Wong Ka Yee v. Gay Giano International Ltd
Read the full judgment text of DCEC 436/2007 on BabelCite. This District Court judgment.
1. This is an application by the Applicant to adduce psychiatric expert evidence, which application is opposed by the Respondent.
Cited by 4 cases · Cites 1 case
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DCEC436/2007 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO. 436 OF 2007 ------------------------ BETWEEN
------------------------ Coram: H H District Judge Marlene Ng in Chambers (open to the public) Date of Paper Application: 29thJune, 2009 Date of Paper Ruling: 4th August, 2009 ------------------------ RULING ------------------------ I. Introduction 1.This is an application by the Applicant to adduce psychiatric expert evidence, which application is opposed by the Respondent. 2.There is no dispute that at the material time the Applicant was employed by the Respondent as an assistant supervisor. The Applicant claimed that on 31st May 2006 whilst retrieving a heavy 50 lbs box of shirts from a shelf inside a shop storeroom, she ruptured her left lung (“Accident”). 3.On 17th April 2007, the Applicant commenced the present proceedings to recover employees’ compensation against the Respondent. The Respondent did not admit the Accident or the claim. 4.On 11th October 2007 I granted directions (a) for the Applicant to file a joint cardiothoracic surgery expert report arising from the joint medical examination by Dr Henry H C Cheung (“Dr Cheung”) for the Applicant and Dr Ho Kwok Keung (“Dr Ho”) for the Respondent on 1st September 2007 within 21 days upon receipt of the same, and (b) for the parties to file and exchange witness statements as to fact within 28 days from the date thereof. 5.On 11th December 2007, the Applicant filed the joint expert report of Dr Cheung and Dr Ho dated 14th November 2007 (“Joint Report”). 6.On 6th March 2008, the parties’ solicitors jointly wrote to advise the court that since the Joint Report recommended the Applicant to receive further treatment and to be re-assessed by the experts in 6-8 months, they intended to schedule another expert medical examination in May 2008 and expected the further joint expert report to be ready some time in July 2008. 7.My paper directions on 10th March 2008 required the parties inter aliato file their respective witness statements as to fact on or before 13th March 2008, and to file the further joint expert report of Dr Cheung and Dr Ho on or before 15th July 2008. I limited expert medical evidence to 1 medical expert on cardiothoracic surgery by each party, and further directed the parties to apply after 15th July 2008 and before 31st July 2008 to set the case down for trial by confirming inter alia whether Forms 5, 6, 7 and 9 had been issued, and if so whether there was any appeal or application for cancellation of any of such certificates. 8.On 11thand 19thMarch 2008, the Respondent and the Applicant respectively filed their witness statements as to fact. 9.Dr Cheung and Dr Ho completed their further joint report on 25th November 2008 (“2nd Report”), and the same was filed on 18th June 2009. 10.According to the Certificate of Assessment issued on 22nd April 2009 (“Form 7”), the Medical Assessment Board (“MAB”) assessed the Applicant’s loss of earning capacity permanently caused by “left pneumothorax resulting in (i) chest pain, (ii) scar over left thorax, (iii) depression”as 5%, and her period(s) of absence from duty necessary as a result of such injury as from 1st June to 30th September 2006 and from 6th October 2006 to 8th April 2009. 11.On 7th May 2009, the Applicant lodged objection to the Labour Department against the Form 7, but up to at least 29th June 2009 he had not been re-assessed by the MAB. 12.On 8th May 2009, the Applicant commenced common law proceedings for personal injuries against the Defendant, but the relevant Writ of Summons had not been served as at 29th June 2009. 13.On 18th May 2009, the Respondent filed Notice of Appeal against the Form 7, and the Applicant filed his Notice of Appeal on 18th June 2009. As at 29th June 2009, the Applicant was still on sick leave. 14.By my paper directions dated 15th June 2009, the parties were required to jointly apply within 14 days thereof inter aliato state whether the Joint and 2nd Reports could be adduced at trial without oral evidence and to set the case down for trial. 15.On 23rd June 2009, the Applicant proposed to attend a medical examination by psychiatric expert Dr Kieran Singer scheduled on 23rd July 2009, and asked if the Respondent would participate in any joint psychiatric examination. The Respondent’s solicitors replied on the following day by proposing to seek case management directions from the court in relation to psychiatric expert evidence in light of previous expert directions limiting expert medical evidence to the category of cardiothoracic surgery only. 16.On 29th June 2009, the parties’ solicitors jointly wrote to the court by Joint Written Application setting out the Applicant’s application for leave to adduce psychiatric expert evidence and the Respondent’s opposition thereto, and requesting paper disposal of such dispute pursuant to paragraph 87(2) of Practice Direction 18.2. II. Injuries and treatment 17.According to the Applicant’s witness statement, her chest and waist were very painful at the time of the Accident. However, she did not realise the seriousness of her condition and continued to work until the end of the day despite the pain. When she returned home, she felt painful even on slight movement and could not sleep. She returned to work the following day and handled goods in the storeroom. By 1:30pm she could not squat down and her breathing became laboured, so she sought permission to seek medical treatment. 18.The Applicant went to see a general practitioner. Chest x-ray showed left pneumothorax (12%), and she was immediately admitted to St Paul’s Hospital (“SPH”) for further management.She was seen by Dr John Leung (“Dr Leung”), who confirmed the diagnosis of left pneumothorax (10%). Left mini-thoracotomy for surgical closure of the air leak and ablation of the pleura to prevent future recurrence was carried out the following day. The Applicant made a smooth recovery. Chest x-ray on 7th June 2006 showed the left lung had fully re-expanded, and she was discharged on the following day.On 12th and 16th June 2006, she returned to SPH’s out-patient clinic (“SPH Clinic”) for removal of sutures and dressings. 19.According to the Joint Report, the spontaneous pneumothorax suffered by the Applicant might have occurred without any apparent cause or might have been provoked by acts thatinvolved a sudden increase in airway pressure, eg heavy weight lifting, straining, violent coughing etc. Dr Cheung and Dr Ho opined that since the Applicant’s attack of pneumothorax appeared to have occurred whilst she was lifting goods in the shop, it was logical to conclude that such action triggered the attack, and the lung blebs (which would have been present for years) ruptured whilst she exerted force lifting the boxes.She fully recovered from the attack with full re-expansion of the left lung after surgical repair and pleurodesis. The risk of recurrence was less than 5%. 20.On 27th June 2006, the Applicant returned to the SPH Clinic for pain in the left chest. Examination revealed hyperesthesia around the skin below the left breast, and she was advised to do deep breathing exercises and to take analgesic if needed. In August and September 2006, the Applicant returned to the SPH Clinic for skin rash on the face and painful lumps in the left breast. Ultrasound investigation revealed two cysts in the left breast. Chest x-ray taken on 15th September 2006 showed normal heart and lung shadow.On 4th October 2006, the Applicant returned to the SPH Clinic for flu-like symptoms and discomfort around the surgical scar, and was given medication for cough and chest pain. She re-attended the SPH Clinic on 28th October and 27th November 2006 for pain in the left chest. She did not respond to the prescribed medication, and volunteered to go off all pain-relieving drugs and try electronic acupuncture. In January and February 2007, she continued with electronic acupuncture.The Applicant attended follow-up at the SPH Clinic on 25th April 2007. Movement of the left arm improved but still stopped short of full range. There was a little pain on pressure applied to the left parascapular region (between the shoulder blade and the vertebral spine). 21.According to the medical report of Dr Leung dated 31st July 2008, the pain did not improve with traditional Chinese medicine treatment, and by May 2007 the Applicant “became upset that she could not go back to work due to the pain and appeared very depressed. This was surprising since she was improving since December 2006; therefore [Dr Leung] decided on referral to psychiatric specialist Dr. Lau Ying Kit [“Dr Lau”]. It was [Dr Leung’s] plan to refer her to a pain clinic after sorting out any possible mental problems. But [Dr Leung has] not seen [the Applicant] since”. 22.The Joint Report noted that since June 2007 the Applicant switched to see Dr Lau. According to Dr Lau’s reports dated 16th September 2008 and 8th June 2009 (“Dr Lau’s 1st and 2nd Reports”), he repeatedly examined the Applicant since 25th May 2007. Her past physical health was unremarkable, and she had no history of personal or family mental illness. 23.According to Dr Lau, the Applicant complained of chest pain after the operation, which was sharp and needle-like in nature and which was so severe that it woke her up after she fell sleep. It was exacerbated when she tried to put on clothes and/or carried heavy objects. She became more painful on rainy days. Owing to the pain, she could not resume her original work, and spent most of the time at home assisting in housework such as mopping the floor. The Applicant had to rely on her family for financial support. She claimed tohave developed insomnia due to the pain, and her mood was low at times though she maintained interest to play with her niece. She was frustrated about the persistent symptoms. 24.Dr Lau’s initial mental examination showed the Applicant’s speech was relevant, but was frustrated by the persistent pain. Her mood was on the low side, and she was pessimistic about the future. But no psychotic features could be elicited, and cognitive function (like orientation to time, place and person) was normal.Dr Lau diagnosed that the Applicant was suffering from adjustment disorder with depressive features triggered by the Accident and secondary neuropathic pain and psychosocial complications. Antidepressants, minor tranquiliser medication, sleeping pills and medication for neuropathic pain were prescribed. The Applicant’s emotion initially became less depressed and her sleep improved. But the severity of pain fluctuated from time to time, and her mood became depressed with marked irritability and insomnia when the pain was exacerbated. 25.According to the Joint Report, after observing the Applicant for 3 months, Dr Lau decided she might benefit from a course of physiotherapy. She was referred to the Pain Clinic at Queen Mary Hospital (“QMH Clinic”) with first consultation scheduled for 10th October 2007. She was seen at the QMH Clinic only once. Physiotherapy was arranged but pending at the time of the joint medical examination by Dr Cheung and Dr Ho on 1st September 2007. 26.Dr Cheung and Dr Ho opined it was usual for patients after such surgery to have chest pain for some time. Aside from pain from the surgical wound(s), there would be diffuse dull aching pain all over the chest all due to pleurodesis – a manifestation of the underlying aseptic inflammation of the pleura to induce pleural symphyses. They said variously in the Joint Report that after such procedure over 95% of patients could return to their normal daily activities and previous occupation within 3-6 months or to return to their previous occupations within 6-8 months so long as they did not involve heavy manual labour, or the majority of patients could return to work and normal daily activities by 6-8 weeks. 27.However, Dr Cheung and Dr Ho noted the Applicant complained of persistent post-operative wound pain since discharge from SPH. Although the severity of the pain waxed and waned, it was always bad enough to prevent her from engaging in normal daily activities and going back to work. The location of the pain was rather diffuse, but mainly covered the thoracotomy wound and spreading outwards to involve almost the entire left chest wall. It was only minimally improved with painkillers. Because of the pain, her left shoulder movements were severely impaired, and she could not raise her left arm above shoulder level or carry any weight more than 5kg. She could not do routine grocery shopping at supermarkets oreven perform daily household work. She claimed she could not lie on the left side or comfortably wear a brassiere. In short, the Applicant’s post-thoracotomy pain appeared to have significantly affected her daily activities and lifestyle as well as compromised her working capacity and resulted in her not being able to resume her previous job duties. 28.Dr Cheung and Dr Ho noted in the Joint Report that it was highly unusual for debilitating pain of such magnitude to last for so long after a simple thoracotomy that was otherwise smooth and without complications. The cause of the persistent crippling pain in the Applicant was uncertain, and no anatomical cause could be identified. But the Applicant had not been offered the benefits of a pain specialist or help from physiotherapists. Indeed, Dr Cheung and Dr Ho were surprised that physiotherapy and occupational therapy had not been practised earlier, and anticipated they would be of help. 29.It was noted in the Joint Report that the Applicant declined physiotherapy in the private sector due to financial implication. However, she would be seen at the QMH Clinic soon and would also be starting on a course of physiotherapy in the public sector. Dr Cheung and Dr Ho expected improvement both in terms of severity of pain and range of movement/activities. 30.It was noted in the Joint Report that the Applicant required someone to accompany her most of the time and was becoming dependent on it. Dr Cheung and Dr Ho believed the pain resulting in functional disability in turn led to sense of insecurity and psychological dependence, which became a self-perpetuating vicious cycle. They hoped the treatment at the QMH Clinic and the physiotherapy treatment would break such vicious cycle and re-integrate the Applicant into society. If there was still no improvement after 3 months, they opined that the help of an orthopaedic surgeon should be enlisted to rule out any pathology of the shoulder and upper arm even though they did not think she had such pathology. “Psychiatric consultation will also be of benefit to help [the Applicant] shedding off the past and start a new life, but must be approached carefully.” Dr Cheung and Dr Ho recommended re-assessment to ascertain the extent of improvement after 6-8 months of such treatments. 31.According to the physiotherapy report of Ruttonjee and Tang Siu Kin Hospital (“RTSKH”) dated 12th May 2008, the QMH Clinic referred the Applicant for physiotherapy in November 2007, and physiotherapy was started on 21st December 2007. According to the Applicant, her main complaint was pain at lower rib cage and over low back, which would be aggravated by coughing and prolonged walking for about 3 hours. Her functional limitation was lifting weight especially for putting objects on high shelf. The Applicant’s subjective VAS assessment of pain intensity was 6/10 and her score for assessment of functional disability of back condition was 10/24. Active range of the lumbar spine was limited by pain with tenderness at T12 to L5 levels and at the wound site on palpation. Straight leg raising was symptom-free for bilateral lower limbs, and tactile sensation was normal with no neurological deficit.Pain management treatment by ultrasound, TENS and Magnetopulse were provided to the painful lumbar spine, and back/upper limb exercises were prescribed for mobolisation, strengthening and re-conditioning training. 32.On 18th January 2008, the Applicant claimed there was 30% improvement in her low back pain, but mild increase in lateral chest wall pain upon stretching out her left upper limb to reach something. The tenderness at low back was decreased whilst the wound pain at left lateral chest was similar. On examination, active range of the lumbar spine had improved with full range of movement for flexion and rotation even though there was mild increase in back pain. Physiotherapy treatment was continued, and the Applicant’s condition slowly improved or sometimes it remained the same with occasional fluctuation. 33.Re-assessment was done on 10th February 2008. There was overall improvement of 50-60% in low back pain. Palpation found decreased tenderness at low back and at the chest wound.Active flexion range of her lumbar spine improved. The Applicant could reach 2 inches above ankle and was pain-free. Extension range was full with some end range pain. Bilateral side flexion and rotation were full and pain-free. The Applicant claimed her functional limitation was lifting weight of more than 3-4kg. 34.However, according to Dr Lau’s 1st Report, the Applicant’s mood became low again in February 2008 so new antidepressant and medicine for neuropathioc pain were started followed by improvement in mood. 35.Physiotherapy treatment continued. On 5th April 2008, hydrotherapy treatment was given and exercises were taught so that the Applicant could continue the exercises in a public swimming pool. On 8th May 2008, overall improvement at low back remained at 60% whilst the pain at left lateral chest wall improved by about 40-50%. Average VAS (subjective pain intensity) assessment was at 3-4/10, and disability questionnaire for back condition scored at 11/24. On palpation, there was still some tenderness at the lumbar spine and chest wound site. Lifting weight of more than 3-4kg remained a functional problem for the Applicant. Even though there was no neurological deficit, there was still limitation in the active range of trunk movement. But right-side flexion and bilateral rotation were pain-free. 36.The physiotherapy report dated 12th May 2008 noted that up to 8th May 2008 the Applicant attended 19 physiotherapy sessions. Physiotherapy was planned to stop soon with home exercises and home pain management taught to the Applicant. 37.According to Dr Lau’s 1st Report, assessment showed that the Applicant was not overtly depressed at that time, but she felt irritable due to family matters. Dr Lau was of the view that the prognosis was fair, but recovery of the adjustment disorder would very much depend on the pain recovery and the psychosocial adversities. 38.The Applicant was re-assessed by Dr Cheung and Dr Ho on 26th April 2008. On physical examination, there was slight improvement in chest expansion and left shoulder movement in flexion and abduction, but she still could not raise her left arm above 90˚ because of the pain at left chest. There was no wasting of both shoulder and hand muscles. The main concern was the persistent and debilitating pain at left chest which caused depression and insomnia from time to time, and inability to go back to do any manual work. 39.Dr Cheung and Dr Ho reviewed the medical reports of Dr Leung and Dr Lau. They were of the view that strictly speaking the Applicant’s then current symptoms of persistent pain and depression were not caused by the Accident but by the treatment for the Accident. They were unable to comment on Dr Lau’sview as to the prognosis for the Applicant’s persistent neuropathic pain and the mental disorder as such conditions fell outside theirarea of expertise. On the clinical side, they advised the Applicant to continue to seek help from psychiatry, pain clinic and physiotherapy. 40.It was noted in Dr Lau’s 2nd Report that the Applicant’s pain was so severe in December 2008 that she was admitted to SPH from 2nd to 12th December 2008. During the admission, a pain specialist, Dr Carina Li of Hong Kong Sanatorium & Hospital (“HKSH”), was consulted for management of her pain. Treatment like intercostal nerve block was conducted and new analgesic and antidepressant drugs were started with improvement in the Applicant’s pain and mood. She was seen at HKSH’s Pain Management Clinic after discharge, and she would attend the QMH Clinic again in July 2009. 41.Dr Lau’s 2nd Report went on to note that at times when the Applicant felt less pain she would try to engage herself in simple activities like going out for a walk and playing the guitar. But those activities were very much limited by frequent exacerbations of pain. The Applicant’s pain severity worsened in May 2009. She also reported repeated vomiting for 10 days. Her sleep was poor and her mood was depressed. She was eventually admitted to SPH on 26th May 2009. Again, there were some improvements in pain severity and mood with treatment. Physiotherapy was started. Dr Lau was of the view that the psychiatric prognosis was unfavourable due to prolonged duration of pain despite specialist care. III. Applicant’s case 42.The Applicant’s solicitors argued that since :
psychiatric expert evidence was necessary, relevant and of probative value. IV. Respondent’s case 43.The Respondent’s solicitors pointed out that since May 2007 (ie before 10th March 2008 when I directed that expert medical evidence be confined to cardiothoracic expert evidence only and before 1st September 2008 when Dr Cheung and Dr Ho carried out joint medical examination of the Applicant) the Applicant had been receiving intermittent treatment of her suspected case of depression, but she did not address on any need for psychiatric expert evidence until June 2009. 44.The comments in the Joint Report that the Applicant’s persistent pain was unusual, and that there was no anatomical cause for such pain “…… are indicative the [Applicant’s] complaints may not be genuine”. But it did not necessarily mean that psychiatric expert evidence should be adduced or even be of probative value.After all, Dr Lau’s 1st and 2nd Reports were based on the Applicant’s subjective complaints. The Respondent’s solicitors argued that the trial judge could sufficiently assess the reliability of the Applicant’s allegations on the basis of evidence from lay witnesses and the existing medical reports, including those from Dr Lau, to arrive at a just determination. Further, expert opinion on the percentage of loss of earning capacity was unhelpful. 45.The Respondent’s solicitors submitted it was highly questionable why psychiatric expert evidence should be adduced. But subject to directions by the court on psychiatric expert evidence, the Respondent shall consider arranging joint medical examination regarding psychiatric aspect. V. Legal principles 46.The guiding criteria is whether psychiatric expert evidence is necessary, relevant and of probative value (see Chan Kwok Ming v Hitachi Service Co Ltd HCPI322/202 referred to in ArfanMuhammad v MPS Engineering Ltd & ors HCPI457/2003 (unreported, 20th June 2005)). 47.H H Judge Muttrie when considering admission or exclusion of expert medical evidence in Chan Muk Chi v Chinagold Transportation Limited DCEC506/2002 (unreported, 1st April 2003) adopted the principles articulated by Chu J in Wong Hoi Fung v American International Assurance Co (Bermuda) Limited & anor HCA4576/2001 (unreported, 8th October 2002). 48.On the requirement of “relevance”, Chu J said at para.12 that expert evidence must be relevant in the sense that it is helpful to the court in arriving at its decision on one or more issues to be resolved. The learned judge cited Baring plc (in Liquidation) & anor v Coopers and Lybrand & ors Lexis Transcript, 9th February 2001, paras.44-45 where Evans-Lombe J said the court can exclude expert evidence if it is of the view that calling such evidence will not be helpful to the court in resolving any issue in the case justly, eg where the issue to be decided is one on which the court can come to an informed decision without such expert evidence. 49.As explained in my decision in Lau Lai Shan v Hospital Authority DCEC784/2007 (unreported, 29th February 2008), this means the court has to make a judgment on the usefulness of the expert evidence to be adduced (see the English case of Baldev Singh Mann v Messrs Chetty & Patel [2000] EWCA Civ 267 (26th October 2000) on the Civil Procedure Rules, which suggested that some of the relevant considerations included (a) how cogent the proposed expert evidence will be; (b) how helpful it will be in resolving any of the issues in the case; and (c) how much it will cost and the relationship of that cost to the sums at stake). VI. Discussion 50.In the present case, there is no doubt that the surgical repair and pleurodesis carried out were successful, and the Applicant fully recovered from the left pneumothorax allegedly caused by the Accident. The key issue here concerns the alleged chronic pain that the Applicant claims is so persistent and debilitating that she cannot not resume normal daily activities or her pre-Accident work, especially in lifting weight over 3-5kg. 51.In their written submissions, the Respondent’s solicitors put in issue the genuineness of such pain. This means that the trial judge has to determine whether the Applicant has suffered chronic pain ever since the surgery, and if so the extent of severity of such pain. This has implications on expert medical evidence, and the relevant criterion is whether the trial judge will be assisted by psychiatric expert evidence in his/her final adjudication of such ultimate issues. 52.It is useful for me to firstly deal with 2 preliminary objections raised by the Respondent’s solicitors. First, they pointed out that the court had previously directed that expert medical evidence be limited to the category of cardiothoracic surgery only, and further complained that the Applicant was late in raising the issue of psychiatric expert evidence especially when she had been receiving intermittent psychiatric treatment for her alleged depression since May 2007. 53.In my view, the expert directions previously granted and the Respondent’s aforesaid complaint are matters which the court will take into account in the exercise of discretion, but they themselves do not necessarily debar the Applicant from seeking or even obtaining leave to adduce psychiatric expert evidence. Order 38 rule 44 of the Rules of the District Court (“RDC”) provides inter alia that any directions given under Part IV of Order 38 (ie on expert evidence) may on sufficient cause being shown be revoked or varied by a subsequent direction given at or before the trial or cause of the matter. The question here is whether sufficient cause has been shown, ie whether psychiatric expert evidence is in all the circumstances relevant, necessary and of probative value for the purpose of fairly disposing of the cause or matter. It may be argued that the Applicant could have raised the issue of psychiatric expert evidence at an earlier stage, but I cannot ignore the fact that the Form 7 was issued only recently and the appeals against the Form 7 were recently filed. 54.Secondly, the Respondent’s solicitors contended that it was unnecessary to engage psychiatric experts to opine on the percentage of loss of earning capacity. I agree (see Tang Shau Tsan v Wealthy Construction Company Limited CACV58/2000 (unreported, 5th April 2000) and my decision in Kan Wai Yip v Everbest Port Services Limited DCEC383/2008 (unreported, 3rd February 2009)). However, the purpose of adducing psychiatric expert evidence in the present case is not for the purpose of advancing an opinion on the percentage of loss of earning capacity. Rather, the Applicant seeks to adduce such expert opinion to address on matters of causation, severity and prognosis of the allegedly persistent and debilitating pain, and consequent functional and work impairment. 55.It is common knowledge that some people unfortunately develop psychiatric condition or unusual reaction to traumatic events or other stressors. One of such manifestations is chronic pain, ie pain that is unresponsive to medications and/or pain management techniques, and patients with chronic pain often report depression. However, chronic pain and depressive features present difficulties in litigation and may raise the spectre of exaggeration as such complaints may lack objective medical findings to corroborate them. Indeed, it is also common knowledge that malingered depression and invalid dramatisation of pain symptoms are no strangers to the courts. 56.If the present case were a mere matter of assessment of credibility of the allegation of lingering pain (ie a subjective complaint) not accompanied by objectively demonstrable clinical abnormalities, it is arguably a matter of veracity of the Applicant which the trial judge can safely deal with on the existing medical and expert reports and on witness evidence from the Applicant, and no further expert medical evidence is required. 57.But here the situation goes much further. The Respondent casts doubt on the genuineness of the Applicant’s pain reaction and consequent functional and work impairment, which presumably challenges the psychiatric diagnosis posed by Dr Lau for such conditions. Thus, any adjudication as to whether the Applicant’s claim is feigned, exaggerated or genuine turns more on the contest between the Applicant’s subjective complaints and the recognisable psychiatric illnesses identified by Dr Lau as being triggered by the Accident. This is borne out by the considerations outlined below, and I cannot say that psychiatric expert evaluation is irrelevant. 58.First, there is well-documented history that the Applicant suffered post-operation pain which waxed and waned and which was not responsive to medications prescribed by Dr Leung and to electronic acupuncture or Chinese traditional medicine. Although Dr Leung, the cardiothoracic surgeon who carried out the operation, noted the Applicant’s smooth recovery from the operation, he referred her to Dr Lau to ascertain whether the pain and depression presented were associated with any psychiatric cause. 59.Secondly, whilst Dr Cheung and Dr Ho are firmly of the view that there is no anatomical cause of the chronic pain suffered by the Applicant, they do not exclude the possibility that such pain may be associated with a psychiatric diagnosis. Their suggestion that over 95% of patients with smooth recovery from thoracotomy are able to return to work and normal daily activities within a reasonable time implies that there may be a small number of patients who are unable to do so. In the case of the Applicant, they urged her to break the self-perpetuating vicious cycle of pain that resulted in functional disability, which in turn led to sense of insecurity and psychological dependence on others, by seeking physiotherapy treatment, treatment by the pain clinic as well as psychiatric consultation. 60.Thirdly, the Applicant received treatment from the QMH Clinic and physiotherapy treatment from RTSKH, which are no doubt targeted at pain management and functional improvement. The Applicant also received psychiatric treatment from Dr Lau since May 2007 in relation to her persistent pain and consequent functional disability, insomnia, low mood and frustration. Dr Lau diagnosed that the Applicant suffered from a recognisable psychiatric illness triggered by the Accident, namely, adjustment disorder with depressive features and secondary neuropathic pain and psychosocial complications, for which he prescribed various medications. 61.The above shows there is well-documented history of psychiatric treatment for the Applicant’s pain-associated problems. Indeed, although Dr Lau’s 1st and 2nd Reports show that at first the Applicant was not too overtly depressed, his prognosis of her psychiatric disorder deteriorated from fair to unfavourable due to the chronicity of the pain and associated problems, and the flare-ups in February and December 2008 and May 2009 leading to intensive treatments and hospitalisations. 62.In my view, the Applicant has laid out sufficient prima facie material to support the relevance of psychiatric expert evidence in relation to the court’s forensic investigation as to the existence and severity of the alleged pain. More importantly, the prima facie material from the treatment medical reports show there is real possibility of a psychiatric cause for the Applicant’s condition that is linked to the Accident. If there is real possibility that the pain is psychogenic, then the ultimate determination by the trial judge will be aided not only by an assessment of the subjective experience reported by the Applicant, but also by psychiatric expert opinion that deals with the diagnosis (if any), causation and prognosis of the relevant psychiatric condition (if any). 63.The above view is fortified by the description of the injury in the Form 7 that includes “depression”. There is appeal against the assessments in the Form 7 by both parties, and the court is tasked to consider afresh the symptomatology that the Applicant demonstrates, any psychiatric causation/diagnosis of such set of symptoms, and the response style of the Applicant (eg exaggeration or reliability or otherwise). When viewed against the Applicant’s treatment history described above, it cannot be said that psychiatric expert medical evidence is inappropriate. 64.Whilst I accept that the court has a duty to restrict expert medical evidence to what is reasonably required for proper adjudication, each case must turn on its own facts. The circumstances of the present case are a far cry from Farman Khan v Lau Kai Hong and Lau Siu Yuk trading as Shun Sum Engineering Company (a firm) HCPI850/2008, Fung J (unreported, 29th April 2009) and my decision in Abid Khan v Queen Wan Limited DCEC71/2008 (unreported, 11th June 2009). In those 2 cases, there was no history of psychiatric consultation or referral, and no supporting material indicative of any recognisable psychiatric illness. 65.The Respondent’s solicitors also referred to my decision in Ip Sau Lin v Hospital Authority [2009] 2 HKC 383 in which I refused leave to adduce psychiatric expert evidence. As I have said above, each case turns on its own facts. In that case, the Applicant complained of residual pain from a sprained back, but he had returned to work. He attended a short COPE programme and pain management clinic follow up, and did not attend any psychiatric assessment offered by the clinical psychologist. The circumstances are quite different from those in the present case. 66.In my view, it is at the very least reasonably arguable by the Applicant that the pain she suffered and is still suffering is not ordinary emotion of grieve, anxiety, distress or any other normal reaction for which the Employees’ Compensation Ordinance Cap.282 does not give compensation, and that there may be some psychiatric correlation between her pain and depressive features and the Accident. Viewed in such context, especially against the appeals by both parties in respect of the Form 7, I am persuaded I should allow psychiatric expert evidence to be adduced in the present case. 67.The Respondent’s solicitors argued against proliferation of expert medical evidence. I respectfully agree with the strong reminders in this respect by Seagroatt J in Wong Hin Pui v Mok Ying Kit & anor HCPI763/1997 (unreported, 21st December 1999) and by Suffiad J in relation to psychiatric expert evidence in Ho Man Fong v Sime Darby Motor Services Limited HCPI196/2003 (unreported, 19th July 2005). But having considered all of the above circumstances, I find that psychiatric expert evidence is likely to be helpful to the trial judge in arriving at his/her decision at the end of the day. 68.Given that the witness statements have already been filed and the expert reports from the cardiothoracic surgery experts are already to hand, the present case is essentially ready for trial save for the matter of psychiatric expert evidence. I also bear in mind that the Accident happened in 2006. I have debated whether it is appropriate to direct the appointment of a single joint psychiatric expert so that the case can progress more expeditiously to trial. In this respect, I refer to the factors in Order 38 rule 4A(5) of the RDC and to Fung J’s helpful guidance in Cheung Fan v Hua Wei Tech Investment Co, Ltd HCPI987/2007 (unreported, 9th July 2009) and Lau Kook Loi v Wong Wai Sing & anor HCPI445/2007 (unreported, 13th July 2009) where he directed single joint experts to be appointed. 69.In the end, bearing in mind that the issue of chronic pain and consequent functional and work disability must be one of the most seriously contested issues in this case, I have decided not to insist on single joint psychiatric expert, but welcome the parties to adopt such practical approach if they see fit. 70.I now vary the expert directions granted on 10th March 2008 to limit expert medical evidence to expert evidence from 1 cardiothoracic surgery expert and 1 psychiatric expert from each party. I further direct that the parties do within 7 days from the date hereof jointly write to the EC Judge on the following :
71.I further grant a costs order nisi that the Respondent do pay to the Applicant costs of the application for psychiatric expert opinion to be taxed if not agreed.
Representation: Messrs B Mak & Co for the Applicant. Messrs Munros for the Respondent. |
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