Lau Mei Wa v. Li King Yin and Another
Read the full judgment text of HCPI 527/2011 on BabelCite. This High Court CFI judgment was delivered on 13 July 2012.
1. The plaintiff claimed that on 28 September 2009 she was knocked down at a pedestrian crossing by a minibus driven by the 1 st defendant and owned by the 2 nd defendant, and suffered personal injuries (“ Accident ”).
Cited by 5 cases · Cites 6 cases
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HCPI 527/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 527 OF 2011 _________________________ BETWEEN
_________________________ Coram : Before Master Marlene Ng in Chambers (open to the public) Date of Hearing : 15 June 2012 Date of Handing Down Decision : 13 July 2012 _____________ DECISION _____________ I. BACKGROUND 1.The plaintiff claimed that on 28 September 2009 she was knocked down at a pedestrian crossing by a minibus driven by the 1st defendant and owned by the 2nd defendant, and suffered personal injuries (“Accident”). 2.On 25 July 2011, the plaintiff commenced the present proceedings against the 1st and 2nd defendants for damages for personal injuries and other loss and damages as a result of the Accident. On 5 December 2011, the 1st and 2nd defendants filed their Defence disputing liability to the plaintiff’s claim. By the Statement of Damages filed on 25 July 2011, the plaintiff claimed for inter alia damages for pain, suffering and loss of amenities, damages for past and future loss of earnings, damages for loss of earning capacity, and special damages. 3.The parties have already commissioned the following expert medical reports:
4.At the Checklist Review (“CLR”) hearing on 6 January 2012, the plaintiff sought leave to obtain psychiatric expert report and/or to adduce psychiatric expert evidence at trial (“Issue”). I adjourned the Issue for argument, and the substantive hearing for argument came before me on 15 June 2012 (“Hearing”). 5.The hearing bundle (“Bundle”) comprised 5 box files of which more than 4 contained medical notes and records from Princess Margaret Hospital (“PMH”) and West Kowloon Psychiatric Centre (“WKPC”) (“Medical Records”). Mr Clough, counsel for the plaintiff, did not make any reference to the Medical Records in his submissions, and Mr Sakhrani, counsel for the 1st and 2nd defendants, referred to less than 100 pages of such Medical Records. It therefore falls upon this court to elicit the salient information from the Medical Records which I summarise in Part IV below. II. PERSONAL HISTORY 6.At the time of the Accident, the plaintiff was single and 40 years old. She lived with her mother, and is the 4th of 6 siblings. Her personality has been passive and quiet all along with on and off irritability. She has few a friends but only limited interaction with them, and she has no regular hobbies, sports or exercise activities. But she enjoys travel, and has taken a trip to South Korea even after the Accident in late 2010. She is a non-smoker and non-drinker, and denies any previous traumatic experience or illicit drug use. There is no family or personal history of mental illness or suicide. 7.After completing Form 3 education, the plaintiff worked in clerical job(s) for more than 10 years. After she lost her job in March 2009 as a result of her employer closing down the company and relocating to Mainland China, she planned to rest for a few months, so she was unemployed and not actively looking for work at the time of the Accident. She has not returned to work since. III. PAST MEDICAL HISTORY 8.According to the report by PMH’s psychiatry department dated 20 October 2009, the plaintiff had eating problem for over 10 years. She felt she was fat, and was preoccupied with weight reduction. Even though her weight reduced significantly from more than 120lbs to less than 100lbs, she did not perceive herself as being thin. Initially she used to spit out food after chewing, but in the last few years she used laxatives. She also had binging episodes. 9.The plaintiff’s younger sister has also confirmed that the plaintiff had a long-standing eating problem, that she had very good appetite compared with a normal adult, and that she always took laxatives after heavy meals (see the “psy note” by PMH’s psychiatric department dated 19 October 2009). 10.Medically, the plaintiff had anorexia nervosa and chronic laxative abuse with (a) syncope, episodes of severe anaemia and low potassium (K or K+) level, (b) severe hypokalaemia (ie K level 2.0 secondary to senokot overdose “~30tabs/day”) requiring ICU admission in 2008, and (c) secondary amenorrhoea for several years. Her conditions were under the care of general physicians at PMH’s gynaecology and medical clinics. General treatment included potassium replacement (ie regular slow K) and fluid replenishment. 11.According to the medical reports by WKPC’s Dr MW Ng dated 30 June 2011 and 3 January 2012, the plaintiff was not followed up by psychiatrist for her anorexia nervosa, and she was first known to the mental health service in October 2009 during her hospital stay after the Accident. Likewise in the Ortho Report, the plaintiff claimed she had no other previous history of psychiatric problem. According to Clinical Management Sheet (“CMS”) entry for 2 October 2009 by PMH’s clinical psychologist, the plaintiff denied psychiatric history but reported to be sensitive to pain all along. IV. INJURIES AND TREATMENT (a) Hospitalisation after the Accident 12.The plaintiff claimed she lost consciousness upon impact at the time of the Accident. On arrival at PMH’s accident and emergency department (“AED”), she was agitated but her vital signs were stable. Her Glasgow Coma Scale (“GCS”) was 14-15/15. She suffered multiple injuries. Ultrasonogram abdomen and x-ray chest/pelvis were done. Trauma call was triggered and she was assessed by various specialties. 13.The plaintiff was admitted to PMH’s neurosurgery department. On admission she was confused and agitated with GCS of 14/15. She suffered head contusions, multiple fractures, multiple abrasions over her scalp/back, and an open scalp laceration. She was treated conservatively without recourse to surgery. 14.Urgent CT scan brain, thorax, abdomen and pelvis showed traumatic brain injuries, small left pneumothorax, multiple left rib fractures, fracture left clavicle, fracture pelvis, fracture left ala and body of sacrum, and fracture anterior left acetabulum. Her traumatic brain injury consisted of bifrontal cerebral contusion (bruising), high left parietal fracture, left occipital fracture, subdural haematoma, and traumatic subarachnoid haemorrhage. 15.After the CT scan, the plaintiff was transferred to the ICU under the care of PMH’s surgical department. The scalp wound was sutured under local anaesthesia. Her rib fractures and small left pneumothorax were treated conservatively (with shoulder immobiliser) with adequate analgesics and chest physiotherapy. 16.According to the Ortho Report, the plaintiff had no recall of the details of the Accident. According to the Neuro Report, she felt pain all over and could not move her limbs when she came to. She could not mobilise for weeks and felt persistently light-headed. Her dizziness was sometimes accompanied by vertigo. 17.According to the Clinical Psychology Referral for Trauma Inpatient dated 29 September 2009, the plaintiff was irritable and her GCS was E4V5M6. Her haemodynamic state was stabilised with fluid and blood product resuscitation. The CMS entries for 21:00 and 23:00 hours on 28 September 2009 noted she was “confused+, agitated+, barely obey command”. The plan of management included “provide psychological support”. The CMS entries for 17:30 and 20:45 hours on 29 September 2009 noted “refer clinical psychology” and “consult clinical psychology”. The purpose of the referral was to rule out post-traumatic stress disorder. 18.On 30 September 2009, the plaintiff was transferred from the ICU to the neurosurgical high dependency ward. Oral diet was resumed, the orthopaedics team consulted, and physiotherapy given for mobilisation. According to the Nursing Assessment Form on 30 September 2009, the plaintiff’s mental state was “Confused” and her emotional state was “Stressful”. But clinical psychology consultation was still pending (see Nursing Note on Patient Transfer and the CMS entries for 07:45 and 15:00 hours). The PMH Master Problem Sheet noted that on 30 September 2009 the plaintiff “verbalised understanding of the treatment plan and decreased level of anxiety”. She was put on soft diet, and oral intake was encouraged (see the CMS entries for 13:30, 13:45 and 15:00 hours). 19.The plaintiff gradually improved, and her consciousness level returned to normal with GCS of 15/15 by 1 October 2009. She was emotionally calm, could tolerate soft diet, and had fair appetite (see the CMS entries for 02:00, 11:40 and 19:00 hours). She was encouraged to have oral intake. On 2 October 2009, her appetite improved and she could tolerate soft diet (see the CMS entries for 13:00, 16:15 and 20:30 hours). The CMS entry for 16:15 hours recorded that she cried for a few minutes, but became calm when reassurance was given. 20.On 2 October 2009, the plaintiff was assessed by clinical psychologist at bedside. She was found to be alert and oriented, her emotion calm and stable, and her speech coherent and relevant. She reported having fair sleep and appetite, and denied having nightmares or intrusions about the Accident. No salient stress reaction was noted. The plaintiff claimed she did not feel particularly distressed about the Accident because she did not see how it happened, but she reported feeling anxious about the pain since she was sensitive to pain all along. The clinical psychologist taught her stress reduction breathing for pain management and practised it with her. Psycho-education over stress reaction was given to help her note signs that might indicate abnormal stress reaction and a need for follow up. No clinical psychology follow up was deemed necessary at that time. 21.According to the CMS entry for 12:30 hours on 3 October 2009, the plaintiff was still upset and reassurance was given. CT brain on 3 October 2009 showed the right front haematoma was resolving and no haemorrhage was detected. The scalp wound developed an infection which was treated by antibiotics. 22.On 4 and 5 October 2009, the plaintiff was emotionally calm and her oral intake was satisfactory (see the CMS entries for 02:00 and 09:30 hours on 4 October 2009 and for 03:00 and 16:05 hours on 5 October 2009). During this time she was on IVF with K supplement, and her haemodynamic status was monitored/charted. 23.According to the CMS entry for 09:10 hours on 5 October 2009, the plaintiff was off IVF and transferred to the general ward. She was tired of congee diet and willing to resume regular diet. Dietician was consulted on her diet plan, and she was encouraged to eat and drink (see Nutrition Assessment Form dated 5 October 2009). 24.On 7 October 2009, CT brain showed resolving right frontal haemorrhage contusion and reducing cerebral edema with reduced mass effect. Midline structures were not displaced, and there was no hydrocephalus. However, the CMS entry for 11:00 hours noted that the plaintiff complained of being very painful and tired with tenderness at the left side. An entry of “?depressed mood” was made. 25.Nutrition assessment on 7 October 2009 noted that the plaintiff refused “Ensure” supplement and water drinking but requested for sandwiches. The dietician advised on diet plan to prevent nutrient depletion, and she was encouraged to eat. According to the CMS entries for 01:00 and 16:50 hours on 8 October 2009, she had good appetite, tolerated oral intake, and was encouraged to have oral and fluid intake. 26.The plaintiff had an episode of anaemia with decrease of haemoglobin level to 5.8. On 11 October 2011, her haemoglobin level was 8.0 and 2 pints of packed cells were transfused. On 12 October 2009, her haemoglobin level increased to 10.3. The plaintiff refused investigation for possible upper gastro-intestinal bleeding. She was then put on rehabilitation, but oral intake was poor and dietician was consulted. 27.Nutrition assessment was done again on 12 October 2009. The plaintiff was on regular diet with 2 tins of “Ensure” supplement, and willing to eat both hospital meals and supplement. The dietician recommended her to continue with diet and supplement as previously ordered, and to check her body weight for better monitoring when she could ambulate. According to the CMS entry for 16:25 hours on 12 October 2009, she was encouraged to have fluid intake. 28.On 13 October 2009, the plaintiff tolerated diet with fair appetite (see the CMS entry for 08:15 hours). On 13 and 14 October 2009, she was encouraged to have oral and fluid intake (see the CMS entries for 08:15 and 16:30 hours on 13 October 2009 and for 11:00 and 16:50 hours on 14 October 2009). 29.On 15 October 2009, the plaintiff developed epigastic pain and was put on conservative treatment. She was put on nil per os (nothing by mouth) at 09:15 hours but resumed diet at 13:00 hours. Nutrition assessment on the dame day recommended reinforcement of the diet plan including 2 tins of “Ensure” supplement and midday sandwiches. According to the CMS entry for 12:00 hours on 16 October 2009, she could tolerate soft diet at 08:00 hours and was on standby fasting since 11:00 hours for “USGT abdomen”. 30.On 17 October 2009, oral intake was tolerated (see the CMS entry for 15:30 hours). At 18:00 and 18:35 hours, the plaintiff was noted by relatives and nurses to be tearful and to have no verbal response although she still had eye opening and slow spontaneous obeyance to commands (see corresponding CMS entries and also the Neuro Report). The plaintiff complained of increase in headache and decreasing power of limbs. Her GCS decreased from 15/15 to 13/15 and further deteriorated to E4V2M6 with left hemiplegia (ie transient left sided weakness), which was likely to be due to post-traumatic cerebral edema. 31.On 18 October 2009, the plaintiff was transferred to the neurosurgical high dependency ward for further management, and was placed under close neuro-monitoring. Upon arrival, her GCS was 12/15, but her vital signs were stable. The power on her left side was 0-1/5, and there was fever and left sided weakness. “For mental/cognitive performance, she was alert and oriented as to time, date/month/year, place and person. She was receptive to instruction and command and her expressions were relevant and coherent. Long term memory as to name, age, address and phone number was intact” (see initial assessment dated 18 October 2009 by occupational therapist in the CMS). 32.On 18 October 2009, psychiatric and clinical psychological consultations were pending (see the CMS entries for 11:00 and 18:20 hours and the Nursing Note on Patient Transfer dated 18 October 2009). According to the CMS entry for 03:00 hours on 19 October 2009, the plaintiff was still yelling and expressed pain. Urgent CT brain done on the same day showed organised (ie improving) changes in the intracranial haematoma. 33.By 17:55 hours, the psychiatric team had assessed the plaintiff. According to the “psy note” by PMH’s psychiatric department dated 19 October 2009, the plaintiff’s younger sister recalled that during the visit the day before the plaintiff could not offer meaningful communication, but she was able to communicate with her mother 2 days before. The plaintiff had a few previous crying episodes related to pain in front of her mother. 34.When seen by the psychiatric nurse, the plaintiff was not tearful. She had spontaneous eye opening, uttered meaningless noises, and could not offer verbal or non-verbal communication. Her concentration and attention were fair, but she dozed off easily. She could not tell her name and age but nodded her head when asked if she was Lau Mei Wah. Otherwise she could not offer consistent response to her basic personal background and current admission. Upon telephone discussion with the psychiatrist, the psychiatric nurse noted in the “psy note” that the plaintiff’s then mental state was likely to be related to organic causes. 35.On 20 October 2009, oral intake was resumed with self-feeding, good appetite and no choking (see the corresponding CMS nursing entry). According to the CMS entry for 08:45 hours, the plaintiff sometimes answered fully and was mute at other times, which raised doubt as to whether she was in fact able but refused to answer. The psychiatrist was re-consulted on the same day. 36.According to the report by Wong Sze Lai Shirley (associate consultant) of PMH’s psychiatry department dated 20 October 2009, the plaintiff was new to the mental health service with no past history of suicide or violence. She was assessed the day before and was observed to be mute, but when seen on that day she was alert in bed. Her speech was coherent and relevant in simple terms, but she had difficulty in expressing herself at times. She was distressed when she could not find the words to express herself, and became tearful when she talked about her mood before admission. She admitted having low mood with feeling of uselessness but not hopelessness, but denied having suicidal idea. During the interview she seemed to be reacting to voices briefly, and she also expressed some vague paranoid idea of being harmed but could not elaborate further. She denied having nightmares or flashbacks of the Accident. The psychiatrist’s impression was “[eating] disorder, likely anorexic nervosa with binging, in a patient with excessive dysphasia due to head injury, ?Organic hallucinosis”. 37.The psychiatrist’s recommendation was to gradually re-feed the plaintiff and to maintain her nutrition and hydration, and for the ward staff to keep an eye over her feeding and to consider giving her fluoxetine (antidepressant) for her mood and eating disorder and haldol (antipsychotic) for possible psychotic symptoms. 38.On 21 October 2009, the plaintiff’s appetite improved and she was encouraged to have oral intake (see the CMS entry for 11:10 hours). It was planned to remove drip when she was feeding well (see the CMS entry for 17:30 hours). 39.The plaintiff’s conscious level gradually improved. Her power resolved spontaneously and returned to normal a few days later. On/about 25 October 2009, her GCS improved to 15/15. She was afebrile, and her abdomen soft and non-tender. The psychiatric discharge plan was to tail down haldol and continue with fluoxetine, and to refer her for psychiatric follow up. The plaintiff was considered fit for transfer to the rehabilitation ward at Lai King Building (“LKB”). 40.According to report by Wong Sze Lai Shirley (associate consultant) of PMH’s psychiatry department dated 27 October 2009, the plaintiff was reassessed that day. She was much better, and able to sit up and finish all her food without preoccupation of being overweight. She appeared more alert, was willing to talk, and her speech was coherent and relevant. Her mood was much improved with no negative cognition or suicidal idea. She had some worry about her rehabilitation since she still could not walk, but was willing to get well and to comply with physiotherapy and other treatment. She recalled she was unwilling to talk in the past due to depressed mood, but she felt better then. She denied having any psychotic symptom, and claimed there was no nightmare or flashback since she did not know she was hit by a minibus. She knew she would be transferred to LKB for rehabilitation. 41.The psychiatrist’s impression was anorexia nervosa with binging, but the mood problem was improving and there were no longer any psychotic symptoms. The psychiatrist’s recommendation was to re-feed the plaintiff and monitor her weight gain, and to continue with fluoxetine but gradually stop haldol if there was no further recurrence of her psychotic symptoms. The psychiatrist considered she was fit for transfer to LKB, and urged for early psychiatric follow up upon discharge. 42.After the transfer to LKB, there was good rehabilitation progress and the plaintiff’s “[mood] remained stable, sleep well and no complaint after off SSRI [antidepressant]” (see the Discharge Summary dated 27 November 2009). The CMS entries for 2 and 4 November 2009 noted “mood ü” and “not depressed”, but the CMS entries for 6 November 2009 noted “malaise +” and “mood low”. Occupational therapy training was refused because the plaintiff “is rather emotional and depress”. But on 7 November 2009, she was noted to be emotionally stable and “cheerful” (see the CMS entry for 13:25 hours). At 10:45 hours on 17 November 2009, K supplement was completed with explanation for hypokalaemia given (see the CMS entry for 00:53 hours). On 18 November 2009, the CMS entry noted “mood ü”. According to the CMS entry for 13:40 hours on 24 November 2009, the plaintiff’s mood was satisfactory. 43.After 2 months in hospital and a course of rehabilitation, the plaintiff was discharged on 28 November 2009. The plan of management was to attend orthopaedic and psychiatric follow up as scheduled and to attend neurosurgery follow up in 4 weeks. 44.In summary, the plaintiff had episodes of fluctuating effect and was seen by PMH’s psychiatrists during her stay in hospital. She was depressed but without suicidal tendencies. According to the medical reports by WKPC’s Dr MW Ng dated 30 June 2011 and 3 January 2012, the plaintiff presented with depressive and somatic symptoms, and was diagnosed as suffering from depression and eating disorder (ie anorexia nervosa) for which she was prescribed medication. According to the Neuro Report, her clinical course was complicated by anaemia and hypokalaemia which were due to her anorexia nervosa, and she was treated by blood transfusion and fluid/ electrolyte supplement. 45.After her discharge, the plaintiff remained dizzy with headaches and was dependent on her mother for some activities of daily living since she could not stand stably or walk without help. However, she regained these functions within the first month. (b) Thoracic surgery follow up 46.On 24 December 2009, the thoracic surgery clinic recorded as follows (see paragraph 23 of the Ortho Report):
When the plaintiff was last seen, she was well and complained of very occasional left chest wall pain only. Her case was closed. (c) Orthopaedic follow up 47.The plaintiff also attended regular orthopaedic follow up. When seen on 10 September 2010, she had some residual pain over the pelvic region, but her shoulder movement was full. X-ray showed healed fracture over the pelvis. By the time of the Neuro Report, orthopaedic follow up had ceased. (d) Neurosurgery follow up 48.The plaintiff attended neurosurgery follow up at PMH’s neurosurgery head trauma clinic. According to the consultation note dated 12 February 2010, she complained of occasional dizziness without vomiting or convulsion, but “still feeling malaise”. “Psy seen, mild depressive episode on fluoxetine”. On 18 April 2010, the plaintiff complained of occasional headaches that did not require analgesics. She had “insomnia with nightmares – depression seen by psy”. On 11 June 2010, the plaintiff complained of occasional headache and dizziness, and felt tired after taking antidepressant. When last seen by neurosurgeon on 3 September 2010, she was fully alert and reported occasional headache and dizziness. Follow up CT brain showed resolution of the intracranial haematomas with residual encephalomlacia over the insult sites. She was referred for vocational advice and work capacity evaluation. 49.On 15 October 2010, the plaintiff attended neurosurgery follow up. It was noted that she missed her work rehabilitation course due to hospitalisation for hypokalaemia (see paragraphs 63 below), and the work capacity evaluation was still pending. On 14 January 2011, the plaintiff still had headache and dizziness which affected her concentration and memory. She requested to have and was prescribed oral laxative. She was referred for occupational and cognitive assessment and for vocational training. (e) Occupational therapy follow up 50.On 27 November 2009, the neurosurgeon referred the plaintiff to outpatient occupational therapy for rehabilitation and vocational counselling. At the initial assessment on 18 February 2010, the plaintiff was noted to have mild depressive episode for which she was on medication. She reported headache and dizziness on exertion and difficulty in memorising information on daily things. Mini-mental state examination revealed some decrease in attention, and her self-reported standing, sitting and walking tolerance had decreased. Her limbs had full range of motion and adequate strength, but she required support from squatting to standing due to right knee pain. There was some decrease in strength for lifting abilities. The plaintiff had no concrete work plan. She was afraid of going to crowded places, and reassurance was given with suggestion to start a course of physical conditioning training to improve physical tolerance. She refused due to financial reason. 51.The plaintiff attended occupational therapy treatment sessions from 23 February to 8 April 2010. According to the Neuro Report, she defaulted on many occasions because of her physical symptoms. At the follow up on 11 March 2011, cognitive training had improved. The plaintiff’s then physical disability and work capacity attained “light level PDS”. By that time the plaintiff had available financial support, so she was keen for occupational therapy training. 52.At the re-assessment on 16 March 2010, the plaintiff complained of lack of energy and motivation to take part in leisure activities, poor sleep, seldom going out apart from training, and worry over the interaction of her psychiatric medication with her cognitive status. Physical examination showed progress was more or less similar. She performed typing for 15 minutes with adequate accuracy but at slow speed, and reported tiredness after activity. Counselling was given with suggestion for relaxation method and introduction of different types of leisure activities. Short term goals were set for going out more, and she was encouraged to use the computer more. The plaintiff was worried about finding a new job, and advice was given. The plan of management was to continue with training for another course, and to introduce her to work resettlement service. 53.At the last assessment on 29 April 2010, the plaintiff continued to report headache with “insomnia & nightmares” and low motivation to perform outdoor activities. She still required support from squatting to standing, and reported recent left knee pain on exertion. Her attention had improved during typing training with good accuracy but speed remained slow. Her limbs range remained full, and her self-reported standing, sitting and walking tolerance had improved. But the assessment results showed her lifting abilities had decreased. She continued to show low motivation for any future or work plan. Ongoing job counselling/support was given, and patient retraining and resettlement service was introduced to her. Her condition was static, so she was suggested to discharge from the work rehabilitation programme. 54.According to the entry for 18 November 2010 in the SOPD Treatment/Progress Sheet, the plaintiff had completed retraining and she was referred out to other NGO training course which had yet to start. The neurosurgeons referred her for work capacity evaluation, rehabilitation and vocational counselling (see paragraphs 48-49 above). At the assessment, she was alert, calm and generally cooperative. She complained of general malaise, dizziness, and on and off headache. She was withdrawn, and rarely had outdoor or social activities. She was independent in her activities of daily living, and could ambulate unaided albeit slowly. On cognitive assessment, she had severe impairment in memory. There was no concrete plan for return to work, and she was not willing to start work rehabilitation again due to financial reason. She was referred to medical social worker for assistance on 3 December 2010, and the case was closed on 9 January 2011. (f) Psychiatry, clinical psychology, gynaecology and medical follow up 55.The plaintiff was referred to clinical psychologist, community psychiatric nurse and medical social worker for follow up. On 27 November 2009, PMH referred her for psychiatric outpatient follow up. According to New Case Triage Form of the same date, she had depressed mood. At the psychiatric follow up at the WKPC on 5 January 2010, the diagnosis was mild depression, and the differential diagnosis was anorexia nervosa. According to the Kwai Chung Hospital (“KCH”) Medical Social Services Referral Form dated 5 January 2010, the plaintiff’s mental state was stable. She was referred for financial assistance, employment and counselling to “relax self, ↑ confidence, ↑ food intake”. She applied for disability allowance, and claimed to be not ready for open employment. “Supportive counseling on [her] stress and worries were rendered.” 56.According to the Progress Report by KCH’s community psychiatric nurse dated 15 January 2010, the plaintiff had stable mood at the initial visit on 13 January 2010 and was cooperative with social smile on approach. The plaintiff denied any psychotic problem or suicidal idea, but admitted fleeting negative thoughts at times. She slept well at night, but occasionally had insomnia for 1-2 days without reason. She had satisfactory appetite, but still complained of pain over left upper and lower limbs. She claimed she took drugs on schedule, but was a bit tired afterwards. On psychosocial aspect, she had supportive family members with her mother managing all the domestic housework and her siblings providing regular telephone contact for psychological support. She mostly stayed at home due to sense of insecurity, and was scared of having her injured parts accidentally hit by others. Her social circle was small, and she seldom contacted her friends. She complained of financial hardship since she had to dip into her savings for daily expenditure, and she hoped to find a job later. 57.The problems identified included fleeting negative thoughts and feelings, pain over injured parts of the body, and limited social circle. Nursing management included giving supportive counselling and psychosocial education to induce insight and encourage positive thinking, reminder on drug compliance and follow up, and encouragement to have leisure walk near her living area. 58.The plaintiff attended further psychiatric follow up at WKPC on 9 March 2010. The community psychiatric nurse paid regular subsequent home visits. 59.On 22 June 2010, the plaintiff attended medical follow up. According to the consultation note, no medical follow up was arranged after she was discharged from hospital in November 2009. She had finished her stock of slow K long ago, “urine low K, said not on laxatives now”. Renal function test was ordered. She was recalled by PMH for elevated creatinine. At the medical follow up on 20 July 2010, she claimed there was no drug abuse, “constipation +/-, recurrent vomiting”. There was no haematuria, and slow K was prescribed. 60.According to the Progress Report by KCH’s community psychiatric nurse dated 2 August 2010, the plaintiff’s condition was about the same. Although she slept well before, she recently had nightmares which affected her sleep pattern. The problems identified included pain over the injured parts of her body, limited social circle, fear of going out due to physical complaints, and stress on job hunting. Supportive counselling and psycho-education were provided, and stress management was taught. The plaintiff was encouraged to do mild exercises, to enlarge her social circle for better support, and to engage in “SE [self exercise] / Day Hospital”. The community psychiatric nurse would continue with home visit to monitor the plaintiff’s mental state and drug compliance, and to render support. 61.In the further Progress Report dated 20 August 2010, the plaintiff’s condition remained the same. Her mother reported that her condition was stable with no significant change in mental state. The community psychiatric nurse recommended suspension of home visit service. 62.At the psychiatric follow up on 3 August 2010 and 25 January 2011, the consultation notes recorded as follows, and support was given with fluoxetine prescribed:
63.At the medical follow up on 17 August 2010, the plaintiff was still on slow K. On 24 September 2010, she was called back by the medical clinic for severe hypokalaemia with K level at 1.42. The AED triage assessment form noted she previously had “depression” and severe hypokalaemia (with K level 2.0) with ICU admission. The plaintiff claimed to have forgotten to take slow K for the last few days, but denied overdose of laxative/medication. She had history of taking herbal preservative (licorice) for about 1 month, and she took “some herbal preservative for ?1 week”. She vomited undigested food about a week ago for 1 day, but denied any chronic vomiting/diarrhea or binge behavior. She was thin with no progressive weight gain or recent weight loss. She was transferred to ICU for IV and oral K replacement and monitoring, and referred to dietitian for dealing with malnutrition. 64.According to the CMS entry for 12:24 hours on 25 September 2010, the plaintiff’s mother visited her. At 20:36 hours, the plaintiff was emotionally calm and enjoyed watching television and reading newspaper. At 21:37 hours, she was alert, conscious and emotionally calm. At 07:16 hours on 26 September 2010, reassurance was given to her. At 13:27 hours, her oral intake was satisfactory. She was emotionally calm and enjoyed watching television. At 21:30 hours on 26 September 2010 and 07:31 hours on 27 September 2010, she was emotionally clam. On 27 September 2010, her K level returned to 3.5, and she was transferred out from the ICU to E2 ward. 65.When the plaintiff was admitted to the general ward, she was off IV K replacement. Watery diarrhoea had decreased. Blood test revealed decrease in albumin, phosphate and calcium level, and the endocrine team was consulted with treatment given. 66.On 28 September 2010, oral intake diet with supplement was recommended and encouraged. On 29 September 2010, the plaintiff was keen to return home. Her oral intake was satisfactory (see the CMS entry for 10:30 hours). At 16:20 hours, her appetite was good and the supplement was consumed. The CMS entry for 10:00 hours on 30 September 2010 noted her appetite was good with congee taken. She was discharged home on the same day with follow up at the medical clinic to review work up suggested by the endocrine team. 67.At the medical follow up on 14 October 2010, the plaintiff complained of constipation. She was put on slow K, and oral lactulose liquid was prescribed. On 9 November 2010, she still complained of constipation. Drug compliance was reinforced, and again slow K and oral lactulose liquid were prescribed. Similar diagnosis and prescription were made for the consultation on 7 December 2010. 68.On 4 January 2011, the plaintiff was called back because of low K. She claimed to have omitted her morning dose of slow K the day before, but she took 2 pieces of banana in 1 day so the latest K should have risen. Slow K was increased. 69.At the medical follow up on 8 March 2011, the plaintiff claimed there was good drug compliance. Slow K, phosphate supplement, cacilatrol and oral lactulose liquid were prescribed. On 22 March, 12 April and 24 May 2011, similar diagnosis and prescription were made. 70.When seen by the clinical psychologist at WKPC on 3 June 2011, the plaintiff was noted to be a case of “mild depression, ?AN” referred for psychotherapy. The plaintiff complained she often felt very sedative upon taking psychiatric medication, and would sleep from 11:00pm to 6:00am with intermittent awakenings 1-2 times. She also took naps for 1-2 hours during the day. She usually took 2 meals, ie (a) breakfast on her own (bread, soup, noodle) at about 10:00am but for 1-2 times a week she would vomit out afterwards due to abdominal discomfort and distension, and (b) dinner with her family members (half bowl of rice, 1-2 bowls of soup and food). She claimed she had not taken laxatives for more than a year except under the care of doctors at the medical clinic. She claimed to have on and off reduced eating during summer. She could not take in food or force herself to eat more due to her stomach distension (and not because of being scared of being fat or gaining weight). She knew she was then thin and “no distortion was noted”. 71.The plaintiff told the clinical psychologist that she felt guilty for being unable to support the family regularly, and she worried about her own health and her need for regular specialised follow up. She often stayed at home and only went out for follow up. She was physically unable to tolerate going out. She complained of pain over pelvic area. She had easy vomiting followed by headaches and dizziness, and the headaches would last for hours such that painkillers were sometimes required. Her finances were tight, and she was introverted with no close friends, no hobbies and limited social circle. The clinical psychologist intended to interview the plaintiff’s mother at the follow up on 27 July 2011. 72.On the same day on 3 June 11, the plaintiff attended gynaecology follow up for secondary amenorrhoea after default for 2 years. Her last menstrual period was 7 years ago. The medical impression was hypothalamic hypogonadism, and she was advised to have weight increase. The plaintiff refused hormone replacement treatment, and the risk of osteoporosis and bone fracture was explained. She was advised by the medical clinic to have blood test in August 2011, so gynaecology follow up was scheduled to review hormone profile in August 2011. 73.The plaintiff attended PMH’s AED on 30 June 2011 for left foot pain and swelling for a week. The Admission Sheet and Internal Transfer Summary dated 30 June 2011 noted the management plan for incision and debridement for left ankle abscess. The plaintiff claimed to have fair appetite all along, and denied any weight loss programme. She was on lactulose for constipation, but denied having diarrhoea. She was given oral and IV K and phosphate supplement. “Psy consulted: no evidence of relapse, mentally fit for discharge, suggest continue usual meds, stable, tolerated oral diet”. The plan was to transfer her to the general ward to resume oral K and phosphate supplement with monitoring. 74.On 1 July 2011, psychological support was given to the plaintiff. On the following day, she was assessed by psychiatric team and reassurance was given. According to the “psy note” dated 2 July 2011 by PMH’s psychiatric nurse, the ward nurse reported that the plaintiff “was suspected to have ?hallucination in ward previously but was not document in [clinical notes]. However, she was noted mentally stable in recent 2 days with no bizarre behavior noted”. When seen on 2 July 2011, the plaintiff was nursed in a geriatric chair at bedside. She was fully conscious and responsive on approach. She was mildly tense but not overtly depressed. Speech was coherent and relevant, and she was able to clearly and orderly tell her background, the history of the Accident, her psychiatric history, and the reason for current admission. She was forthcoming and not evasive or psychotic. She revealed that she took 2 meals per day due to getting up late in the morning, and took oral laxatives as prescribed by PMH for her chronic constipation problem “?lead to hypo K+”. She was worried about her foot problem, and requested to see dietician for nutritional advice and constipation problem. She was not suicidal and did not have hallucination, delusion or other psychotic features. The plaintiff’s elder sister confirmed that the plaintiff had stable mental condition for recent year or so, and no confusion or psychotic problem was observed after admission. 75.The impression stated in the “psy note” dated 2 July 2011 was “[known] case mild depression and [anorexia nervosa]. Admitted for foot abscess. Mentally stable when seen”. It was suggested that the plaintiff should resume psychiatric medication if not contradicted and to see dietician as requested for further diet advice. There was no evidence of mental relapse and she was considered fit for discharge. Follow up at WKPC was arranged. 76.On 3 July 2011, the plaintiff was emotionally calm and cooperative, and she enjoyed television. Psychological support was given. Incision and debridement were done on 4 July 2011, but there was still swelling and purulent discharge from the site. The plaintiff walked with a limp and claimed to have on and off fever, chills and rigors. On 11 July 2011, she was discharged home with medication and dressing/packing at the outpatient clinic. 77.At the psychiatric follow up at WKPC on 19 July 2011, the plaintiff appeared settled. Her mood was euthymic, and her speech was coherent and relevant. No depressive symptom or suicidal thought was detected. She was arranged to attend follow up at WKPC regularly (see the medical report by WKPC’s Dr MW Ng dated 3 January 2012). 78.On 27 July 2011, the plaintiff attended clinical psychology follow up. She said she took medication at about 9:00am to 11:00am and “slept erratically with lot of dreams which scared her up”. She took medication regularly but grumbled about the treatment process. She said she attended medical follow up due to “low sodium”, but did not mention “anything related her eating problem”. She reported she was under litigation and her mother was easily grumpy. The clinical psychologist noted her “mood still on the low side” and arranged for further follow up. 79.At the medical follow up on 9 August 2011, the plaintiff was noted to have orthopaedic follow up but slow K had been stopped. She refused blood taking that day, and was prescribed phosphate, calcitriol and oral lactulose liquid. At the medical follow up on 16 August 2011, slow K was added. She was on regular slow K and phosphate mixture rocaltriol, and claimed to have good drug compliance. 80.On 8 September 2011, the plaintiff was admitted to the orthopaedic ward for investigation of swelling of left foot and left foot infection. She continued with K replacement and was advised to avoid laxatives. She was assessed by ICU doctor. On 9 September 2011, dietician was consulted for nutritional support. Special diet was arranged, and tolerance was monitored. According to the CMS entry for 10 September 2011, the plaintiff was emotionally calm. CT left foot and ankle with contrast done on 10 September 2011 revealed acute osteomyelitis involving 4th metatarsal bone with fracture. There were suspected soft tissue abscesses adjacent of medial malleolus and calcaneum. The plaintiff’s K level gradually normalised, and the endocrine team was consulted. She was off K+ drip on 11 September 2011. On 13 and 14 September 2011, she was emotionally calm (see the CMS entries for 11:20 hours on 13 September 2011 and for 12:00 hours on 14 September 2011). On 14 September 2011, the dietician recommended a high fibre diet. The CMS entry for 15:45 hours on the same day noted her fluid intake and diet were well tolerated. On 15 September 2011, the plaintiff was emotionally calm and her appetite was satisfactory with “Ensure” supplement well tolerated (see the CMS entries for 10:30 and 14:55 hours). 81.Operation was done on 16 September 2011 and the plaintiff was off slow K on the same day. According to the Discharge Summary dated 31 October 2011, left 4th metatarsal sequestrectomy, left tib posterior synovectomy and debridement were done with 10 gentamicin beads inserted. Gentamicin beads were gradually withdrawn and antibiotics were prescribed. The Anaesthetic Record noted the plaintiff could continue with fluoxetine on the day of the operation with sips of water. On 18 September 2011, she was calm and stable (see the CMS entry for 14:30 hours). On 19 September 2011, the CMS entry for 18:00 hours noted hydration was fair and appetite was “OK”. On 20, 21, 23, 24 and 26 September 2010, she was “stable, alert and conscious, calm” (see the CMS entries for 12:50 hours on 20 September 2011, 15:45 hours on 21 September 2011, 18:00 hours on 23 September 2011, 12:30 hours on 24 September 2011 and 11:55 hours on 26 September 2011). On 27 September 2011, slow K was resumed, and the plaintiff was transferred to the IDC for further care. 82.On 28 and 29 September 2011, the plaintiff was emotionally stable, calm and alert (see the CMS entries for 08:00, 15:40 and 22:00 hours on 28 September 2011 and for 09:30 and 15:30 hours on 29 September 2011). On 30 September 2011, her mood was calm (see the CMS entry for 08:00 hours). On 5 and 7 October 2011, the plaintiff was emotionally stable (see the CMS entries for 14:45 hours on 5 October 2011 and for 08:00 hours on 7 October 2011). On 8 October 2011, she was transferred to LKB for rehabilitation. 83.The plaintiff’s discharge from PMH was postponed several times for inpatient physiotherapy (see the CMS entries for 13:35 and 14:00 hours on 12 October 2011) and arrival of her mother from Mainland China to take care of her (see the CMS entry for 12:50 hours on 23 October 2011). The plaintiff was very worried about left foot swelling (see the CMS entries for 09:30 and 10:30 hours on 24 October 2011). On 27 October 2011, the plaintiff complained of constipation, and lactulose was prescribed (see the CMS entry for 09:15 hours). 84.At the clinical psychology follow up at WKPC on 15 November 2011, the plaintiff attended alone. She defaulted the last follow up on 12 September 2011 because of her admission to PMH from 8 September to 31 October 2011 for skin and bone problem. She revealed how difficult she was when she underwent the operation and other procedures, and her relatives were scared of visiting her. Her body weight returned to normal range after she was hospitalised for 2 months. She was encouraged to keep her then body weight, and to stop other diet restriction habit for at least 6 months. She was taking 2 meals a day with noodles and rice, and would attend dietician and orthopaedic follow up at PMH. Her “mood [was] on the low side” and she was not going out regularly due to pain in ambulation. She did approach medical social worker for financial support. The clinical psychologist “suggest her for activity rescheduling” and further follow up. 85.At the neurosurgery follow up on 6 May, 17 June, 29 July and 4 November 2011 and 27 February 2012, the plaintiff was advised to resume work after her ankle condition had settled. There was still left foot pain but she was able to walk with an umbrella. 86.According to the Dietetic Record dated 8 November 2011, the plaintiff claimed to dislike eating rice and had poor appetite during the day. It was noted that her starch, vegetable, fruit and meat intake and milk consumption were inadequate. The dietician recommended her to have a balanced diet and to continue with 1 can of “Ensure” supplement a day. She was also encouraged to eat sandwiches for lunch and dinner if she was unable to eat rice. 87.According to the Wound Assessment Form dated 9 January 2012, the plaintiff was put on anti-TB drug and conservative treatment was continued. On 10 February 2012, the plaintiff attended orthopaedic follow up for TB infection over his left foot. The heel wound was almost completely healed, and CT scan was awaited. The file was closed on 17 February 2012. V. ORTHO REPORT 88.The plaintiff complained to the Ortho Experts as follows:
89.At the Ortho Exam on 23 June 2011, the Ortho Experts found the plaintiff to be “general bit thin”. She was conscious and alert with coherent speech. She was able to sit for more than 30 minutes without problem, but rose from the chair with support of right hand on chair. There was abscess at right posterior heel and recent left foot swelling up to left distal calf which caused her to limp, but the Ortho Experts considered such to be unrelated to the Accident. 90.The Ortho Experts agreed that the plaintiff suffered traumatic brain injury, left clavicle fracture, left multiple rib fractures associated with left pneumothorax, and pelvic fracture which were directly caused by the Accident. Her anorexia nervosa was pre-existing. The Ortho Experts noted she had mood problems but “agree to leave …… for appropriate experts to comment”. 91.The Ortho Experts then expressed their opinion as to the plaintiff’s treatment, recovery, impairment, prognosis, employability and sick leave from an orthopaedic perspective. These matters need not be canvassed in any detail as they are not relevant to the Issue. VI. NEURO REPORT 92.According to the Neuro Report, the plaintiff had the following complaints:
93.The Neuro Experts noted that the plaintiff was pleasant and cooperative with a flat effect. Her speech is coherent and relevant, but she looked thin, sallow and ill. She had a 29/30 score for mini-mental state examination with mild impairment in abstract thinking, but her general knowledge was preserved. Physical examination revealed no abnormal findings in her head, neck or nervous system. The Neuro Experts advised her to let PMH’s physicians look into her clubbed fingers and toes as they could be caused by serious diseases of the lungs and heart. They opined that her clubbed fingers and toes and the active inflammation in her left ankle had no relationship to the Accident. 94.In respect of the Accident, the Neuro Experts agreed that the plaintiff sustained a moderately severe brain injury. In addition to loss of consciousness and post-traumatic amnesia lasting probably at least a few hours, she had skull vault fracture, bleeding inside her skull and bruising of her frontal lobes from which she recovered under conservative treatment. 95.Dr Choa opined that the residual mild and infrequent attacks of headache and dizziness as well as mild mood and cognitive changes were consistent with post-concussion syndrome. As these symptoms had persisted for over 1½ years they were likely to be permanent to a greater or lesser extent. Her head injury amounted to 3% whole person impairment, and she should continue with paracetamol and antidepressant prescribed by PMH. 96.Dr Woo opined that as a result of the head injury the plaintiff had residual headache, non-specific dizziness and subjectively-impaired memory akin to the diagnosis of mild post-concussional syndrome, which accounted for 1% whole person impairment. Further significant improvement was not expected. There was no further pharmacological or surgical treatment, and regular neurological/neurosurgical evaluation was not indicated. 97.The Neuro Experts “agree there is no need for [the plaintiff] to be assessed by experts in other fields”. VII. WITNESS STATEMENT 98.The plaintiff’s witness statement dated 1 February 2012 claimed that prior to the Accident she was in good health and would go out with family and friends for meal or gathering once a week. As a result of the Accident, she attended regular outpatient treatment, and was granted 780 days of sick leave during the period from 30 June 2009 until 23 February 2012. She stayed at home most of the time and went out less. She dared not go out alone for fear of fainting in the street, and she had to be accompanied by a family member. The plaintiff claimed she suffered inter alia the following psychiatric symptoms:
VIII. SURVEILLANCE REPORTS 99.The 1st and 2nd defendants commissioned surveillance recordings of the plaintiff on 6 May, 30 June and 29 July 2011 and on 10 and 24 February 2012. Neither counsel referred to the surveillance reports in the Bundle, and they assured me that it is quite unnecessary for me to view the recordings. So I will deal with this very briefly. 100.According to the investigation report dated 25 August 2011, the plaintiff was observed walking at a slow space and occasionally with a mild limp on 6 May 2011. She was seen walking and shopping for more than an hour after attending medical appointment. On 17 June 2011, she was observed to walk at a slow pace. She attended PMH, had lunch there, and then strolled along the road a slow pace. She bought/ate some food, went to a dental clinic and then went further shopping. Her movement was quite slow when taking the stairs. On 23 June 2011, she attended the Ortho Exam accompanied by a female and walked with a limp and a slow pace when she left. On 30 June 2011, she attended the Neuro Exam accompanied by a female. She walked slowly as she left, and then a male drove them away. On 29 July 2011, she attended medical appointment at PMH with her left ankle bandaged. She walked a limp but did not hold the handrail when boarding the minibus. 101.According to the investigation report dated 6 March 2012, the plaintiff was observed wearing slippers and walking with normal gait, and she could negotiate stairs without handrail support. On 24 February 2012, she had an adhesive dressing on her left heel. She went shopping at a shopping mall, and stopped to look at the food at the food stores. In the report, the investigator suggested that the plaintiff exhibited a thoughtful look, but in my view the still pictures in the 2 investigation reports extracted from the recordings showed her to have a flat or blunted effect with lips pressed down and no smile. IX. LEGAL PRINCIPLES : GENERAL 102.There is no disagreement between Mr Clough and Mr Sakhrani over the relevant legal principles on expert medical evidence. I repeat my observations in Ngai Ping Kwan v Choy Yat Hung HCPI537/2010 (unreported, 15 September 2011) at paragraphs 6-7 citing the guidance by Bharwaney J in Fung Chun Man v Hospital Authority & anor HCPI1113/2006 (unreported, 24 June 2011) at paragraphs 9-11 and 15. 103.In summary, expert medical evidence must be relevant, necessary and of probative value, ie it is likely to be of real assistance to the determination of the issues or, to put it in another way, it must be reasonably required to enable the court to resolve the issues in dispute. The court also has regard to other circumstances, eg potential disruption to the trial, the prejudice to the other parties, the explanation given for a late application, and these matters have to be considered and weighed in light of and against the underlying objectives. Ultimately, the court strives to do justice between the parties and to secure the just resolution of the dispute in accordance with the substantive rights of the parties. X. PSYCHIATRIC EXPERT EVIDENCE 104.Mr Sakhrani cited my reasons for decision in Ip Sau Lin v Hospital Authority DCEC584/2007 (unreported, 9 April 2009) to illustrate that psychiatric expert evidence is not required in every case. In paragraph 42 of the reasons for decision I did say it did not follow that whenever a party received psychological treatment that psychiatric or clinical psychological expert evidence would be required. I also referred to Seagroatt J’s admonition to restrict expert evidence to what would reasonably be required for proper adjudication (see paragraph 43 of the reasons for decision). 105.Although I refused the application for leave to adduce psychiatric expert evidence in Ip Sau Lin, such refusal is no more than an exercise of case management discretion on the principles set out in Part IX above on a case-specific basis. Each case turns on its own facts. As explained in paragraph 65 in my ruling in Wong Ka Yee v Gay Giano International Limited DCEC436/2007 (unreported, 4 August 2009), the applicant in Ip Sau Lin complained of residual pain from a sprained back. He attended a short COPE programme and pain management clinic follow up, did not attend any psychiatric assessment offered by the clinical psychologist, and had returned to work. Those circumstances are quite different from the factual matrix in Wong Ka Yee in which I granted leave to obtain and adduce psychiatric expert evidence. They are also a far cry from the facts of the present case. 106.Mr Sakhrani also cited Leung Kang Wai v Dussmann Service Hong Kong Limited formerly known as P Dussmann Hong Kong Limited DCPI297/2010, DDCJ Shipp (unreported, 11 October 2011). The learned deputy judge held that even assuming that the plaintiff in that case suffered from depression after the accident, it did not mean it was caused by the accident; otherwise psychiatric expert evidence would be required in each and every case whenever a person suffered from depression after the accident. He held that psychiatric expert evidence was not required. 107.Leung Kang Wai also turns on its own facts. In that case, although the accident happened in 2007, there were no depressive features in the first 2 years after the accident although the plaintiff experienced some degree of pain. It was only in 2009 when he was not successful in resuming work with his former employer after cessation of his sick leave pay and he was bothered by financial problems that he began to have “depressive features”. Those facts are far removed from the present circumstances in which psychiatric symptoms appeared very shortly after the Accident even during the plaintiff’s hospital stay. 108.In fact, the plaintiff in Leung Kang Wai sought leave to appeal against the refusal of psychiatric expert evidence, and both DDCJ Shipp and the Court of Appeal declined to grant leave (see Decisions in DCPI297/2010 (unreported, 11 October 2011) and HCMP2098/2011 (unreported, 29 December 2011)). Kwan JA emphasised that the order being the subject of the intended appeal was an interlocutory order made in the discretionary exercise of the powers of case management. In my view, this underlines the principle that in each case the court has to make a case-specific determination as to whether expert medical evidence is required, and illustrations as to how the discretion has been exercised in other cases are generally not of any great assistance. 109.This approach has been succinctly summarised by Bharwaney J in Tang Tak Ping v Kai Shing Construction Co [2012] 1 HKLRD 1093, 1103 as follows:
110.Indeed, at the Hearing both Mr Clough and Mr Sakhrani assured this court they had no disagreement over the applicable legal principles as set out in Part IX above, and they further accepted that the Issue called for an exercise of the court’s case management discretion in the context of the particular circumstances of the present case. 111.That being so, it may be useful to conclude the discussion on the legal principles by referring to Bharwaney J’s guidance on the approach of the court in considering whether psychiatric expert evidence is required in Fung Chun Man v Hospital Authority & anor HCPI1113/2006 (unreported, 24 June 2011):
XI. DISPUTED REPORTS 112.The 1st and 2nd defendants took issue over 3 medical reports prepared by specialists in psychiatry Dr Kwan Ka Lik Felix (“Dr Kwan”) and Dr Cindy PY Chiu (“Dr Chiu”), and suggested they are inadmissible for the purpose of determining the Issue. The 3 disputed reports (“collectively, “Disputed Reports”) have been included in the Bundle and have been received on de bene esse basis at the Hearing:
(a) Kwan 1st Report 113.Dr Kwan wrote to the plaintiff’s solicitors on 22 March 2012 to state that a full psychiatric report by a qualified psychiatrist would be of assistance to the trial judge in this action because the plaintiff suffered from psychiatric illness after the Accident, and the nature of illness, the psychiatric diagnosis and the estimated extent of disability of the psychiatric morbidity resulting from the Accident should be considered to assist the trial judge in assessing the claim. Dr Kwan added that the plaintiff’s mental capacity and fitness for giving statement in court should be assessed. Further, the progress of treatment on the plaintiff’s psychiatric illness should be assessed for its estimated prognosis and related cost of medical expenditure. (b) Chiu Report 114.Dr Chiu noted that the Medical Records and the available treatment medical reports by PMH and WKPC (“Medical Reports”) mentioned that the plaintiff suffered from anorexia for some time and that she was diagnosed to have depression after the Accident. Dr Chiu opined that the diagnosis of depression would be relevant to the plaintiff’s claim for pain, suffering and loss of amenities and/or for medical expenses, and it would be necessary to examine whether the onset of depression occurred as a result of the anorexia or the Accident. Consequently, Dr Chiu recommended psychiatric examination and report to assist the court. (c) Kwan 2nd Report 115.Dr Kwan saw the plaintiff twice at his clinic on 16 and 23 April 2012 for which he kept handwritten clinical notes (“Kwan Notes”). The plaintiff’s solicitors provided him with a set of the Medical Records and Reports, and he compiled the Kwan 2nd Report based on his interviews with the plaintiff and the information in the Medical Records and Reports. According to the Kwan Notes, the plaintiff was referred for assessment of low mood. 116.The plaintiff’s personal and medical history and her post-Accident psychiatric complaints as stated in the Kwan 2nd Report were quite similar to the contents of the Medical Records and Reports. For convenience, I shall briefly set out the plaintiff’s psychiatric complaints and history in the Kwan 2nd Report and the Kwan Notes in the following paragraphs. 117.After the Accident, the plaintiff had transient loss of consciousness, head injury with intracranial haemorrhage and multiple fractures requiring 2-month hospitalisation at PMH. She was known to PMH’s mental health service since October 2009 when she was diagnosed to have depression by a liaison psychiatrist during her hospitalisation and was put on antidepressant. She presented with depressed mood, lack of energy, sleep disturbance with nightmares, fearfulness of going out, lack of volition, excessive worrying about her physical injuries, pessimistic thought about her future, and multiple somatic complaints including headache, dizziness, and generalised weakness. Since 5 January 2010, she was arranged to have regular follow up at WKPC. She was also referred to clinical psychologist for psychological intervention, and community psychiatric nursing services for supportive counselling and symptoms monitoring. 118.The plaintiff reported having regular psychiatric follow up and she maintained satisfactory drug compliance, but her mood condition only partially improved. She reported she was able to maintain shallow sleep only, and had frequent nightmares during sleep. She often had feeling of tiredness, poor concentration, and slowness in response after medication treatment. She had limited motivation to go out with excessive worrying of physical discomforts including headache and dizziness. She also had negative thoughts to herself because of the unsatisfactory progress of recovery and prolonged unemployment. She reported she had increased dosage antidepressant after her latest follow up at WKPC in early 2012. 119.When she was first seen by Dr Kwan on 16 April 2012, she presented with low mood, shallow sleep with frequent nightmares, loss of energy, feeling of tiredness, poor concentration, slowness in thinking, negative thoughts and vague somatic complaints. She also expressed pessimistic thought towards the future because of prolonged unemployment and persistent bodily discomfort. She was put on fluoxetine but felt tired. She was diagnosed to have Major Depressive Episode, mild to moderate in severity, currently in partial remission. Reassurance and counselling was given. The option of medication adjustment was discussed, but she preferred to have further observation about progress because she just had recent dosage adjustment in WKPC. 120.The plaintiff was re-assessed by Dr Kwan on 23 April 2012. She looked tired but had satisfactory eye-contact. She was calm and settled during the interview. She was tidily dressed and had satisfactory hygiene. She talked coherently and relevantly with slow tempo in speech. Her mood was mildly depressed. She had negative thoughts towards her future. She had no active psychotic symptom and no suicidal idea. She was oriented to time, place and person. Her cognitive function was intact. She maintained satisfactory appetite and did not lose weight. She slept fairly and there was no nightmare. She felt tired after medication treatment. She also expressed that she had poor concentration and was distracted easily. She lacked motivation to have social gathering and worried of being criticised because of prolonged unemployment. She was not actively searching for a job because of persistent bodily discomfort and somatic complaints. Supportive counselling was given. She was not put on further pharmacological and psychological intervention due to financial reason, but was advised to continue her treatment at WKPC in the long term. No regular follow up was arranged. She was advised to have further discussion with the treatment psychiatrist at PMH on medication adjustment. 121.In summary, Dr Kwan concluded that the plaintiff suffered from Major Depressive Episode mild in severity (ICD-10) with no anxiety and psychotic symptoms. She had regular psychiatric follow up and antidepressants as maintenance treatment. She was then in partial remission and she needed further adjustment of medication for further symptom improvement and for minimising side effects. She also needed regular outpatient psychiatric follow up for symptom monitoring. The nature of her psychiatric illness suggested that she did not suffer from a permanently disabling condition, but her condition had not become static yet. Dr Kwan opined that the prognosis for her occupational and social functioning was satisfactory with continuation of pharmacological and psychological intervention, but her condition was likely to be recurrent if she had persistent stressors related to prolonged unemployment and continued physical discomfort. (d) Discussion 122.Mr Sakhrani complained that without leave of the court and without notice to the 1st and 2nd defendants the plaintiff had Drs Kwan and Chiu advise by way of the Kwan 1st Report and the Chiu Report that a full psychiatric expert report would be of assistance, and then went further to consult Dr Kwan on 16 and 23 April 2012 and obtain the Kwan 2nd Report. Mr Sakhrani submitted it was unclear why the plaintiff consulted Dr Kwan when she was being treated in the public sector, and further surmised that her intention must be to produce the Kwan 2nd Report which adopted the format of a psychiatric expert report. 123.In respect of the Kwan 1st Report and the Chiu Report, I am unable to accept the 1st and 2nd defendants’ objection and/or complaint. Such reports are not full expert medical reports on quantum, and possibly will not be adduced at trial. Instead, they succinctly set out the justification from a psychiatric perspective why psychiatric expert evidence is required in the medical context of the present case. 124.Expert medical evidence is allowed only if it is relevant, necessary and of probative value. Any request for leave to adduce expert evidence from a psychiatrist or a clinical psychologist will need to be properly justified. As explained by Bharwaney J in paragraph 25 of his decision in Fung Chun Man (see paragraph 111 above), such justification may be provided by submitting a written note from a relevant expert setting out brief reasons explaining why the expert opinion is necessary in the particular case, but a full report should not be commissioned without agreement from the other party or leave of court. Such guidance is reiterated in Tang Tak Ping at p.1104 in which Bharwaney J considered the admissibility of a full solo psychiatric expert report obtained by the plaintiff in face of opposition by the defendant:
125.In the circumstances, notwithstanding that the 1st and 2nd defendants’ complaint that the Disputed Reports were obtained in secret and inserted into the Bundle without specifying their disagreement, I am persuaded that the Kwan 1st Report and the Chiu Report have not been obtained in breach of the spirit of the Civil Justice Reform (as Mr Sahkrani claimed) but are in fact admissible for the purpose of determining the Issue. Although query may be raised as to whether it is necessary for the plaintiff obtain both the Kwan 1st Report and the Chiu Report which arguably serve the same purpose, such query, in my view, does not go to the question of relevancy and/or admissibility of such reports for the purpose of determining the Issue but rather to the question of costs, ie whether the admissible evidence adduced in this regard is excessive. I shall return to the question of costs below. 126.As regards the Kwan 2nd Report, I start with the general observation that it is not for the 1st and 2nd defendants to criticise the plaintiff for seeking second opinion and/or psychiatric treatment for her psychiatric condition from the private sector even if she was/is already receiving psychiatric and/or clinical psychological treatment in the public sector. When dealing with her own mental health, the plaintiff has full patient autonomy and can seek whatever psychiatric advice and/or treatment as she considers appropriate. This is quite separate from the issues of whether she can recover full costs of such psychiatric advice/treatment, and whether the 1st and 2nd defendants can justifiably argue that such psychiatric advice/ treatment exceeds what is reasonable and/or foreseeable. 127.Further, I am not persuaded that in consulting Dr Kwan the plaintiff is, as suggested by Mr Sakhrani, “expert shopping”. There is no evidence before me that at the time when the plaintiff first approached Dr Kwan for the Kwan 1st Report she had engaged any other psycho-legal expert. Although the plaintiff shortly turned to Dr Chiu for the provision of a similar written note to explain the need for psychiatric expert evidence (ie the Chiu Report), she carefully did not request Dr Chiu to prepare a full psychiatric report. Her turning to Dr Chiu may be explained by her intention and ultimately action in April 2012 to consult Dr Kwan therapeutically (see paragraphs 119-120 and 128 below). 128.It is true that the plaintiff’s solicitors facilitated the 2 consultations on 16 and 23 April 2012 by providing Dr Kwan with the Medical Records and Reports, which no doubt expedited his understanding of the plaintiff’s medical and psychiatric history and the care and treatment she has received so far. But it is quite clear from the Kwan Notes and the Kwan 2nd Report that the consultation on 16 April 2012 was therapeutic in nature. They recorded that Dr Kwan elicited psychiatric information from the plaintiff to formulate his diagnostic hypothesis to ascertain the appropriate therapeutic intervention. He explored with the plaintiff the option of medication adjustment, and gave reassurance and counselling (see paragraph 119 above). Likewise for the 2nd consultation on 23 April 2012, Dr Kwan also rendered supportive counselling (see paragraph 120 above). He did not provide further pharmacological and psychological intervention (which he in fact considered necessary – see paragraph 120 above) because of the plaintiff’s financial concerns. Even so, he gave psychiatric advice to the plaintiff to continue with treatment at WKPC and to raise the matter of medication adjustment with the treatment psychiatrist at WKPC (see paragraph 120 above). Dr Kwan’s role in the above consultations is quite different from a purely evaluative one that is usually adopted by a forensic expert, eg the Ortho Experts merely identified the heel abscess and foot swelling as unrelated to the Accident (see paragraph 89 above), and the Neuro Experts merely told the plaintiff to consult PMH’s physicians for her clubbed toes/fingers and inflammation of left ankle (see paragraph 93 above) without giving therapeutic advice/treatment. 129.On the above analysis, the complaints of “secrecy” and “expert shopping” fall away. There is no sustainable basis for objecting to the plaintiff approaching a private psychiatrist for therapeutic advice. I have no doubt that the Kwan Notes are also admissible for the purpose of determining the Issue as factual medical information by a professional psychiatrist. 130.The next question is whether the Kwan 2nd Report is admissible for the purpose of determining the Issue. The Kwan 2nd Report can be divided into 3 parts, ie (a) information as to the plaintiff’s personal background, her medical and psychiatric history, and the treatment and care she received as elicited from the Medical Records and Reports and from taking the plaintiff’s history during the 2 consultations on 16 and 23 April 2012 (see paragraphs 117-118 above), (b) summary of the 2 consultations (see paragraphs 119-120 above), and (c) opinion as to the plaintiff’s current diagnosis and condition as well as her future prognosis, treatment and employability (see paragraph 121 above). 131.In my view, the devil is in (c) and not in (a) and (b) above. In respect of the matters in (a) above, they are already before the court in the form of the Medical Records and Reports, the surveillance reports and the plaintiff’s witness statement. Since the contents of these documents have been deployed at the Hearing and are in the court’s domain for the purpose of the Issue, I am unable to see why this part of the Kwan 2nd Report should be inadmissible for the purpose of determining the Issue. In respect of the matters in (b) above, this part of the Kwan 2nd Report is necessarily admissible for the reasons explained in paragraphs 128-130 above. 132.In the Kwan 2nd Report, (c) above being a succinct summary of Dr Kwan’s views on the diagnosis and prognosis of the plaintiff’s psychiatric condition is plainly a statement of expert opinion instead of professional fact. In the circumstances, there is substance to the 1st and 2nd defendants’ objection to the admissibility of such opinion evidence which the plaintiff obtained on a solo basis in breach of the guidance in Part I of Practice Direction 18.1 as explained in Siu Fook Cheong v Siu Kwok Fai & anor [2010] 3 HKC 333 (see also paragraph 21 of Fung Chun Man). Bharwaney J in paragraph 7 of his reasons for decision in Tang Tak Ping stated as follows:
133.At the time of the Kwan 2nd Report, the plaintiff well knew that the Issue was the subject of dispute between the parties. The plaintiff has not provided any satisfactory justification for obtaining the solo opinion in (c) above pending the determination of the Issue. In the circumstances, I hold that the opinion expressed in (c) above in the Kwan 2nd Report should be redacted and not admissible for the purpose of determining the Issue. The remaining parts (a) and (b) of the redacted version of the Kwan 2nd Report (which is admissible for the purpose of determining the Issue) is somewhat akin to a treatment report like Dr MW Ng’s reports dated 30 June 2011 and 3 January 2012, and I see no satisfactory reason why the plaintiff cannot rely on them. 134.I should add that Mr Sakhrani also complained that although Dr Kwan agreed to accept instructions for a full report for HK$25,000.00, “[it] is unclear what further report he has in mind”. As regards the Kwan 1st Report, I have explained the purpose of such written note, which is nothing like a full expert report that normally deals with the psychiatric history, test findings, diagnosis, prognosis, work capacity and future treatment/costs. Given my redaction of the Kwan 2nd Report, it is again nothing like a full expert report as explained above. 135.Indeed, Mr Sakhrani’s own written submissions also recognised that the Disputed Reports were not full reports on the issue of quantum. He noted that the Kwan 1st and 2nd Reports were silent on the causal effects of the plaintiff’s pre-existing condition on her post-Accident depression, a point that was raised but not addressed in the Chiu Report. Yet Mr Sakhrani acknowledged that the issue of causation would be crucial in the present case, so much so that he submitted that if I were to grant leave for the plaintiff to adduce psychiatric expert evidence, the 1st and 2nd defendants would wish to retain their own psychiatric expert to jointly interview the plaintiff together with the plaintiff’s psychiatric expert because he anticipated there would be hot debate over the issue of causation and the 1st and 2nd defendants would wish to confer freely with their own psychiatric expert in the course of the proceedings. 136.In my view, a full psychiatric report will, at the very least, have to deal with and analyse the attributable causes of the plaintiff’s psychiatric condition, and given their contents the Kwan 1st Report, the Chiu Report and the redacted Kwan 2nd Report plainly do not satisfy such requirement. Further, given the requirements in Part I of Practice Direction 18.1, the envisaged further report should be a single joint report by the parties’ single joint expert or a joint report by the parties’ respective experts pursuant to his/their single joint or joint interview of the plaintiff. Plainly, the Disputed Reports are not such reports. 137.Mr Sakhrani also submitted that the contents of the Disputed Reports add nothing further to the existing public sector treatment medical reports, and hence they should not be admissible for the purpose of determining the Issue. As will be evident in the discussion in Part XII below, the Medical Records and Reports, the surveillance reports and the plaintiff’s witness statement more than sufficiently demonstrate that psychiatric expert evidence is required in this case, and there is no need to even rely on the contents of the Disputed Reports. But this does not detract from the general admissibility of the Kwan 1st Report, the Chiu Report and the redacted Kwan 2nd Report for the purpose of determining the Issue. Given the 1st and 2nd defendants’ objection to psychiatric expert evidence, it is open to the plaintiff to adduce permissible support for her contention. XII. DISCUSSION OF THE ISSUE 138.I should say at the outset that I am not persuaded there is any need to adduce psychiatric expert evidence for establishing whether the plaintiff has mental capacity or is fit to give statement in court. There is nothing in the Medical Records and Reports, the Kwan Notes, the redacted Kwan 2nd Report, the surveillance reports and the plaintiff’s witness statement that gives rise to any doubt as to whether the plaintiff is sui juris. 139.Mr Sakhrani submitted that psychiatric expert evidence was not necessary because it could not add anything further to the public sector Medical Records and Reports, which have the advantage of recording what was observed on numerous consultations over a period of about 2 years by psychiatrists, clinical psychologists and psychiatric nurses. He pointed out that the Kwan 2nd Report merely reviewed the plaintiff’s condition when she was still attending PMH and WKPC for treatment. Further, although the plaintiff consulted Dr Kwan twice in April 2012 (ie after the issuance of the Medical Reports and after the period covered by the Medical Records), Mr Sakhrani argued that this could be easily addressed by getting updated medical reports from the public sector treating professionals and updated medical notes/records from PMH and WKPC, which would provide more reliable information than the limited snapshot of the plaintiff’s condition in the Kwan Notes recorded pursuant to the 2 consultations in April 2012. 140.I do not find the argument in the above paragraph of itself persuasive. In respect of expert medical evidence by independent medical experts (as opposed to professional factual evidence by therapeutic medical doctors) in personal injury claims, it is invariably the case that the victim/claimant has received medical treatment some time before the medico-legal expert even comes into the picture. Consequently, it is also invariably the case that the treatment medical notes, records and reports that track the plaintiff’s therapeutic care and treatment have been generated some time before personal injury litigation is even contemplated or thought is given to engaging any medical expert. 141.Further, the commencement of personal injury litigation does not necessarily mean that a plaintiff has fully recovered from his/her injuries. A victim/claimant who has reached maximum medical improvement may still need continuing medical care and attention. Given that damages are assessed down to the date of trial, it is therefore unsurprising that by the time the litigants in personal injury actions turn their attention to obtaining expert medical evidence the plaintiff may still be receiving ongoing medical care and treatment such that updated treatment medical notes, records and reports will become progressively available as the case moves towards trial. That is why historical and/or updated treatment medical notes, records and reports are always provided to the medical experts for their review when they compile their initial or supplemental expert reports. 142.In short, the historical and/or updated medical notes, records and reports exist simply because of the therapeutic care and treatment received by the plaintiff. They become a necessary part of the instructions to the medico-legal expert in order to give the historical medical picture, but it does not follow that such information being available means expert medical evidence is not required. If it were otherwise, it will be rare indeed to have expert medical evidence in any personal injury litigation. Indeed, one may even wonder why the defendant agreed to obtain the Ortho and Neuro Reports given the availability of the Medical Records and Reports. Such proposition also flies in the face of the observations by Bharwaney J in Fung Chun Man, namely, that “[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 courts award damages where a party has suffered a recognizable 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 from an expert in this field” (see paragraph 111 above). 143.But Mr Sakhrani went further in his submissions. Whilst he did not disagree there was a psychiatric component to the plaintiff’s medical condition after the Accident and he frankly accepted she received psychiatric and clinical psychological treatment after the Accident for mild depression, he contended that the Medical Records and Reports and the plaintiff’s own evidence as to her depressed mood would sufficiently enable the trial judge to make findings on the course of the depression (eg the type and severity of the psychiatric symptoms displayed by the plaintiff before and after the Accident) and on the plaintiff’s present psychiatric condition, and to draw conclusions as to the cause of her depressed mood, the psychiatric diagnosis and the severity of the symptoms. On such basis, Mr Sakhrani urged this court to decline granting leave for the plaintiff to adduce psychiatric expert evidence, and further argued that this court should direct the plaintiff to obtain up-to-date treatment reports from PMH and WKPC. 144.Plainly, there is a psychiatric component to the plaintiff’s claim for loss and damages in the present proceedings. Mr Sahkrani’s submissions in the above paragraph tried to present such aspect of the plaintiff’s claim as a question of fact for the trial judge by weighing and assessing the treatment, surveillance and witness evidence without any need for psychiatric expert opinion. The question is therefore reduced to whether the assessment of loss and damages in respect of the psychiatric component of the plaintiff’s claim is purely a question of fact or whether the trial judge will be assisted by psychiatric expert opinion when weighing the evidence and coming to his/her conclusions on the ultimate issues. 145.The starting point is this. It is normal human experience to feel unhappiness and ordinary emotions of grief in the face of adversity, and parties can credit the trial judge with some common sense appreciation of any anxiety and/or other normal emotional reaction consequent upon physical trauma. It is also common knowledge that some persons do not develop psychiatric condition/reaction in response to even the most serious traumatic event or the most extreme stressor, but some unfortunately do. The plaintiff has to establish not only a diagnosable psychiatric condition that is legally attributable to the tort complained of but also clinically recognised treatment consequent upon such condition in order to maintain a claim for damages for psychiatric distress and for the cost of psychiatric or clinical psychological treatment. 146.Here, although Mr Sakhrani fairly accepted that the plaintiff had depressive symptoms after the Accident for which she received psychiatric and clinical psychological treatment, and he further suggested that Dr Kwan’s diagnosis of mild Major Depressive Disorder did not differ from the diagnosis of mild depression by WKPC’s Dr MW Ng for the purpose of assessing damages, his submissions fall shy of acknowledging that the plaintiff has suffered and/or is still suffering from any diagnosable psychiatric illness that is attributable to the Accident. Given that the plaintiff carries the burden of proving her claim, it is, in my view, plain that psychiatric expert evidence is required in the present case. There is also the further question whether (as so readily suggested by Mr Sakhrani) mild depression is the same as Major Depressive Disorder is terms of psychiatric diagnosis, medication, therapy and/or prognosis. I am not persuaded that the answer to this question is merely a matter of fact and not of medical opinion. 147.The arguments by the 1st and 2nd defendants also fail to recognise the difference between therapeutic psychiatric factual evidence and forensic psychiatric expert evidence, which distinction has been succinctly explained by Bharwaney J in Hung Sau Fung v Lai Ping Wai [2012] 1 HKLRD 1, 28 as follows:
148.Without leave of the court, it is improper to adduce expert opinion from the treating psychiatrist and/or clinical psychologist as to whether the Accident was the proximate cause of the plaintiff’s injuries and disabilities. Absent opinion from a psychiatric expert on the prognosis of any psychiatric consequence following the Accident, the plaintiff cannot advance claims for costs of future psychiatric and/or clinical psychological treatment and/or for damages for future loss of earnings and/or loss of earning capacity that may be caused by such psychiatric sequelae. This is an important consideration in the present case because the plaintiff is still receiving psychotherapy and psychiatric medication (which is still being titrated for control of her psychiatric symptoms). In my view, the essential features of future psychiatric prognosis and treatment in the present case cannot be resolved by just considering the historical Medical Records and Reports or even updated medical notes, records and reports from PMH and WKPC. 149.There are further differences between the roles of therapeutic psychiatric professionals and forensic psychiatric experts that lead to differences in clinical and forensic evaluations (see Ngai Ping Kwan at paragraphs 57-65 citing Wu Leung Kui Jacky v Leung Ming Yun & ors DCPI1154/2008, HH Judge Mimmie Chan (unreported, 7 March 2011) and my decision in Pun Kwong Cheung v Tang Shiu Wo trading as Luen Yick Decoration & Design Co & anor HCPI587/2008 (unreported, 23 February 2010)). These differences also justify why psychiatric expert evidence is required in the present case. 150.Psychotherapists offer clinical diagnosis and provide patient care by adopting a non-judgmental attitude within a doctor-patient relationship that is subject to medical privilege. Effective treatment is premised on a supportive and emphatic therapeutic alliance between the psychotherapist and the patient developed over the course of treatment. There is a common goal, ie the patient wants to get well and the psychotherapist helps him to get well. Psychotherapy does not involve weighing the clinical facts in order to reconcile the psychiatric information in a legal context for critical evaluation of the factors for and/or against the patient’s assertions. Thus, it is not necessary (and it may indeed be inappropriate) for the psychotherapist to keep a skeptical mindset. In the treatment context, the psychotherapist will have to exercise therapeutic judgment about pressing a patient who may be reluctant to discuss about matters that are emotionally troubling. 151.Therapeutic treatment in the psychiatric context primarily rests on information elicited from the patient. Even if such information may be incomplete or misperceived, it is not realistic for the psychotherapist to conduct factual investigation or seek collateral information to challenge or validate the history or complaints provided by the patient. As the psychiatric aspects of the Medical Records and Reports, the redacted Kwan 2nd Report and the Kwan Notes show, psychotherapeutic techniques are focused more on the patient’s feeling and perception of things rather than accurate truth. Even if the psychotherapist does speak with the patient’s relatives/carers, as in the case of PMH’s psychiatrists speaking to the plaintiff’s sister (see, for example, paragraph 33 above), the information gathering exercise is to further treatment. Still further, even if the psychotherapist uses his expertise to test different diagnostic hypotheses, the purpose of such exercise is to ascertain which therapeutic intervention is likely to be effective. 152.On the other hand, the psycho-legal expert is an impartial evaluator whose forensic relationship with the claimant is premised on litigation and not treatment. Contrary to the psychotherapist who is ultimately answerable to the patient, the forensic evaluator is ultimately answerable to the court. The forensic psychiatrist is expected to make an objective and dispassionate assessment of the psycho-legal issues relevant to the litigation by testing rival diagnostic hypotheses to ascertain the psychiatric fallout as a result of the accident and by subjecting the information from and/or about the claimant to critical scrutiny. The accuracy of the forensic assessment is highly critical, so forensic psychiatrists routinely seek verification and/or corroboration of the claimants’ allegations against other information such as collateral interviews with family members, historical/updated psychiatric and clinical psychological treatment notes and records, and even witness statements. The psychiatric evaluation is more adversarial in that the psycho-legal expert usually conduct forensically-focused interviews and tests to support or refute the claimant’s assertions, and then on such basis gives expert opinion as to whether the claimant is dissembling or not. Hence, as explained in Ngai Ping Kwan,it is not unusual for therapeutic and forensic decision making to differ. 153.On the above analysis, the superficial appeal of the 1st and 2nd defendants’ arguments that the psychotherapists “know” the plaintiff better because they have spent more time with her than any forensic expert and that the facts forming the basis of the psychotherapists’ diagnosis and care regime appear to be more accurate and complete than those that can be gathered in a separate forensic assessment is debunked by a proper appreciation of the distinction between the therapeutic and forensic regimes as discussed above. 154.Ultimately, the relevant consideration is whether on the particular factual and medical matrix of the present case psychiatric expert evidence will assist the trial judge in his adjudication. In my view, the present case is one that cries out for psychiatric expert evidence. 155.Although the plaintiff has suffered anorexia nervosa with severe hypokalaemia, episodes of severe anaemia and secondary amenorrhoea prior to the Accident, she only received medical and not psychiatric care and treatment. She was under the care of PMH’s medical and gynaecology teams, and had follow up at PMH’s medical and gynaecology outpatient clinics. She was known to the public sector mental health service only after the Accident in October 2009. Hence, there are no available treatment notes and records that document her pre-Accident psychiatric diagnoses, symptoms and condition by professionals with psychiatric and/or clinical psychological expertise. In my view, there is insufficient basis to support the comparison exercise (ie to weigh and assess the plaintiff’s psychiatric symptoms pre- and post-Accident and draw conclusions therefrom) which Mr Sakhrani urged upon this court (see paragraphs 139 and 143 above). 156.Further, there is strong temporal closeness between the Accident and the onset of the plaintiff’s psychiatric symptoms. Indeed, the plaintiff was agitated upon arrival at PMH’s AED immediately after the Accident (see paragraph 12 above). She remained irritable, confused, agitated, stressful and anxious over the following 2 days (see paragraphs 13 and 17-18 above), so much so that a psychiatric assessment was called for (see paragraph 20 above). She had a bout of crying and was anxious and upset on 1-3 October 2009, and had to be reassured by ward staff (see paragraphs 19-21 above). There was entry in the CMS for depressed mood for 7 October 2009 (see paragraph 24 above). 157.But on 4-5 October 2009 (ie quite shortly after the Accident) the plaintiff was on IVF K supplement and her haemodynamic status had to be charted (see paragraph 22 above). This is arguably related to her pre-Accident anorexia problem. After her transfer to the general ward the focus turned to her diet (see paragraphs 22-23, 25 and 27-29 above). The concern about her anorexia problem was borne out by the episode of anemia on 11 October 2009 which required transfusion treatment (see paragraph 26 above). 158.The plaintiff’s physical and (more importantly for the present purpose) emotional state deteriorated on 17-20 October 2009 with distress, crying episodes, non-communication and even psychotic symptoms (see paragraphs 30-37 above) for which she was prescribed antidepressant and antipsychotic medication. There was suggestion that such deterioration might be related to organic causes, which presumably relate to the head injury as a result of the Accident (see paragraphs 34 and 36 above). 159.The above matters raise a number of questions as to the causation of the plaintiff’s post-Accident psychiatric condition and, in Dr Kwan’s words, the estimated extent of disability of the psychiatric morbidity (see paragraph 113 above) which is attributable to the Accident. Whilst the above discussion suggests that the Accident may well be a contributing factor (see paragraph 156 above), it is possible that the plaintiff’s pre-Accident anorexia problem which surfaced quite soon after her hospitalisation (see paragraph 157 above) also played a part. Additionally organic problems may have caused her psychiatric deterioration (see paragraph 158 above), and there is query whether her alleged particular sensitivity to pain (see paragraphs 11 and 20 above) comes within the “thin-skull” consideration in assessing damages. 160.In my view, the complex interplay of these potential causes cries out for psychiatric expert opinion to assist the trial judge. Such complexity is reflected in the treatment psychiatrist’s clinical impression of anorexia with binging and excessive dysphasia due to head injury, and in the treatment plan of prescribing antidepressants and re-feeding for weight gain (see paragraphs 36 and 41 above). Given that all or some of the above matters may be proximate causes of the plaintiff’s psychiatric symptoms after the Accident, it is plainly relevant, necessary and of probative value to have opinion evidence to address on the causation of the plaintiff’s psychiatric reaction and/or the attribution/apportionment of the symptoms, presentation, disability and impairment from the perspective of a psychiatric expert. 161.Whilst the plaintiff’s mood subsequently improved, her psychiatric condition waxed and waned so that at times she still presented with malaise, low mood and depression, and lack of energy or motivation, and she even had insomnia and nightmares (see paragraphs 42, 48, 52-57 and 60-61 above). It is interesting to note that in January 2010 WKPC’s treating diagnosis was mild depression but gave a differential diagnosis of anorexia nervosa (see paragraph 55 above), which again underlines the significance of the issues of causation and apportionment in respect of the psychiatric component in the present case. 162.I further note that the plaintiff’s condition in the post-hospitalisation period was complicated by concerns over her diet and weight, her consumption of oral laxatives for her constipation, her anorexia problem with low K and eventual hospitalistion for diet and potassium control (see paragraphs 63-72 above). Then the plaintiff was hospitalised in June/July 2011 for left ankle abscess which is unrelated to the Accident (see paragraphs 73-76 above). She had psychiatric assessment during her hospital stay and was found to be mentally stable, but she had poor sleep with lots of dreams and startle awakenings after her discharge (see paragraphs 74 and 78 above). The plaintiff was hospitalised in September 2011 for left foot infection which is again unrelated to the Accident (see paragraph 80 above), but she was very difficult during her hospitalisation, so much so that her relatives were scared of visiting her (see paragraphs 80-84 above). Throughout this period, the plaintiff’s diet/weight and her taking of oral laxatives remain a persistent underlying theme in her care and treatment, and she was/is still on psychiatric and clinical psychological follow up and on fluoxetine (the dosage of which is still being adjusted) for managing her depressive symptoms. She has not returned to work since the Accident. 163.In the circumstances, query is necessarily raised as to the proper diagnosis and prognosis of the plaintiff’s psychiatric condition, whether it is in remission in the aftermath of her initial and successive hospitalisations, the causation or attribution of her psychiatric condition, the need (if any) for continued future psychiatric and/or clinical psychological treatment and cost thereof, and the impact of her post-Accident psychiatric reaction on her employability. There is also a question as to whether the plaintiff’s psychiatric sequelae as a result of the Accident predisposed or contributed to any psychiatric reaction following the post-Accident episodes of hypokalaemia, ankle abscess and foot infection which of their own are not directly related to the Accident. 164.I am unable to identify anything in the Neuro and Ortho Reports that dissuades me from concluding that psychiatric expert evidence is required. Although the Neuro Experts suggest there is no need for the plaintiff to be examined by experts in other fields (see paragraph 97 above), the Ortho Experts plainly consider that psychiatric expert evidence is required (see paragraph 90 above). In fact, the plaintiff’s litany of complaints to the Neuro Experts (see paragraph 92(c)-(f) above) and in her own witness statement (see paragraph 98 above) plainly suggests that psychiatric expert evidence is required to ascertain the interplay amongst the various potential causes of her psychiatric condition, such as her pre-Accident anorexia problem and her post-Accident psychiatric distress. 165.Further, without the assistance of psychiatric expert opinion, I am not sure that the surveillance reports reveal presentations that inexplicably contradict the plaintiff’s complaints and assertions as suggested by Mr Sakhrani. As I have noted in paragraph 101 above, the plaintiff was unsmiling and had a flat or blunted effect in the still pictures in the reports, and her recorded outings were largely associated with her medical appointments or the Neuro/Ortho Exams. XIII. CONCLUSION 166.In the circumstances, I determine the Issue in favour of the plaintiff and grant leave for psychiatric expert report to be obtained and psychiatric expert evidence to be adduced at the trial of this action. I therefore grant the formal orders/directions set out in the Schedule annexed to this Decision. 167.Apart from the matters raised in paragraphs 168-170 below, there is no reason why costs should not follow event. I grant a costs order nisi that subject to paragraphs 168-170 below, the 1st and 2nd defendants do pay the plaintiff costs of and occasioned by the determination of the Issue (with 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. Since the plaintiff is legally aided, summary assessment of costs is inappropriate under Order 62 rule 9C(1)(b) of the RHC unless the plaintiff’s solicitors waive the right to any further sum of money. 168.As regards the Kwan 2nd Report, although I have redacted part of such report as being inadmissible for the purpose of the Issue, the 1st and 2nd defendants adopted a wide approach by objecting to the entirety of the Kwan 2nd Report and they failed in such endeavour. I therefore hold on a nisi basis there be no order as to costs of and occasioned by the redacted part of the Kwan 2nd Report. 169.On a party and party basis, I also consider that the plaintiff is only entitled to the cost of 1 written note from a psychiatric expert setting out the justification for psychiatric expert evidence in the present case. I therefore hold on a nisi basis that the plaintiff is entitled to costs of and occasioned by the Kwan 1st Report or the Chiu Report whichever is cheaper. As for the costs of and occasioned by the redacted Kwan 2nd Report, it is akin to a treatment report and hence such costs are part of the costs of the action and not costs in respect of the Issue. 170.As regards the Bundle, I hold on a nisi basis that the plaintiff is only entitled to claim one-third of the costs of and occasioned by the Bundle. Although Mr Clough had no use for the Medical Records and Mr Sakhrani only made limited use of the same, I have tried to elicit some of the more useful information from the Medical Records as set out in Part IV above. Nevertheless, a large part of the Medical Records remains unnecessary and of no assistance for determining the Issue.
Representation: Mr Neal Clough instructed by Messrs Au & Vrijimoed for the plaintiff. Mr Ashok Sakhrani instructed by Messrs Y T Chan & Co for the 1st and 2nd defendants. Schedule 1. Expert medical evidence be limited to 1 orthopaedics expert, 1 neurology expert and 1 psychiatry expert for each party. 2. The plaintiff’s experts in neurology and orthopaedics are Dr Brian Choa and Dr Peter Ko respectively. The 1st and 2nd defendants’ experts in neurology and orthopaedics are Dr Edmund Woo and Dr Lam Kwong Chin respectively. 3. Within 21 day from today, ie on or before 3 August 2012, the parties shall jointly write to the PI Master on the following:
4. The parties’ respective experts in psychiatry shall after their joint examination of the plaintiff compile a joint report. In the joint report, the experts shall have regard to paragraphs 86-87 of Practice Direction 18.1 and shall (a) identify all the issues upon which they reached a common opinion, (b) identify all the issues upon which they failed to reach a common opinion, (c) give their competing view on each and every such issue, (d) state full reasons for their disagreement with the opposing views, (e) state the diagnostic criteria used in the joint report (ICD-10 or DSM-IV), (f) state the code number of the psychiatric condition if applicable, (g) provide a copy of the excerpt of the mental condition diagnosed which shows the factors that must be satisfied to make that diagnosis, and (h) state the number of conditions, stressors or mood episodes that the experts found that were satisfied and which justifies the mental condition diagnosed. Such joint report shall be accompanied by its statement of truth. 5. No further or additional expert medical reports shall be obtained or adduced without leave of the PI Master. 6. The plaintiff shall on or before 21 December 2012 file and serve her Revised Statement of Damages, and serve any further documentary support as to quantum not already disclosed. 7. Within 28 days of service of the Revised Statement of Damages, ie on or before 18 January 2013, the 1st and 2nd defendants are to file and serve their Answer thereto. 8. The Revised Statement of Damages and the Answer thereto respectively shall be accompanied by its statement of truth. 9. Within 28 days of the Answer, ie on or before 15 February 2013, the parties shall agree the contents of the trial bundle. The copy index or indices of the trial bundle (a) shall be initialled by the solicitors for the parties, (b) shall include as items therein the parties’ respective certificate of time estimates for trial, and (c) shall be submitted to the PI Master for record purpose on or before 22 February 2013. 10. The parties shall ensure that (a) counsel’s advice on liability evidence and quantum has been obtained and (b) all outstanding interlocutory applications as advised by counsel or handling solicitor of the case have been sought by 22 February 2013. 11. Parties do on or before 11 January 2013 jointly report to PI Master in writing on progress as to mediation, including but not limited to (a) whether any Mediation Notice, any Mediation Response and/or any Mediation Minute have been filed/served, (b) whether any attempt has been made to resolve any difference over the mediation proposal between the parties whether in any Mediation Notice and any Mediation Response or otherwise, including any application under paragraph 41 of Practice Direction 18.1, (c) whether any arrangements have been made for any mediation attempt, and (d) if so, whether any date has been scheduled for any such mediation attempt. 12. Parties are at liberty to arrange mediation (if so desired) no later than 21 days before adjourned CLR. 13. Parties do jointly report in writing to PI Master on the results of mediation (if any) by completing and returning Report on Mediation within 14 days of completion or abandonment of mediation. 14. CLR is adjourned to 14 March 2013 at 11:00am for leave to set down for trial. Parties do within 7 days before the adjourned CLR hearing file and serve the certificate as required by paragraph 141 of Practice Direction 18.1, and such certificate shall be prepared and personally signed by counsel or handling solicitor of the case. 15. PI Master shall be notified at once and in any event within 3 days if any of the above dates or directions are not met with detailed reasons. 16. Solicitors for the plaintiff shall send a copy of this order to the legal aid counsel in charge of this case to ensure there is no delay in compliance with these directions due to late assignment of counsel or due to late issuance of an appropriate certificate. 17. Time shall run during court vacation. 18. Liberty to apply. |
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