Wan Ying Sheung v. Wan Yiu Kan
Read the full judgment text of HCPI 288/2009 on BabelCite. This High Court CFI judgment was delivered on 21 March 2011.
1. On 22 October 2006, the Plaintiff injured her left leg in a traffic accident involving a taxi (“ Accident ”). She was 61 years old at the time of the Accident. Previously she worked as a part-time home helper/cleaner and enjoyed good general past health. On 30 March 2009, she sued the Defendant for damages for personal injuries. On 23 September 2009, interlocutory judgment was entered leaving damages to be assessed.
Cited by 5 cases · Cites 6 cases
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HCPI 288/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 288 OF 2009 _________________________ BETWEEN
_________________________ Coram : Before Master Marlene Ng in Chambers (open to the public) Date of Hearing : 25 February 2011 Date of Handing Down Decision : 21 March 2011 ______________ DECISION ______________ I. BACKGROUND 1.On 22 October 2006, the Plaintiff injured her left leg in a traffic accident involving a taxi (“Accident”). She was 61 years old at the time of the Accident. Previously she worked as a part-time home helper/cleaner and enjoyed good general past health. On 30 March 2009, she sued the Defendant for damages for personal injuries. On 23 September 2009, interlocutory judgment was entered leaving damages to be assessed. 2.According to the Statement of Damages (“SOD”) and the Revised Statement of Damages (“RSOD”) respectively filed on 30 March 2009 and 14 April 2010, the Plaintiff avers she has suffered orthopaedic injuries and consequential psychiatric illness, and further claims the following heads of damages that are relevant to the present application:
3.In his Answer filed on 8 April 2010, the Defendant:
4.The Plaintiff has commissioned an orthopaedic expert report by Dr Wong See Hoi (“Dr Wong”) dated 13 June 2008 (“Wong Report”), a physiotherapy expert report by Dr David Siu (“Dr Siu”) dated 8 September 2008 (“Siu Report”), 2 occupational therapy expert reports by Ms Jocelyn Au (“Ms Au”) dated 8 September 2008 and 3 March 2009 respectively (“Au 1st and 2nd Reports” or collectively “Au Reports”), and a psychiatric expert report by Dr Kieran Singer (“Dr Singer”) dated 2 January 2009 (“Singer Report”). These expert reports have been served on the Defendant. 5.On 23 September 2009, Master Roy Yu limited expert medical evidence to 1 orthopaedic and 1 psychiatric expert for each party, namely, Drs Wong and Singer for the Plaintiff and Dr David Cheng (“Dr Cheng”) and Dr Chung see Yuen (“Dr Chung”) for the Defendant. These experts have compiled the joint reports of Drs Wong and Cheng dated 29 December 2009 (“Jt Ortho Report”) and of Drs Singer and Chung dated 23 December 2009 (“Jt Psy Report”). II. SIU REPORT 6.Dr Siu visited the Plaintiff at her home on 10 August 2008. She was emotional at times when talking about her disabilities. She had walking difficulty, pain/stiffness/swelling in her left knee, weakness in her left knee muscle, and to a lesser extent pain in her right knee. There was marked osteoporosis indicating chronic disuse of left lower limb with prolonged inadequate weight bearing. Physical examination findings are as follows:
7.Dr Siu opines that physiotherapy was indicated and useful in reducing the negative effects of the above problems, and recommends an intensive course of physiotherapy comprising 6 sessions/week for 4 weeks, 3 sessions/week for another 4 weeks, and weekly sessions for 8 weeks. He says the objectives of physiotherapy are to:
III. AU REPORTS 8.Ms Au examined the Plaintiff at home on 11 August 2008. The Plaintiff complained of left shoulder soreness due to stress from pushing into the walking frame or other furniture for support during transfer/walking, constant left knee pain even at rest, and right knee pain when walking. Left knee flexion and extension were respectively 105° and 10°, and quadriceps strength was tested grade 4-/5. Left ankle dorsiflexion and plantarflexion were respectively up to 0° and 20°, and ankle strength was tested grade 4-/5. The Plaintiff appeared to be emotionally distressed by her persistent/prolonged left knee pain and her mobility problem, and she had difficulty in coping with the stresses caused by her disability. 9.The Plaintiff gave history that she:
10.Ms Au recommends the essential/basic aids and equipments as listed in the RSOD (giving details of their purpose, model, supplier, estimated turnover rate and cost) for managing the Plaintiff’s daily problems, ie (a) walking frame for safe and independent indoor mobility under supervision, (b) wheelchair and wheelchair cape for outdoor mobility with assistance by carers, (c) wheelchair carrying bag for storage of belongings when going out in wheelchair, (d) seat cushion for pressure relief and comfort when sitting on wheelchair, (e) shower chair to sit safely and comfortably for showering independently, (f) grab rails for safe transfer in toilet or foldable grab rail for support/safety during transfer to toilet or bath/shower area; (g) raised toilet seat attached to the base of the regular toilet seat for ease of sitting down and getting up and so that it could be folded up for use by others; (h) reacher to pick up items at high or low level with ease; and (i) pedal exerciser for gentle lower limb mobolisation exercises to maintain the joint range. 11.Ms Au opines that occupational therapy service of 3 sessions at the clinic for prescription and training in use of aids and equipment, and 3 sessions at home for home assessment, advice on adaptations and training to carers were necessary. 12.Ms Au notes that the Plaintiff was cared for by her elder daughter who had since returned to work, and by her younger daughter who would engage in full-time employment soon, so she would be left alone during the day with no setting-up assistance for showering, grooming, toileting and instrumental ADL (eg meal preparation, home management and shopping etc). She opines that a live-in domestic helper would be necessary maintain consistent care and assistance to the Plaintiff, and it would be unfair to ask the daughters to care for the Plaintiff (eg help her to the toilet during nighttime). 13.As regards accommodation needs, Ms Au notes that the internal circulation space at home was inadequate for the Plaintiff to move around in a walking frame or wheelchair, but the worst part was the lack of circulation space in the toilet since she required assistance in access, and this created inconvenience and might jeopardise her safety. Ms Au recommended alternative accommodation with usable floor space of 76.25 sq m or 820 q ft (with full-time helper) or 69.245 sq m or 745 sq ft (with part-time helper) with (a) sufficient space to house the Plaintiff, her family and a live-in domestic helper, (b) wide doorways, corridors and door thresholds for access by wheelchair or walking frame, (c) wheelchair accessible lift lobby and public areas, (d) direct lift access to the relevant floor with at least 2 lifts, (e) access to taxi or Rehabus pick up or drop off zone suitable for wheelchair use. The cost of alternative accommodation depended on the location/age of the building and other factors, and the cost of home renovation would normally be about HK$275,000.00 to HK$300,000.00. 14.Ms Au notes the Plaintiff could not use public transportation independently and had to travel in wheelchair by Rehabus (which charged by the distance travelled and time incurred) or taxis accompanied by her carers. Free non-emergency ambulance transport service could be arranged for attending clinics in the public sector. Ms Au recommends transportation allowance of HK$2,000.00/month. 15.Ms Au further recommends that the Plaintiff might benefit from counselling services in handling/coping with the psychological trauma and disability brought about by the Accident and injury. IV. SUMMONS 16.The Plaintiff has asked the Defendant to agree to the admissibility of the Siu and Au Reports as expert evidence at trial on the basis that the Siu Report is relevant to her claim for cost of future physiotherapy treatment and the Au Reports are relevant to her claim for cost of future occupational therapy service, care and attention, transportation and aids/equipment, and cost of alternative accommodation. 17.The Defendant says such reports offer no added value to the Jt Ortho and Jt Psy Reports which are silent on any need for physiotherapy and/or occupational therapy assessment and which cover all relevant issues regarding the Plaintiff’s condition. In any event, Drs Wong and Cheng have opined that further orthopaedic treatment is unlikely to be of any help, and Dr Siu and Ms Au are not qualified to address on any need for physiotherapy, occupational therapy, care and attention, and transportation, which matters should be addressed by Drs Wong and Cheng. The Defendant accepts that the Plaintiff requires ambulatory devices, but alternative accommodation is not required because she manages to walk with a frame and only requires a wheelchair for outdoor use. 18.On 30 April 2010, the Plaintiff issued a summons (“Summons”) for leave inter alia to:
The Summons came before me on 23 June 2010 but was adjourned pending the Plaintiff’s decision on whether to undergo total left knee replacement. She eventually decided against such operation, so the Summons was restored for hearing on 23 February 2011. 19.The issue before me is whether leave should be granted for (a) physiotherapy and occupational therapy expert evidence and (b) the Siu and Au Reports to be adduced at trial. If so, Mr Lam (counsel for the Plaintiff) and Mr Sakhrani (counsel for the Defendant) agree that the Defendant will nominate his own physiotherapy and occupational therapy experts to carry out joint examinations and prepare joint reports with the Plaintiff’s experts Dr Siu and Ms Au. V. INSTRUCTIONS TO THE MEDICAL EXPERTS 20.The parties have provided (a) the Siu and Au 1st Report to Dr Singer for him to prepare the Singer Report and (b) the Siu and Au Reports to Drs Wong and Cheng and to Drs Singer and Chung to prepare the Jt Ortho and Jt Psy Reports respectively. In the Jt Ortho Report, Drs Wong and Cheng have summarised and recounted the findings and recommendations in the Siu and Au 1st Reports. Likewise in the Jt Psy Report, Drs Singer and Chung have referred to the Siu and Au Reports as part of their “sources of information”. 21.It is common ground that the Wong, Jt Ortho, Singer and Jt Psy Reports contain expert opinion evidence admissible at trial. The question is whether the Defendant is entitled to bar admissibility of the Siu and Au Reports when they have been provided to the parties’ respective orthopaedic and psychiatric experts for preparing the Jt Ortho and Jt Psy Reports with a view to adducing those reports at trial. 22.Mr Lam submits that since the medical experts have taken into account the Siu and Au Reports in reaching their opinion, such reports should be adduced at trial to enable the trial judge to properly assess and weigh the expert medical opinion. Mr Sakhrani agrees they should be adduced at trial for the limited purpose of providing “factual material” for the court to assess the validity of the expert medical opinion, but not as “expert evidence” for supporting the Plaintiff’s claim. I have referred counsel to the following authorities. 23.In Harmony Shipping SA v Saudi Europe Line Ltd [1979] 1 WLR 1380, 1385, Lord Denning MR held that subject to the protection of legal professional privilege in respect of confidential communications between solicitor and expert witness, “[the] court is entitled, in order to ascertain the truth, to have the actual facts which he has observed adduced before it and to have his independent opinion on those facts” (see also Reg v King [1983] 1 WLR 411, 414, per Dunn LJ). 24.In W v Edgell [1990] 1 Ch 359, 396, Scott J said that “[if] a document is submitted to an expert witness for examination and if the opinion of the expert is relevant to an issue in the case, the expert is, in my judgment, in civil cases at least, a competent and compellable witness to give evidence of what has been put before him and of his opinion on it”. 25.In Chan Mun Kui v Lau Yuk Lai HCPI301/1998 (unreported, 8 October 1999), Seagroatt J said as follows:
26.In Clough v Tameside and Glossop Health Authority [1998] 2 All ER 971, the defendants disclosed a report from a treating doctor (Dr Pandy) to the psychiatric expert (Dr Hay) for him to prepare an expert report. The defendants later disclosed the psychiatric expert report (which recited receipt of the communication of Dr Pandy) to the plaintiff with the intention of relying on it at trial. Since Dr Pandy’s report was supplied to Dr Hay for him to consider as part of the background information in formulating his opinion and Dr Hay’s report had been served on the plaintiff, it was held that privilege in respect of both reports was waived. Bracewell J at pp.976-973 said as follows:
27.In Bourns Inc v Raychem Corp & anor [1999] 3 All ER 154, 164, Aldous J said the decision in Clough was “probably correct” albeit that some of Bracewell J’s reasoning was wrong. He closely analysed Marubeni Corp v Alafouzos [1986] CA Transcript 996 which had not been referred to by Bracewell J, and summarised his approach to the issue of waiver of privilege at pp.166-167 as follows:
Simply stated, there must have been deployment of the document for privilege to be waived (see also Lucas v Barking, Havering and Redbridge Hospitals NHS Trust [2003] 4 All ER 720 and Treasure Spot Finance Co Ltd v Li Chik Ming & anor [2006] 3 HKLRD 713). 28.Lucas was determined in the context of the English Civil Procedure Rules which do not apply in Hong Kong. Nonetheless, it is still interesting for its factual similarity. There the plaintiff made a personal injury claim and served 2 expert reports relating to his injuries. One such report by Dr Mason referred to a previous report by another expert under the heading of “sources of information”. It was held at p.730 that such previous report of another expert was part of the instructions given to Dr Mason:
29.In the present case, the issue of legal professional privilege does not arise for the Plaintiff has openly disclosed the Siu and Au Reports, and both parties have voluntarily disclosed them to their respective orthopaedic and psychiatric experts. Further, the Siu and Au Reports have been deployed since their contents (including the findings and recommendations) have been summarised and recounted in the Jt Ortho Report. According to Lucas,they are part of the instructions to the orthopaedic and psychiatric experts, and as such the above authorities point clearly to the conclusion that they should be adduced at trial to enable the trial judge to “ascertain the truth”. Given such objective, I disagree with the blinkered approach suggested by Mr Sakhrani that the Siu and Au Reports be placed before the trial judge for the limited purpose of assessing the validity of the orthopaedic and psychiatric expert opinion and not for supporting or undermining the Plaintiff’s claim. I am unable to discern any good reason for fettering the hands of the trial judge in such a way, especially when the validity or otherwise of the orthopaedic and psychiatric expert evidence necessarily impacts on the viability of the Plaintiff’s claim. I therefore grant leave for the Plaintiff to adduce the Siu and Au Reports at trial. 30.I now turn to the wider consideration as to whether leave should be granted to adduce physiotherapy and occupational therapy expert evidence. If such leave is granted, the parties have agreed to obtain joint reports from their respective experts. The Plaintiff will continue to engage Dr Siu and Ms Au, so their antecedent reports being the Siu and Au Reports should be adduced as well (see Seagroatt J’s observations in Chan Mun Kui (see paragraph 25 above)). VI. LEGAL PRINCIPLES 31.Both counsel have no dispute over the relevant legal principles and have referred to Arfan Muhammad v MPS Engineering Limited & anor HCPI 457/2003, Deputy High Court Judge Muttrie (unreported, 30 June 2005), Farman Khan v Lau Kai Hong and Lau Siu Yuk trading as Shun Sum Engineering Company (a firm) HCPI850/2008, Fung J (unreported, 29 April 2009) and my decision in Wong Ka Yee v Gay Giano International Limited DCEC 436/2007 (unreported, 4 August 2009). 32.It is unnecessary to repeat in fullness the relevant legal principles. Suffice to say that the guiding criteria is whether the expert evidence sought is necessary, relevant and of probative value. In considering the issue of relevance, the expert evidence must be relevant in the sense that it is helpful to the court in arriving its decision on one or more issues to be resolved. If the court can make an informed decision on (and/or resolve) any issue in the case justly without the aid of such expert evidence, then the court may regard such expert evidence as not useful and should not be adduced. This calls for an exercise of judicial discretion, and pertinent considerations will include (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. VII. PRELIMINARY MATTERS 33.It is useful to deal with 2 preliminary issues. First, Master Roy Yu has limited expert evidence to orthopaedic and psychiatric disciplines, but this is not of itself an absolute bar against adducing physiotherapy or occupational therapy expert evidence. Order 38 rule 44 of the Rules of the High Court provides inter alia that any directions given under Part IV of Order 38 may on sufficient cause being shown be revoked or varied by a subsequent direction (see Wong Ka Yee at para.53). The question here is whether sufficient cause has been shown. 34.Next, Mr Lam submits that the need for physiotherapy and occupational therapy expert evidence should be ascertained from the SOD and RSOD. 35.Mr Lam relies on Fung J’s observations in Lam So Chai v Cheung Sai Lui trading as Hoi Fung Stevedore & Transportation Company HCPI 360/2007 (unreported, 3 July 2009). In that case, the learned judge agreed that where a plaintiff suffered impairment in faculties or mobility and claimed for special aids and accommodation, evidence on special needs and on required space or alterations and their related costs was adduced traditionally from occupational therapists. He pointed out that the therapeutic value of occupational therapy would rarely be in issue, so the occupational therapists would obviously base their reports/opinion on (a) the parties’ pleaded case, (b) the reports of the physicians and (c) experience/research on the required needs and the reasonable necessity/suitability of the special items (at para.17). In fact, the statement of damages therein pleaded the particulars of special items with reference to the plaintiff’s occupational therapy expert report, so such expert would only have to “justify the Statement of Damages with his reasons, referring to other reports as is necessary” 36.Mr Lam also refers to Master Roy Yu’s observations in Wong Siu Tong, a patient, suing by his wife and next friend, Chow Lai Han v So Man Che & anor HCPI506/2009 (unreported, 24 December 2009). In that case, the plaintiff who was in a minimally conscious state resided at an elderly home, but his wife wanted to move him home. The plaintiff’s neurological expert opined that more holistic care could be offered by the family at home, but the defendant’s expert said there was no medical reason to move the plaintiff home. The parties eventually agreed that the trial judge would need information on the relevant costs in the event he found for home care, so a report on the resources required for home care was necessary. It was on the need to identify the issues to be addressed by the rehabilitation expert that the learned master cited Fung J’s observations in Lam So Chai that the statement of damages was “often a convenient place to identify the issues for comment and opinion by the non-medical experts”. 37.However, I agree with Mr Sakhrani that in the present case the necessity, relevance and probative value of any physiotherapy and occupational therapy expert evidence cannot be dictated by the Plaintiff’s pleadings. It is at best a starting point. In both Lam So Chai and Wong Siu Tong, the relevance/necessity of opinion from the needs experts was not challenged, so it is unsurprising that the court turned to the pleadings to identify and frame the expert issues. But here, the very necessity, relevance and/or probative value of the Siu and Au Reports are subject to debate, and one has bear in mind that the pleas in the SOD and RSOD are partly premised on the opinion/recommendations in such disputed reports. Rather, I should consider the pleadings, witness statements, and medical/ documentary evidence placed before me in coming to a decision. VIII. ANY MEDICAL BASIS? (a) Plaintiff’s case 38.Mr Sakhrani complains there is no proper medical basis to support any need for physiotherapy and occupational therapy service and/or expert evidence. He refers to Fung J’s observations in Farman Khan that “[it] must be borne in mind that the task of the court is not therapeutic but forensic, an application to adduce expert evidence must be supported by prima facie evidence of relevance” (at para.15). 39.Mr Sakhrani argues that the Plaintiff’s medical history up to her discharge from physiotherapy service in November 2007 and her orthopaedic follow up in December 2007 shows that she was already orthopaedically fit to walk with a quadripod, which represents a substantial improvement over her initial condition and is indicative of a lower degree of reliance on walking aids. Indeed, at the orthopaedic follow up in August 2007, Dr Kwan Yat Hong (“Dr Kwan”) advised that she should wean off the walking frame (see paragraph 56 below), so there is no medical basis for the Plaintiff’s continued use of a walking frame let alone a wheelchair. Mr Sakhrani says there is nothing to account for the inexplicable change in her complaints around December 2007 (which is about the time of application/grant of legal aid), which are grossly inconsistent with the views of the treating orthopaedists/physiotherapists. 40.Mr Sakhrani also criticises the Plaintiff for complaining to Dr Wong in March 2008 of continuous attack of left knee pain (see paragraph 79 below), which is different from the complaint of occasional bilateral pain 3 months before (see paragraph 57 below). Even though physical examination of the Plaintiff’s left leg only revealed slight muscle wasting and slight reduction of muscle strength (see paragraph 82 below), Dr Wong has unjustifiably accepted her complaints at face value without any appreciation of the significant changes and without reference to the hospital notes/records and Dr Kwan’s consultation summary. 41.Mr Sakhrani argues there is no orthopaedic explanation for the Plaintiff being wheelchair dependent. The Wong Report does not say how the Plaintiff’s presentation is made out, and the Ortho Report records a better left leg ROM than as recorded in the Wong Report (see paragraph 82 below). Even the Wong Report does not suggest that the Plaintiff will be wheelchair-bound in future. Indeed, Dr Wong only suggests she is not to resume any work “unless her left knee strength and pain are improved with training” (see paragraph 86 below). 42.Mr Sakhrani submits that the Plaintiff’s complaints to the treating psychiatrist Dr Yan Tin Yee Connie on 4 July 2008 that since January 2007 (see paragraph 50 below) she had “fleeting suicidal ideation but no definite plan of self harm” are grossly inconsistent with the history she has given to Dr Singer in November 2008 of having attempted suicide in February/March 2008 by overdose of painkillers (see paragraph 63 below). Mr Sakhrani says Dr Singer has failed to deal with these gross inconsistencies or to appreciate there is no physical reason for the Plaintiff being wheelchair-bound, and he appears to have accepted her complaints (ie walking indoors with a frame and using a wheelchair outdoors) at face value without providing a psychiatric reason for such condition. (b) Defendant’s case 43.Mr Lam submits that the Plaintiff’s main complaint of limited mobility due to left leg injury is supported by objective physiological and radiological features such as decreased muscle strength, muscle wasting and marked osteoporosis. In the Wong Report, Dr Wong opines that osteoporosis is indicative of chronic disuse of the left lower limb with prolonged insignificant weight-bearing, and concludes that the Plaintiff’s complaints are genuine. Further, all available medical reports/notes/records have been provided to the orthopaedic and psychiatric experts, and there is no basis for saying they have failed to take them into account in reaching their opinion, especially when they have referred to the Plaintiff’s medical history in their reports. 44.Mr Lam reminds that the Wong Report has been compiled shortly before the Plaintiff’s referral for psychiatric consultation in mid-2008, and the psychiatric element (canvassed in the Singer and Jt Psy Reports) provides further foundation for her complaints. Drs Wong and Cheng have considered the effect of the Plaintiff’s psychiatric response to her left leg injury on her ADL and ability to resume pre-Accident work, and there is no suggestion of any unjustified inconsistency, exaggeration or symptom magnification. Instead, they express hope that with recovery of her psychiatric condition the Plaintiff may resume some degree of activities. 45.Mr Lam submits that the so-called inconsistencies between the history given by the Plaintiff to the treating psychiatrist and to Dr Singer must be viewed in context, and in any event Drs Singer and Chung have not suggested that her complaints are unjustified. He argues that the Plaintiff’s post-Accident medical history as evident from the medical reports/notes/ records and the orthoapedic and psychiatric expert reports speak loudly of the relevance, necessity and probative value of the psychiatric and occupational therapy expert evidence. (c) Discussion 46.In light of counsel’s submissions, it is necessary to trace the Plaintiff’s post-Accident medical history and to review the Wong, Jt Ortho, Singer and Jt Psy Reports. The purpose is to ascertain whether there is any prima facie medical basis to support the relevance and necessity of physiotherapy and occupational therapy expert evidence. Any suggestion of extravagance or inconsistencies in respect of the Plaintiff’s complaints or of invalidity of the expert medical opinion must be left to the trial judge (see Lam So Chai at para.12), so the analysis below does not in any way fetter the adjudicating function of the trial judge. 47.After the Accident, the Plaintiff was admitted to the orthopaedic ward of Caritas Medical Centre (“CMC”). She developed left knee pain with moderate left knee swelling, and was unable to walk. Investigation revealed comminuted fracture of left lateral tibia plateau with depressed contour involving both medial and lateral tibial spines with small loosened body fragments in the tibiofemoral joint space near midline. The Plaintiff claims the doctors told her a complex operation with harvest of bone graft from the hip bone was required, and it might take several years to recover and even then incompletely. On being told she would not be able to fully flex the left knee due to damage to knee joint cartilages, she became very depressed. She found her situation unacceptable, but still had hopes for recovery. 48.On 1 November 2006, open reduction and plating to left tibial fracture was done. The Plaintiff claims she was in great distress and was trussed up with many tubes after the operation. She was transferred to the rehabilitation unit for non-weight bearing walking exercise which started on 7 November 2006. Subsequent x-ray showed no displacement of the fracture. Hinge knee brace was given for support, and full-weight bearing exercise started on 14 December 2006. When the Plaintiff was discharged on 20 December 2006 after being hospitalised for 2 months, she could walk with a frame under supervision (see the Discharge Summary). 49.According to the Wong and Jt Ortho Reports, the Plaintiff claims she was allowed weight bearing 2-3 months after the operation even though she was started on full-weight bearing exercise during hospitalisation. She attended regular follow up at CMC’s orthopaedic clinic. At the orthopaedic follow up on 12 January 2007, the Plaintiff (still on hinge knee brace with left knee ROM 0˚–30˚) was referred to outpatient physiotherapy for full-weight bearing walking and knee strengthening exercises. 50.Since January 2007, the Plaintiff suffered mental disturbance (as reported during her psychiatric consultation on 4 July 2008 discussed in paragraph 66 below):
51.The Plaintiff received 47 sessions of outpatient physiotherapy between 12 January and 28 November 2007. During the initial visit, she wore a hinge knee brace over her left knee and was able to walk with frame independently. Her left knee active ROM was 5°–30° with wasting of left quadriceps muscle. At the orthopaedic follow up on 9 February 2007, her left knee ROM improved to 0˚–55˚. According to the physiotherapy progress report dated 8 March 2007, she still walked with a frame with fair tolerance in using a quadripod with standby assistance. At the orthopaedic follow up on 9 March 2007, her left knee ROM was 5˚–80˚ and quadriceps strength was tested grade 4/5. By that time the facture had healed, and the management plan was to remove the hinge knee brace and continue with physiotherapy. The physiotherapy clinical records recorded that the Plaintiff reported to the physiotherapists of walking with quadripod indoors. 52.According to the Singer and Jt Psy Reports, in March 2007 the Plaintiff heard “voices” and “noises” coming from her pillow of many people quarrelling and talking to one another. The physiotherapy progress report dated 30 April 2007 notes that she made slow progress, and that it was difficult for her to wean off walking with a frame. Left knee ROM was 0˚–90˚ and quadriceps muscle strength was tested grade “4+→5-/5”. At the orthopaedic follow up on 4 May 2007, x-ray revealed “very osteoporosis tibial plateau” and the treating orthopaedist recommended “resume walking with frame”. According to the physiotherapy progress report dated 20 June 2007, the Plaintiff resumed walking with a frame since last follow up, so the physiotherapist sought advice on her weight bearing status. At the orthopaedic follow up on 29 June 2007, Dr Choi Siu Tong recommended “allow weight bearing as tolerated”. 53.Pausing here, the medical reports/notes/records do not paint a picture of such smooth and uneventful recovery as suggested by Mr Sakhrani. Even up to March/April 2007, the Plaintiff was mainly walking with a frame and trying out indoor walking with quadripod. The objective features of limited ROM and left quadriceps muscle wasting speak of slow progress and disuse. Such slow progress is borne out by the discovery of osteoporosis and the medical advice to resume walking with a frame. As at late June 2007, return to weight bearing was still tentative. Indeed, as seen below, resumption of walking with a frame continued up to August 2007. 54.The timing of such orthopaedic setback also sits well with the Plaintiff’s psychiatric and medical complaints at around this time. According to the Singer Report, in about May to June 2007, the Plaintiff became severely depressed because her left leg was not improving despite physiotherapy and the physiotherapist told her the condition had become static. She also had to seek medical consultation for the ’flu, and felt herself to be burden on her daughters. She was financially stressed and had family problems (ie a neglectful husband and disappointing sons). She suffered from impaired sleep, agitation, loss of appetite, lack of energy and “tremor in heart”. The Jt Psy Report also notes the Plaintiff’s complaint that for a major part of a year post-Accident, she became depressed for being homebound and dependent on her wheelchair and daughters. She wept, had suicidal ideas, impaired sleep and appetite, and loss of interest in most activities. 55.According to the physiotherapy clinical record dated 19 July 2007, the Plaintiff was walking with a frame with self-exercises done at home. The left knee active ROM was 0˚–90˚ with stiffness at end range. She was observed to be stable in walking with quadripod on level ground. The physiotherapy progress report dated 16 August 2007 notes that she still had on-and-off knee swelling and that she walked with a frame. 56.On 24 August 2007, the Plaintiff attended orthopaedic follow up in a wheelchair with her daughter. She complained of occasional pain and mild weakness and reported walking indoors with a frame. Left knee ROM was 0˚–90˚. Dr Kwan explained there was no contra-indication to walking and advised “[improve] walking by ↓ frame”, “gradual change to [full-weight bearing] + 1 stick + wean off to independent” and “[gradually] to wean off frame and back to quadripods”. 57.The physiotherapy progress report dated 12 November 2007 records that the Plaintiff’s condition was stable and she walked indoors with quadripod. She was discharged from physiotherapy as her condition became static. Upon discharge, the overall improvement was 50%, and objectively she was able to walk with quadripod with left knee active ROM from 0°–95° and left quadriceps strength tested grade 5-/5. At the orthopaedic follow up on 14 December 2007, the Plaintiff reported she was mostly homebound and walked with a frame with occasional bilateral knee pain. The left knee active ROM was 0˚–85˚, and there was crepitus of both sides. 58.Pausing here, a few matters are of significance. First, notwithstanding Dr Kwan’s view that there was no medical contra-indication to walking, the reality is that the Plaintiff was using a walking frame most of the time even though she resumed quadripod walking exercises. Such actual disuse is evidenced by objective features such as left quadriceps muscle wasting, severe osteoporosis and left leg weakness. 59.Secondly, the existence of bilateral crepitus with on-and-off knee swelling and bilateral knee pain harks back to the Plaintiff’s concern over damage to knee joint cartilages as told by the doctors (see paragraph 47 above) and sits well with the objective finding of disuse osteoporosis and the subsequent diagnosis of post-traumatic arthritis of the left knee (see paragraph 73 below). 60.Thirdly, even Dr Kwan acknowledged that the Plaintiff had to “gradually” wean off the walking frame and return to walking with quadripod, but his consultation summary does not offer any reason for the slow progress or make reference to the Plaintiff’s psychiatric condition, which according to the Jt Psy Report fits the diagnosis of post-traumatic stress disorder (“PTSD”) with depressive features. Yet the above account shows that at that time the Plaintiff was depressed and suffering from psychiatric symptoms but not receiving any psychiatric or psychological treatment to ameliorate her disorder/depression. Further, it has been said that the Plaintiff has limited insight of her psychiatric problems (see paragraphs 66 below). I am of the view that against such background it is reasonably arguable her motivation to wean off the walking frame and to change to full-weight bearing walking with quadripod is adversely affected by her psychiatric illness. 61.In all the circumstances, I am not persuaded that the Plaintiff’s actual condition in November/December 2007 as evident from the materials before me represents such significant improvement as suggested by Mr Sakhrani, and none of the medical reports/notes/records suggests that the Plaintiff used a walking frame or quadripod for outdoor activities. The objective features also lend support to the Plaintiff’s case of actual chronic disuse. In my view, the present case is a far cry from Farman Khan where there was no psychiatric medical history at all to support the application for leave to adduce psychiatric expert evidence or Yuen Hok Mo v VSL Hong Kong Limited & anor HCPI 275/2009, Suffiad J (unreported, 6 January 2010) where the application for leave to adduce occupational therapy expert evidence premised on use of wheelchair was rejected as the plaintiff was already walking with elbow crutches. Notwithstanding Dr Kwan’s view that the Plaintiff was orthopaedically fit for walking, I am unable to accede to Mr Sakhrani’s submissions that there is no medical basis at all for the Plaintiff’s chronic disuse of her left leg or for her reliance on a walking frame indoors and a wheelchair outdoors. 62.Returning to the Plaintiff’s medical history, she continued to attend an old folks centre (Singer Report) or Geriatric Day Hospital at CMC (Siu Report) after discharge from physiotherapy for 2 days/week for about 4 months (where, according to the Siu Report, her mobility level and ADL skills were being monitored). According to the Singer Report, she did not continue because she had to have her daughter take her there by wheelchair, and she caught the ’flu from other patients who were older and more feeble. 63.According to the Singer Report, the Plaintiff claims that her physical condition improved little in the first year and only slightly in the second year. The pain improved somewhat with painkillers but left knee movement did not. She had headache and dizziness when she was severely depressed. She was irritable and scolded her family members, and she would awake with startle reactions nightly followed by hypervigilence. She became withdrawn and had negative thoughts and suicidal ideas. She informed Dr Singer that in February to March 2008 she attempted suicide with overdose of 14 tablets of painkillers. She fell asleep and was not taken to the hospital. Later she decided not to repeat it because she thought her children might be affected by her suicidal attempt. According to the Singer and Jt Psy Reports, since 1 odd year post-Accident or since March to April 2008, the Plaintiff had nightmares/flashbacks of the Accident every few days, and fear and avoidance of conversations about the Accident, travelling in taxis, crossing the road, and the site of the Accident. 64.It is appropriate to pause here to deal with Mr Sakhrani’s criticism of such complaints. It is important to note that in February or March 2008 although the Plaintiff has not begun to receive psychiatric or psychological treatment, she was in fact suffering from psychiatric illness and mood problems such that psychiatric consultation was deemed necessary a few months later (ie in early June 2008) when she was hospitalised for knee pain and implant removal (see in paragraph 65 below). At that time, the Plaintiff was diagnosed to have PTSD with depressive features, and the condition of her left leg was static with severe osteoporosis, limited left knee ROM, knee pain and little improvement. In my view, to suggest that the Plaintiff’s suicide attempt in February or March 2008 in such context is grossly inconsistent with her report of mental disturbance with “fleeting suicidal ideation but no definite plan of self harm” in January 2007 (see paragraph 50 above) is inappropriate. Consequently, I am not persuaded that for the present purpose Dr Singer’s opinion has been adversely affected for failing to deal with such “inconsistency”. Indeed, even as at March 2009 when the Plaintiff was under psychiatric treatment, she still had suicidal ideas when she was alone, and her psychiatric condition was not yet in remission (see paragraph 68 below). 65.Again returning to the Plaintiff’s medical history, removal of implant was done on 7 July 2008, and she was discharged after 8 days of hospitalisation. Upon discharge, she could walk with a frame (for a few steps according to the Jt Psy Report). According to the Jt Ortho Report, she was given another course of physiotherapy for a few months in 2008. Thereafter, she could walk with a frame but still used a wheelchair at times. According to the Singer Report, she continued to attend orthopaedic follow up. 66.During the Plaintiff’s hospitalisation in July 2008, she was referred to CMC’s psychosomatic clinic. When she was first seen on 4 July 2008, her mood was depressed and her affect was restricted. No definite psychotic features were elicited, and she was not actively suicidal or aggressive. Her insight was limited, but she was agreeable for follow up at the psychosomatic clinic and for medications. The Plaintiff was diagnosed with PTSD and moderate depressive episode with somatic syndrome. With medications, the “voices” and “noises” ceased, and her mental condition generally improved with some improvement in her mood and sleep, but “she seemed upset that she was wheelchair bound and that her daily activities were affected” (see medical report by Dr Patricia Ellen Choi dated 9 July 2009). 67.In October 2008, the Plaintiff was hospitalised for the ’flu with fever and lower urinary tract infection. After 4 days, she was discharged with medications and recovered since. Her physical condition improved slightly, but stopped in late 2008. 68.At the psychiatric follow up on 27 March 2009, the Plaintiff was still using a wheelchair and required assistance in her ADL. She had difficulty in accepting her disability, and still felt low in mood with negative cognitions. She admitted to having transient suicidal ideas when she was alone, but had no psychotic symptoms otherwise. “Her condition is not yet in remission and she still requires further treatment at the clinic” (see medical report by Dr Patricia Ellen Choi dated 9 July 2009). 69.The Plaintiff also received psychotherapy treatment from CMC’s clinical psychologist, and was referred to medical social worker for introduction of engagement activities and financial assistance. Her mood fluctuated as she felt herself to be a burden to her daughters, and she was chronically upset that she became wheelchair-bound after the Accident. 70.At the orthopaedic follow up on 21 July 2009, the Plaintiff’s left knee ROM was 10°–100°, and she could “walk with frame and mainly in door activities. She still experienced some left knee pain ……” (see medical report by Dr Wong Kwok Ho dated 24 July 2009). 71.At her psychiatric follow up on 25 September 2009, her speech was relevant and coherent with normal form, flow and volume. She was euthymic and her affect was congruent. There was no hallucination, delusion or suicidal idea. Nevertheless, continued follow up and treatment was indicated. According to the Jt Psy Report, the Plaintiff continued to attend psychiatric follow up, but she disliked taking psychiatric medications for fear of their adverse effects, so she became more active. 72.When the Plaintiff was examined by Drs Singer and Chung in November 2009, she still complained of left leg weakness and numbness. She was unable to bend and had pain in left knee. She could walk with a frame for a few steps, but could not squat or sit in low chair. She could stand for 5 odd minutes, and had to be helped going to the toilet. She needed help and a wheelchair to go outside. She felt she was not as well as she was a year ago when she was examined by Dr Singer because “her doctor said there could be deterioration in her knee joint with time”, her daughters had more complaints, she was unable to do many tasks, and her husband told her not to have any more treatment. 73.At the follow up on 23 March 2010, the Plaintiff was able to walk indoors with aids but needed a wheelchair for outdoor activity. She still had some on-and-off left knee pain, and left knee ROM was up to 90° flexion. “The pain may be due to some element of post-traumatic arthritis of left knee. She will be reassessed at [CMC’s] arthritis clinic to see any indication of left total knee replacement in April 2010” (see medical report by Dr Wong Kwok Ho dated 29 March 2010). She was seen at CMC’s arthritis clinic on 12 April 2010 with persistent pain over left knee and on-and-off left knee swelling. She tolerated walking with frame at home but needed a wheelchair for outdoor activities. Her left knee active ROM was 5°–90° flexion. She was suggested to have left total knee replacement for post-traumatic arthritis of left knee, but was reluctant due to worry over complications. At the re-assessment on 2 August 2010, she declined to undergo the operation. 74.The above medical history shows that the Plaintiff continues to suffer from knee pain and swelling (see paragraphs 70 and 73 above) and this is supported by the diagnosis of post-traumatic arthritis (see paragraphs 73 above) which reflects deterioration of the knee joint. Indeed, even as early as in June 2008, the Wong Report alluded to an increased risk of future degenerative change with stepping shown in the x-rays. In such circumstances, it cannot be said that there is no medical basis at all for the Plaintiff’s difficulty or unwillingness to wean off the walking frame or to resume quadripod walking with a view to independent walking with sticks as suggested by Dr Kwan in December 2007. For the present purpose, the interaction between her orthopaedic problems and her limited insight of her own psychiatric problems coupled with her being chronically upset by her limited mobility (see paragraphs 66, 69 and 72 above) cannot be ignored. I am unable to say that the above account clearly illustrates the absence of any medical basis for the Plaintiff’s reliance on a walking frame indoors and a wheelchair outdoors. 75.In respect of Mr Sakhrani’s criticism of the discrepancy between the Plaintiff’s complaint to Dr Wong in March 2008 of continuous attack of left knee pain and her complaint of occasional bilateral knee pain 3 months before (see paragraph 57 above), it must be remembered that the Plaintiff made a suicide attempt in February or March 2008 after physiotherapy had ended and she was still mostly homebound and walking indoors with a frame (see paragraph 63 above). With such active psychotic feature in February or March 2008, I am unable to say that the suggested difference is so significant that the Plaintiff’s complaints are unreliable. 76.But Mr Sakhrani goes further by criticising Drs Wong and Singer for accepting the Plaintiff’s complaints at face value without any appreciation of the significant but inexplicable changes to her complaints after December 2007 and without appropriate references to the hospital notes/records. 77.Having traced and analysed the Plaintiff’s medical history above, I am unable to safely say there were inexplicable changes to the Plaintiff’s complaints after December 2007. On the contrary, the medical history bolstered by objective features reveals arguable medical basis for the Plaintiff’s functional presentation. As explained above, I also cannot safely conclude that Dr Wong has failed to properly consider the hospital notes/records that have been made available to him. In fact, he has referred to the Plaintiff’s medical history in the Wong and Jt Ortho Reports. It is for the medical expert to consider what medical information is of significance to the forensic exercise, and it is inappropriate for me at this stage to determine the validity or otherwise of the reasons for his opinion. 78.To consider Mr Sakhrani’s remaining submissions, I now turn to the orthopaedic and psychiatric expert reports. 79.When Dr Wong examined the Plaintiff in March 2008 for compiling the Wong Report, her complaints were inter alia as follows:
80.By the time she was examined by Drs Wong and Cheng in November 2009 for the Jt Ortho Report, the Plaintiff’s complaints were inter alia as follows:
81.In the Wong Report, Dr Wong notes that the Plaintiff became wheelchair-bound and her mobility was much affected, and further opines that her ADL and social life would be highly affected by these conditions (which would hinder her from independent walking). But I am not persuaded by Mr Sakhrani’s suggestion that Dr Wong came to this view simply by accepting the Plaintiff’s complaints at face value. In my view, the Wong Report itself suggests otherwise. 82.From the history given by the Plaintiff to Dr Wong, he must have known she was able to walk with a frame indoors but had difficulty in outdoor activities because of the problem in negotiating steps at the entrance of the housing estate where she lived and therefore had to use a wheelchair. The Plaintiff also attended both examinations by the orthopaedic experts in a wheelchair, but managed to walk with a frame during physical examination. Further, physical examination on both occasions revealed mild swelling of the left knee, tenderness over proximal tibia, decreased left knee ROM (flexion up to 70° (Wong Report) and 90° (Jt Ortho Report)), and slight muscle wasting of the left thigh. For the left knee, the Wong Report notes slight decrease of muscle strength around left knee/ankle, and the Jt Ortho Report notes valgus deformity and crepitus over the left knee. For the right knee, the Wong Report notes complaint of right knee pain with swelling and tenderness over the retropatella region. X-ray on both occasions show marked osteoporosis of the left knee and mild stepping over left tibial plateau. 83.In the Wong Report, Dr Wong opines that the Accident was a serious one involving fracture in tibial plateau. He explains that the stiffness of left knee (<0-90°) was probably caused by soft tissue contracture, and as a result the Plaintiff would have difficulty in certain ADL like squatting, walking stairs or even sitting on low chair. The marked osteoporosis indicated chronic disuse of left lower limb with prolonged insignificant weight bearing on it. Dr Wong opines that the Plaintiff’s condition had reached maximum medical improvement but the prognosis was poor. She was expected to have persistent left knee weakness and stiffness, and difficulty in walking in future. The chance of future degenerative change was increased with stepping shown in the x-ray. There would also be on-and-off attacks of pain around right patello-femoral joint in future, particularly after prolonged walking/standing and during weather changes. In view of the objective features, Dr Wong is of the view that the Plaintiff’s complaints were genuine. I am not persuaded that he has merely accepted the Plaintiff’s subjective complaints at face value. 84.I also note that in the Jt Ortho Report, Drs Wong and Cheng further found valgus deformity and crepitus over left knee, which also sit well with the Plaintiff’s continued complaints of left knee stiffness/pain and the eventual diagnosis of post-traumatic arthritis. Further, their examination confirmed that the Plaintiff was grossly disabled by her left knee condition, and that there was gross osteoporosis suggesting of disuse. In any event, neither orthopaedic expert has expressly suggested any exaggeration or feigned inability by the Plaintiff to walk independently or with quadripods. 85.Further, the Jt Ortho Report notes the Plaintiff appeared to be emotionally unstable and cried during the interview. Drs Wong and Cheng agree that her then state was “most likely due to her unusual response to the injury; and the occurrence of psychiatric affection causing the poor progress of rehabilitation”, and that “further orthopaedic treatment is unlikely to be of any help”. They opine that for a “pure orthopaedic condition” the Plaintiff should have made a reasonable recovery, but as it was then, “[she] becomes wheelchair dependent. …… Her ADL are similarly affected. It is hoped that with recovery in her psychiatric condition, [she] can resume some degree of activities.” 86.In view of the Plaintiff’s gross disability and restricted mobility as a result of her persistent left knee condition, Dr Wong opines in the Wong Report that the Plaintiff should have difficulty in resuming her pre-injury work as part-time cleaner, and indeed any work “unless her left knee strength and pain are improved after further training.” In the Jt Ortho Report, Drs Wong and Cheng also agree that the Plaintiff was unlikely to resume her pre-Accident job. 87.Mr Sakhrani focuses on the opinion that on “a pure orthopaedic condition” the Plaintiff should have made a reasonable recovery and that “further orthopaedic treatment is unlikely to be of any help” to say that no physiotherapy service is needed, and hence physiotherapy expert evidence is not required. 88.But it should be remembered that in compiling the Jt Ortho Report, Drs Wong and Cheng had the benefit of considering the Siu Report and they had taken note of Dr Siu’s findings and recommendations for future physiotherapy service. The issue here is not about orthopaedic cure for injury to the Plaintiff’s musculoskeletal system (which Drs Wong and Cheng say will not be improved by further orthopaedic treatment), but with the Plaintiff’s functional (ie mobility) rehabilitation. In this respect, Drs Wong and Cheng acknowledge that psychiatric element was a contributing factor to the functional problem, and Dr Wong opines that although left knee strength/pain might be improved after further training the prognosis was poor and there was risk of future degeneration (and in this respect one cannot ignore the eventual development of post-traumatic arthritis). In such circumstances, I do not agree that the Jt Ortho Report of itself is indicative that physiotherapy service and/or expert evidence is irrelevant or unnecessary. 89.Mr Sakhrani submits that occupational therapy expert evidence is not required because the Plaintiff is not (and there is no physical reason for her to be) wheelchair-bound. Here, as known to Drs Wong and Cheng when they rendered their expert opinion, the Plaintiff gave history that she was able to walk with a walking frame indoors but required use of a wheelchair for outdoor activities. In my view, whilst occupational therapy expert evidence is normally commissioned where the claimant is wheelchair-bound, it is not an essential criterion for establishing such need. The true question is whether such expert opinion is reasonably required in the circumstances of the particular claimant to establish what he requires for coping with lifestyle changes as a result of his injuries and consequential disabilities. Such need is usually elicited from the orthopaedist, and such is forthcoming in the present case from Dr Wong in the Wong Report in which he opines that the Plaintiff:
90.In respect of psychiatric expert evidence, Mr Sakhrani submits that Dr Singer’s opinion must be viewed with skepticism because he has failed to deal with the gross inconsistencies in the Plaintiff’s complaints and to appreciate there is actually no physical reason for the Plaintiff being wheelchair-bound. He also criticises Dr Singer for accepting the Plaintiff’s complaints at face value and for failing to provide a psychiatric reason for her condition. 91.I will not repeat my discussions above on some of these criticisms. I note that as with Drs Wong and Cheng the relevant hospital reports/notes/records have been made available to Drs Singer and Chung, and the Plaintiff’s complaints and medical history have been mentioned in some detail in the Singer and Jt Psy Reports. At this stage of the proceedings, I am unable to say that Dr Singer has not taken into account the primary medical information in reaching his opinion. 92.I also note that neither Dr Singer nor Dr Chung suggests that the Plaintiff’s psychiatric presentation has been exaggerated, unjustified or feigned. The Plaintiff came in a wheelchair pushed by her daughter for the examinations by Dr Singer for the Singer Report and by Drs Singer and Chung for the Jt Psy Report. On both occasions, her mood was depressed, and she was tearful and weepy talking about her pains before and after the operation. 93.Dr Singer is of the view that the Plaintiff suffered from PTSD with depressive features in direct consequence of the Accident and related aftermath. He believes the Plaintiff’s complaints were credible: (a) the pattern of symptoms fitted the diagnosis; (b) the symptoms reflected and were consistent with the traumatic events; (c) she was consistent in her account; and (d) she told of improvement. He is of the further view that the contribution of her non-Accident related stressors, eg neglectful husband and disappointing sons, to her psychiatric illness was negligible. 94.Dr Chung also agrees that the Plaintiff’s complaints were compatible with PTSD with depressive features in response to the stressors of trauma of the Accident and the distressful resultant physical disability, unemployment and associated psychosocial adversities, and that the pre-existing problems with her husband and children only affected her current mental condition to a minor extent. Dr Chung opines that whilst the Plaintiff’s mental problems (ie her anxiety and depressive symptoms) were understandable adverse psychological reaction in response to the stressors, she was not displaying any severe psychopathology and objective signs of significant depression were not elicited. Dr Chung pointed out that during the examination in November 2009, the Plaintiff was motivated to give a detailed history, had good understanding of her circumstances, expressed her ideas and feelings well with normal flow of speech and absence of psychotic symptoms. She was also able to travel when accompanied despite her anxiety about cars, did exercise on a regular basis, and had reasonable activities like reading newspapers and watching TV which were appropriate to her physical disability. 95.But Dr Singer disagrees because the Plaintiff complained of persistent severe depressive mood (which was an understandable reaction to her physical symptoms and disability) associated with impairment of sleep, sense of worthlessness, agitation, nightmares/flashbacks of the Accident and other PTSD symptoms. He accepts that her symptoms and associated impairment of social and occupational functioning were moderate in degree, but on examination her mood was depressed and she was tearful and weepy talking about her pain before and after operation. She was also only able to take taxis and if accompanied by her daughter, and her activities were limited by her psychiatric condition, eg her interest in activities had diminished, she no longer read books, and her ADL were impaired (ie she was afraid of taxis, seldom went out, avoids being seen, and avoids social and recreational activities). 96.Dr Singer notes that the Plaintiff had improved with psychiatric treatment in the public sector but stopped improving and according to her became worse since a year before the Jt Psy Report. He opines that from a psychiatric perspective she would not be able to cope with her pre-Accident work and her ADL was impaired. Her lack of social activities was equally caused by psychiatric disability which adversely affected her motivation and mood in carrying out such activities. Without further treatment she would not improve and would likely deteriorate, but with more intensive treatment especially given after the settlement of litigation her symptoms would have some chance of becoming mild to moderate at the end of the treatment period, but some depressive symptoms would likely persist because of the severity and permanence of the physical disabilities causing them. She would be vulnerable to the ordinary stresses of living and development of depressive episodes. He therefore recommended the Plaintiff to receive intensive psychiatric treatment in the form of medication and psychotherapy in a private setting to be continued after settlement of the litigation. 97.On the other hand, Dr Chung notes that the Plaintiff’s mental condition improved after psychiatric treatment in the public sector, and had reached maximum medical improvement. She was then suffering from residual mental problems but the impairment levels were mild. She had reasonable activities that are appropriate to her physical disability (eg doing exercise, reading newspaper and watching television), and was able to travel when accompanied despite the anxiety. Her ADL and lack of social activities were mainly caused by the physical disability, and it was likely that she would continue to suffer from residual mental symptoms for a few more years as the physical symptoms were permanent. Dr Chung opines that the Plaintiff would need to continue maintenance psychiatric treatment in the public sector for 1 year for advice on coping strategies to adjust to the injury and deal with her problems. 98.It is interesting to note Dr Chung’s seeming acceptance that the Plaintiff’s physical symptoms (which include her limited mobility) are permanent and that she should learn to adjust to her injuries and disabilities. Dr Singer opines that the Plaintiff’s psychiatric complaints were genuine, and although the symptoms were moderate, the Plaintiff’s depressive mood was an understandable reaction to her physical problems. Dr Chung also accepted that the Plaintiff’s anxiety and depressive symptoms were understandable responses to the physical symptoms. More importantly, Dr Singer speaks of her psychiatric disability affecting her motivation and/or interest in activities and of the persistence of and her vulnerability to depressive symptoms, which arguably sit well with her limited mobility and chronic disuse of her left leg. In the circumstances, I am unable to say that the interaction of the physical disability and psychiatric problems does not give rise to any prima facie medical basis for the non-medical expert evidence sought. IX. RECOMMENDATION BY MEDICAL EXPERTS? 99.Mr Sakhrani submits that the orthopaedic and psychiatric experts have not recommended any need for physiotherapy and occupational therapy expert evidence. But in fact, as pointed out by Mr Lam, Dr Wong in the Wong Report has recommended home assessment/modification and consideration of the accessibility of the Home (see paragraph 89 above), and he has opined there might be improvement of left knee pain and strength with further training (see paragraph 88 above). The Siu and Au Reports were obtained subsequent (and probably pursuant) to such recommendations, and were provided to the orthopaedic and psychiatric experts for their consideration to prepare the Singer, Jt Ortho and Jt Psy Reports. Given such developments, I agree with Mr Lam that it is unnecessary for the orthopaedic and psychiatric experts to make positive recommendations for physiotherapy and occupational therapy expert evidence in their reports. I do not consider this to be a factor against seeking such expert evidence in the present context. X. RELEVANCE AND NECESSITY OF SIU REPORT? 100.Mr Sakhrani submits that Dr Siu likewise seems to have accepted the Plaintiff’s complaints at face value and appears not to have appreciated that the Plaintiff’s complaints after December 2007 have significantly and inexplicably changed. He argues that in any event Dr Siu has not indicated any long term prognosis of requiring a wheelchair since one of his stated objectives for further physiotherapy service is to train the Plaintiff to walk better with the aim of eventually walking independently with walking sticks to give greater mobility in negotiating stairs. Such recommendations are inconsistent with the earlier view of the treating physiotherapist that the Plaintiff’s condition has become static and/or with the subsequent conclusion of Drs Wong and Cheng that the Plaintiff has made a reasonable recovery and that further orthopaedic treatment is unlikely of any help. Mr Sakhrani therefore submits that the Siu Report lacks probative value and will not be helpful to the trial judge in his/her adjudication. 101.I have dealt with some of these arguments above and will not repeat them here. Dr Siu in making his recommendations have reviewed not just the hospital reports/notes/records but also the Wong Report. It cannot be said that his opinion has been given in ignorance of the Plaintiff’s medical condition or of the views of the treating orthopaedists/psychiatrists. Further, the fact that the treating physiotherapist regarded the condition as static in November 2007 does not mean there has been full recovery. As noted in the medical reports/notes/records, the expert medical reports and in the Plaintiff’s witness statement, she still has ambulatory incapacity in that there is walking difficulty and stiffness/weakness of left knee, and she still walks with a frame indoors and requires a wheelchair outdoors. She cannot negotiate stairs or use public transport except taxis when accompanied, and she needs others to take care of her and help her in her ADL, such as putting on lower garments and shoes, toileting and showering. In light of Dr Kwan’s prognosis and the recommendation in the Wong Report, I am unable to say that the recommendation in the Siu Report for further physiotherapy treatment for functional maintenance/improvement in the particular context of this case is irrelevant and lacking in probative value. 102.Indeed, after the Siu Report, Drs Wong and Cheng have confirmed the continuous existence of the above problems, and they have not indicated any disagreement with the recommendations in the Siu Report which are to negative the effects of such problems (especially when they have alluded to the increased risk of future degenerative change) rather than to provide any orthopaedic cure. In any event, the suggestion that further orthopaedic treatment is unlikely of any help may need to be revisited in light of the diagnosis of post-traumatic arthritis and the treating doctors’ advice for total knee replacement. In all the circumstances, I am persuaded that in the particular context of this case, physiotherapy expert evidence (including the Siu Report) is relevant, necessary and of probative value. XI. RELEVANCE AND NECESSITY OF AU REPORTS? 103.It is suggested by Ms Tsang (former counsel for the Defendant) whose written submissions are adopted by Mr Sakhrani that “[occupational therapy] is only required, say if the Plaintiff is wheelchair bound such that the [occupational therapist] can comment on how she would best occupy her life on wheelchair, including training to use wheelchair, modifications of the living premises and costs issue etc”. Mr Sakhrani submits that since Ms Au is not a qualified medical doctor and since no doctor has ever suggested that the Plaintiff is wheelchair-bound, Ms Au cannot give expert evidence on any scheme of rehabilitation or treatment that includes occupational therapy service as well as home care, accommodation, transportation and psychiatric counselling needs. 104.Lam Sheung Moon by Lam Bing her next friend and father v Lau Wai Kin & anor HCPI 710/2006, Fung J (unreported, 9 December 2009) is cited in support of such proposition. In that case, although the plaintiff was initially a severe tetraplegic, she made remarkable recovery and was at the time of the hearing ambulatory without aid (though she took small steps and needed to be accompanied generally), and she was will-powered to be ambulatory for at least an hour daily. There was already a joint physiotherapist expert report which the trial judge could take into account in working out reasonable physiotherapy required by the much improved physical condition of the plaintiff, so occupational therapy opinion was not required in that case. There was no need of any ambulation device and the remaining issues were neurological, so the issues of the need/quality of care and the size of the flat could be left to the trial judge. 105.I do not think this case is of assistance to the factual matrix here since the extent of the recovery in mobility was much better in that case than in the present case. Further, physiotherapy expert evidence was available in that case, but here the Defendant objects to expert evidence from both disciplines. 106.Ms Sakhrani also refers to Wong Siu Tong where Master Roy Yu said that since rehabilitation experts are not medical experts, any scheme of rehabilitation or treatment must be based on recommendation from the doctor (see para.18). “For example, a doctor recommend a patient that he had to rely on wheelchair for the rest of his life. The rehabilitation experts are to comment on how he would best occupy his life on wheelchair. This might include training to use wheelchair, modification of the living premises, and costs issue ……” In my view, the above reference to wheelchair dependency is an illustration and not an immutable requirement. Anyway, the learned master in that case recognised the necessity of placing relevant evidence on the costs of home care (which the defendant disputes) before the trial judge in case he finds in favour of the plaintiff’s proposition that he should be returned home. 107.Mr Sakhrani next refers to Yuen Hok Mo v VSL Hong Kong Limited & anor HCPI 275/2009, Suffiad J (unreported, 6 January 2010) where the plaintiff refused to use a wheelchair despite severe leg injuries, and he was able to walk with elbow crutches and/or walking stick. The learned judge refused leave to adduce the occupational therapy expert report which covered wide-ranging matters given the limited dispute over the cost of elbow crutches and walking stick and the speculative nature of opinion on home modification predicated upon a potential need for wheelchair which was not required. As Mr Lam points out, this case turns on the peculiar fact that occupational therapy evidence was sought on the basis that the plaintiff potentially required a wheelchair when in fact he did not. The ambulatory capacity of such plaintiff was plainly better than that of the Plaintiff herein, and it does not necessarily follow that there should be similar rejection of occupational therapy expert evidence in the present context. I also note that the learned judge in that case accepted opinion on modification to accommodation, technical aids and assistive devices came within the field of occupational therapy expertise. 108.Mr Sakhrani also submits that the Au Reports make extravagant and expensive claims on the assumption that the Plaintiff is wheelchair-bound, and fails to address the contrary views of the treating orthopaedists/physiotherapists. He argues there is no indication in the Jt Ortho Report of any wheelchair dependency, and in fact the Plaintiff should not even require a walking frame. Ms Au appears to have adopted the Plaintiff’s account at face value, hence the foundation for her reports is misplaced and her recommendations are without sufficient medical basis. 109.In my view, neither the Plaintiff’s case nor the Au Reports are premised on the foundation that the Plaintiff is wheelchair-bound all the time. It is the Plaintiff’s case (as evident from the witness statements of the Plaintiff and her daughters, the medical reports/records and the expert medical reports) that she requires use of a walking frame indoors and a wheelchair outdoors. The fact that occupational therapy expert evidence is usually sought where the claimant is wheelchair-bound does not make it an essential criterion for such expert evidence. The ultimate question is the relevance, necessity and probative value of expert evidence on needs and on the relevant costs given the evidence before the court in respect of the Plaintiff’s mobility problems. Here, there are objective features before me to support the Plaintiff’s actual ambulatory restriction, and I am not persuaded that the proposition for occupational therapy expert evidence is as unattractive as in Yuen Hok Mo. 110.Ms Tsang in her written submissions, which are adopted by Mr Sakhrani, confirms there is no dispute that the Plaintiff requires walking aids and equipment so that the major contention is the multiplier, but argues that the Au Reports are not necessary since the difference between the parties’ quantification is less than HK$15,000.00. On the other hand, Mr Sakhrani submits that since the medical evidence suggests the Plaintiff does not even require a walking frame let alone a wheelchair, the Defendant is entitled to take (and in his Answer has taken) the higher ground that the Plaintiff’s claim for aids, equipment and consumables is disagreed, and the challenge as to the proposed multiplier is a secondary or fallback alternative defence. 111.Mr Lam says Mr Sakhrani’s submissions do not sit comfortably with the plain reading of the Answer and Ms Tsang’s written submissions. Be that as it may, there are materials (including objective features) before me that the Plaintiff has ambulatory restriction and uses both a walking frame and a wheelchair. It is not for me at this stage to decide whether such assertion is credible or whether Mr Sakhrani’s submission that the Plaintiff can walk independently with quadripod is justified. In my view, occupational therapy expert evidence on aids, equipment and consumables is even more important given the higher ground now taken by Mr Sakhrani otherwise the Plaintiff will be bereft of evidence in this respect if her case on mobility restriction (which arguably supports the claim for cost of future needs) is accepted by the trial judge. 112.As regards the need/cost of care and attention at home, the witness statements of the Plaintiff and her daughters state that after the Accident the elder daughter gave up her job as a waitress to look after the Plaintiff on full-time basis, and as from March 2008 both daughters shared in the care of the Plaintiff and the elder daughter returned to casual work. After the younger daughter graduated from her studies, she took on full-time care of the Plaintiff. 113.The Defendant appears to accept that the Plaintiff requires assistance at home, and the issue is whether she should have a full-time live-in or a part-time helper when her daughters are at work. But the Answer does not deal with the Plaintiff’s nighttime need for care and attention (eg requiring help to go to the toilet) or with compensation for services by the daughters after the part-time helper left for the day. I am persuaded that given such disputed issues, it is appropriate for the Plaintiff to adduce evidence from an occupational therapist on the appropriate care regime and explain why a full-time helper is justified. Whether the claim should be allowed is, of course, a matter for the trial judge. 114.As regards the need/cost of alternative accommodation, the Plaintiff has explained in her witness statement that there are only 2 bedrooms at the Home. She lives with her 2 daughters in 1 room (so it is very cramped), her 2 sons use the other room, and her husband uses in the living room. She says that the size of the Home is 43.69 sq m with little room for physiotherapy equipment, and more importantly, she can hardly move and close the toilet door after entering the toilet with the walking frame. The walking frame cannot go into the shower area and she must require the assistance of her daughter(s). Even they have difficulty helping her in the toilet given the limited circulating space. 115.The Defendant’s objection appears to be premised on the argument that the Plaintiff does not need a wheelchair, but her claim is not so premised. Rather, she claims that (a) the Home (and in particular the toilet) is too small and unsuitable for her, particularly as she has to use a walking frame, and (b) there is insufficient space for her family and a live-in domestic helper. This is recognised by Ms Au in the Au Reports, which explains the Plaintiff’s accommodation needs, and states what an appropriate accommodation should include, its reasonable size and the cost of adaptations. Given Dr Wong’s opinion in relation to home accessibility and adaptation in the Wong Report, and the Defendant’s denial of any need for alternative accommodation, Ms Au’s opinion is arguably relevant to and necessary for the disputed issues. 116.As regards Ms Au’s recommendations for the need/cost of occupational therapy service for (a) prescription and training in use various aids and equipment and (b) provision of advice on home adaptations, they are arguably necessary as a corollary to her suggestions for aids/equipment, for a full-time helper and for alternative accommodation, which I have found to be arguably relevant and necessary. 117.I have some reservations about the occupational therapy expert making comments and recommendations on the need/cost of transportation allowance which appears to be a straightforward matter once the cost of taxi or Rehabus per round trip is known, and on psychological counselling service which has been covered in the Singer and Jt Psy Reports. Had it not been for the conclusion I have made in paragraph 30 above as to the disclosure and use of the Siu and Au Reports in the particular circumstances of this case, I may not necessarily have allowed such recommendations. As it were, I am persuaded that the whole of the Au Reports are admissible. XII. PREMATURE REPORTS? 118.Finally, Mr Sahkrani submits the Siu and Au Reports (which recommendations he says have a substantial financial impact and which are contentious) prepared some 9 months before the issue of the Writ of Summons have been prematurely obtained. He says they should not have been obtained until the need for them is clear and leave has been given by the court. Even if there is a proper basis for obtaining such reports, the Plaintiff should have arranged for joint examinations by the parties’ respective experts. After all, discussions for the Civil Justice Reform were on foot by then and in any case Seagroatt J has warned against excessive use of expert reports. Mr Sakhrani asks me to bear in mind Fung J’s observations in Lam So Chai at para.12 as follows:
119.However, I note that the Siu and Au Reports were obtained after Dr Wong had made recommendations in the Wong Report on the need to consider home accessibility/adaptation and on further training for improving left knee strength and pain, and they do not rest on the Plaintiff’s subjective complaints only. Further, as Mr Sakhrani rightly points out, these reports were prepared before the implementation the Civil Justice Reform and the new Practice Direction 18.1 which emphasised a joint approach to expert evidence on quantum. But given the Defendant’s opposition to physiotherapy and occupational therapy expert evidence maintained to date, it is doubtful whether any proposal for joint examination/reports would have been acceded to by the Defendant. With the advent of the Civil Justice Reform and Practice Direction 18.1, parties are expected to seek directions from the court if they are not able to arrange a joint approach to expert evidence, but failure to do so prior to the Civil Justice Reform does not detract from the admissibility as well as the necessity, relevance and probative value of the Siu and Au Reports as discussed above. XIII. CONCLUSION 120.I therefore grant the following orders:
121.There is no reason why costs should not follow event. I grant a costs order nisi that the Defendant do pay the Plaintiff’s costs of the Summons, including all costs reserved if any, in any event to be taxed if not agreed with certificate for counsel, and there be legal aid taxation in respect of the Plaintiff’s own costs. Summary assessment of costs is inappropriate in light of Order 62 rule 9C(1)(b) of the Rules of the High Court.
Representation: Mr Paul Lam instructed by Messrs Wilkinson & Grist for the Plaintiff. Mr Ashok Sakhrani instructed by Messrs Deacons for the Defendant. |
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