuropsychology or clinical psychology with relevant expertise on or experience with children with cerebral palsy and/or neurodisabilities, and (c) educational psychology (“Ordered Categories”). I decline to grant leave for expert evidence/reports on psychiatry for P1, Jeremy and/or the Father, and on physiotherapy. 142.I also direct that the parties shall within 21 days from the date of this order jointly write to the court on the following:
143.None of the parties successfully obtained/resisted all of the relevant categories they desired. I therefore grant a costs order nisi that costs of the application for leave to adduce expert medical evidence be costs in the cause of the assessment of damages, and that P1’s own costs be taxed in accordance with Legal Aid Regulations.
Mr Ashok Sahkrani, instructed by Robertsons, solicitors for the 1st, 2nd and 3rd plaintiffs Mr Tim Kwok, instructed by S K Lam, Alfred Chan & Co, solicitors for the 1st defendant Mr Raymond Leung SC, instructed by Chung & Kwan, solicitors for the 2nd defendant [1] Ps filed their 1st to 6th Lists of Documents on 24 October 2017, 10 December 2018, 12 June, 24 October and 5 December 2019, and 28 August 2020 [2] Mr Sakhrani in para 15 of his written submissions acknowledged that expert opinion/report should be obtained from DB-paediatrician [3] Mr Kwok at paras 18, 24 and 31 of his written submissions noted Drs Lam and Liu and various therapists “observed no psychological or psychiatric symptoms and made no recommendation for psychiatric intervention for [P1]” although “[Dr Lam] suggested a psychologist to perform psychometric evaluation”, “[Dr Liu] suggested an Educational Psychologist for [P1’s] training at school”, and the occupational therapist and speech therapist recommended “an educational psychologist for [P1] and a psychologist or psychiatrist for support for family” [4] the Father also hired part-time Mandarin tutors to teach Jeremy and P1 Mandarin and Chinese as it was his and the Mother’s plan to raise their children to be bilingual, but the Mother would have tutored them but for the Accident [5] the Father set out in his WS the additional monthly expenses required for P1 and the family if such recommendations were followed [6] eg by occupational therapists Serene Cheong, Cameron Dalling, Clare Watt, and Urvi Kamdar [7] eg by physiotherapists Susan Moriaty, Jessica Tuohy and Millie McCelland [8] eg speech and language therapists Joice Almeida and Janice Leung (and also speech therapist May Poon who rendered reports dated 7 October 2017, 15 January 2018, 17 July 2018 and 14 June 2019) [9] GMFCS Level I meant “Children get into and out of, and sit in, a chair without the need for hand support. Children move from the floor and from chair sitting to standing without the need for objects for support. Children walk indoors and outdoors, and climb stairs. Emerging ability to run and jump”, which Mr Leung SC submitted demonstrated P1 was freely ambulatory and could run/jump, which in turn meant his gross motor function had improved over time (see also Dr Ko’s report dated 17 July 2019 – see para 48 below) [10] P1 gradually progressed to lumpy food, and the latest dietician assessment on 4 November 2019 put his weight at 85th percentile and height at 85-97 percentile, and on such basis Mr Leung SC submitted it would appear that nutritional intake was not a major concern [11] HCPI1113/2006, Bharwaney J (unreported, 24 June 2011) [12] HCPI537/2010 (unreported, 15 September 2011) [13] HCPI527/2011 (unreported, 13 July 2012) [14] HCPI460/2001 (unreported, 30 October 2013) [15] HCPI574/2014 (unreported, 4 September 2015) [16] see Ngai Ping Kwan at paras 59-65, Lau Mei Wa at paras 147-152, and Pak Siu Hin Simon paras 71-74 [17] see Fung Chun Man at paras 23-25 and Lau Mei Wa at paras 103-105 [18] see Fung Chun Man at paras 23-24 and Lau Mei Wa at paras 145-146 [19] see Fung Chun Man at para 22 [20] see Fung Chun Man paras 24-25, Tang Tat Ping v Kai Shing Construction Co [2012] 1 HKLRD 1093, 1104, and Lau Mei Wa at paras 124-137 [21] it appeared the Father no longer retained a case manager to oversee P1’s treatment and care (see para 32 above) [22] which were said to cover inter alia annual review in the United Kingdom, assessment by paediatric neurologist and various therapists at SPOT, weekly occupational therapy, physiotherapy and speech and language therapy sessions at SPOT with annual reporting, psychological counselling with Dr Visher at SPOT, English/Chinese tutoring for P1, family counselling and The Harbour School tuition fees as well as (a) case manager but see footnote 21 above and (b) speech therapy, counselling and report and Chinese tutoring for Jeremy [23] see Lau Mei Wa at para 126 [24] see Lau Mei Wa at paras 141-142 and 148-152 [25] see website pages of Hong Kong Developmental Paediatrics and Child Neurology Centre and course programme of Hong Kong College of Paediatricians for the Subspecialty of DB-Paediatrics [26] see website pages of Hong Kong Developmental Paediatrics and Child Neurology Centre [27] see website pages of Royal College of Paediatrics and Child Health (UK) on Paediatric Neurodisability [28] see footnote 29 below and the course programme of Hong Kong College of Paediatricians for the Subspecialty of DB-Paediatrics which showed that the curriculum of such subspecialty covered knowledge and skills for major patient groups including those with ADHD, eg (a) knowledge: “[know] how to develop a holistic management plan” and “[understand] the role and use of psychopharmacologic agents in the management. Know the limitations and benefits, and potential side effects of medications”, and (b) skills: “[be] able to conduct ADHD specific diagnostic interview, including comprehensive developmental and psychosocial history taking, and the use of appropriate questionnaires and their interpretation”, “[be] able to interpret the results from available psycho-educational assessment tools”, “[be] able to advise patients on the potential benefits and side effects of medications used in treatment, and on behavioural management at home”, “[be] able to provide advice to teachers on educational and behavioural management in classroom settings”, “[be] able to monitor developmental progress and rehabilitation implementation” etc [29] see website pages of Hong Kong Developmental Paediatrics and Child Neurology Centre where Drs Lam and Liu carried on their medical practices, which stated that (a) DB-paediatric specialists “are seasoned specialist paediatricians who developed specialized commitment to enable physical, language, socio-emotional and cognitive development in childhood and adolescence” “[through] highly specialized and structured assessment, intervention and counselling”, and some of the common development conditions included ADHD, and (b) “[paediatric] neurology is a medical subspecialty that deals with the investigation, diagnosis and management of neurological conditions in children”, and some commonly encountered conditions in this field included behavioural problems such as ADHD [30] eg, a quick review of the knowledge/skills in relation to ADHD in the course programme of Hong Kong College of Paediatricians for the subspecialty of DB-paediatrics would show that the relevant knowledge/skills were to understand the disorder, to differentiate it from other disorders, to identify differential diagnoses and common comorbidities, to integrate findings and develop a holistic management plan, and to monitor progress [31] see the course programme of Hong Kong College of Paediatricians for the subspecialty of DB-paediatrics [32] see The Harbour School’s individualised education programme report dated 28 June 2019 [33] Dr Blurton had a PhD in cognitive developmental psychology and master’s degrees in both special education and psychology, and she was a qualified teacher in Hong Kong, a Certified Montessori Teacher (AMS), a licensed clinical psychologist in two states in the United States as well as a registered psychologist in Hong Kong [34] see description given on the website pages of Hong Kong Developmental Paediatrics and Child Neurology Centre where Dr Liu practiced medicine [35] see the description given on the website pages of the Royal College of Paediatrics and Child Health | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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