Kwong Ka Yin v. Cheung Hing Worldwide Ltd and Another

HCPI 89/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 89 OF 2013

_________________________

BETWEEN

_________________________

_______________

J U D G M E N T

_______________

Introduction

1.This is the hearing of the application of the plaintiff dated 13 December 2012 for leave to appoint a single joint psychiatric expert to prepare an expert report of the plaintiff for use in the present action.

The application

2.Plaintiff, a practising solicitor was injured in a traffic accident on 20 April 2008.  On 19 April 2011, she issued the present personal injuries claim in the District Court.

3.After the accident, plaintiff was treated at various government hospitals for the lacerations over her right forehead, right eyelid, bruises, swelling over her right knee and swelling and tenderness over her fractured right middle finger.  She was hospitalized until 2 May 2008.  She also received physiotherapy treatments and further orthopaedic treatments from Dr Wong Wai Kwong, specialist in orthopaedics and tramatology between 8 May 2008 to 22 December 2008.

4.In paragraph 18 of the Statement of Damages filed on 17 May 2011, the plaintiff states:

“ 18. Further, psychologically she has been traumatized: she had lost self-confidence; has had very low self-esteem for a prolonged period. She is still fearful of taxi rides.”

5.She says in paragraph 19 of the Statement of Damages that: -

“ 19. In view of the injuries sustained, both orthopaedically and psychologically, the Plaintiff claims a sum of HK$350,000.”

6.On 31 August 2012, the following paragraphs were, inter alia, added in her Revised Statement of Damages:

“ 19. In this regard, in addition to her orthopaedic injuries, the Plaintiff has suffered also Post Traumatic Stress Disorder and for that she was referred by Dr. Wong Wai-kwong for psychiatric treatment for depression. She had been examined by Psychiatrist Dr. Sylvia Chia-lu Chen on 14^th July 2008 and 10^th April 2012, and a follow-up telephone consultation on 28^th July 2008.

20. Dr. Chen opined that the Plaintiff had been suffering, as a direct result of the subject accident, an Adjustment Disorder Depressive Features, Chronic Type (diagnostic and Statistical manual of mental Disorders, Fourth Edition (Code 309.0)) with symptoms all attributable to the accident. The symptoms had lasted for over two years after the accident.

21. Dr. Chen opined that the subject accident had struck the Plaintiff at a time when she was planning new ventures in her career. The subject accident and its orthopaedics aftermaths and limitation in her physical and social mobility imposed a sudden curtailment in her plans. She was psychologically devastated and depressed, and it took her over two years to regain sufficient self-confidence and rebuild her self-esteem to re-start her law firm in October 2010.

22.  Accordingly, in a medical report prepared by Dr. Sylvia Chia-lu Chen dated 9^th August 2012, Dr. Chen opined that the sick leave running from the time of accident till end of April 2010 would be reasonable.  Further, Dr. Chen assessed that the Plaintiff being fully able to resume her duties as a solicitor in around June 2011 when she rented a new office in Central, and saw previous clients returning to seek her service.”

7.Further, paragraph 28 of the Revised Statement of Damages reads:

“ 28. Copy of the medical report prepared by Psychiatrist Dr. Sylvia Chia-lu Chen dated 9^th August 2012 is annexed in the Schedule hereto and served. The Plaintiff is relying also on the said medical report in order to run her case fairly for the calculation of sick leave period. The Plaintiff will make application to court to seek to adduce this report.”

8.The plaintiff maintains her claim for pain, suffering and loss of amenities at $350,000 but her claim for pre-trial loss of earnings was pleaded with the addition of inter alia, the alternative claim based on 24.4 months of sick leave instead of the original claim based on 8.5 months of sick leave.

9.Plaintiff in her affirmation dated 13 December 2012 affirmed that the use of psychiatric expert evidence is necessary to prove her claimed duration of sick leave period as well as for the proper and fair assessment of her ‘pre-trial loss of earnings during sick leave’ and therefore the fair disposal of the present action.  She asked for leave of the court to give directions on the appointment of single joint psychiatric expert, date of examination and date of completion of single joint report.

10.Prior to the present application, it had been ruled that Dr Sylvia Chen was a treating doctor of the plaintiff and therefore solicitors for the defendant of Dr Chen, by their letter dated 26 November 2012, agreed that the factual report as a treating doctor be adduced as evidence of fact, limited to the treatment received by the plaintiff and the diagnosis communicated to the plaintiff, following the principle in Hung Sau Fung v Lai Ping Wai [2012] 1 HKLRD 1.

11.As the claim of the plaintiff in the Revised Statement of Damages exceeded $1 million, the case was transferred to the Court of First Instance in the High Court.

12.Defendant denied the need for psychiatric expert evidence in the present action and therefore opposed the present application.

Applicable legal principles

13.The legal principles governing whether leave should be granted to adduce expert evidence are necessity, relevance and probative value as laid down in Chan Kwok Ming v Hitachi Service Co. Ltd. (HCPI 322/2002), ie whether 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 Lau Mei Wa v Li King Yin and anor, unreported, HCPI 527/2011.

14.The court in Wong Hoi Fung v American International Assurance Co. (Bermuda) Ltd & anor (HCA 4576/2001, unreported, 8 October 2002) said that expert evidence is relevant if it is helpful to the court in deciding one or more issues to be resolved.

15.The pertinent considerations include:

(a)   how cogent the proposed expert evidence will be

(b)   how helpful it will be in resolving any of the issues in the case

(c)   how much it will cost and the relationship of that cost to the sums at stake

Ngai Ping Kwan v Choi Yat Hung, unreported, HCPI 537/2010.

16.The court has a duty to restrict expert evidence to what is reasonably required for proper adjudication and that the court, adopting the remarks of Seagroatt J in Wong Hin Pui v Mok Ying Kit’s Anor [2000] 1 HKLRD 856, 874-875 is against proliferation of expert medical evidence which are not essential.

The analysis

17.In this case, parties have agreed to the use of evidence of orthopaedic expert.  A joint orthopaedic report dated 12 July 2012 was prepared by Dr Arthur Chiang and Dr Chun Siu Yeung subsequent to the joint examination of the plaintiff on 17 May 2012.

18.In the 2^nd paragraph under the ‘Job nature before the Injury’ section in the Joint Report, it reads:

“Before the accident, she was just making arrangement to start a new law firm. She was also planning to run for the Legislative Council Election in September 2008. The above plans were suspended because of the accident. She continued working as a consultant lawyer in another law firm after the end of sick leave.”

19.It is therefore her own saying to the experts at time of examination that she resumed working after the sick leave expired on or about 4 January 2009.

20.As to what the duration of sick leave was as referred to by the experts, the answer had lied in the 4^th paragraph on page 7 of the Joint Report, where it says:

“Ms. Kwong described that she was given more than 200 days of sick leave. She returned to work at the end of the sick leave as a consultant in another law firm and later started her own firm.”

21.The 200 days of sick leave as from the date of accident was therefore the 8.5 months sick leave ending on or about 4 January 2009 and not the 24.4 months of sick leave now claimed by the plaintiff.

22.The plaintiff did not mention to the experts any other sick leave given to her other than the 200 days of sick leave.

23.In fact, plaintiff also did not forget about her treatment by Dr Sylvia Chen, the psychiatrist during the joint examination because in the 3^rd paragraph on page 6 of this Joint Report, it says:

“She was treated with medicine and physiotherapy, and was also referred to Dr. Sylvia C. L. Chen, a psychiatrist for depression.”

24.On the same page of the Joint Report, it says:

“In about July 2009, Dr. Wong referred her to a psychiatrist for she was depressed. She consulted the psychiatrist once.”

25.Despite her complaints, the plaintiff told the orthopaedic experts at time of examination on 17 May 2012 that she had consulted the psychiatrist once only.

26.In Dr Sylvia Chen’s report dated 9 August 2012, she said she had examined the plaintiff both on 14 July 2008 and 10 April 2012, ie 2 times up to 17 May 2012.

27.It is noted that the plaintiff did not make any complaint to the experts regarding her psychological/psychiatric injuries subsisting at time of examination eg fearful of taxi rides as referred to in paragraph 18 of the Revised Statement of Damages.

28.In the Joint Report, the experts opined that the residues from the injuries should not have obviously affected plaintiff’s capacity to work as a solicitor despite the likelihood of a mild decrease in efficiency.

29.Dr Chiang endorsed the sick leave up to 4 January 2009 (259 days) as reasonable whereas Dr Chun only endorsed the same up to end of year 2008.

30.There is no mention in this Joint Report regarding the plaintiff informing the experts of any sick leave given to the plaintiff by Dr Sylvia Chen.

31.The experts in the Joint Report having been informed that the plaintiff had consulted Dr Chen once believed that the depression was a temporary event and had not resulted in permanent residues and therefore assessment by psychiatrist or other specialist is not required.

32.It is clear that at the time of the Joint Report, the experts have not considered the report by Dr Sylvia Chen as the same was not yet available then.

33.According to the report by Dr Sylvia Chen, she had examined plaintiff on 14 July 2008, 10 April 2012 and had talked to the plaintiff on phone on 28 July 2008.

34.She listed out in this report the complaints by the plaintiff after the accident.  These complaints are quite serious and include, inter alia,

“ - she felt very depressed, devoid of hope, and cried easily;

- she had difficulty falling asleep, woke early, and was reluctant to get out of bed in the morning;

- she lost 4 kg in body weight from impaired appetite;

- she was constipated;

- she lost enthusiasm, passion and interest;

- she had no drive, no initiative;

- she withdrew from social contact, had no motivation to put on make-up or dress herself up;

- she was preoccupied with self-depreciatory thoughts, filled with regrets and remorse, and considered herself useless, a failed mother, bad wife, a loser and a failure, with a curtailed career;

- she was pervaded with self-blame, wondering if she had done something very wrong to bring all these on herself;

- she felt suicidal: she felt life was not worth living, lamented that the hard labour and effort she put in over the past two decades had seemed to come to nothing: she preferred to die. But she had not conjured up any solid plan to commit suicide;

- she lost confidence in herself;

- she was not able to concentrate, was forgetful and was often repetitive in speech as she forgot what she just said;

- she frequently did not return to work, and often found that her desk had been allotted to another lawyer. For a long period the receptionist did not recognize her.

- she refused to undergo physiotherapy in the Central district because she was afraid of meeting acquaintances when presenting in such a shabby and despondent form, so unlike her previous self.

-    she avoided social gatherings so that people would not spot her scarred finger.”

35.Probably in view of these complaints, Dr Chen diagnosed plaintiff as suffering then from Adjustment Disorder with depressive features chronic type.

36.There was no mention in this report regarding any treatment or medication given to the plaintiff by Dr Chen.

37.In this report, it was said that plaintiff did explain to Dr Chen that the reason for her not returning to Dr Chen for psychiatric consultation was because she no longer harboured suicidal thoughts.  Plaintiff told Dr Chen that she had actively sought treatment spiritually by returning to church and joining church activities and rehabilitated herself by engaging herself in various voluntary work and successfully rebuilt her self confidence in the process.

38.Whatever explanation was given for not returning to Dr Chen or indeed any psychiatrist for treatment of psychiatric complaints, it remains a fact that the only psychiatrist that the plaintiff had consulted so far was Dr Sylvia Chen alone.  Plaintiff no doubt is the one who knew the extent and severity of her psychiatric problems.  She was able to manage without further help from any psychiatrist.

39.According to Dr Chen, she had been consulted on 14 July 2008 and nearly 4 years later, on 10 April 2012 and on the phone on 28 July 2008, altogether for about 3 hours.  Although her report was adduced as one from a treating doctor, there was nothing in the report which spelled out the treatment she prescribed for the plaintiff.

40.In this case, counsel for the plaintiff submitted that psychiatric expert evidence is necessary for the fair disposal of the case, in relation to sick leave period resulting from the injury which affects the pre-trial loss of earnings.

41.Mr Wu, counsel for the plaintiff submitted that “depression” alleged by the plaintiff was not a recent fabrication as it was already mentioned in the Statement of Damages, though elaborated further in the Revised Statement of Damages.  Further he said it was a fact that the plaintiff had consulted Dr Sylvia Chen after referral by Dr Wong Wai Kwong, the treating orthopaedic surgeon.  Mr Wu submitted that the joint consultation with Dr Sylvia Chen took place less than 3 months after the traffic accident, ie on 14 July 2008.

Conclusion

42.The issue before the court is therefore whether in this case psychiatric expert evidence is necessary, relevant and of probative value and is helpful to the court when determining the quantum of damages under ‘pre-trial loss of earnings during sick leave’.

43.It is agreed that in all the medical reports filed by the plaintiff pursuant to Order 18 rule 12(1A) of the RHC, there was no record of the plaintiff making any psychiatric complaint in the government hospital reports and records from 20 April 2008 to present.

44.Mr Wu submitted that the view of the orthopaedic experts that there is no need for the plaintiff to be assessed by psychiatrist should not be accepted as psychiatry was not their specialty and further that at that time, they did not have the benefit of reading the report of Dr Sylvia Chen.

45.I take the view that although the orthopaedic experts are not experts in psychiatry, they would be alerted in their encounter with the plaintiff should there be the need for assessment by psychiatrist.  In fact, as said earlier, plaintiff did tell them of her consultation with Dr Chen.  It is also free for plaintiff to voice her complaints to the experts.  Sick leave from Dr Chen was not mentioned in the Joint Report and plaintiff had in fact told the experts that she had returned to work after sick leave ie in early 2009.  It is therefore reasonable for the experts to form the view that the depression was a temporary event.

46.The complaints of the plaintiff during the consultation with Dr Chen was spelled out in details in the report of Dr Chen and the court was fully informed of the history of plaintiff’s psychiatric complaints and treatment/consultation by psychiatrist.

47.Even in the unredacted version of report of Dr Chen, it says the plaintiff no longer require further psychiatric treatment as she does not suffer from permanent loss of earning capacity psychiatrically from the accident and her prognosis in psychiatric aspect is good.

48.Having considered the circumstances of this case, with all the medical reports before the court, the case of the plaintiff in so far so her psychiatric injuries of the plaintiff is clear to the court.  I do not envisage the use of psychiatric expert evidence of any real assistance to the court in resolving the quantum issue and I therefore refuse the application of the plaintiff.

Costs

49.I make an order nisi that all costs of and incidental to the application be to the defendant, the same to be taxed if not agreed.

Mr Paul K N Wu, instructed by Phyllis K Y Kwong & Associates, for the plaintiff

Ms M Fung, of Mayer Brown JSM, for the defendant