Ma Kwok Yee v. Victory Mutual Ltd

DCEC 699/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 699 OF 2010

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BETWEEN

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Before: Her Honour Judge H C Wong in Chambers (Open to the public)

Date of Hearing: 27 June 2011

Date of Delivery of Decision: 27 June 2011

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D E C I S I O N

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1.The applicant applies for leave to adduce further expert evidence from psychiatrists on the applicant’s psychiatric problem developed after the accident. The application is opposed by the respondent. The respondent’s legal representative, Mr Wu, pointed out the applicant’s solicitors first raised the request in their correspondence on 16 March 2011. However, the applicant in his witness statement dated 21 March 2011 failed to make any specific reference other than a one-line reference to his being treated at the psychiatric centre of the Hospital Authority at paragraph 21 of his witness statement. Neither did he make any reference to his psychiatric conditions in his list of discomforts in his witness statement.

2.Mr Wu pointed out that the HA Hospital Authority psychiatrist Dr Lee Ching-kwok’s report should be sufficient with the help of the medical notes on the three appointments the applicant attended on 25 October, 22 November and 20 December 2010.  Mr Wu further pointed out the importance to limit the number of expert medical reports at these proceedings under the CJR regime. Even though the trial date is not yet fixed, unnecessary expert report should not be allowed. 

3.Mr Lam representing the applicant submitted, the issue for the trial judge is to determine the extent of the psychiatric illness, in particular, whether it would prevent him to return to his pre‑accident employment.  The psychiatric assessment by the applicant’s treating doctors, according to Mr Lam, at the Kwai Chung Hospital cannot and did not do that.   

4.Mr Wu referred me to a large number of cases all on the application of psychiatric reports adduced at the trial or to be adduced at the trial, the relevance of such reports at the trial and the principle to apply when the court consider the necessity of the expert reports.   

5.I agree with all of them, particularly under the CJR regime, that excessive use of expert reports should be discouraged and should be limited.  In fact, the court expressed displeasure in the use of some of the so-called expert reports in cases before the CJR, and even if they are genuine expert reports, the excessive use of them is a waste of time and costs.  I particularly agree with Bharwaney J in the case of Chan Yuet Keung v Harmony (International) Knitting Factory Limited HCPI144 of 2009 where he said in paragraph 53 that “to be admissible, the opinion evidence must qualify as expert evidence for the purpose of section 58 of the Evidence Ordinance, chapter 8, and it must be relevant in the sense that it is helpful to the court in arriving at its decision on one or more of the issues to be resolved.  If the court is able to arrive at its own decision on the issue by applying its own knowledge and experience to the facts proved in existence, expert opinion in the same matter may be excluded on the ground that it is not helpful to the court.” 

6.The above passage summed up the principle: that expert reports must be relevant and cogent, helpful to the resolution of the issues at trial and the costs involved in relation to the sum claimed.  The same principle referred to by my sister judge, Marlene Ng, in Ip Sau Lin.  I am well aware of the principle referred to, each case must be looked at on its own facts, such as the case of Chang Man Sze v Chan Siu Wai & Another HCPI290 of 2007 where Master Kwan dismissed the application for expert reports on the plaintiff’s psychiatric report of her low libido and cosmetic surgeon’s report on her scars, etc. for the plaintiff who sustained injuries as a passenger in a taxi.  Expert reports should not be out of proportion.  That is very clear. 

7.The present applicant was a head chef at a Japanese restaurant at the time of the accident.  He sustained back injuries at work in 2009.  Over one year later, he was referred to the psychiatric clinic by the occupational therapist within the Hospital Authority.  He was put on comprehensive social security by then, and had been treated by Kwai Chung Hospital psychiatrists since he was first seen on 25 October 2010, five months after he was referred by the occupational therapist.  In fact, the record shows he was assessed by the triage on 4 May 2010 before he was given an appointment on 25 October 2010.

8.I have been informed by Mr Lam that the applicant’s last appointment with the Kwai Chung Hospital doctor was in June 2011.  I am also told he has been assessed by the MAB on the orthopaedic aspect in June 2011, no doubt the report would be ready soon.  I have also been informed by Mr Lam that the Labour Department is now arranging another MAB on the psychiatric aspect for assessment. 

9.I take notice the orthopaedic experts have completed their joint report on 14 April 2011, since the Medical Assessment Board has not yet produced a report on the orthopaedic aspect and since there will be a report on psychiatric aspect at a later date after he is interviewed, the case is not suitable to be tried yet.  For this reason, there will be no delay should I allow a joint medical expert report on the applicant’s psychiatric condition.

10.I am aware that when the Labour Department is arranging an MAB assessment on the applicant’s psychiatric aspect, it is deemed a necessary aspect for the employee compensation application.  And if a joint medical expert report on the orthopaedic aspect has been prepared for the employee compensation claim and that Dr Ho in that report referred to the psychiatric aspect to be assessed by a psychiatrist, I can see there is a reason for the plaintiff calling for a psychiatrist’s report on the applicant’s earning capacity, as to his pre-accident psychiatric condition, as to whether the accident triggered off the psychiatric condition, as to whether his present psychiatric condition would affect his returning to his pre-accident employment in future.

11.I can see the relevance of the application that the psychiatric report would be of assistance and helpful to the court at the trial.  If at the end of the day the report should indicate that the applicant’s condition is trivial and minor and that even without the psychiatric assessment he should be fit to return to the pre-accident employment as a head chef, the trial judge would no doubt make the appropriate order.  So far as I can see here, the orthopaedic experts, though not completely in agreement, express that he would have to take up lighter duties.  The question is would a head chef be able to take lighter duties? Would his return to employment as a chef mean he would be occupying a lower position because of the injuries and because he is suffering from psychiatric problem due to his psychiatric condition?  That needs to be looked at.

12.For the aforesaid reason, I accept the report at this juncture seems to be of assistance to the court to determine the loss of earning capacity of the applicant and his sick leave period, and I allow the application.  I order OIT of the Summons paras 1-5, 7 and 8 with costs in the cause.

Mr Kenneth Lam, of Messrs Au & Vrijmoed assigned by Director of Legal Aid, for the Applicant

Mr Wu Tung-wah, Steve, of W K To & Co., for the Respondent