Lam Pui Yi Anita v. Secretary for Justice and Another

HCPI 924/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 924 OF 2002

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BETWEEN

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Before: Deputy High Court Judge L. Chan in Court

Date of Hearing: 13 April 2007

Date of Ruling: 13 April 2007

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R U L I N G

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1.When the trial commenced, I had to decide whether to admit the report on the psychiatric condition of the Plaintiff prepared by Dr K. Singer.  I decided in favour of admission.  The 1st Defendant then also introduced a psychiatric assessment report by Dr Mak Ki Yan which was commissioned by the 1st Defendant for use in the Employees’ Compensation proceedings.

2.There is no difference between the report of Dr Singer and the report of Dr Mak, and I did not allow either doctor to be called to give evidence.

3.The 2nd Defendant, however, elected not to rely on any psychiatric assessment report.  Mr Kwok, for the Defendants, said that the report by Dr Singer had nothing which was alarming.

4.The trial was adjourned part heard last October and resumed yesterday.  On the day before yesterday, the Plaintiff provided a second report of Dr Singer to the Defendants.

5.The 2nd Defendant now wants to have the Plaintiff assessed by its own psychiatric expert but the Plaintiff says that the Defendants are only entitled to have an updated report by Dr Mak.

6.Mr Kwok firstly refers me to the sick leave of the Plaintiff.  Between December 2001 and October 2002, the Plaintiff had 17 whole days of sick leave but none of which was related to her psychiatric condition.  Between 13 September 2005 to 31 October 2006, the Plaintiff had nine whole days of sick leave of which three whole days were related to her psychiatric condition.  From 2 November 2006 onwards, the Plaintiff was continuously on sick leave because of her psychiatric condition and the leave will expire on 23 April 2007.

7.Mr Kwok also drew my attention to the following differences between the first and second reports of Dr Singer.  On the Plaintiff’s complaints, it was reported in the first report that the Plaintiff had suicidal ideas occasionally but in the second report, the Plaintiff claimed that she had such idea a few times in a month.

8.Dr Singer in the first report said that the Plaintiff was suffering from post-traumatic stress disorder and adjustment disorder with depressed mood and he graded them as of mild degree, but these two disorders had deteriorated to moderate degree in the second report.

9.On prognosis, the first report suggested 30 biweekly sessions of treatment.  In the second report, Dr Singer had revised his opinion and increased the proposed treatment to 52 biweekly sessions.

10.In the first report, Dr Singer said that the Plaintiff’s condition was likely to improve and more rapidly with treatment and she would probably be left with slight residual symptoms and to be vulnerable to stress in future.  For impairment of the whole person, Dr Singer’s then assessment was 10% which would improve to 3% after treatment.  Dr Singer also said that the Plaintiff could do her pre-accident work with distress and inefficiency but after treatment she could do her pre-accident work with less distress and inefficiency.  But now, in the second report, Dr Singer said that the Plaintiff’s condition has deteriorated in the one and half years since he saw her, and in her present condition, she is not able to cope with her pre-accident occupation, even assuming her physical condition will allow.

11.Dr Singer also said in his second report that the Plaintiff, after her current sick leave, can now undertake duties as health inspector which do not involve or concern pig and other carcasses, slaughterhouses, overhanging objects but with distress and absenteeism, subject to her orthopaedic condition.  After treatment and satisfactory progress and recovery, and again subject to her orthopaedic condition, she can do her pre-accident occupation as a health inspector with some distress.

12.In the first report, Dr Singer said that the Plaintiff’s work capacity and promotion may be affected by her condition, but in the second report Dr Singer said that her condition will affect her efficiency and motivation for work and will affect not only her work as a health inspector but also her chance of promotion to the next higher rank of senior health inspector.

13.Mr Kwok says that the second report of Dr Singer is not a mere updating report.  There is also the sudden occurrence of 173 days of sick leave occasioned by the Plaintiff’s psychiatric condition.  All the complaints of the Plaintiff, the assessment, the prognosis and the recommendation for treatment have assumed material changes.

14.Mr Kwok further says that it is a new scenario.  He asks for leave for the 2nd Defendant to have a fresh assessment report by a new psychiatric consultant to be engaged by the 2nd Defendant.

15.Unlike the usual situations where an update report would show gradual improvement or deterioration of existing conditions, the second report of Dr Singer and the Plaintiff’s continuous sick leave for her psychiatric condition show that there might have been a serious deterioration of the Plaintiff’s psychiatric condition.  Indeed, the Plaintiff’s counsel, Mr Hingorani, is considering an amendment to the Statement of Damages.

16.I do not think I can hold the 2nd Defendant to its election of not relying on any expert psychiatric evidence.  The 2nd Defendant is entitled to know whether the alleged existing psychiatric condition of the Plaintiff is genuine and, if so, whether it was indeed caused by the accident which took place on 25 October 1999.

17.At one stage, the 1st Defendant was content to withdraw Dr Mak’s report as I did not intend to allow two medical assessment reports to be used by the two Defendants who are represented by the same lawyers.  However, Mr Hingorani, for the Plaintiff, is happy to allow the 1st Defendant to keep Dr Mak’s report in this case and, in fact, he has urged the court to direct the 1st Defendant to do so.  I therefore would not expunge Dr Mak’s report, but I would not allow any updated report to be prepared by Dr Mak as the 1st Defendant has not applied for the same.

18.I therefore give leave for Dr Singer’s second report to be admitted as evidence, subject to further consideration of whether he should or should not be called.

19.I also grant leave for the 2nd Defendant to arrange for the Plaintiff to be examined by the 2nd Defendant’s psychiatric expert and for the report to be filed and served no later than eight weeks from today.

20.The parties shall also go before the Listing Officer to fix a 30 minute call-over hearing between the next eight to 10 weeks from today for consideration of whether any doctor needs to be called before the reports can be read.

(Submissions on costs)

21.The Defendants never really opposed the admission of Dr Singer’s second report.  The whole argument is on whether the 2nd Defendant should be held to its previous election or be allowed to examine the Plaintiff and produce its report.  The 2nd Defendant has succeeded.  I must order the Plaintiff to pay the Defendants’ costs for two and a half hours in any event and I so order.

Mr Jeewan Hingorani, instructed by Messrs Poon, Sum & Cheng, for the Plaintiff

Mr Tim Kwok, instructed by Messrs Tang, Wong & Cheung, for both 1st and 2nd Defendants