Kwok Carman v. Cheng Sai Wah

DCPI 2381/2022

[2025] HKDC 943

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2381 OF 2022

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DECISION

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Introduction

1.This is the Plaintiff’s application for leave to adduce medical expert evidence from a psychiatrist by way of her summons filed on 10 February 2025.

The accident

2.The incident occurred on 1 January 2020. The Plaintiff was the owner and shop manager of a small Japanese food takeaway shop in Causeway Bay. The accident occurred when she was en route to the food shop.

3.As pleaded in the Statement of Claim, the Defendant was driving his taxi (“the Taxi”) away from the taxi stand of World Trade Centre heading westbound on Gloucester Road. The Plaintiff claims that the Defendant had failed to stop in time, causing the nearside front of the Taxi to ram into her. As a result, the Plaintiff sustained an injury on her right ankle^[1].

4.The Defendant pleaded in his Defence the incident had occurred differently. With the assistance of video footage exhibited in the Defendant’s witness statement, it appears to be that at the material time, the Defendant did not stop completely when he had reached the vehicle exit of the World Trade Centre. While the Defendant continued to drive forward slowly, the Plaintiff appeared at the offside front of the Taxi and walked across to its nearside. Apparently, the Plaintiff was unable to walk fast enough to pass the Taxi before it came close to her, she attempted to put her hand on the Taxi bonnet to stop it from moving forward. A physical impact inevitably resulted. The nearside front of the Taxi struck the left side of the Plaintiff’s body. Immediately afterward, the Plaintiff became furious; using her right hand, she banged the bonnet of the Taxi and with her right foot, she kicked the left front (the nearside) of the Taxi. The Plaintiff, after sustaining her injury, was able to remain standing and walked around the scene for some time.

5.Although there are differences in the cases pleaded, the incident is collectively referred to as the “Accident” in this Decision.

Relevant facts relating to the Plaintiff’s application

6.The Plaintiff did not plead at the time of commencement of the action on 20 July 2022 that she had suffered from psychiatric injury or at all. I highlight here the Plaintiff has pleaded in her Statement of Damages that due to right ankle pain and “psychological issues” she has suffered, she could not resume her job to run or to work in the food shop. She therefore claims damages on Pain, Suffering, and Loss of Amenities; Loss of Pre-Trial Earnings and Loss of Earning Capacity.

7.It is indisputable that the Plaintiff had returned to her previous job on 31 August 2020. Unfortunately, the food shop was closed down in June 2024. Prior to this, she had already transitioned to work as a fortune teller in late November 2021 on a part-time basis.

8.In support of the Plaintiff’s claim, she submitted 3 medical reports in her Schedule of Medical Reports dated 20 July 2022 attached to her Statement of Damages, namely,

(i)     medical report written by Dr. Yeung Siu Hong, Senior Medical Officer dated 27 July 2020 by RTH (“Dr. Yeung’s report”);

(ii)     medical report written by Dr. Ryan Cheung, Chief of O&T Department dated 10 June 2020 by PYNEH (“Dr. Cheung’s report”); and

(iii)     1^st medical report written by Dr. Isaac Kwok, Clinical Psychologist dated 18 May 2020 of PYNEH (Dr. Kwok’s 1^st report”);

9.The Plaintiff did not include medical reports or notes from any psychiatrist, her injury at commencement of this personal injury action only relates to her orthopaedic condition and psychological condition.

The Plaintiff’s injury - orthopaedic condition

10.After the Accident, the Plaintiff was taken to the Accident and Emergency Department (“A&E Department”) of the Ruttonjee & Tang Shiu Kin Hospitals (“RTH”). On examination, the Plaintiff was found to have no pallor. There was mild tenderness over lateral aspect of mid left thigh, no external wounds, no bruise or redness. It was also noted that her right ankle showed slight tenderness with no external wound or bruise. X‑rays revealed no fractures^[2]. On assessment of her minor injuries sustained, the Plaintiff was transferred and admitted to Pamela Youde Nethersole Eastern Hospital (“PYNEH”) on the same day. She had received physiotherapy, and an ankle air cast was given. At time of discharge on 3 January 2020, the Plaintiff was able to tolerate unaided full weight bearing walking^[3].

11.The Plaintiff attended various treatments with PYNEH, Dr. Au Ting Wah, St. Paul’s Hospital and Wellness Clinic and Pain Centre from 21 January 2020 until 19 March 2021. A total of 387 days of sick leave was granted due to her orthopaedic condition.

The Plaintiff’s psychological condition

12.The Plaintiff attended a total of 5 sessions of clinical treatment at PYNEH from 24 February 2020 to 8 February 2021. She complains of acute stress reaction and has attended 2 sessions of both inpatient and outpatient clinical psychological sessions with PYNEH in January and February 2020. During the 1^st session on 2 January on 2020, she was reported to^[4]

“experiencing intense fear when she witnesses a taxi approaching…… She claimed to have fragmented sleep and poor appetite on the 1st night of hospitalization. She had increasing arousal during hospital stay. She expressed difficulty to accept her right ankle injury. She perceived the breathing exercise learnt as no helpful to regulate her emotions.”

13.During the 2^nd outpatient session, she was found to have features of Post-Traumatic Stress Disorder and emotional disturbance. She was reported:^[5]

“… had mood swing after RTA (the Accident”) happened in January. She reported she slept more than 11 hours per night (used to sleep at 12 midnight and wake up at 11am). Some nightmares or flashback were addressed. Some avoidance behaviors were reported (eg she avoided to revisit the street where the accident happened; she also avoided to return to office x 6 days). She perceived the RTA as one of the unfortunate events happened in her life. She also encountered various stressors in life that affected her mood.”

14.Subsequently, Dr. Kwok wrote another medical report on 11 November 2024 (“Dr. Kwok’s 2^nd report”), he stated the Plaintiff was experiencing mood swings, nightmares, flashbacks and avoidance behaviours. She had elevated energy levels and frequently made complaints against police and the media. Dr. Kwok noted that she was impressed to have features of bipolar affective disorder. Dr. Kwok scheduled follow up treatments with the Plaintiff in March 2020 but the Plaintiff defaulted.

The Plaintiff’s newly developed psychiatric condition

15.It is worth mentioning that the Plaintiff was first known to psychiatric service at Kwai Chung Hospital during the period from July 2013 to September 2013 where she presented with low mood with negative cognition, loss of interest, irritability, sleep disturbance, social withdrawal, and self-harm behaviour. Doctors diagnosed the Plaintiff as having suffered from moderate depressive episode. For unknown reasons, the Plaintiff defaulted treatments starting from September 2013.

16.The Plaintiff did not disclose that she had been suffering from psychiatric symptoms until recent disclosure of the medical report prepared by Dr. Tammy Chan of Department of Psychiatry of PYNEH dated 30 October 2024 (“Dr. Chan’s report”). Dr. Chan stated the Plaintiff attended psychiatric outpatient clinic from July 2020 to January 2021 for mood symptoms. She was observed with bipolar affective disorder. It was noted the Plaintiff to have euthymic mood with no psychotic features or suicidal idea. Medication was administered, but the Plaintiff subsequently defaulted in attending follow up treatment again^[6].

17.One day after she filed this summons, on 11 February 2025, which is almost 4 years after the last treatment, the Plaintiff resumed psychiatric treatment by reaching out to the A&E Department of PYNEH. This time, she continued to attend the Psychiatric Department of PYNEH on 13 March 2025 and was granted sick leave from 13 March 2025 to 20 March 2025. Nonetheless, the specific medical condition was not stated in the sick leave certificates.

18.In another follow up treatment on 3 April 2025, the treating doctor of Psychiatric Department of PYNEH stated in a letter that the Plaintiff was suffering from bipolar affective disorder and was not suitable to work at that moment. Further follow up treatments were scheduled on 5 June 2025 and 7 July 2025 respectively.

Difference between clinical psychologist and psychiatrist

19.Pausing here, I shall state the difference between the two recognized disciplines by citing the judgment of Fung Chun Man v Hospital Authority (HCPI 1113/2006, 24 June 2011) by Bharwaney J (as he then was). In paragraph 22 thereof, it is clearly stated:

“22. A psychiatrist is a medical doctor who has specialised in psychiatry. He can prescribe drugs and admit people to hospital. A clinical psychologist may have a doctorate degree but he does possess a medical degree. He is trained to administer psychological tests but he cannot perform physical examinations. He cannot prescribe drugs and he cannot admit people to hospital. Whilst a clinical psychologist can carry out psychotherapy and can advise on the plaintiff’s need for psychotherapy, he cannot advise on drug therapy. Where drug therapy is expected to play a role in the treatment of psychiatric injury, whether or not in conjunction with psychotherapy, expert opinion from a psychiatrist is preferable to opinion from a psychologist^[7]. Where a case involves the assessment of cognitive impairment, a report from a psychologist, who is trained to carry out a battery of tests for such purpose, is to be preferred. In the latter case, unless a single joint expert is to be appointed, it is preferable for arrangements to be made for joint testing by the parties’ respective psychologists……”

20.I understand that the Plaintiff’s original intention was to apply for leave to adduce expert evidence from both a psychiatrist and a clinical psychologist. She explained in her affirmation that, due to the limitations of the Legal Aid certificate granted solely for application for leave to adduce expert evidence from a psychiatrist, she did not pursue one from a clinical psychologist.

The Defendant’s position

21.Ms. Chan, solicitor for the Defendant confirmed during the hearing that the Defendant will not contest the cause of the psychological symptoms of the Plaintiff but she will dispute the psychiatric symptoms that have arisen at a very late stage. Ms. Chan submitted the Plaintiff is unable to produce objective evidence or medical records or notes for the 4 years’ gap from January 2021 until February 2025 to prove that such injury is accompanied by her physical injury sustained in the Accident.

22.Having said that, Ms. Chan opposed to granting leave for the Plaintiff to adduce psychiatric expert evidence, she believes with the available medical reports and note provided by the Plaintiff, the trial judge is able to resolve disputed issues and to make factual findings on both liability and quantum.

History of Proceedings

23.On 20 July 2022, the Plaintiff’s former solicitors, Messrs. Joseph MK Chan, Solicitors issued the writ of summons. The action has proceeded expeditiously where the witness statements of both parties and their witnesses were duly filed in March 2023.

24.By an order of Master Stanley Ho dated 1 November 2023, the Checklist Review hearing was adjourned for granting leave to set down for trial on 25 March 2024.

25.Leave was granted to parties to adduce a single joint orthopaedic expert report by Dr. Lam Kwong Chin dated 31 January 2024 (“Dr Lam’s Report”), which has already been lodged with the Court. Dr. Lam, with full knowledge of the Plaintiff’s pre-existing psychiatric conditions, expressed his opinion that the Plaintiff “has stopped psychiatry / clinical psychology treatment and there is no apparent psychiatry / psychology problem, there is no indication for her to be examined by other specialists”.

26.The Plaintiff was directed to file and serve her Revised Statement of Damages within 28 days from the receipt of Dr. Lam’s report. Nonetheless, in breach of the order and dissatisfied with of Dr. Lam’s opinion, the Plaintiff wrote to Court by a letter dated 11 March 2024 intending to expunge Dr. Lam’s Report. The Plaintiff stated Dr. Lam has no expertise in the psychiatric or clinical psychology and thus was inappropriate to provide such a comment. By the order of Master Jocelyn Leung dated 25 March 2024, she granted time to both parties to consider the issue and had re-fixed the Checklist Review to 31 May 2024.

27.Notwithstanding the said order, the parties agreed to stay the action until 9 July 2024 to attempt mediation. Checklist Review hearing was further re-fixed to 29 July 2024.

28.On 3 May 2024, the Plaintiff filed a Notice of Change of Solicitors, appointing Messrs. Paul W Tse as her legal representative.

29.On 2 August 2024, the Plaintiff filed a Notice to Act in Person.

30.On 19 September 2024, the Plaintiff’s current solicitors, on instructions of the Legal Aid Department, were retained to represent the Plaintiff.

31.On 2 January 2025, the Plaintiff filed a Supplemental List of Documents by adding, inter alia, medical reports related to her psychiatric conditions^[8].

32.On 10 February 2025, the Plaintiff issued the present summons for leave to adduce psychiatric expert evidence.

33.The Plaintiff is yet to file her Revised Statement of Damages which should have been filed by the end of February 2024.

34.In addition to the medical reports referred to above, the Plaintiff submitted further medical reports and notes to support this application.

Psychological and psychiatric evidence available at present

35.As a recap, the available medical reports and notes from treating doctors, namely,

(i)     Dr. Yeung’s report;

(ii)     Dr. Cheung’s report;

(iii)     Dr. Kwok’s 1^st report;

(iv)     Dr. Chan’s report and 

(v)     Dr. Kwok’s 2^nd report.

Legal principles

36.The task of a judge at trial (or assessment of damage) is to resolve issues, firstly, whether the Plaintiff has suffered from any psychiatric injury and if so, to what extent. Secondly, on the causation issue, the judge shall make findings whether such injury was caused by the Accident; and thirdly, determine reasonable costs of past medical expenses and future medical expenses. In light of these tasks, medical expert evidence plays an important role in assisting the Court.

37.The relevant legal principles of adducing medical expert evidence are laid down in Fung Chun Man (supra) in that the Court shall only grant leave to adduce such evidence if it is likely to be of real assistance in determining the issues. Particularly, in paragraph 23, it states,

“23. There appears to be a misconception that the courts will not readily grant leave for evidence from a psychiatrist or a psychologist to be adduced. The law of negligence does not provide a remedy for distress which does not amount to a recognised psychiatric illness, unless the distress, anxiety or fear is accompanied by a physical injury. The courts award damages where a party has suffered a recognisable psychiatric illness over and above emotional distress and disquiet. The court will almost invariably require expert evidence to determine whether or not this is the case. Even where it is not disputed that the plaintiff suffers from psychiatric illness, there may be a dispute as to causation: was the psychiatric illness caused or contributed to by the tort complained of. A trial judge who has to determine this issue of causation may need assistance from an expert in this field. [footnote not included]”

38.In doing so, a two-stage test shall be adopted: the 1^st stage shall be that of establishing a prima facie case for admission of expert evidence,

“15. In summary, the expert evidence must be in a recognised discipline, reasonably required to enable the court to resolve the issues in dispute, and proportionate.”

39.The 2^nd stage came into being after a prima facie case has been established,

“16. However, even if a prima facie case is made out for the admission of expert evidence, in every case, the court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant in cases where a late application is made for expert evidence to be adduced. These matters have to be considered and weighed in the light of and against the underlying objectives of the CJR: to ensure cost effectiveness and economy, expedition, proportionality, and fairness between the parties. Ultimately, the court strives to do justice between the parties and, in cases where the court permits the parties to call expert evidence, the court strives to ensure a level playing field with fair access to proper experts for all parties.”

40.In light of determining whether the Plaintiff has made out a prima facie case, the general criteria are necessity, relevance, and probative value. (See Chan Kwok Ming v Hitachi Electrical Service Co Ltd (HCPI 322/2002). In a Court of Appeal case, Leung Kang Wai v Dussmann Service Hong Kong Limited, formerly known as P Dussman Hong Kong Limited, HCMP 2098/2011), Kwan JA applied Chan Kwok Ming and decided at paragraph 22,

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

41.Deducing from the above principles, it is then clear to say that when the Court is to resolve a factual dispute at trial and when one party is seeking leave to adduce expert evidence in respect of the issues, the question to be asked is whether the expert evidence sought to be adduced can be of assistance of the trial judge to resolving the factual issue. Such expert evidence shall be adduced and be admissible if the answer is yes in principle. However, the Court shall weigh the application in the 2^nd stage exercise, leave shall be granted to a party to do so in circumstances that align with the underlying objectives of the Civil Justice Reform.

Analysis

42.Applying the above principles, I shall first determine whether a prima facie case can be established and secondly, to consider carefully all factors stated in paragraph 39 above in the balancing exercise.

Stage one – whether prima facie case of psychiatric injury is established

43.The Plaintiff is capable of establishing she has psychological symptoms, namely, post-traumatic stress disorder and bipolar affective disorder by way of the Dr. Kwok’s 1^st report and Dr. Kwok’s 2^nd report.

44.The Plaintiff is also able to establish the existence of her psychiatric condition, (not pleaded in the Statement of Damages). Medical evidence can be found in Dr. Chan’s report. More precisely,

“…

She has re-attended psychiatric service at the psychiatric outpatient clinic of PYNEH (PYPOC) during July 2020 till January 2021 for mood symptoms. She presented with increased energy level, increased planning of goal-directed activities, reduced need of sleep and overspending. She also reported flashback, hypervigilance and avoidance behaviour towards taxi since the alleged incident on 3 January 2020 [sic] where she was being hit by taxi. She was diagnosed with bipolar affective disorder and was being prescribed with antipsychotic treatment.

Ms Kwok has last attended follow up at the PYPOC on 11 January 2021 documented to have stable mood with fair sleep and appetite. Upon follow up, she was impressed to have euthymic mood with no psychotic feature or suicidal idea. She was being prescribed with quietiapine fumarate extended release 50 mg once at night and zolpidem tartrate tablet 10 mg once at bedtime for when necessary use. She was scheduled for next follow-up on 1 February 2021 but she has defaulted. There was no further documented information of her condition thereafter.”

45.Based on the reports above, there appears to be sufficient evidence for a judge to determine whether the Plaintiff has psychological and/or psychiatric symptoms.

46.The next point is causation: whether a judge can determine such illness was accompanied by physical injury sustained by the Plaintiff in the Accident, i.e. causation of the psychiatric injury (see Fung Chun Man, paragraph 23, supra). The Court should read the medical reports with a critical eye instead of taking them at face value. The burden rests with the Plaintiff to demonstrate there is a causal link or sufficient nexus between the Accident and such injury.

47.In addition to the left thigh and right ankle injury, the Plaintiff was diagnosed with post-traumatic stress disorder immediately after the Accident. This was evidenced by Dr. Kwok’s 1^st report. Dr. Kwok continued to arrange follow up treatment for the Plaintiff. On this basis, the Defendant has fairly admitted psychological symptoms accompanied her physical injury, which will not be contested.

48.However, it is not the case in respect of the Plaintiff’s psychiatric injury. It is well documented in all medical reports that the Plaintiff defaulted in follow up treatments. When the Plaintiff was first seen to psychiatric services at Kwai Chung Hospital in July 2013, she was found to have low mood with negative cognition, loss of interest, irritability, sleep disturbance, social withdrawal and self-harm behaviour. She was diagnosed with moderate depressive episode and was prescribed with antidepressants. Since September 2013, the Plaintiff has defaulted treatment without explanation.

49.In other words, the Plaintiff has pre-existing psychiatric conditions as early as 2013. Then, 7 months after the Accident, on July 2020, she went to psychiatric outpatient clinic of PYNEH for mood symptoms and was diagnosed with bipolar affective disorder, after which she was prescribed with antipsychotic treatment. On her last follow up treatment on 11 January 2021, her condition was recorded as a stable one, she exhibited only a euthymic mood with no psychotic features or suicidal idea and was prescribed with quetiapine^[9] and zolipidem^[10]. Since then, she defaulted treatment again.

50.The Plaintiff explained in her affirmation^[11] of her failure to attend all follow up treatments that it was due of her emotional and personal reasons, as well as the COVID-19 pandemic, she “could not muster her energy” to reschedule them. This was her status as at commencement of this personal injury action in July 2022. Not until 21 months later, February 2025, did the Plaintiff decide to resume treatment. She then called up PYNEH and was directed to queue again at the A&E Department. However, she did not proceed stating instead that she would “plan for a suitable day to attend”. Subsequently, she was able to secure a consultation session on 13 March 2025 and a follow up consultation on 3 April 2025.

51.I am not persuaded by the Plaintiff’s explanation. I find the Plaintiff’s default on treatments to be intentional. In the medical notes from consultations on 3 August 2020, 21 September 2020 and 11 January 2021^[12], the Plaintiff intentionally omitted to take medication as prescribed. Nothing contained in the medical notes was related to the Accident, but rather issues with her boyfriend. The stressors did not stem from the Accident.

52.I also pay attention to the medical notes submitted by the Plaintiff, it is quite clear that the causes or stressors of her mental conditions were unrelated to the Accident. The following are the brief accounts of what was recorded in the medical notes from the consultations in the Psychiatric Department in PYNEH:

(i)     In the medical note written by Dr. Siu Ka Hin for consultation in the Psychiatric Department of PYNEH on 6 July 2020, apart from mentioning the Accident, the Plaintiff stated there were other stressors when alleging she was being sexually harassed by one of the male officers, writing proposals to stop COVID, and overspending by purchasing 5 Rolex watches^[13].

(ii)     In the medical note written by Dr. Siu Ka Hin for consultation in the Psychiatric Department of PYNEH on 3 August 2020, her stress stemmed from the “changing dining policy” during the Covid days. She did not take quetiapine as prescribed^[14].

(iii)     In the medical note written by Dr. Siu Ka Hin for consultation in the Psychiatric Department of PYNEH on 21 September 2020, this time, she claimed her boyfriend had a mental illness, and she stated she had bought HK$1,000 worth of baby products to her younger sister’s baby. She maintained she did not take quetiapine^[15].

(iv)     In the medical note written by Dr. Siu Ka Hin for consultation in the Psychiatric Department of PYNEH on 11 January 2021, she was found to have not taken medication for over a month, her boyfriend hit her at times^[16].

53.The Plaintiff did not attend further follow up consultations with the Psychiatric Department of PYNEH since 11 January 2021. Starting from the 2^nd consultation in the Psychiatric Department, she stopped mentioning stressors from the Accident. Relying on the available medical reports, I am not satisfied the Plaintiff is able to demonstrate a prima facie case, a casual link or nexus of her psychiatric symptoms with the Accident. Admission of psychiatric expert evidence is unnecessary.

54.What follows is that it is not necessary for me to canvass the factors in the balancing exercise, however, for completeness, I shall briefly state my view as follows.

Analysis – Stage two – balancing exercise

55.If the Plaintiff is able to make out a prima facie case on for admission of psychiatric expert evidence, I would not have exercised my discretion to grant leave to adduce the same for the following reasons.

56.Firstly, this is a late application. I understand in this case, no milestone date has been disrupted however, the personal injury claim has proceeded to a stage where leave shall be granted to set down for trial pursuant to the Order of Master Stanley Ho dated 1 November 2023. In the event that I had granted leave to the Plaintiff to adduce psychiatric expert evidence, this action would be further and substantially delayed, which would go against the underlying objectives of the Civil Justice Reform, where proceedings should be dealt with as expeditiously as is reasonably practicable. (See Yeung Yin Kwan v Ka Loy Co, DCPI 2660/2019, HH Judge Au-Yeung (as he then was), 31 December 2021)

57.Secondly, the Plaintiff did not disclose her case frankly to the Defendant’s solicitors at relevant time. The Plaintiff’s sudden resumption of psychiatric treatment was only made known to the Defendant in February 2025. The Plaintiff should have applied for, or at least invited the Defendant to consider whether psychiatric expert evidence is necessary at time of seeking leave to adduce to adduce orthopaedic expert evidence from Dr. Lam. It is highly inappropriate for the Plaintiff to “wait and see” if Dr. Lam would suggest the Plaintiff to be seen by a psychiatric expert or expert from other specialty.

58.The Plaintiff commenced this action in July 2022. As the case proceeded, apart from adducing orthopaedic expert evidence, there was no mention the need to adduce further medical expert evidence in the Plaintiff’s Questionnaire filed on 2 August 2023. Master Eleanor Yeung then granted leave to the parties to adduce orthopaedic expert evidence in her Order dated 9 August 2023.

59.There was still no mention of adducing psychiatric expert evidence in the Plaintiff’s Questionnaires filed subsequently on 11 March 2024 and 28 May 2024 after the Plaintiff’s intention to dispute Dr. Lam’s Report.

60.Finally, the 1^st mention of adducing the psychiatric expert evidence was first seen in the Plaintiff’s Questionnaire filed on 21 October 2024.

61.It is clearly stated in Practice Direction 18.1, Part M, paragraph 112, the duty of parties to disclose information in their Case Management Questionnaire,

“112.   Each party shall give as much information as is required in the Questionnaire to enable the PI Master to give directions relating to management of the case and to fix a timetable for the steps to be taken.”

62.In other words, the Case Management Questionnaire in personal injury claim plays an important role, it is specifically designed for a party to state how his or her case will proceed with. Legal representatives should not take it lightly as the questionnaires should be filled out with careful consideration. The Court, in every Checklist Review hearing, will pay attention to the questionnaires to give appropriate directions. Any change in a party’s position may not be entertained unless it is justified with good reasons.

63.In this case, I fail to see the Plaintiff can successfully justify her change of position by seeking leave to call for psychiatric expert evidence in early 2025 after a lengthy period of default of her medical treatments.

64.Thirdly, the costs of obtaining for a psychiatric expert report is disproportionate to the Plaintiff’s claim. As stated in the available medical reports and medical notes, the Plaintiff’s psychiatric (and psychological) issues are not serious. The Plaintiff has been prescribed with medication for bipolar affective disorder and insomnia, but she has not seen with psychotic features or suicidal intent. While I am confident that the trial judge is able to assess the quantum of damages by considering the available medical reports and notes, allocating resources to commission a psychiatric expert report (which is costly) is neither essential nor proportionate to the Plaintiff’s claim.

Conclusion

65.For the reasons stated above, the Plaintiff’s summons shall be dismissed.

Costs

66.I find nothing here to deviate from the usual costs order. I shall make a costs order that the Plaintiff do pay the Defendant’s costs of the Plaintiff’s summons filed on 10 February 2025, including all costs reserved, to be taxed if not agreed. The Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

Mr WC Chan of Mike So, Joseph Lau & Co for the Plaintiff

Ms R Chan for Winnie Leung & Co for the Defendant

[1]An injury to her left thigh injury was not pleaded in her Statement of Damages but was noted in her witness statement filed on 21 March 2023.

[2] See Dr. Yeung’s report.

[3] See Dr. Cheung’s report.

[4] See Dr. Kwok’s 1^st report; the medical notes appeared on p.226 of the Hearing Bundle.

[5] As above

[6] See also medical notes on p.234 – 239 of the Hearing Bundle.

[7] There is an express requirement under the English Criminal Injuries Compensation Scheme for a psychiatrist’s opinion to be obtained before an award can be made.

[8] The newly disclosed reports are namely those exhibited in p264 – p267 of the bundle.

[9] A kind of medication for bipolar disorder.

[10] A kind of mediation for insomnia.

[11] Paragraph 14.

[12] Hearing Bundle, p.277 – 279

[13] See p234 – 236 of the Bundle.

[14] See p237 of the Bundle.

[15] See p238 of the Bundle.

[16] See p239 of the Bunele.