Hung Hau Che v. Tsoi Sze Chuen

HCPI 1049/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1049 of 2006

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BETWEEN

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Coram :  Before Master B Kwan in Chambers

Dates of Hearings :  12 June 2007 and 3 October 2008.

Date of Handing Down of Ruling:  23 October 2008

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R U L I N G

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1.This is the Plaintiff’s application for leave to adduce the report of Dr Calais Chan, a psychologist.  The application is resisted by the Defendant.

2.The Plaintiff relies on the reports of her psychiatric expert Dr Karen Shum to support her application.  The Defendant relies on paragraph 28.1 of the report of his psychiatric expert Dr Chung See Yuen to argue that examination by a clinical psychologist for neurological-cognitive assessment is not necessary.

3.The Plaintiff was run down by a PLB driven by the Defendant on 7 June 2004.  At the time the Plaintiff was a 23 year old assistant shipping clerk. She was taken to the Accident & Emergency Department of Queen Elizabeth Hospital.  She suffered multiple injuries, including a fracture of the right medial condoyle of her right knee, fractured ribs, a fractured skull and lacerations to her right elbow, right hand a right forehead.

4.Liability was conceded and judgment entered on 2 January 2007.

5.At the Check List Review hearing on 25 April 2007, the solicitors for the parties agreed that the expert medical evidence should be limited to one orthopaedic and one psychiatric consultant for each party.  However, they did not agree on whether it was necessary for the Plaintiff to adduce the report of the clinical psychologist Dr Calais Chan.  At the time of the Check List Review in April 2007, the Plaintiff had already obtained this report on the recommendation of her psychiatric expert Dr Karen Shum.

6.The matter was argued before me on 12 June 2007, and adjourned part heard.  For reasons known only to the parties, the hearing was not re-fixed for 15 months.

7.What is “Cognitive Impairment”?  As Dr Karen Shum did not give a definition of the term “Cognitive Impairment” in any of her reports, the following definitions were found in the Concise Oxford Dictionary.

cŏgni’tion n. (Philos.) Action or faculty of knowing, perceiving, conceiving as opposed to emotion and volition; a perception, sensation , notion or intuition; hence or cogn. ~ AL,

cŏ’gnĭtive, adjs [f. L cognito f.co (gnoscere gnit-apprehend) see -ITION]

ĭmpair’ v.t. Damage; weaken; so ~MENT n.

8.From the dictionary definitions, the term “Cognitive Impairment” would mean a damaged, weakened or lessened ability to know, learn or perceive.

9.The former PI Judge Mr Justice Suffiad reiterated in his Ruling on 17 March 2003 in HCPI 322/2002 that the proper criteria to determine whether any expert medical report can or should be admitted in evidence depended on the factors of “necessity”, “relevance” and “probative value”.

10.It is not necessary nor appropriate for me to discuss the contents of the report of Dr Calais Chan herein.  As Mr Justice Suffiad explained in paragraph 20 of his Judgment in HCPI 322/2002, during the interlocutory stage the psychologist’s report must only be “looked at on its face value”, with the weight of the report being reserved to the Trial Judge.  He said “the weight to be attached to the contents must be a matter for the trial judge should the report be ruled admissible in evidence”. (emphasis mine)

11.As this application is based on the recommendation of Dr Karen Shum, the material parts of her reports are reproduced herein below.

12.In page 2 of her report dated 6 August 2007 Dr Shum stated:

“Evidence in impairment of concentration and memory”

Both myself and Dr Chung See-Yuen had detected some impairment in Ms Hung’s concentration and short term memory during our assessment.  But Dr Chung opined that neuron-cognitive assessment is not necessary, which I disagree.

As stated in para.8.5 of my report dated 23^rd March 2006, which is attached again below.  I had suspected that part of Ms Hung’s concentration and memory impairment cannot be solely accounted for by her psychiatric condition of Post-traumatic Stress Disorder (PTSD) and Major Depressive Disorder (MDD).  I suspected that it may be related to her close head injury and the resulting brain damage, which has significant implication on the degree of permanent impairment Ms Hung will suffer from.  (Namely, if it is a pure psychiatric condition, the chance it will improve is higher, but if cognitive deficit is party related to brain injury, the possible degree of improvement will be less).

8.5.  Ms Hung’s significant impairment in concentration, although can be partly explained by her psychiatric conditions (PTSD+MDD), is also very likely to be partly a result of the brain injury from the physical impact of the car accident, this is support by the fact that there had been significant post-traumatic amnesia after the accident, that Ms Hung developed left eye convergent squint on the second day after the accident, and that the accident had resulted in a depressed skull fracture of the right temporal skull bone.  This would need further neuron-cognitive assessment by a Neuropsychologist or a Clinical Psychologist with training in neuro- cognitive assessment.  Neuro-cognitive deficit that results from brain injury (in Ms Hung’s case) is unlikely to improve with treatment.

13.Dr Shum stated at page 3 of her report dated 6 August 2007:

“Reason for referring Ms Hung for further neuro-psychological assessment”

“The cognitive testing that psychiatrist like myself and Dr Chung See-Yuen used can detect serious cognitive impairment, but for mild to moderate cases of impairment in concentration and memory, it can only be of screening value.

To accurately delineate the degree of impairment, which in Ms Hung’s case is necessary due to the reasons I outlined above. More accurate and in-depth assessment is needed.  The administration of such assessments are within the specialty of clinical psychologist or neuro-psychologists.  Both are qualified to do the assessments. The purchase and administration of these assessments tools are also strictly regulated such that only trained clinical psychologist or neuro-psychologist have access to such.

In Hong Kong, most neuro-psychological assessment are carried out by clinical psychologist, which Dr Calais Kin-Yuen Chan is one.

As both myself and Dr Chung See-Yuen had detected concentration and memory impairment, I am of the opinion that the neuro-psychological assessment is warranted. ”

14.Under Civil Justice Reform, the requirement of “relevance” will be approached broadly.  The new approach will be that of Evans-Loombe J as meaning “helpful” to the Court in arriving at its conclusions.  The Judge stated that the evidence “…can still be excluded by the court if the Court takes the view that calling it will not be helpful to the Court in resolving any issue in the case justly”.  See Barings plc (in liquidation) v Coopers & Lybrand (unreported) at §23[1].  So, if the report of Dr Calais Chan will not be helpful in resolving any issue before the court, it will not be regarded as “relevant”.

15.Even without Dr Calais Chan’s report, there is evidence in support of the allegation that the plaintiff has suffered “Cognitive Impairment”.  It was common ground that both Dr Shum and Dr Chung See Yuen found some evidence of impairment in the plaintiff’s ability to concentrate.  Dr Shum considered the impairment to be serious whereas Dr Chung considered it to be mild.  They only differed as to the degree of impairment suffered, not whether there was “Cognitive Impairment”.

16.Dr Shum has not made out a case for necessity for the following reasons.  It cannot be necessary for two medically qualified psychiatrists to have a non-medically qualified clinical psychologist to show them how “to accurately delineate the degree of impairment”.

17.One passage on page 3 of her report dated 6 August 2007 stated that:

“The cognitive testing that psychiatrist like myself and Dr Chung See-Yuen used can detect serious cognitive impairment, but for mild to moderate cases of impairment in concentration and memory, it can only be of screening value.”

18.The effect of that passage is that: (1) psychiatric experts can test for serious cognitive impairment; but (2) if the cognitive impairment is not serious, the tests employed by medically qualified psychiatrists merely have “screening value”.  Even if Dr Shum is correct when she asserts that the tests used by psychiatrists merely have “screening value” in mild cases, she has not taken into consideration that the respective psychiatric experts have covered the whole spectrum of degrees of cognitive impairment, because Dr Shum found serious cognitive impairment and Dr Chung found mild cognitive impairment.

19.If Dr Shum is making a case to adduce a psychologist’s report in order “to accurately delineate the degree of impairment”, that argument cannot be accepted.  Judges and Masters assessing damages in personal injury actions have always been able to adjust the amount awarded under PSLA without an “expert” advising on the degree of injury sustained.  Furthermore, the degree of injury as expressed in percentage terms have never been approved of by the Court of Appeal in relation to common law claims[2].

20.Furthermore, it must go against the “underlying objectives” of Civil Justice Reform of “proportionality” and “cost effectiveness” for a court to give leave to adduce a psychologist’s report which seeks to do no more than “accurately delineate the degree of impairment”.  The effect would be to add substantially to the costs of this action.  If allowed, it would be necessary to allow the defendant to obtain his own clinical psychologist’s report in response, and thereafter allow the plaintiff a supplemental report in reply.  In this sense it cannot be regarded as “proportional”.

21.Although Dr Shum stated on page 2 of her report dated 22 May 2007 that

Neuro-cognitive deficit that results from brain injury (in Ms Hung’s case) is unlikely to improve with treatment.

I must consider that there has been a typing error, and the word “unlikely” be deleted and substituted by the word “likely”.  Otherwise that passage would not be consistent with her case for Dr Calais Chan to advise on, and provide treatment for the plaintiff.

Conclusion

22.For all the reasons given, the factors of “relevance”, “necessity” and “probative value” have not been satisfied, therefore the application fails.

23.I am making an order nisi that the costs of the application be to the Defendant in any event, to be taxed if not agreed, and for the plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.  This costs order nisi will not be made absolute until the parties have made submissions at the adjourned Check List Review hearing.

24.The parties shall fix a date for a Check List Review Hearing for Directions as to the further conduct of this action within 7 days of the handing down of this Ruling.

Representation:

Mr A Tang of Messrs Chiu, Szeto & Cheng for the Plaintiff.

Ms SM Lee of Messrs Fong, Chan & Lee for the Defendant.

[1] See paragraph 597 on page 316 of the Final Report on Civil Justice Reform

[2] See CACV 182/2000 paragraphs 5 & 6; and CACV 58/2000 paragraph 11.