Yang Yee Man, The Administratrix of the Estate of Lam Lok Kin, Deceased v. Leung Hing Hung

HCPI 443/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 443 OF 2010

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BETWEEN

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Coram : Before Master J Chow in Chambers (Open to Public)

Date of Hearing : 28 May 2012

Date of Judgment : 13 June 2012

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J U D G M E N T

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INTRODUCTION

1.This is a fatal injuries’ action, the plaintiff’s husband died in a traffic accident (“the Deceased”).  On 31 August 2007, the defendant was driving a medium goods vehicle maneuvering a turn from a parking lot at Tsuen Wan Tai Pei Square Parking Lot to Chuen Long Street, the main road.  His vehicle hit onto a road sign which fell and hit onto the Deceased’s head (“the Accident”).  The Deceased died in the late evening of the same day.

2.The plaintiff claims damages against the defendant for negligence.  The defendant claims contribution or indemnity against the Commissioner of Transport and Hong Kong Parking Limited as 1^st and 2^nd Third Parties.

3.The plaintiff claims, inter alia, in Part G of her Statement of Damages medical expenses and loss of earnings.  She claims the cost of psychotherapy treatment in sum of $106,000 and also those for future assessment.

THE APPLICATIONS

4.There are two summonses before me:

(i) The plaintiff’s summons dated 13 February 2012,  pursuant to Order 38 rule 4 of the Rules of the High Court, for leave to adduce clinical psychologist evidence (“the 1^st Summons”); and

(ii) The defendant’s cross summons dated 21 May 2012, pursuant to Order 18 rule 19(1)(a) of the Rules of the High Court, for an order to strike out the medical expenses and loss of earnings in Part G of the Statement of Damages filed on 17 November 2010 for it discloses no reasonable cause of action (“the 2^nd Summons”).

5.The 1^st and 2^nd Summonses were argued between the Plaintiff and the Defendant only.   The 1^st and 2^nd Third Parties took a  neutral stance and did not take part in the substantive argument.

ISSUES TO BE DETERMINED

6.Both the 1^st and 2^nd Summonses are interrelated.  I have to determine the following:

(i) Whether the Part G of the Statement of Damages discloses reasonable cause(s) of actions?

(ii) If so, shall the plaintiff be granted leave to adduce medical expert evidence?

(iii) If so, shall clinical psychologist evidence be adduced, or any other expertise?

WHETHER PART G OF THE STATEMENT OF DAMAGES DISCLOSES REASONABLE CAUSE(S) OF ACTION

The legal principles

7.The plaintiff is a dependant of the Deceased.  Mr. McLeish, counsel for the Defendant submitted, the plaintiff’s claim under Part G for loss of the Deceased’s services is premised on section 3 of the Fatal Accidents Ordinance, Cap 22 (“FAO”).  The scope of section 3 of the FAO, Lord Diplock LJ explained in Malyon v Plummer [1964] 1 QB 330 (at 349),

“It has, however, long been established, despite these wide words, first: that the pecuniary loss to the persons for whose benefit the action is brought is the damage recoverable…. and, secondly, that the pecuniary loss recoverable is limited to the loss of benefit in money or money’s worth which, if the deceased had survived, would have accrued to a person within the defined relationship to the deceased, and would have arisen from that relationship and not otherwise.”

8.This principle is accepted in Tsang Mei Ying & Anor v. Lam Pak Chiu & Anor [2000] 1 HKLRD 883 at 888G-I, Rogers JA (as then he was) held,

“… If, as a result of the death, a dependant has lost services provided by the deceased, then the monetary cost of replacing those services may be recoverable. If the services were of such a personal nature that they could only be replaced by services of a personal nature such as a family member looking after a young child, then the cost of providing that family member might be quantified not on the basis of what it would cost for a child minder but what it would cost for the only available family member to give up their other employment. It would be a matter for the court to decide whether that was reasonable in the circumstances.”

9.I agree this is the correct law.

The plaintiff’s case

10.In the plaintiff’s affirmation, she said she had worked as a senior audit manager prior to the Accident.   Although both the Deceased and herself were working parents, they assumed responsibility of taking care of the infant child with the assistance of a live-in domestic helper.  Because of the drastic change, she shouldered the Deceased’s burden to take care of the 3-month old infant child and her mother in law. Unfortunately, her mother suffered from heart attack, she then moved to live with her with her infant daughter.  She was diagnosed to have suffered from major depression disorder.  She was therefore unable to work and had resigned from her job from 5January 2010.  Coupled with satisfactory recovery, the plaintiff resumed work as a senior manager in a bank on 28February 2011.  She was out of work for a period of 13 months.

11.Mr Lam, counsel for the plaintiff, submitted the plaintiff’s claim should be analysed as a dependent claim for loss of services provided by the Deceased.

Part G: the plaintiff’s claim of loss of earnings

12.The plaintiff’s family is typical of the community where both husband and wife are working parents. A live-in domestic helper was engaged to take care of children and to do household chores.  Had the Accident not occurred, the Deceased, a working father would take care of his infant child after work, or during holidays.  What is recoverable should be the loss of benefit in money or money’s worth of this service.  That is, the costs of taking care of his infant child during non-working hours.

13.Applying Tsang Mei Ying, the Court of Appeal clarified in event that the scope of loss of service in event that the costs of a child minder is inadequate, the costs of a family member to give up employment to take care of the young child would also be recoverable.  Nevertheless, I do not see this is plaintiff’s case here.  She does not say her inability to cope which rendered her unable to work as an audit manager was a result of loss of service of the Deceased, but rather, it was pleaded that the cause of such inability to work was a result of major depressive disorder. It is not a claim of loss of service of the Deceased.  In such a case, her claim under this head does not disclose a reasonable cause of action.

Part G: the plaintiff’s claim of medical expenses

14.As submitted by Mr McLeish, neither does the claim under this head fall under the “loss of service” category.  The plaintiff’s medical expenses are of personal nature.  As evidenced in the medical report of Dr Tommy Chan dated 1 December 2011, the cause of her depression stemmed from the Accident, not the loss of service of the Deceased, save that it was one of a stressor:

“… Ms Yang suffered from intense grief reaction. Symptoms of grief reaction persisted more than two months since her husband’s unexpected death. Her overall symptomatology was consistent with some suffering from a Major Depression.”

“It is significant to comment that Ms Yang’s mental stress was further complicated by the necessity to solely care for her live in aged mother’s and mother-in-law’s physical health and financial needs after her husband’s unexpected death.”

15.The plaintiff was referred by Dr Tommy Chan to see Dr Lawrence Chen, in the latter’s letter dated 10 November 2011,

“for the support of her recovery from the traumatic bereavement brought about by the sudden death of the late husband.”

16.Without considering the evidence in the striking out application, I am with Mr McLeish that the plaintiff’s claim here does not fall within the category of loss of service, her claim on medical expenses, past or future is of a personal nature and is distinguishable from loss of services of the Deceased.  The major depressive disorder was not accompanied with a physical injury and thus, not recoverable under the common law.  Needless to say that such loss could not be recoverable in her capacity as a dependant, such claim does not disclose a reasonable cause of action.

17.In the premises, Part G of the Statement of Damages should be struck out.

Medical expert evidence: whether leave be granted, psychiatrist or clinical psychologist?

18.I shall decide as well whether the plaintiff should be granted leave to adduce medical expert evidence and the choice of engaging a psychiatrist or a clinical psychologist, in event that I am wrong in the above analysis.

19.It is trite law that medical expert evidence should be adduced if it was relevant, necessary and with probative value.  Mr Lam cited Wong Hoi Fung v American International Assurance Co. (Bermuda) Ltd & Anor [2002] 3 HKLRD 507, at 511-512, Chu J (as then she was) decided

“… where the court cannot form a clear view on the relevance of the proposed expert evidence or where it considers that the proposed evidence is clearly relevant, then it should grant leave for the evidence to be adduced at the trial.”

20.In a later case, Fung Chun Man v Hospital Authority & Anor, HCPI 1113 of 2006, Bharwaney J enunciated the test the court shall adopt in granting leave to adduce medical expert evidence.

“at para 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.”

21.Fung Chun Man gave us clear guidelines of making such a choice as well.  In paragraph 22 therein, Bharwaney J said,

“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 adminster 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. 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, HCPI 1039 of 2001, 30 January 2003

“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 with does not amount to a recognized psychiatric illness, unless the distress, anxiety or fear is accompanied by a physical injury.  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.  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 form an expert in this field.”

22.In both letters by Dr Tommy Chan and Dr Lawrence Chen, the treating doctors, the plaintiff was diagnosed to have suffered from major depressive disorder.  Both doctors concluded the plaintiff showed improvement and could gradually cope with the drastic change of her life.

23.Dr Tommy Chan wrote,

“the leave from her job between January 2011 and [to] February 2011 likely offered her more time and emotional resources necessary to attend to self-care and constructive reflections on what she needs to do and adjust to the death of her husband, as well as gradually re-gaining balance in looking after her young daughter.”

24.Dr Lawrence Chen wrote,

“Karen [the plaintiff] has been seeing me once a month. Her progress is steady. She has gained ability to cope with grief, stress and work-life balance. However, her burden of being a single working mom with a young child, caring for her own mother who has heart disease and the financial responsibilities of looking after her mother-in-law in place of her late husband continue to be a source of stress and difficulty for her. Karen is resilient and is supported by her mother and friends. She is growing stronger and she seems to benefit from continuous support in her journey of recovery.”

25.From these clear wordings, although the plaintiff suffered from a known illness, it does not seem tests are relevant in assessing her psychological condition, especially both doctors did not administer drugs to the plaintiff.  I do not find this is a case where medical expert evidence should be called for.  Had it not been the case, contrary to all foregoing, the court should be assisted with expert evidence of a known psychiatric illness, therefore a clinical psychologist is preferred.  

ORDERS

26.I make the following orders:

(i) The 1^st Summons be dismissed. The plaintiff’s application for leave to adduce clinical psychologist evidence be refused.

(ii) I allow the application in the 2^nd Summons. Part G of the plaintiff’s Statement of Damages filed on 17 November 2010 for Medical Expenses and Loss of Earnings be struck out for it discloses no reasonable cause(s) of action.

(iii) There be a costs order nisi of both the 1^st and 2^nd Summonses be to the defendant forthwith, with certificate of counsel, taxed if not agreed.  The costs order nisi shall become absolute after 14 days.

Mr Osmond Lam instructed by Messrs Zeke Mok & Co for plaintiff.

Mr Robin McLeish instructed by Messrs Clyde & Co for defendant.

1^st Third Party & 2^nd Third Party, being absent.