Fung Chun Man v. Hospital Authority and Another

HCPI 1113/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1113 OF 2006

----------------------------

BETWEEN

----------------------------

Before : Hon Bharwaney J in Chambers

Dates of Hearing : 9 June 2011

Date of Decision : 9 June 2011

Date of Reasons for Decision : 24 June 2011

-------------------------------------------------------

REASONS FOR DECISION

-------------------------------------------------------

1.This is an application by the plaintiff, who claims damages for personal injuries, to adduce expert evidence of a clinical psychologist at the trial of the action. The application has been made after the case was set down for trial. The trial of this action will take place before me on 2-9 September 2011. On 23 March 2011, the plaintiff’s solicitors wrote to my clerk to say that they had set the action down for trial on that day. They also intimated that the plaintiff might apply to adduce psychological expert evidence notwithstanding that the action had been set down. On 11 April 2011, the plaintiff’s solicitors again wrote to my clerk stating that the parties failed to agree on the appointment of a clinical psychologist as the single joint expert in the case and also failed to agree that a joint examination be conducted by the parties’ respective experts. The plaintiff’s solicitors enclosed, in their letter of 11 April 2011, a letter dated 7 April 2011 from Professor Peter Lee, a clinical psychologist, which expressed his view that a comprehensive assessment of the plaintiff’s overall psychological status and well being, as well as his overall cognitive functioning, should be undertaken. On 13 April 2011, the plaintiff issued a summons returnable before me on 18 May 2011 for leave to obtain and adduce expert evidence from a clinical psychologist at the trial of this action. Given the opposition to the summons by the defendants’ solicitors, I re-listed the summons, originally fixed for 3 minutes, to be heard before me on 9 June 2011.

2.After hearing submissions from the parties’ counsel and solicitors on 9 June 2011, I dismissed the plaintiff’s application and awarded costs of the application to the defendants, with certificate for counsel.  The plaintiff is legally aided, and I directed that the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

3.These are the reasons for my decision. 

The relevant legal principles

4.Even prior to the enactment of the Civil Justice Reform (“CJR”), the right of the parties to adduce expert evidence at trial was subject to the leave of the court.  However, it is fair to say that leave was usually granted, provided that the parties seeking to call such evidence established the expertise of the individual concerned and disclosed the substance of his or her opinion evidence in written form prior to trial.  The prevailing judicial view was to allow the parties to call the experts of their choice, just as they could call factual witnesses of their choice.  Indeed, in personal injury actions, the plaintiff was required, from very early on, to serve, with his statement of claim, medical reports substantiating all the personal injuries alleged in the statement of claim which the plaintiff proposed to adduce in evidence as part of his case at the trial[1].

5.The substantial increase of expert evidence, particularly in personal injury cases, became the subject of judicial criticism.  Beginning with the English Court of Appeal case of Liddell v Middleton [1996] PIQR 36, expert evidence reconstructing a road traffic accident became the exception rather than the rule[2]. The clampdown on expert evidence on liability issues in personal injury cases extended to cover non-medical expert evidence on quantum issues, such as evidence from employment consultants and property surveyors.  Whilst “mainstream” medical expert evidence from orthopaedic surgeons and neurologists continued to be readily admitted, a sea change was occurring with regards to “quasi-medical” expert evidence from occupational therapists, rehabilitation consultants, physiotherapists, speech therapists, nursing consultants and care managers.  In Wong Hin Pui v Mok Ying Kit and anor.[3] Seagroatt J said :

“56. I cannot stress too strongly that this court is aware of the excessive, expensive and wholly unjustified use of occupational therapists in personal injury cases. In the vast majority of cases their reports state no more than is apparent to any judge with any understanding of the effect of serious injuries on any human being. Essential matters are within the cognisance of orthopaedic and neurological consultants. Any practical problems can adequately be dealt with by rehabilitation consultants and nursing advisers.

…

58. In this case I read reports from neurologists, psychiatrists and occupational therapists totalling 170 pages, quite apart from the essential reports, one of which I ordered as a joint report.  Some of these reports were in any event premature. This aspect of the case is a classic example of what this court sees as an unrestrained use of resources with little regard for the cost involved.  As a consequence a significant amount of time and effort has been wasted.  The trial lasted at least two days more than was necessary.  If the Plaintiff is required to meet any of the costs to which I have referred, out of his damages, then that would be wholly unwarranted.  In my view they fall to be paid out of the costs of the legal advisers[4] who failed to exercise that judgment, where they are not met by the unsuccessful party.  The time is now ripe for the court to exercise a controlling hand far earlier than I thought was necessary if practitioners are not prepared to look hard and fast at the case of the person they represent and ask themselves – “What do we really need in the way of expert evidence, and what can we ask the Defendants to agree at an early stage?”

6.The court’s control over medical evidence in personal injury cases was evolving long before the court’s case management powers were created by the CJR.  The evolutionary process, initiated by the need to ensure cost efficient and speedy resolution of personal injury litigation, resulted in the adoption of a joint approach, both at the pre-action and at the post-writ stages, of obtaining and deploying expert medical evidence for use at trial.  The tri-partite benefit of such an approach, to the courts and to the parties concerned, cannot be denied.  As Fung J explained in Mok King Sun v Turn Round Company Limited[5] at §26, a joint approach has the following virtues :

“(1) avoidance of different observations on different occasions, or disputes on observations under single examination;

(2) discussions amongst the experts to narrow down the issues;

(3) specifying matters agreed and matters not agreed and the reasons for any non-agreement;

(4) avoidance of numerous supplemental reports commenting on the reports of the other side;

(5) minimizing the need to call the experts to deal with matters which could have been dealt with under (1) to (4) above.”

7.The adoption of the joint approach, even before the implementation of the CJR, can be seen from the decisions of Fung J at Cheng Lung Fong v Mitoyo Hong Kong Limited (HCPI63/2007, 22 September 2009), Limbu Bhimraj v All Clad Asia Limited (HCPI603 & 606/2007, 4 November 2008), Wong Kam Lee v Dragages et Travaux Publics (HK) Limited (HCPI 824/2004, 17 November 2008) as well as in Mok King Sun v Turn Round Company Limited quoted above.

8.The adoption of the joint approach can also be seen in the decisions of HH Judge Marlene Ng in in Ansar Mohammad v Global Legend Transportation Limited (DCEC1090/2006, 8 May 2007), Lau Lai Shan v Hospital Authority (DCEC784/2007, 29 February 2008), Lee Sau Fat v F.H. Security Services Company Limited (DCEC1720/2006, 6 July 2009), Ip Sau Lin v Hospital Authority (DCEC584/2007, 9 April 2009), Wong Cheuk v Falcon Insurance Company (Hong Kong) Limited (DCEC688/2008, 29 May 2009) and Chan Lai Ying v A S Watson & Co Ltd (DCEC1767/2006, 31 July 2009).

9.The enactment of the CJR did not result in a change to O.38, r.36 of the Rules of the High Court (“RHC”).  However, after the enactment of the CJR, it is clear that the court’s discretion, whether or not to grant leave to a party to adduce expert evidence, is to be exercised within the ambit of the court’s management powers.  Those powers must be exercised in the light of the underlying objectives of the CJR, including the need to ensure the cost effectiveness of the proceedings; to ensure that the case is dealt with expeditiously; to ensure reasonable proportionality having regard to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party; to ensure procedural economy in the conduct of the proceedings; and to ensure fairness between the parties.

10.The courts recognise that the primary aim of its case management powers is to secure the just resolution of the dispute in accordance with the substantive rights of the parties.  However, the substantive rights of the parties to a personal injury action do not include a legal right to call experts of their choice.

11.The expert evidence can only be adduced with leave of the court and, in deciding whether or not to grant leave, the court must ensure that such evidence is admitted only if it is likely to be of real assistance to the determination of the issues, and that it is adduced in the most effective and economic way consistent with the objectives of the CJR.

12.In this regard, I echo the observations of Evans-Lombe J in Barings PLC v Coopers & Lybrand (No.2) [2001] Lloyds Report Bank 85:

“45. Expert evidence is admissible …. in any case where the court accepts there exists a recognised expertise governed by recognised standards and rules of conduct capable of influencing the court’s decision on any of the issues which it has to decide and the witness to be called satisfies the court that he has a sufficient familiarity with and knowledge of the expertise in question to render his opinion potentially of value in resolving any of those issues. Evidence meeting this test can still be excluded by the court if the court takes the view that calling it will not be helpful to the court in resolving any issue in the case justly. Such evidence will not be helpful where the issue to be decided is one of law or is otherwise one on which the court is able to come to a fully informed decision without hearing such evidence.”

13.The Court of Appeal in Mann v Messrs. Chetty & Patel (a firm) [2000] EWCA CIV 267 proposed 3 questions that ought to be asked before deciding to allow expert evidence :

“(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.”

14.Chu J, as she then was, referred to Barings PLC v Coopers & Lybrand and concluded, in Wong Hoi Fung v. American Assurance Co. (Bermuda) Ltd. [2002] 3 HKLRD 507, that the expert evidence must be reasonably required to resolve the issues before the court before leave would be granted to adduce it.

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

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

17.These objectives and the joint approach are reflected in the protocol for commissioning expert reports set out in section I of the Personal Injuries List Practice Direction PD18.1.  Of particular relevance are the general provisions §§69-71, reproduced as follows :

“69. As a general rule, leave of the court or consent of the parties is required before any expert evidence can be adduced at trial.

70. A party who obtains expert evidence before obtaining leave, other than from a single joint expert or pursuant to joint examination and joint expert report with the expert(s) of the other party or parties, does so at his own risk as to costs and/or eventual refusal of leave to adduce such expert evidence.

71. As soon as it is realized there exists a need or an anticipated need for adducing expert evidence at trial or if parties failed to reach agreement on arranging joint examination and/or compiling joint expert report by the parties’ respective experts before or after the commencement of proceedings or if no agreement can be reached as to directions on obtaining expert evidence and/or for permission to adduce expert evidence, a party shall apply (by inter partes summons or by restoring the case for Check List Review Hearing) or the parties shall jointly apply (by Consent Summons to expedite or restore the hearing of the Check List Review) to the PI Master as soon as possible upon the commencement of or in the course of proceedings, as the case may be, for directions on obtaining expert evidence and/or for permission to adduce expert evidence.”

18.It must be emphasised that the courts do not purport to control or inhibit a party’s right to consult experts and to obtain reports from them.  The party with means may do so.  The party, not under disability, who has obtained an interim payment, may deploy part of that payment towards the costs of such experts.  In a recent case involving a plaintiff who was either in a permanent vegetative state or minimally conscious state, I indicated that I might be willing to grant leave for part of the interim payment received to be used in obtaining a functional MRI report to ascertain the true level of consciousness of the plaintiff.  In a legal aided case, such as the present one, the plaintiff or his legal advisers may be able to persuade the Director of Legal Aid to grant permission to obtain an expert’s report.  However, the point to emphasise, as reflected in §70 of PD18.1, is that, whilst a party is free to obtain his own expert report, he does so at his own risk as to costs and possible refusal of leave to adduce such expert evidence. In addition, parties need to know that non-compliance with PD18.1 and the pre-action protocol set out therein without good reason may result in adverse costs consequences and sanctions, including wasted costs orders[6].

19.Another point to emphasise is that the party who obtains an expert’s report, without agreement of the other party and without leave of court, runs the risk of disqualifying that expert from appointment by the court as the single joint expert. The risk may not be high at the beginning of proceedings when the court, although refusing leave for the party to adduce his solo expert report, may be amenable, nevertheless, to grant leave for a joint examination to be carried out by the expert concerned in conjunction with the expert nominated by the other party, and for a joint report to be prepared by them. However, if application is made, late in the day and when trial is imminent, for expert evidence to be adduced, the court may refuse the application or may only allow it on the basis of a single joint expert being appointed.

20.Another point to note is that the party who obtains an expert’s report without agreement of the other party and without leave of court runs the risk of losing his right to claim privilege over such a report, if leave is later granted to appoint the same expert as one of the 2 joints experts to examine the plaintiff and to report on the case.

21.A detailed exposition on the protocol for commissioning expert reports, both at the pre-action stage and at the post-writ stage, is contained in the post-CJR decision of Master Marlene Ng in Siu Fook Cheong v Siu Kwok Fai (HCPI768/2009, 2 February 2010).  The judgment provides particular guidance on the proper approach to be adopted in commissioning expert reports at the pre-action stage.  If pre-action communications do not result in agreed arrangements for single joint report or joint expert medical examination and report, the intended plaintiff is entitled to commence legal proceedings forthwith, without risk as to costs, and to issue an inter partes summons, as soon as possible after the commencement of proceedings, returnable before the PI Master, to seek directions on obtaining expert medical evidence. Alternatively, the intended plaintiff can apply for the CLR hearing to be expedited for the same purpose.

Expert evidence from clinical psychologists or psychiatrists

22.A psychiatrist is a medical doctor who has specialised in psychiatry.  He can prescribe drugs and admit people to hospital.  A clinical psychologist may have a doctorate degree but he does possess a medical degree.  He is trained to administer psychological tests but he cannot perform physical examinations.  He cannot prescribe drugs and he cannot admit people to hospital.  Whilst a clinical psychologist can carry out psychotherapy and can advise on the plaintiff’s need for psychotherapy, he cannot advise on drug therapy.  Where drug therapy is expected to play a role in the treatment of psychiatric injury, whether or not in conjunction with psychotherapy, expert opinion from a psychiatrist is preferable to opinion from a psychologist[7]. Where a case involves the assessment of cognitive impairment, a report from a psychologist, who is trained to carry out a battery of tests for such purpose, is to be preferred.  In the latter case, unless a single joint expert is to be appointed, it is preferable for arrangements to be made for joint testing by the parties’ respective psychologists.  As Deputy Judge Carlson noted in Chu Man Ting v Kwan Kam Kei[8]:

“33. The fact remains that these IQ readings, as both experts accept, are liable to be something of a movable feast depending on the candidate’s performance on any given date.”

23.There appears to be a misconception that the courts will not readily grant leave for evidence from a psychiatrist or a psychologist to be adduced.  The law of negligence does not provide a remedy for distress which does not amount to a recognised psychiatric illness[9], unless the distress, anxiety or fear is accompanied by a physical injury.[10]  The courts award damages where a party has suffered a recognisable psychiatric illness over and above emotional distress and disquiet.  The court will almost invariably require expert evidence to determine whether or not this is the case[11].  Even where it is not disputed that the plaintiff suffers from psychiatric illness, there may be a dispute as to causation: was the psychiatric illness caused or contributed to by the tort complained of.  A trial judge who has to determine this issue of causation may need assistance from an expert in this field.

24.Indeed, in most cases, the need for psychiatric treatment or psychological counselling is apparent long before the commencement of proceedings. Inappropriate conduct or speech is noted by family members or recorded on the hospital records.  Prolonged sadness, excessive anxiety, unusual irritability and temper tantrums are all indicia of possible psychiatric illness.  These are often recognised by treating doctors and nurses and the patient referred to a psychiatric unit, whether in-patient or out-patient, for assessment and treatment.  Even if the hospital records or treating doctors and nurses make no mention of a plaintiff’s psychiatric illness or possible psychiatric illness, orthopaedic or neurological experts examining a plaintiff in order to prepare expert medical reports on his physical condition will often recognise the presence of a psychological or psychiatric component and recommend that reports be obtained from relevant experts in that field.  Each case must depend on its own facts and a mere recommendation without supporting reasons by an expert from another field may be insufficient, but where the need for psychiatric or psychological evidence is clear and obvious, there can hardly be any realistic challenge to a request for relevant expert examination and reporting. 

25.In other cases, where there is no apparent indicia of a psychological component in addition to the physical injuries suffered by the plaintiff, the request for leave to adduce evidence from a psychiatrist or a psychologist will need to be properly justified. Such justification may be provided by submitting a written note from the intended expert setting out brief reasons explaining why the expert opinion is necessary in the particular case. However, for the reasons set out in §§18 and 19 above, a full medical examination and report should not be commissioned without agreement from the other party or leave of court.

26.If the request is made late in the day, or close to the commencement of trial, it is likely to be refused even if justified. As Brooke LJ explained in Baron v. Lovell [2000] PIQR P20, each party is afforded an opportunity by the rules to make a well informed valuation of the claim and a well informed Part 36 offer (or, in Hong Kong, a sanctioned offer).  The regime simply will not work if the former latitude in serving late evidence is allowed to persist.  It is quite wrong for a trial to be delayed, and for the possibility of making an effective Part 36 offer (or, in Hong Kong, a sanctioned offer) to be rendered nugatory, because of the late service of an expert’s report.

The present case

27.This is a medical negligence claim against the 2^nd defendant, the Secretary for Justice on behalf of The Secretary for Food and Health, in respect of the matters of complaint spanning from the period from 24 June 1990 to 19 December 1991 and against the 1^st defendant, the Hospital Authority, in respect of the matters complained of after 19 December 1991.  It is alleged that the plaintiff was born at the Prince of Wales Hospital on 23 July 1990 with a normal Apgar score and that, on 24 July 1990, the plaintiff was misdiagnosed as suffering from transposition of great arteries (“TGA”), and that the infant underwent unnecessary surgery on 26 July 1990 when a balloon septostomy was performed.  The surgery created an atrial septal defect (“ASD”), commonly described as “a hole in the heart”.  Prior to its closure on 5 February 2003, it is alleged that the child’s normal growth and development was stunted and it is further alleged that the plaintiff suffers from life-time disabilities, consequent upon the unnecessary surgery performed on 26 July 1990 and negligent treatment during the period from March 1991 to August 2002.

28.Substantial claims for damages had been advanced in the Revised Statement of Damages including a claim for future loss of earnings which was pleaded in these terms :

“IV. FUTURE LOSS OF EARNINGS

The Plaintiff is now aged 20. He is studying at Hong Kong University of Science and Technology. The Plaintiff is studying Chemical and Environmental Engineering. He hopes this will lead to a B. Eng. Degree. The Plaintiff’s future career will be restricted and in particular:

(a) His education progress was delayed and diminished because of his disabilities and the constant medical treatment.

(b) His future career prospects are limited by his physical problems and in particular chest pains on exertion and when under stress.

(c) His promotion prospects are reduced.

On graduation, the Plaintiff can anticipate earnings in the region of HK$10,000 to HK$12,000 per month rising to about HK$30,000 per month within 5 years. Were it not for his disabilities his future earnings within 5 years would at least HK$40,000. It is unlikely he will be able to move into a management role with much higher earning since his work experience will be more limited than able bodied colleagues. Website pay analysis (USA) shows that higher salaries are about 60% higher than lower salaries in this field e.g. http://www.doe.mtu.edu/news/degree_­ worth.html. It is likely that the Plaintiff will be at the low end whereas were it not for his disabilities he would be likely to be at the higher end. Were it not for the negligence of the 1^st and/or 2^nd Defendants, their servants or agents, the Plaintiff’s choice of his future employment would not be constrained as it now is.

The Plaintiff’s choice of employment is limited. He will suffer significant loss of earnings. Additionally, in the future the Plaintiff will be at risk on the labour market and more vulnerable in times of economic downturn or other events outside his control. In the event that he loses his employment or otherwise seeks new employment, he will be at risk on the labour market.

The Plaintiff’s academic development has been stunted so he is precluded from high paid jobs requiring professional or other high-level qualifications. He cannot perform any high paid jobs that involving large physical effort. His loss of earnings will be at least HK$10,000 per month.

The appropriate multiplier is 20. The Plaintiff’s claim for loss of future earnings is:

HK$[10,000 (monthly loss) x 12 (months) x 20 (multiplier) x 1.05 (MPF)]

FUTURE LOSS OF EARNINGS               HK$2,520,000”

29.The proceedings were commenced on 18 December 2006 at which time the plaintiff was still an infant and he sued by his father and next friend, Mr Fung Kwai Fuk. After his 18^th birthday, the pleadings were amended to enable the plaintiff to sue as an adult person. 

30.Master Betty Kwan made orders at the Check List Review hearing on 24 July 2009, including an order that the medical expert on the issue of quantum be limited to a consultant in cardiology for each party.  Dr David Hu was nominated as the plaintiff’s expert, and Dr Ng Yin Ming as the expert of the 1^st and 2^nd defendants.  Directions were given by Master Kwan for their reports to be prepared and exchanged, and for supplementary reports to be prepared and exchanged.

31.Since then, the matter came before Master Roy Yu once on 3 February 2010, and before Fung J on 11 March 2010 and 21 April 2010. On those occasions, there was no application for additional expert evidence on quantum to be adduced.  Nor was any such application made before me when the matter came before me, on a case management conference, on 10 November 2010, and at the pre-trial review on 16 February 2011. I ordered that no further additional expert medical reports were to be obtained or adduced without leave of the PI Judge on the first occasion and, at the PTR on 16 February 2011, I ordered that Dr Hu and Dr Ng be called at trial to give oral evidence, that no further or additional expert medical reports were to be obtained or adduced without leave of the PI Judge, and that the case be set down for trial in the fixture list commencing on 2 September 2011.

32.The plaintiff’s expert on liability and quantum is Dr Hu and the defendants’ expert is Dr Ng. In his report on quantum dated 19 August 2009, Dr Hu recorded the complaint that, from 1996 until after the corrective surgery, the child had repeated respiratory symptoms of shortness of breath and suffered from edema, in particular in the lower limbs. His father recalled that he had difficulty feeding the infant as compared with his sisters.  In 1996, the child was admitted to Princess Margaret Hospital due to generalized swelling, abdominal pain and skin rash.  Dr Hu had examined the plaintiff on 12 August 2009. He gave the appearance of being a nervous boy.  He had just finished his A-Level exams.  He complained of chest pains, for which he took painkillers prescribed by doctors from Grantham Hospital, shortness of breath and inability to exercise or attend P.E. lessons since childhood.  He expressed a deep suspicion and distrust of doctors.  Dr Hu noted that the plaintiff’s self confidence and the way he viewed himself appeared to be low.  His exercise stress test showed that the plaintiff was in normal cardiac rhythm but that he was only able to run 10 minutes on the treadmill when he should have been able to run 14 minutes.  His heart rate had shot up to 190 beats per minute and he was extremely exhausted.  Dr Hu expressed the opinion that his exercise function was comparable to that of a 50-year-old man.  He concluded that the delayed surgical repair brought about consequential morbidity and “deep psychological damage to this child and family” and that the plaintiff suffered “physical and psychological impairment during teenage years with possible long-term consequences”.  

33.Dr Hu stated that the current limitation of physical activity and the symptoms sensed by the plaintiff was likely to be a result of long-term self, or parental, imposed limitation; initially out of necessity from symptoms of heart failure.  These limitations had been imposed in the long term since childhood and it had been reinforced in his mind all his life that he could not run or exercise.  This would take long-term psychological treatment to correct, together with exercise therapy.  Of prime importance was the need for psychological assessment and rehabilitation by psychologists and physical exercise regime by a cardiac rehabilitation specialist.  His physical and psychological impairment had to be assessed by these specialists.

34.Notwithstanding this clear call from the plaintiff’s cardiologist, no application to call a clinical psychologist was made until recently.

35.The defendants’ expert, Dr Ng, prepared a report on quantum dated 3 November 2009 in which he stated that there could be psychological factors affecting the plaintiff’s physical ability after 2005.  He was probably worried and distressed about his heart surgery and the presence of a sternal scar.  He could not enjoy swimming like others because of the scar which he would consider to be unsightly.  He might be affected by the frequent and multiple follow-up and investigations for the first year that he was seen at Grantham Hospital.  He was old enough to understand the importance of the litigation and the imminent legal action and might worry about the results and compensation.  Dr Ng expressed the opinion that the plaintiff might have some psychological impact and disturbance with the surgery, the follow-ups, the scar, the attitude of the father and the litigation.

36.In conclusion, Dr Ng expressed the opinion that there was no deleterious side effect of the ASD on the plaintiff’s health or lifestyle before surgical repair as he had been enjoying good health with excellent growth (“97 percentile in weight and height”), and he had been participating in competitive basketball games.  Dr Ng made the observation that there was no psychological impact on the plaintiff, nor any record of such impact, before he reached the age of 15, not even after the operation performed on 5 February 2003, but that it surfaced with the timing of the legal action.

37.Dr Hu and Dr Ng cannot give expert opinion evidence on the psychological condition of the plaintiff, but neither can they give an opinion on the cause of any psychological condition suffered by him.  In their joint report dated 31 May 2010, appears the following statement :

“From conversing with the patient and his father, Dr Ng felt that there may be family pressure involved in influencing the behaviour of Fung Chun Man and his exercise ability. Whilst, Dr Hu felt that the inherent mistrust of the doctors made a tremendous influence on the psychology of Fung Chun Man which may have long-term consequences.”

Dr Hu was clearly right to call for specialist opinion from a psychologist to be obtained.

38.Mr Neal Clough, who appeared on behalf of the plaintiff to seek leave to adduce the expert report of the clinical psychologist, Professor Peter Lee, complained that the underlying psychological problems should have been apparent over the years to the plaintiff’s treating doctors and that these should have been addressed.  Be that as it may, it is clear that both cardiologists alluded to the plaintiff’s suffering from a psychological condition, and that the plaintiff’s own expert expressly stated that an opinion should be sought from a psychologist.  In the light of that, I do not understand the submission made to me by Mr Clough that there was nothing in the medical history to indicate any psychological overlay.  It may well be that, before he attained the age of 18, the plaintiff’s case was conducted by his father and instructions were given on the basis of the plaintiff’s physical complaints, and not his psychological problems, and that, on attaining his majority, he was still influenced by his father.  Nevertheless, the need to obtain a psychological report was apparent as early as Dr Hu’s report dated 19 August 2009.  There was no good reason advanced to me to explain why it should take almost 2 years to obtain legal aid approval and to make the present application.

39.The plaintiff’s claim for future loss of earnings as pleaded in his Revised Statement of Damages was pleaded without the benefit of Professor Lee’s psychological report.  To that extent, the inability to adduce his report is not fatal to the plaintiff’s claim, although it must be recognised that the plaintiff would not have the benefit of Professor Lee’s opinion that the plaintiff’s social awkwardness, distress of his body, together with chronic physical malaise, as well as pervasive sense of inferiority, will likely impose a highly adverse impact on his future career attainment.  However, the absence of that opinion evidence at trial will not prevent me from making my own assessment of the personality of the plaintiff, when he gives evidence before me, the factors that affected his development into adulthood, and what adverse impact, if any, that development and his personality, would have on his future career prospects.

40.Apart from supporting the claim for loss of earnings, Mr Clough said that he wished to rely on the expert opinion of Professor Peter Lee at trial on the quantum of the PSLA award by demonstrating that the plaintiff suffered from an adjustment disorder, with mixed anxiety and depressive symptoms of a chronic nature, of mild to moderate intensity.  However, the absence of that opinion would not prevent me from taking into account the anxiety and emotional state of the plaintiff, suffered as a result of his heart condition over the years of his growth from childhood to teenager to young adult, and his current emotional state, and to adjust the award for PSLA accordingly.  The court can award damages for anxiety and emotional distress consequent upon physical injury suffered by the plaintiff.

41.Clearly, absent the opinion of Professor Peter Lee, Mr Clough cannot advance a claim for the costs of counselling.  However, he acknowledged that the reason for the application was primarily to support the claims for future loss of earnings and PSLA, and not so much to claim the costs of counselling.

42.Mr Sakhrani appeared on behalf of the 1^st defendant to oppose the application and his submissions were adopted by Mr Wong, who appeared for the 2^nd defendant.  Mr Sakhrani submitted that the defendant opposed the granting of leave to adduce Professor Lee’s report as his views were highly contentious and disputed by the defendants.  The defendants’ case was that this was a case of a son who was affected by the actions of an obsessional father. There were controversial issues of causation and if expert evidence were to be admitted, to assist the court to decide to what extent the heart condition of the infant impacted on the plaintiff, as opposed to the influences of his father and his own personality traits, the trial would be lengthened, even if such evidence could be adduced in time for trial commencing in September 2011.

43.Whilst I am not sure that I agree with the submissions of Mr Sakhrani that this case was more appropriate for the opinion of a psychiatrist, as opposed to a psychologist, I certainly accept that a person’s motivation can have a huge impact on the results of psychological tests administered on him.  It is for this reason that such tests should be conducted jointly by the two psychologists nominated by the parties, in cases where a single joint expert is not appointed.  That, however, is a luxury not available to the parties in the present case without derailing the trial dates or, at the very least, prolonging the duration of trial.

44.I also accept the submission of Mr Sakhrani that the need for a psychological expert report was apparent as early as 3 November 2009 when Dr Ng prepared this report on quantum.  Indeed, the need for such evidence was apparent even earlier, when Dr Hu reported on quantum in his report dated 19 August 2009. 

45.Balancing the impact of the psychological evidence on the quantum of the plaintiff’s claims; the cost implications of allowing Professor Peter Lee’s report to be adduced and granting leave to the defendants to obtain a report from their nominated psychologist, with the consequent need for a further joint report from the psychologists; the likelihood of the trial dates being derailed by this process or, at the very least, the trial being lengthened by the additional expert evidence which is likely to be contentious, particularly as regards the cause of the plaintiff’s current psychological condition, if any, I had little hesitation, seeing that the application was made so late in the day and at the eve of trial, to dismiss it.  In this case, the expert evidence sought to be adduced is from a recognised discipline.  The evidence is reasonably required to enable me to resolve the issues in dispute although, for the reasons explained above, I would not be seriously affected in my ability to resolve this case without that evidence. I am also prepared to accept that the costs of adducing such evidence are proportionate, perhaps just barely proportionate, to the sums at stake. However, the potential disruption to the trial, and the absence of a good explanation for the late application, have led me conclude that I ought to dismiss this application. 

46.I cannot conclude this judgment without expressing my dissatisfaction at the fact that the full report of Professor Lee dated 25 May 2011, and numbering some 40 pages, was submitted to me under cover of the plaintiff’s solicitors’ letter dated 3 June 2011, less than a week before the hearing on 9 June 2011, as a “Draft Clinical Psychological Report”.  I cannot understand how this report can be described as a draft report when it contains a declaration signed by Professor Lee that he has compiled with in accordance with the code of conduct for expert witnesses contained in Appendix D of O.38 of the RHC, and when he has appended his statement of truth at the end of the report stating that he believed that the facts stated in the report were true and the opinion expressed in it were honestly held. This is a solo expert report obtained by the plaintiff without the leave of the court, obtained in breach of the protocol for commissioning joint reports contained in PD18.1, and obtained in breach of my orders of 10 November 2010 and 16 February 2011.  Calling it a draft report does not change its character.  If the plaintiff had not commissioned this full report but had simply relied upon Professor Peter Lee’s earlier letter of 7 April 2001, in which he justified the need for a comprehensive assessment of the plaintiff’s psychological status and well being, and if the plaintiff’s solicitors had expedited the application before me for leave to obtain such evidence, I may well have been persuaded to appoint a clinical psychologist as a single joint expert for all the parties, particularly given the earlier call for such evidence by Dr Hu.  At that time, an expedited single joint expert, to be adduced without calling oral evidence, could have been obtained without disrupting trial dates.

Mr Neal Clough, instructed by Messrs Henry H.C. Wong & Co.,for the Plaintiff

Mr A. Sakhrani, instructed by Messrs P.C. Woo & Co., for the 1^st Defendant

Mr Geoffrey Wong, SGC of the Department for Justice, for the 2^nd Defendant