Catrin Caryl Anderson By Her Father and Next Friend Richard Paul Anderson v. Dr Derek Lo Chak Cheung
Read the full judgment text of HCPI 460/2001 on BabelCite. This High Court CFI judgment was delivered on 30 October 2013.
1. The plaintiff (“ Catrin ”) is now 14 years old. She brings this action by her father and next friend Richard Paul Anderson (“ Father ”) for damages for personal injuries caused during her birth on 12 March 1999 due to the negligence of the defendant. The present action commenced on 22 May 2001, and interlocutory judgment was entered on 28 August 2002 for damages to be assessed.
Cites 2 cases
|
HCPI460/2001 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 460 OF 2001 _________________________ BETWEEN
_________________________
_____________ DECISION _____________ I. BACKGROUND 1.The plaintiff (“Catrin”) is now 14 years old. She brings this action by her father and next friend Richard Paul Anderson (“Father”) for damages for personal injuries caused during her birth on 12 March 1999 due to the negligence of the defendant. The present action commenced on 22 May 2001, and interlocutory judgment was entered on 28 August 2002 for damages to be assessed. 2.The present application before me is Catrin’s summons dated 15 March 2013 (“Summons”) for leave to adduce medical and non-medical expert evidence (and to obtain corresponding expert reports) from paediatric neuropsychologist, paediatric psychiatrist, paediatric gynaecologist, occupational therapist, transport expert, dietician, dentist and United Kingdom (“UK”) tax expert, and for case management directions for such purpose. 3.The Summons is made pursuant to an “unless” order made by Suffiad J at the 7th Pre-trial Review (“PTR”) on 14 December 2012 that required Catrin to apply within three months for leave to adduce expert reports by occupational therapist, transport/mobility expert, clinical psychologist, gynaecologist, UK tax expert and/or dentist, failing which Catrin will be debarred from calling/adducing any further expert evidence in the present action. 4.Apart from expert evidence for the disciplines specified in the Summons, Catrin’s counsel Mr Ozorio SC in his revised written skeleton submissions dated 26 July 2013 (“Ozorio Revised Submissions”) adds physiotherapy as a new field of expertise. 5.The Summons is supported by the third affidavit of Catrin’s solicitor Mr Burke dated 4 March 2013. Although the defendant has not filed any affidavit in opposition, Mr McLeish, counsel for the defendant, confirms that the defendant opposes the Summons. The hearing of the Summons came before me on 5 August 2013 (“Hearing”). 6.Before I deal with the Summons, it is necessary to highlight some background matters, which form a running theme that underlies counsel’s submissions and which may impact on the case management discretion to be exercised in respect of the Summons. II. CATRIN’S CONDITION AND DISABILITIES 7.Catrin suffers from cerebral palsy ever since her birth. The witness statements of her mother Kim Anderson (“Mother”) and the Father (collectively, “Parents”), the medical and non-medical treatment reports over the years, and the presently available expert reports speak in detail as to her condition and disabilities. It is unnecessary to make any definitive finding of fact at this stage, so it suffices for me to refer to the summary in the Ozorio Revised Submissions below, which gives a flavour of Catrin’s condition and disabilities:
III. PRESENTLY AVAILABLE EXPERT REPORTS 8.Over the years, the parties have obtained a number of solo, joint and/or single joint expert reports as follows:
9.The parties disagree over whether or not Ms Sally Choy and/or Ms Ting Sze Man Doris who have collaborated with Dr Tse in preparing various expert reports in 2003, 2005 and 2007/2008 are occupational therapists jointly instructed by them, which disagreement will be discussed below. 10.The parties have instructed life expectancy experts. Prof Barnes has prepared three reports in 2005, 2006 and 2010 together with a letter in 2013. Prof Strauss has prepared three reports in 2001, 2008 and 2011. 11.The costing in the joint aids and equipment report dated November/December 2009 and the joint care and case management report dated 16 January 2010 by Ms Dunning and Ms Russell, and the draft joint case management and care schedule dated 18 March 2010 by Ms Dunning is UK based. Mr McLeish explains that UK based case managers have been instructed because of the position taken on Catrin’s behalf that she will relocate to live in the UK in future. In Catrin’s PTR Notice dated 30 September 2008, it is stated that she “will move to live in England – when her father retired at age 55 [ie in 2015]”. 12.By the 6th PTR Order dated 25 November 2011, time has been extended to 25 January 2012 for Ms Russell to reply to the draft joint case management and care schedule dated 18 March 2010 prepared by Ms Dunning. But in the 7th PTR Order dated 14 December 2012, the parties are directed to obtain a supplemental joint expert report from the UK case managers on their updated views on the aids/equipment required by Catrin and their costing within two months “after the accommodation report and educational psychology reports have been obtained”. In my view, the status of the draft joint case management and care schedule dated 18 March 2010 and the progress in obtaining the supplemental case management expert report under the above PTR Orders need to be clarified. 13.The parties have jointly instructed speech and language therapy expert Ms Hamrouge (single joint report in 2010) and information technology expert Mr Martin (single joint report in 2010 with letter to Catrin’s solicitors in 2011), and they have separately instructed accommodation experts Mr Wethers and Mr Reynolds (joint report dated 15 April 2013) and employment experts Mr Carter and Ms Walters (solo reports/letters and joint statement in 2011). They are all UK based, so the costing (and salary/income data) in their reports (similar to that for the case managers) is also UK based. 14.At the 6th PTR hearing on 25 November 2011, the defendant has sought and has been granted leave to instruct a paediatric neurologist Prof Rosenbloom to address on the clinical aspects of the life expectancy issue. Prof Rosenbloom has prepared a report in 2012, but there is as yet no without prejudice meeting by the life expectancy experts or joint statement by them as to their agreements and disagreements. This needs looking into in due course. 15.At the 6th PTR hearing, Catrin has sought and been granted leave to obtain expert reports by educational psychologists and urologists. The educational psychology experts Mr Reid and Ms Stockley are also UK based. Mr Reid has prepared a psychological assessment report in 2012 with two further letters in 2012 and 2013; and Ms Stockley has prepared a report in 2013. It appears that as yet the parties have not complied with paragraph 7 of the 7th PTR Order that requires the educational psychologists to “come together and prepare a joint statement on the issues on which they agree and the issues to which they disagree within 2 months thereafter [ie after Ms Stockley has completed her report]”. This needs to be considered in due course. For urology expert opinion, the parties have instructed local experts Dr Koo and Dr Lo to prepare a joint report in 2013. 16.At the 6th PTR hearing, Catrin has sought but has been refused leave to obtain and adduce expert evidence from a dietician “save and except a report from [Catrin’s] treating dietician may be obtained within three months, and if necessary, can be agreed into evidence by the Defendant as to [Catrin’s] present condition in respect of present dietary situation”. 17.Pursuant to the 6th PTR Order, Catrin obtained an expert report on actuarial analysis by Dr Chan Wai Sum. But both parties now confirm they will abide by the decision of Bharwaney J in Chan Pak Tin v Chan Chi Kuen & anor.[1] Actuarial expert evidence is now redundant. IV. UK OR HONG KONG (“HK”) 18.Catrin is the second daughter in the family. The Father and the Mother are respectively 53 and 55 years old. Catrin’s elder sister Rhian is now 16. The Father was born in England, and his family still lives in the UK. In 1990, the Father was employed by Cathay Pacific Airways Limited (“Cathay Pacific”), and has since lived in HK. His position at Cathay Pacific is now Procurement Manager Maintenance Services. The Mother was born in Wales, and has been a mathematics teacher before coming to teach in HK in 1988. The Parents married in 1995, and the Mother no longer works. Her family lives in Australia. 19.Mr Ozorio SC submits that the expatriate nature of the family has an impact on the nature, scope and quantum of damages sought by Catrin. Whilst this issue will need canvassing in greater detail at the assessment of damages, for the present purpose I will consider its impact on the matter of expert evidence. A key issue arising from such expatriate background is where Catrin will eventually live, ie whether she will remain in HK or relocate to the UK, and in the latter case when it is expected she will do so. The expert reports obtained so far from HK and UK experts reflect to some extent the need to address this consideration. 20.Catrin’s stated position as early as in 2002 is that she is a British citizen and will in due course move to live overseas.[2] Since 2008, it has been her position that she will move to live in England when the Father retires at age 55.[3] But in her PTR Notice dated 21 November 2011 for the 6th PTR hearing, this statement of intent has been modified to “[Catrin] will move to live in England – when her father retires from work in Hong Kong”. Mr Ozorio SC’s written submissions for the 6th PTR hearing (“Ozorio Submissions”) explain that “[on] present instructions [the Father’s] employment will terminate at age 55 but it may be that he will receive an extension until age 60 in which event he may stay in Hong Kong”. Indeed, the Ozorio Submissions go further to say that “[it] has not been possible to assess damages on the basis of Catrin returning to the UK because an assessment of her statutory health benefits can only be undertaken when she lands in the UK”. 21.At the 6th PTR hearing, Mr McLeish has been concerned that such position taken on behalf of Catrin means that the assessment of damages may be postponed to 2015 (when the Father retires) or 2020 (if the Father’s employment is extended) or beyond such date (when the family decides to relocate to the UK). But at that hearing Mr Ozorio SC has assured the court and the defendant that Catrin will relocate to the UK and it is not the Parents’ “intention to delay the case until [Catrin is] 16 or 21 years because they have told me that they wish for this case to be resolved as quickly as possible …… The question is whether the court will have the sufficient information to reach a proper assessment of damages.” 22.Catrin’s PTR Notice dated 20 November 2012 reiterates that she will move to live in England when the Father retires from work in HK. Such PTR Notice also indicates that in addition to the experts already instructed Catrin intends to adduce opinion evidence from UK experts in the disciplines of occupational therapy (“OT”), transport/mobility equipment, clinical psychology, sex therapy, gynaecology and tax. 23.Mr Burke who appeared at the 7th PTR hearing on behalf of Catrin has not made formal application for leave to obtain reports from the specified additional experts at the hearing, but in view of the defendant’s exhortation for finality on the scope of expert evidence in order to progress the present action towards the assessment of damages, the court has eventually granted the “unless” order set out in paragraph 3 above. 24.Following the 7th PTR hearing, Catrin’s solicitors have confirmed by letter dated 8 March 2013 as follows:[4]
On such basis, the defendant has proceeded to confirm instructions to engage Ms Stockley (UK based educational psychologist) to compile her report. 25.For the Summons, the Ozorio Revised Submissions also allude to the family relocation dimension. Mr Ozorio SC explains that until 2011 it was thought that the Father will retire at 55 in accordance with Cathay Pacific’s retirement rules, and the Parents/Catrin will return to the UK since it is expected that Catrin will outlive the Parents and require family support,[5] but it is not known where Rhian will eventually settle. Mr Ozorio SC further explains that even though the Mother’s family is in Australia, moving to Australia has proved impossible on account of immigration policies regarding severely disabled children such as Catrin.[6] Mr Ozorio SC accepts that this is one of the reasons why UK experts have been engaged to advise on Catrin’s needs and cost of care in the UK. He goes on to say that since 2011 Cathay Pacific has changed their retirement rules so that (subject to conditions) the Father may have an opportunity to extend his employment until he is 60. If such opportunity arises,[7] the Father wishes to take up such opportunity to stay in HK. Such submissions reflect Catrin’s position given at the 7th PTR hearing and in the letter dated 8 March 2013 by her solicitors.[8] 26.However, less than two months later, the Mother in her 2nd witness statement dated 29 April 2013 (“Mother’s 2nd Statement”) says as follows:[9]
The Father in his 2nd witness statement dated 29 April 2013 (“Father’s 2nd Statement”) also postulates the possibility of continuing “to live in Hong Kong as opposed to returning to England” and considers the impact of such possibility on Catrin’s accommodation needs.[10] The Ozorio Revised Submissions thus submit that “[staying] in Hong Kong appears to be a possibility”, and “it is not clear whether the cost of care in the United Kingdom continues to be relevant”. 27.Given the defendant’s commitments in having obtained various UK expert reports, such submissions understandably have excited concern on his part. Mr McLeish reminds that although the date for the assessment of damages has not been fixed, the 7th PTR Order has made provision for filing/serving the Revised Statement of Damages (“RSOD”) by 31 December 2013 and the Answer thereto by 28 February 2014. He submits that the date for hearing the assessment of damages should be fixed at the earliest convenient time following such pleadings. Mr McLeish fears that such timetable may be put asunder by the suggestion in the Ozorio Revised Submissions that obtaining further OT, transport and tax expert evidence be deferred on the basis that “[at] this point of time it may be that UK costings are irrelevant if [the Father] receives an offer in February 2015 from [Cathay Pacific] to extend his contract to the age of 60 and chooses to remain in Hong Kong thereafter”. Mr McLeish raises the spectre that the effect of such submissions is to indeterminately postpone the assessment of damages in the present action to an unspecified future time that may be (a) sometime not before February 2015 (when Catrin is 16) if the Father is not offered or does not take up any extension to his current employment, (b) sometime not before 2020 (when Catrin is 21) in the event he does so, or (c) sometime after February 2020 if he “chooses to remain in Hong Kong thereafter”. 28.Mr McLeish reminds that possible extension of the Father’s employment with Cathay Pacific until he is 60 has been a known factor even before the 6th PTR hearing when Mr Ozorio SC has advised that there was no intention to delay the case until Catrin is 16 (in 2015) or 21 (in 2020).[11] After all, by the time the assessment of damages comes on for hearing at the earliest in late 2014, the Father will have known whether his employment will be extended or not. But the defendant is worried by the suggestion made for the first time now in 2013 that Catrin may stay in Hong Kong beyond the Father’s retirement in 2015 or beyond the cessation of his employment with Cathay Pacific in 2020, whichever is appropriate, and UK costing for future care may not be relevant at all.[12] Whilst the defendant readily accepts an assessment of damages based on HK and not UK future costing given that the cost of care in the UK is generally higher than for HK (without prejudice to any wasted costs argument in relation to evidence already gathered for UK costing), he does not wish to contemplate the unenviable possibility of having the assessment of damages delayed until 2015 or 2020 or even later only to be told that the Parents finally decide to relocate with Catrin to the UK and seek damages based on UK costing for future loss. 29.As explained above, Catrin is now 14 years old. In my view, the currently available treatment/expert reports do not suggest any medical obstacle that may stand in the way of proceeding with the assessment of damages. Indeed, in a number of UK cerebral palsy cases, the assessment of damages took place when the plaintiffs were aged 7 years or so and upwards.[13] 30.The question therefore is whether appropriate evidence is available for proper assessment of damages. Insofar as documentary and witness evidence is concerned, I have been informed at the Hearing that the Parents have kept detailed records of the incurred costs/expenses to date. I also note their witness statements run to over 230 pages. As regards expert evidence, I am not persuaded that Catrin’s future needs and care regime will be much different whether she remains in HK or relocates to the UK. Her needs are largely dictated by her condition and disabilities, hence the impact of the family relocation issue on expert evidence essentially hinges on whether UK and/or HK costing should be obtained for Catrin’s future needs, especially over the five-year period between 2015 and 2020 given the uncertainty over whether or not the Father’s employment will be extended. As for the future, I agree with Mr McLeish it is inevitable that the Father will cease to work for Cathay Pacific some day (whether in 2015 or 2020), so in any event a decision as to whether Catrin (and the Parents) will remain in HK or relocate to the UK after that will have to be made. In my view, the lack of absolute certainty in this respect is not a reason to defer obtaining expert evidence and/or assessing damages. Despite best efforts, some uncertainty is inherent in any claim for general damages for future loss, and the parties and the court will do the best they can by adducing appropriate evidence and by making an adjudication accordingly. After all, future imponderables are not necessarily confined to the issue of family relocation, and can be any unforeseen circumstance in relation to, say, Catrin’s condition, the Parents’ health or even the situation of the Parents’ families in the UK and Australia. 31.It is perhaps in recognition of the above considerations that Mr Ozorio SC in his written reply submissions dated 2 August 2013 (“Ozorio Reply Submissions”) confirms it has been decided on behalf and in the interests of Catrin that the quantification of her damages should be proceeded with as quickly as possible on the basis that the family including Catrin will return to live in the UK when the Father retires in 2015 without reference to the Father’s employment situation, which is consonant with Catrin’s duty to advance her case on a balance of probabilities. Mr Ozorio SC says that such decision has been prompted by (a) the uncertainty over the Father’s prospects of being offered an extension of his employment beyond the age of 55,[14] (b) the high cost of living (particularly accommodation costs) in HK, (c) the absence of appropriate single floor dwellings in HK, and (d) the question of where Catrin will receive the best care with the widest family network to offer back up and support to the family. As a result, Mr Ozorio SC confirms there is no need to defer the obtaining of HK and/or UK expert evidence as already directed under the PTR Orders or as requested under the Summons. 32.In light of the position taken on behalf of Catrin as set out in the above paragraph, which I accept to be a considered one under legal advice and upon careful consideration of not only the Father’s employment situation but also the pros/cons of Catrin’s future relocation or otherwise, it is therefore common ground that the present action should proceed with the assessment of damages. In my view, subject to the matters discussed in paragraph 35 below, this brings closure to the debate over the effect of the possibility/timing of UK family relocation on the preparation of expert evidence, but of course the defendant can still test Catrin’s proposition of UK family relocation at the assessment hearing. 33.Thus, the only outstanding matters are therefore the sufficiency or otherwise of expert evidence for the purpose of the assessment of damages, and the filing of the RSOD and the Answer. 34.In respect of the expert reports that are either presently available and/or about to be compiled pursuant to court directions, it will be necessary to review such reports to consider (a) their sufficiency (eg whether any joint statements are required or whether they should be updated) and (b) their interplay with any expert evidence that may be ordered pursuant to this Decision. 35.Depending on the date scheduled for the assessment hearing, there is general consensus that pre-trial incurred loss will likely be assessed on HK costing. Catrin expects that post-trial loss will largely be based on UK costing. But Mr Ozorio SC believes it is overly optimistic to think the assessment of damages can be heard in the latter part of 2014 in view of the number of experts involved and the length of the assessment hearing (which he estimates to take 10-20 days). He submits that if the date for the assessment hearing is to be fixed after the filing of the Answer in the first quarter of 2014, it is highly unlikely that the assessment of damages will take place before 2015. If what Mr Ozorio SC envisages turns out to be correct, then by the time of the assessment hearing it should be clear whether the Father’s employment with Cathay Pacific will have been extended or not, and whether HK or UK costing will be relevant to Catrin’s care and needs during such period. Mr McLeish submits that this can be covered in the pleadings by alternative HK (based on HK costing by Dr Tse and Ms Choy to be updated if necessary) and UK (based on the supplemental report to be compiled by the UK based case managers) quantification for the five-year period from 2015 to 2020. Although Mr Ozorio SC takes issue over the sufficiency of Ms Choy’s reports, such proposed approach may possibly overcome the uncertainty in relation to the Father’s employment over the relevant five-year period. I will return to this below. V. LEGAL PRINCIPLES 36.I repeat my observations in Ngai Ping Kwan v Choy Yat Hung[15] citing the guidance by Bharwaney J in Fung Chun Man v Hospital Authority & anor.[16] 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. 37.Like the parties, the court is anxious that the assessment of damages should proceed to a hearing as soon as possible. Mr McLeish wants to have the date for the assessment hearing fixed as soon as possible after the filing of the Answer by 28 February 2014, but it must be remembered that when the court laid down such case management timetable at the 7th PTR hearing it had no idea whether the Summons would be issued, and if issued, when it would be heard. But what is clear at that time is that the court and the parties both envisaged the possibility that additional expert evidence may be allowed by the court. In view of this, it must have been within contemplation that the case management timetable may have to be adjusted to meet such possibility. 38.In considering whether to order or disallow further expert evidence, the court is mindful of the underlying objectives of facilitating expeditious progress of litigation and/or early mediation/settlement. In my view, proper quantification of damages is essential for making realistic sanctioned payment/offer, facilitating useful mediation and/or agreeing items of damages to narrow down disputes, and there cannot be any doubt that expert evidence is an important consideration for formulating the pleadings on quantum. But case management in relation to expert evidence does not merely turn on the need for quick and efficient disposal of the action; the exercise of discretion must be on a principled basis[17] that takes into account the primary goal of achieving a just resolution of the dispute.[18] 39.As Mr McLeish submits, it does not mean that expert evidence is required in every discipline where there is a problem, and I argree that in some areas factual witness evidence by the Parents and documentary evidence from treatment/school reports/records may well be sufficient. But if expert evidence is truly needed to assist the court to make a proper adjudication, then the wish for speed must be tempered by such consideration. Therefore, reluctant as the court may be as to the adoption of any course of action that upsets the case management timetable for filing/serving the RSOD and the Answer under the 7th PTR Order, I do not consider I am bound by such timetable if it conflicts with the time properly required to prepare any expert report that may be ordered in this Decision. VI. PAEDIATRIC NEUROPSYCHOLOGIST / PSYCHIATRIST 40.Paediatric neuropsychology is a sub-specialty within the field of clinical neuropsychology concerned with the study/understanding of brain-behaviour relationships due to, say, brain injury, organic brain disease and neurodevelopmental, learning and/or behavioural disorders. A paediatric neurospychologist has specialised training in the assessment, diagnosis and intervention in settings where children live, play and learn. He/she uses his/her knowledge of brain structure/systems, organisation and function as well as their effects on development to analyse and interpret the child’s overall performance/development and brain-related strengths/ weaknesses, and to guide the recommendations. Understandably children with cerebral palsy cannot be assessed in the same way as adults can, and a paediatric neuropsychological evaluation requires skill and adaptation. 41.Paediatric psychiatry is a branch of psychiatry that specialises in the clinical study/investigation, diagnosis, evaluation and treatment of psychiatric phenomenology and disorders in children/adolescents and their families. Whilst a paediatric neuropsychologist may do therapy to help treat children/adolescents with emotional/behavioural problems and may focus on neuropsychological testing to evaluate specific problems, a paediatric psychiatrist is a licensed physician who has the privilege to prescribe medication as well as do therapy. They may order lab tests and diagnostic studies as part of the diagnostic work up or admit children/adolescents to hospital for psychiatric problems. 42.There is a draft expert report obtained from a psychiatrist Dr Wong Chung Kwong in 2001 when Catrin was only two years old. Although Mr Burke’s third affidavit suggests that a further report be obtained from Mr Wong, Mr Ozorio SC submits it is inappropriate to do so because (a) within the psychiatric discipline Dr Wong is a generalist and not a specialist with particular interest in children with cerebral palsy, and (b) the Father has consulted Dr Wong twice in 2003 for treatment purpose which arguably compromises his role as an “independent” expert.[19] 43.Catrin proposes to engage Dr Jonathan Reed, a clinical psychologist and paediatric neuropscyhologist, and Dr Mark Berelowitz, a child/adolescent psychiatrist, to be her experts. Both Dr Reed and Dr Berelowitz are based in the UK. Mr Ozorio SC submits that Catrin’s legal advisors are not aware of local experts with the requisite forensic experience. 44.The defendant opposes the application for adducing paediatric neuropsychology and paediatric psychiatry expert evidence, but has not named any expert in the event that I should find in Catrin’s favour. In the circumstances, I do not propose to further canvass at this stage Dr Reed’s and Dr Berelowitz’s qualifications. Should I grant leave for Catrin to adduce such expert evidence, directions will have to be given separately for arrangements to obtain relevant joint reports. 45.The parties have obtained expert reports from educational psychologists Mr Reid and Ms Stockley. But an educational psychologist differs from a paediatric neuopsychologist in that the former focuses on the problems that qualify for special education programmes or therapies to enhance school performance. Whilst it is expected that an educational psychologist will evaluate learning difficulties, he/she is not generally expected to diagnose learning and/or behavioral disorders caused by altered brain function or development. 46.I first turn to Dr Wong’s draft report. Back in 2001, Dr Wong opines it was then impossible to ascertain Catrin’s intelligence and cognitive functions because of her young age, severe degree of cerebral palsy and speech impairment. At that time, Catrin was emotionally settled, and there was no clinical feature to suggest she might have sustained impairment in emotional functioning. Dr Wong is of the view that Catrin’s vulnerability to develop future psychiatric complications is much more than children without brain damage or multiple handicaps. He recommends regular psychiatric follow up with child and later adult psychiatrist once every three months and counselling support for the family including Catrin “to minimize her chance of developing future psychiatric complications. Without giving her such provision, Catrin’s chance of developing future psychiatric morbidity is very much increased. Such morbidity in particular includes Dysthymic Disorder, Major Depressive Disorder, Anxiety Disorder and Personality Disorder”. 47.But despite Dr Wong’s recommendations, Catrin, as yet, has not received any formal psychiatric or psychological therapy.[20] Indeed, the Father described her as a “healthy child, both physically and mentally” despite her obvious physical disabilities.[21] The Father says Catrin has a great sense of humour.[22] On such basis, Mr McLeish submits there is no current evidence that Catrin will require consultations with a paediatric neuropsychologist and/or a paediatric psychiatrist, and the recommendations in the outdated report by Dr Wong have proved to be unnecessary so far. 48.But does it follow that because Catrin has not needed psychological/psychiatric consultations so far that she will not need them in future such that assessment on her possible needs in this respect is unjustified? 49.Dr Wong’s report alludes to the psychological challenges a child with cerebral palsy are likely to undergo and face as she grows up. But plainly his draft report is outdated, and his draft preliminary views formed some 12 years ago must be tempered by developments since that date. 50.Mr Ozorio SC asks me to bear in mind that Catrin has mild learning difficulties,[23] but her cognition/intellect is not so severely damaged[24] that she will not benefit from psychological/psychiatric intervention. As a child with cerebral palsy, she is likely to have greater psychological and emotional vulnerability than a normal child,[25]especially as the demands of adolescence set in[26] and (as the Parents have noted) she has begun to question her condition.[27] Even Ms Stockley agrees that Catrin has emotional psychological vulnerability due to organic brain damage, which, according to her clinical experience, she expects to be associated with anxiety.[28] Mr Reid says it is essential for a clinical psychologist to be instructed who can work with Catrin in relation to her emotional vulnerability since Catrin is very much aware of the difference between herself and her peers, and she has also grown up with Rhian who is competent physically, who is attractive and who has a developing social life, all of which are likely to give Catrin cause to reflect negatively about her own situation.[29] 51.Mr Ozorio SC submits that Catrin will need to come to terms with her disability, and paediatric neuropsychology and paediatric psychiatric assessments will assist in informing the court of Catrin’s condition and in formulating/costing an appropriate present/future care regime (including provision for psychotherapy and counselling) to minimise as far as possible the chance/impact of Catrin developing psychological complications. 52.Further, Mr Reid and Ms Stockley both agree that whilst Catrin’s physical, emotional and sexual responses may well be those of a normally developing adolescent or young woman, her ability to express them or herself emotionally will not be at the level expected for her chronological age, and she will certainly require protection from individuals who may take advantage of her.[30] In view of this, Mr Reid says there is a need to prepare for the eventuality that Catrin will (as she is entitled and likely to) form relationships.[31] As Ms Stockley also recognises, it is plausible that Catrin may in due course wish to consider having her own child or children.[32] Mr Reid says that Catrin will need advice in relation to sexual matters, and he recommends a psychotherapist to advise Catrin in late adolescence,[33] bearing in mind there will be difficulties associated with her significant physical and communication impairment. Mr Ozorio SC submits that these are deep-seated and complex issues that need to be dealt with appropriately and professionally, and this can only be by a psychotherapist with skill and experience in this area after a full assessment. 53.Mr Ozorio SC submits it is also necessary to address the question of Catrin’s capacity to make life decisions and those involving financial matters.[34] Both Mr Reid and Ms Stockley agree that Catrin will require protection against her vulnerability to exploitation, and she will also require support especially in relation to managing her affairs in later life, eg in dealing with the award of damages in the present action.[35] Mr Ozorio SC argues that an psychiatric evaluation is also relevant to mental capacity and medication. 54.On the other hand, Mr McLeish submits that the only evidence of recent currency on the issue of whether Catrin will require paediatric neuropsychology and/or paediatric consultation in future is that it will not. He refers to Ms Stockley’s observations as follows:[36]
55.But it is common ground between Mr Reid and Ms Stockley that provision should be made for Catrin to have psychotherapy/counselling in future. Mr Reid recommends “a contingency of three tranches of therapy at 20 to 30 sessions per tranche to be used flexibly throughout adolescence and at periods of transition, for example at 16, 19 and in early adulthood”,[37] and observes that the psychotherapist will need to give advice to Catrin in late adolescence in relation to sexual matters.[38] Ms Stockley says it is likely that Catrin will develop sufficient insight into the impact of her disability to require psychological support, and endorses Mr Reid’s opinion that Catrin “will require the advice of a suitably qualified and experienced clinical psychologist/psychotherapist at significant periods in her life concerning her personal relationships with significant others”,[39] and proposes that such specialist support be spread over separate episodes during her life and probably will require up to 45 sessions of counselling.[40] Mr McLeish submits that the recommendations by Mr Reid and Ms Stockley fully address the natural and understandable concerns expressed in the Parents’ witness statements concerning Catrin’s future psychological well-being. 56.But quite irrespective of whether or not there has been past/present need for psychological/psychiatric consultations, I agree with Mr Ozorio SC that Mr McLeish’s submissions (premised on the recommendations by Mr Reid and Ms Stockley) implicitly accepts that future needs (as Catrin reaches adolescence and young adulthood) are of relevance. Indeed, Ms Stockley has been careful to qualify her opinion that Catrin has no psychiatric disturbance by “at this stage” and that she does not require consultations by “for present purpose”.[41] I do not consider Ms Stockley’s overall opinion indicates definitively that paediatric neuropsychology expert evidence is not required. 57.Bearing in mind that Mr Reid and Ms Stockley are tasked to give expert opinion on educational psychology, it is outside the remit of their instructions to travel beyond such parameters and express psychological opinion on later life relationships/decisions and possible pregnancy. In particular, no leave has been granted for Ms Stockley to give opinion as a clinical neuropsychologist, and such opinion is inadmissible unless the court grants leave otherwise. In any event, I have concluded that her opinion in this respect does not preclude Catrin’s future psychotherapy/counselling needs. 58.In my view, if the defendant is allowed to rely on the opinion in this respect by Ms Stockley as a clinical neuropsychologist (as Mr McLeish contends), then in fairness Catrin should be allowed to go beyond Mr Reid’s opinion and seek further opinion from a paediatric neuropsychologist since Mr Reid (not being a neuropsychologist) only offers his recommendations from the perspective of an education psychologist carrying out “[research] in relation to children and adolescents with cerebral palsy”[42] and not from expertise in neuropsychology in cerebral palsy cases. 59.Given Catrin’s emotional and psychological future needs, which even Mr Reid and Ms Stockley as educational psychologists recognise as real and need to be addressed, I am inclined to grant leave for paediatric neuropsychological expert evidence to be adduced. 60.But before I come to any firm view, I need to deal with counsel’s submissions on the relevant authorities, in particular Mr McLeish’s submissions that they do not support the proposition that it is usual for experts in paediatric neuropsychology and paediatric psychiatry to give evidence in cases such as the present one, or that evidence from experts in these fields will be of assistance to the court in the present action. 61.In Leo Whiten (a protected party suing by his mother and litigation friend, Samantha Nowell) v St George’s Healthcare NHS Trust,[43] the claimant suffered from profound hypoxic ischaemic damage and developed a mixed spastic-dystonic severe quadriplegic cerebral palsy.[44] There was expert evidence on the claimant’s current condition and future prognosis from a consultant paediatrician and a chartered educational and paediatric psychologist for the claimant, and a consultant paediatric neurologist and a consultant paediatric neuropsychologist and registered educational psychologist for the defendant.[45] 62.Mr McLeish submits that in Whiten paediatric neurospychology was not represented as a separate and distinct discipline for expert evidence. He argues that in Whiten the only witnesses with specialist qualification in this area were the educational psychologists and as expected their evidence concerned the claimant’s future needs in relation to educational and psychological intervention. I do not agree that in Whiten expertise in paediatric psychology was not represented at all. Apart from being educational psychologists, Mr Baldwin and Dr Hood were also respectively paediatric psychologist and paediatric neuropsychologist. It is through the fortuity of having experts who were qualified in the two disciplines of educational and paediatric psychology that separate experts were not required, but that does not mean that by wearing two hats such experts did not give expert opinion on matters pertaining to paediatric psychology. In any event, the fact that paediatic neurospychology is not represented as a separate and distinct area of expert evidence in Whiten does not mean it is not an area of expertise unto itself. 63.In Whiten, the experts agreed that the claimant (who was 7 years old at the time of trial) had significantly impaired cognitive function resulting in a severe degree of leaning disability. There were significant physical disabilities, impaired vision and lack of expressive communication skills in addition to his cognitive deficits. The educational psychologists agreed that the claimant was functioning only at a cognitive level equivalent to a normal child in the first two years of life, and even if he continued to make progress, he would attain a level of cognitive functioning equivalent to a child of 4-5 years when he reached adulthood.[46] 64.In that case, Mr Baldwin (chartered educational and paediatric psychologist) and Dr Jane Hood (paediatric neuropsychologist and registered educational psychologist) set out their respective assessments in relation to the need and costing for psychological intervention. Whilst Mr Baldwin and Dr Hood differed in their views as to the scope of the psychological intervention required, they agreed that such intervention would probably be needed during critical periods/points in the claimant’s life when specific events/problems might occur.[47] As Mr Ozorio submits, the findings by Swift J that only limited psychological intervention was required must be viewed in such context. Each case must turn on its own facts, and the claimant in Whiten is quite different from Catrin who is an adolescent going through puberty and who is not as severely impaired intellectually. I am not persuaded that Whiten suggests that paediatric neuropsychology is unnecessary in the present action. In any event, the claimant in Whiten had an advantage over Catrin in that at least he was aided by a paediatric psychologist. In the present case, Catrin has no expert either in paediatric psychiatry or paediatric neuropsyhology. 65.In Jubair Ali (a protected party by Jabid Ali, his father and litigation friend) v David Graham Greene & anor,[48] the claimant suffered a very severe brain injury as a result of being struck by a car.[49] He was 24 years old at the time of trial. The defendant claimed he had been consistently malingering.[50] The expert neuropsychologists Dr Powell and Dr Walton administered psychometric tests “that are designed to reveal whether or not a patient is acting to the best of his abilities or whether he is deliberately exaggerating his difficulties”.[51] There was also evaluation as to the claimant’s capacity to litigate and manage his financial affairs which turned on whether or not he had been malingering.[52] 66.It is true that Ali is not a cerebral palsy case, but it is the psychological consequence rather than the physical cause of the brain injury that is pertinent. Even though there is no apparent issue of malingering in the present action (but the defendant puts Catrin to proof of her claim for loss and damages), it does not follow that neurospychology expert evidence is only required when a defendant contends that the claimant is malingering. In Ali, the neuropsychologists in fact addressed inter alia the claimant’s overall cognitive abilities (including the issue of malingering) and future care needs, and with the assistance of such expert evidence the learned judge came to the conclusion that the claimant had significant cognitive deficits.[53] Again, I do not consider that Ali necessarily leads to the conclusion that neuropsychology expert evidence is not required in cases of severe brain injury. 67.Mr McLeish submits it is noteworthy that neither neuropsychological nor psychiatric expert evidence was received by the court in Lewis (an infant by her mother and litigation friend Lewis) v Royal Shrewsbury Hospital NHS Trust.[54] But Mr Ozorio SC reminds that Lewis was 11 years old at the time of trial and, unlike Catrin in the present action, there was severe impairment in cognitive intellectual function,[55] hence it is questionable whether psychotherapy or counselling would have been useful. As I have said, each case turns on its own facts, and I am not persuaded that Lewis dictates that neuropsychological expert evidence is therefore not required in the present action. 68.I therefore conclude that under present circumstances leave should be granted for paediatric neuropsychology expert evidence to be adduced. However, the same cannot be said for paediatric psychiatry. 69.The above discussion about Catrin’s condition and future needs focuses on psychotherapy and counselling to help her understand and accept her condition, to address her psychological and emotional vulnerability, and to provide support at critical points in her life. The tenor of the reports and opinion by Mr Reid and Ms Stockley also highlight the need for psychological rather than psychiatric support. There is no indication of any need for psychiatric intervention (eg pharmalogical prescriptions). 70.Mr Ozorio SC reminds that psychiatric expert evidence has been adduced in Ali. However, although three joint statements were provided by the psychiatrists Dr Bradley and Dr Gill in that case, the experts agreed that it was not a “psychiatric case” in the sense of being dominated by psychiatric considerations.[56] The psychiatrists were only able to identify a relatively mild adjustment disorder with presentation of low mood and irritability, but by the time of their third report they considered that the claimant was probably not diagnosable with any psychiatric condition.[57] The psychiatric experts produced further reports (five reports and two letters by Dr Bradley and three reports and three supplementary letters by Dr Gill) that addressed the adverse effects of an overprotective family, the malingering issue which related to the matters of cognitive impairment and mental capacity, and the need for continued neuropsychological input.[58] The evidence of the psychiatrists at trial was limited in scope and it appeared that the main interest was how it bore on the “malingering” issue.[59] 71.As explained above, I do not think there is any apparent “malingering” issue in the present action even though the defendant puts Catrin to proof of her case on quantum. Once this aspect is removed, I do not see why any need for neurospsychological input and/or for addressing Catrin’s psychological and emotional vulnerability cannot be dealt with by paediatric neuropsychological expert evidence, which I have allowed. These are matters which plainly come within the remit of such expertise. 72.The educational psychologists have considered the issue of capacity when they address Catrin’s degree of cognitive impairment and learning difficulties. It is common ground that Catrin will need “protection to safeguard her” against exploitation particularly in relation to financial matters,[60]and Ms Stockley considers that given the low level of Catrin’s ability in numeracy she will not be able to independently manage her own financial affairs (eg statutory benefits and compensation that she may receive through the present action) in her adulthood and concludes that it is unlikely Catrin will develop the capacity to weigh up advice, make decisions in her own best interest or give instructions to her legal team.[61] Hence, the issue of capacity does not take on the significance that it does in Ali. When shed of these considerations, I am not persuaded that Ali justifies any need for psychiatric expert evidence that is “necessary” given the expected expert input from paediatric neusopsychologists in due course. In all the circumstances, I decline to grant leave for paediatric psychiatric expert evidence to be adduced in the present action. VII. PAEDIATRIC GYNAECOLOGIST 73.According to the Father, Catrin is already “experiencing and questioning changes in her body as she journeys through puberty”.[62] The Mother confirms that Catrin’s puberty started in about 2010.[63] Mr Ozorio SC submits that Catrin’s endocrine system has not been compromised and as a result the production of hormones will have begun to produce changes in her body and behaviour in the usual way, but for Catrin these changes will pose special problems over and above those faced by teenagers whose bodies have not been compromised. 74.Mr Burke’s third affidavit suggests that it is likely that Catrin will have gyanecological problems in the future (a) because in general her puberty is already delayed and (b) in the event that she considers pregnancy and gives birth. The Mother says Catrin will need gynaecological intervention at various stages during her life to deal with possible complications, but “pregnancy, sadly, will not be an option for Catrin”.[64] Yet both Mr Reid and Ms Stockley consider Catrin may need to address sexuality issues including the issue of whether to have her child or children.[65] 75.Mr Ozorio SC submits that with Catrin’s inability to communicate freely, she may well need individual attention to deal with biological changes brought about by hormonal influences. At first, he says there should be input from paediatric gynaecologist with experience in cerebral palsy cases. If no such expert is available in Hong Kong, it is proposed on behalf of Catrin to instruct Dr Adrian Lower, consultant gynaecologist and expert in reproductive medicine. However, in the course of his oral submissions at the Hearing, Mr Ozorio SC recognises that the key gynaecological issues for Catrin relate to sexuality and pregnancy, which are more relevant to adulthood or at least young adulthood and as such the “paediatric” sub-speciality may not be relevant for gynaecological expert evidence. He therefore suggests it will be appropriate to instruct a single joint gyanecologist with experience in dealing with cerebral palsy patients or patients with significant physical and/or communication impairment. 76.The defendant opposes any gynecological expert evidence. There is no fallback identification of any expert in case I should accede to Catrin’s application, but Mr McLeish submits there is no indication Dr Lower has interest/expertise in cerebral palsy cases. Mr Ozorio SC accepts that if that is so the claimant will look for someone else. That being the case, it is unnecessary for me to further consider Dr Lower’s qualifications and experience. Mr McLeish also argues there is no reason to find a UK based expert. In fact, Catrin has no objection to a local expert provided one with the requisite expertise can be found. But I note Catrin’s stance is that the family will relocate to the UK either after 2015 or after 2020 by which time she will be on the brink of young adulthood. Gynaecological issues (if any) are likely to arise then, so the parties will need to give careful consideration as to whether a UK based expert is more appropriate. 77.I now return to the merits of Catrin’s application. Mr Ozorio SC submits that the issue of Catrin’s ability and suitability to have sexual relationships, to experience pregnancy and to give birth as well as other gynaecological issues relating to menstruation and menopause are not just questions for a psychologist. The ability to have children depends on physical, hormonal and psychological factors, and only a gynaecologist will be able to say whether Catrin is able physically to have children bearing in mind the type/extent of disabilities she is under. Indeed, Mr Reid defers to “medical expertise in relation to Catrin’s ability to have children ……”[66] 78.On the other hand, Mr McLeish argues that Catrin’s need for individual attention in relation to sexual matters including the biological changes brought about by hormonal influences is already catered for in Mr Reid’s and Ms Stockley’s recommendations for psychotherapy/ counselling.[67] I bear in mind that apart from the recommendations by the educational psychologists, I have allowed paediatric neuropsychologists to assess Catrin’s psychological needs in her adolescence and young adulthood. They will be in a position to give opinion as to the scope and extent of the psychotherapy/counselling required (if at all) on sexuality issues and prepare her for relationships and, where appropriate, children. 79.Mr McLeish next says the further suggestion that Catrin (due to her disabilities) will require specialist gynaecological consultations over and above those she will have had in any event is not supported by any evidence. He reminds the court of Mr Ozorio SC’s submissions that Catrin’s endocrine system has not been compromised and as a result there are body and behavioural changes “in the usual way”. Even if Catrin does require specialist gynaecological consultations over and above those she will have had in any event, this will at most justify making provision for the additional consultations in the award of damages and not necessarily give rise to a need for gynaecological expert evidence. 80.Whilst I agree that physical and behavioural changes “in the usual way” during puberty may not necessarily require additional gynecological input from a medical perspective as distinct from psychological guidance and support, sexuality and pregnancy bring the matter to a physical and medical dimension. I agree with Mr Ozorio SC that in view of Catrin’s physically compromised condition, it is a matter of common sense that she may require specialist gynaecological management in relation to sexual matters. Of more significance are the questions as to whether her reproductive system is intact, and if it is, whether her body will be able to tolerate a pregnancy to term in view of her abnormal movements, eg TLR, ATNR and dystonia,[68] and other physical impairments. I am unable to brush aside these considerations as impossible scenarios because Catrin’s cognition and intellect appear to be fairly well preserved,[69] and she has shown that she can interact with others and form friendships.[70] Indeed, Mr Reid says it is possible that Catrin will form relationships although it is likely that these will not be long-standing.[71] From Mr Reid’s account of his observations of Catrin at school, it is clear she understands the concepts of marriage/husband and reproduction (ie make babies).[72] Ms Stockley goes further and envisages the possibility of Catrin having children.[73] Further, it is at least arguable that the paediatric neurospychologist in administering psychotherapy/counselling on life decisions will be aided through coordination with the gynaecologist on what is physically/medically possible or otherwise for Catrin. 81.Mr McLeish notes that gynaecology expert evidence is not adduced in Lewis and there is no suggestion of any similar case whether in HK or UK in which such evidence has been adduced. But in Lewis, the claimant has severe impairment in cognitive intellectual function,[74] severe learning disabilities[75] and severe mental retardation equivalent to a mental age of three to under six years.[76] Each case turns on its own facts, and I am not persuaded that the situation of a child with such disabilities reflect that of Catrin. 82.In all the circumstances, I am persuaded that I should allow expert evidence in gynaecology with particular interest in cerebral palsy or significant physical impairment. I agree with Mr Ozorio SC that whilst necessary for the purpose of proper assessment of damages, expert evidence for this discipline should not be too controversial and a single joint expert for both parties will be appropriate. VIII. OCCUPATIONAL THERAPIST 83.OT is the use of treatments to develop, recover or maintain the daily living and work skills of people with a physical, mental or developmental condition. It focuses on task modification, environment adaptation, creative management skill, and patient/family education to increase participation in and performance of daily activities. 84.Mr Burke’s third affidavit says it is common in cases such as the present action to have OT expert evidence, especially to give recommendations/costing on extra aids and equipment needed. A study of Mr McLeish’s submissions shows that he does not really challenge the need of such expert evidence. Rather his complaint is that such expert evidence is already available in the form of OT opinion in the reports by Ms Ting/Ms Choy in collaboration with Dr Tse, which opinion is bolstered by the reports by Ms Russell and Ms Dunning. It is the defendant’s case that further OT expert opinion is unnecessary. 85.Mr Ozorio SC says that neither Ms Ting nor Ms Choy is the parties’ jointly instructed OT expert. He also doubts whether they are recognised experts suitable for making assessments and recommendations given Catrin’s multiple disabilities and complex situation. Mr Ozorio SC says the problem is compounded by the reliance of the UK case managers on the recommendations by Ms Choy and Dr Tse in respect of aids and equipment. Further, even though the case managers have produced joint care and case management reports, Ms Russell and Ms Dunning are both nurses and not occupational therapists. 86.Mr Ozorio SC submits that Catrin proposes to engage Ms Sharon Haarsma to address past OT needs/expenses in HK (and if necessary HK costing for further needs), and Ms Julia Ho for future needs/expenses in the UK. He says that Ms Julia Ho is a UK occupational therapist with special experience in mentally disabled and quadriplegic patients, and Ms Haarsma has been accepted as OT expert in cerebral palsy cases in HK. In his oral submissions at the Hearing, Mr Ozorio SC adds that Ms Alice Tsang is also an experienced OT expert who has produced reports in cerebral palsy cases, and Prof Cecilia Li is often instructed by the defendants in such cases. 87.Mr McLeish argues there is no justification for Catrin to instruct (separately) a new HK based occupational therapist to give evidence in the present action and/or a new UK based occupational therapist irrespective of the family relocation issue. On 19 August 2013 (ie after the Hearing), the defendant’s solicitors wrote to inform the court they will instruct Prof Li to prepare a joint report with Catrin’s OT expert (ie the parties both prefer separate experts) in case the court grants leave for Catrin to instruct an OT expert in place of Ms Choy. 88.I start with the common ground between the parties that Dr Tse is the parties’ single joint paediatric neurology expert. Mr McLeish claims (but Mr Ozorio SC disagrees) that Ms Ting was the parties’ jointly instructed OT expert, or that Ms Choy succeeded her in the same role in 2008 when Ms Ting declined to continue to collaborate with Dr Tse in preparing assessment reports on Catrin. 89.I note that the 1st PTR Order dated 3 June 2002 directs the defendant to serve the report of Dr Tse on quantum within 21 days of 18 June 2002. By the 2nd PTR Order dated 30 August 2002, the parties were to jointly instruct Dr Tse to submit a report on Catrin in 6 weeks to include an opinion as to the earliest date upon which proper assessment of prognosis could be conducted. In 2003, Dr Tse compiled her brief assessment report that enclosed a development performance report dated 13 January 2003 by Ms Ting and a joint report on current and short term needs dated 14 January 2003 by Ms Ting and Dr Tse. Mr Ozorio SC submits that Ms Ting was brought in by Dr Tse. I do not find it surprising Dr Tse needs OT assistance given that the assessment of the aids/equipment needs and Catrin’s care regime (albeit for current/short term) must be more within the purview of an occupational therapist than a paediatric neurologist. No independent joint instructions by the parties to Ms Ting have been placed before me, and there is no court direction/order that grants leave to adduce OT expert evidence by Ms Ting. 90.In 2005, without express leave of the court, the parties obtained an assessment report on current condition by Dr Tse that encloses a development performance report dated 4 July 2005 by Ms Ting and a joint report on current and short term needs dated 8 July 2005 by Ms Ting and Dr Tse. 91.In 2007, Dr Tse compiled an assessment report on current condition enclosing a completed patient evaluation questionnaire. On 2 November 2007, Dr Tse wrote to the defendant’s solicitors to advise that Ms Ting had declined invitation to further collaborate with her, but Dr Tse considered the appointment of another occupational therapist is “necessary in completing this report especially on the part of future treatment”. The defendant’s solicitors replied on 5 November 2007 to say they had no objection as to who Dr Tse felt she would need to appoint as an occupational therapist in order to complete the report. On the same day, Catrin’s solicitors asked for details of three occupational therapists Dr Tse would recommend in order to take instructions. On 7 November 2007, Dr Tse gave particulars of two occupational therapists one of whom was Ms Choy. On 12 November 2007, the defendant’s solicitors indicated they have no objection to either choice. On 21 November 2007, Catrin’s solicitors said Ms Choy was preferred. They reiterated this position in their letter dated 10 March 2008 to Dr Tse, and Dr Tse so reported to the defendant’s solicitors on 17 March 2008. 92.From June to September 2008, Ms Choy compiled her OT assessment report (5 pages) and Dr Tse prepared her “Discussion on Recommendation of Long Term Needs” (7 pages) and “Recommendation of Long Term Needs” (6 pages). After the completion of such reports, at the 3rd PTR on 13 October 2008, an order was made to adjourn the PTR for not less than 6 months to allow the parties to instruct case managers and arrange for them “to, if necessary, examine [Catrin] and to meet jointly with [Dr Tse] …… and [Ms Choy] the jointly instructed Occupational Therapist for the purpose of preparing a joint report of a Case Managers so instructed by the parties” (my emphasis). 93.The UK based case managers Ms Dunning and Ms Russell eventually produced their joint reports in 2010. In compiling their reports, they have considered the 2003, 2005 and 2007/2008 reports by Dr Tse and Ms Ting/Ms Choy, and have had the opportunity of meeting with Dr Tse and Ms Choy. More significantly, in preparing their joint aids and equipment report of November/December 2009, they have made clear that “[when] considering recommendations for Aids and Equipment, consideration has been given to those recommendations made by Sally Choy and Dr Tse, with regard to the type and replacement schedules of equipment, as well as making additional considered recommendations, suitable for a UK setting”. 94.To complete the picture, Ms Dunning in her letter dated 11 June 2012 says that:
What I should say …… with regard to the suggestion that a separate [OT] expert and mobility expert opinion is required, is that myself, Ms Russell and Sally Choy combined have already provided the same information to the Court that would be provided by such separate experts. ……” 95.But Ms Russell in her letter dated 27 June 2012 says that:
96.Mr McLeish submits it is plain from the 3rd PTR Order the court envisages that insofar as the UK based case managers require OT assistance in order to take due account of Catrin’s OT needs when giving their opinion, this will be provided by HK based occupational therapist Ms Choy, and this is what has been done. Mr McLeish says that in accordance with the court’s directions, the joint care and case management report and the joint aids and equipment report have been prepared with the necessary input by Ms Choy (and of course Dr Tse). 97.Mr McLeish submits that the only outstanding matter in this respect is paragraph 3 of the 7th PTR Order which requires the parties to obtain a supplemental joint expert report from Ms Dunning and Ms Russell “containing their updated views on the aids and equipment required by [Catrin] and the costs thereof within 2 months after accommodation report and educational psychology reports have been obtained”. Since Ms Stockley’s report has been completed by July 2013, in principle the parties should have attended to obtaining the updated case managers’ joint report. Mr McLeish submits that what is required to enable the UK based case managers to give due regard to Catrin’s OT needs in their supplemental joint report is for Ms Choy to provide input similar to that which she has provided for the preparation of the case managers’ previous reports (including, if necessary, input by way of a supplemental report of her own). Mr McLeish advises that the defendant has no objection to Ms Choy doing an updated report based on a further assessment given the passage of time since her assessment report dated 10 June 2008, and she can be as detailed as required. He says that in any event there is no call for a UK based occupational therapist to be instructed to give evidence in the present action (irrespective of the family relocation issue). 98.In my view, notwithstanding the 3rd PTR Order which refers to Ms Choy’s role after she has compiled her report, it is plain that Ms Ting was brought in by Dr Tse, and when she dropped out Ms Choy was brought in by Dr Tse. Mr Ozorio SC does have a point when he says that had Ms Ting been jointly instructed by the parties, she could not have refused to continue her collaboration with Dr Tse without accounting to the instructing parties. The inter partes correspondence made clear that Ms Choy has not been specifically instructed to provide independent OT expert opinion other than to collaborate with Dr Tse. There is no joint letter of instructions for engaging either Ms Ting or Ms Choy. Dr Tse by involving Ms Ting/Ms Choy is little different from an orthopaedic expert asking for MRI/CT scan/report or an ENT expert asking for audiometry test/report from the relevant radiologist or technician. Such input comes under the umbrella of the relevant orthopaedic, ENT or haematology expert report. What happened here is that the parties acceded to Dr Tse’s request to have an occupational therapist provide OT input to assist her to compile her assessment report. Thus, the remit of Ms Ting’s/Ms Choy’s instructions, the parameters of what they have reviewed and the scope of their OT input (in contra-distinction to Dr Tse’s neurology input) are unclear, and must affect the weight if not the admissibility of Ms Ting and/or Ms Choy’s opinion by way of their reports. In light of such background, I do not consider the involvement of Ms Ting/Ms Choy of itself prevents the appointment of OT expert(s) in the present action as a separate and independent discipline. 99.Of more concern are the following matters:
100.Mr Ozorio SC also questions whether Ms Ting and/or Ms Choy are recognised OT experts experienced in cerebral palsy cases. He reminds that Ms Ting works out of Caritas Medical Centre (the hospital where Dr Tse is attached) and Ms Choy works out of Links Child Development Center. According to Ms Choy’s curriculum viate,[80] whilst she has the following experience in dealing with cerebral palsy cases, “she have never been given any reports of other medico legal cases and [she has] never given any evidence in Court of any legal cases before”:
101.Past needs/care incurred in HK and the reasonableness of their costing fall to be assessed with the assistance of HK based experts. Given there are 14 years of incurred expenses to date involving substantial sums, and further given the complexity of Catrin’s situation and needs, Ms Choy’s lack of forensic experience required for critical evaluation from a litigation perspective does give pause for concern. In my view, even on pre-trial expenses alone, there is a real need to obtain (and leave should be granted to obtain) proper report from HK based OT experts so that the court will be fully assisted in assessing the extent of recovery of the incurred expenses. 102.As discussed above, the Ozorio Revised Submissions initially suggest that it may well be premature to seek UK costing for future needs at this stage given the uncertainty as to where (ie UK or HK) Catrin’s future lies, but this is no longer a concern due to clarification of Catrin’s position as set out in the Ozorio Reply Submissions and in Mr Ozorio SC’s oral submissions at the Hearing.[81] The question is whether UK based OT experts are required in view of the permission now granted for expert evidence from HK based OT experts and the availability of UK case managers in the present action. 103.Mr Ozorio SC submits the UK case managers have nursing qualifications and are not occupational therapists, and they have relied on inter alia reports by and meetings with others (including the reports by and meetings with Dr Tse and Ms Ting/Ms Choy) to prepare the case management profile. This means they depend on other specialist input in order to prepare their expert reports on case management, and their reports incorporate but do not replace the input of such others. Hence, although Ms Dunning and Ms Russell have given opinion on OT costing based on the recommendations of Dr Tse and/or Ms Ting/Ms Choy in their reports, they are not thereby transformed into OT experts. 104.In my view, the efficient, effective and cost-saving way forward is for the parties’ HK based OT experts to jointly analyse/cost past care needs and to recommend/cost future care, therapies, aids and equipment, and then for the UK based case managers to provide joint opinion on substitutes/costing in the UK setting:
105.In the circumstances, I grant leave for independent HK based OT expert evidence (and it is the parties’ common stance that they should engage separate experts), and although I decline leave for Catrin to adduce OT expert evidence from UK based occupational therapist, the area of expertise permitted for Ms Dunning and Mr Russell should be extended to cover both care and case management. I should add that I see no advantage in the suggestion floated in the Ozorio Revised Submissions to defer obtaining OT expert report in HK and to wait and see to what extent and on what basis the defendant objects to the incurred expenses, full particulars of which, according to Catrin’s solicitors, have been provided. Since the parties have not come to terms in this respect over the past 14 years, it is pointless to wait further. However, it is hoped that in due course with a comprehensive joint OT report, the parties may well be able to see their way to reducing differences based on the critical evaluation by the OT experts. 106.Mr Ozorio SC refers to Whiten[84] and Lewis[85] to say that experienced OT experts gave expert evidence in those cases, and he fears that the absence of UK based OT experts may lead to under-provision for aids and equipment. It is understandable for UK experts to be instructed in a UK setting with no foreign dimension. But given the expatriate background of this case and the uncertainty caused by the family relocation issue, a creative cost-saving approach that does not compromise on the provision of relevant opinion is called for. Given the rationale to the proper approach as explained above, I do not accept there will be risk of under-provision. IX. TRANSPORT/MOBILITY EXPERT 107.Mr Burke’s third affadvit says that Catrin intends to engage UK based Mr Billy Kiely of Personal Mobility Solutions to be her transport/mobility expert. It is said that (a) Dr Smith has commented on Catrin’s special needs for transport,[86] especially air travel which requires extra cost because Catrin cannot properly travel in economy class and must travel in business class with her family/helper, and (b) Ms Russell has also recommended a separate expert.[87] 108.Mr Ozorio SC submits that Mr Kiely specialises in mobility solutions for the severely disabled, including automotive adaption and conversion requirements. He accepts there are a handful of occupational therapists in HK who provide expert reports on mobility solutions for the severely disabled, but there are no local experts that only specialise in this area. I do not propose to canvass further details of Mr Kiely’s qualifications because the defendant has not nominated any expert in case they fail in their opposition against Catrin’s application. In the circumstances, should I favour Catrin’s request, the identity(ies) of the expert(s) will need to be revisited. 109.Mr Ozorio SC in the Ozorio Revised Submissions suggests that transport expert evidence should be deferred until such time as it is clear that the family will be returning to the UK. He accepts that expert evidence as to HK needs should come from experienced occupational therapists in HK when it is clear that the family will remain in HK. But in light of the current position of Catrin as confirmed at the Hearing,[88] Mr Ozorio SC says Catrin intends to seek transport expert evidence from UK based expert now. 110.Mr McLeish objects to expert evidence from any transport expert on the basis that transport/mobility needs/costs are covered by opinion already given by Ms Dunning and Ms Russell in their joint aids/equipment report dated November/December 2009 made with input from Dr Tse/Ms Choy. Mr McLeish submits that the case managers have made comprehensive recommendationswith respect to Catrin’s future mobility needs in relation to vehicles, wheelchairs, hoists and holidays. He reminds that Ms Dunning has confirmed it is unnecessary to obtain separate mobility expert opinion.[89] Mr McLeish says the case managers can easily update their assessments in their supplemental joint report which has been ordered by the court at the 7th PTR hearing. 111.Mr Ozorio SC says Ms Russell is not an expert in transport for the disabled. Be that as it may, this court has now granted leave for the parties to adduce HK based OT expert evidence from OT experts other than Ms Choy. Mr Ozorio SC accepts that no separate HK based transport expert will be engaged for assessing/costing past road and air travel needs/costs, which task he says can and should be undertaken by local OT experts. This is consonant with Mr Ozorio SC’s own experience that there are a handful of occupational therapists in HK who provide expert reports on mobility solutions for the severely disabled, and also with Ms Russell’s experience in the UK that Ms Julio Ho, an expert consultant occupational therapist, “will also do vehicle costings” although some occupational therapists now prefer to have a separate transport report with costing to be prepared. I see no reason why local OT experts cannot also give opinion on future transport/mobility needs/costs,[90] and then for the case managers to provide the UK costing. Indeed, in Whiten[91]and in Lewis[92]the OT experts (one of whom was Ms Julia Ho) dealt with the issues of transport and travel. The picture is that it is not absolutely necessary to have a separate expert to address the transport/modality issue. 112.Here, the exercise is aided by the Parents’ detailed account in their witness statements as to (a) the difficulties associated with Catrin’s transport by road and air as a result of the athetosis/dystonia and all the problems this causes, and (b) the regime they fashioned for her road and air travel that has been tested and tried.[93] I am persuaded that specialist opinion from the local OT experts (not Ms Choy) with UK costing input by the case managers will be the expert evidence that is necessary, relevant and of probative value sufficient for the present action. X. DIETICIAN 113.According to Mr Burke’s third affidavit, Catrin is unable to eat normal solid foods or to feed and drink liquids by herself as a result of tongue thrust, gag reflex and difficulties in chewing and swallowing. She has specialised feeding requirements. Her food is specially prepared for her and she also takes food supplements. She has always been underweight for her age, which is in keeping with the need for additional calorific consumption by those suffering from dystonic cerebral palsy (ie additional calories are burned due to abnormal movements). She has had feeding difficulties since she was born and dieticians/nutritionists have worked with her since she was very young to ensure sufficient calorific intake on account of her limited diet. Mr Burke says in his third affidavit that the above has resulted in extra cost on food, and there is an issue as to whether PEG tube feeding is required with consequent effect on life expectancy. It is therefore suggested that an expert report from a dietician will assist in analysing Catrin’s past and future special diet/nutritional needs and the resultant extra costing. 114.It is proposed to instruct Ms Mimi Li (who has produced expert reports in other damages claim in cerebral palsy cases) to be Catrin’s dietary expert, but Mr Ozorio SC accepts that a single joint expert can produce the necessary report. The defendant opposes Catrin’s application but has not nominated any expert in case the court grants leave in Catrin’s favour to allow dietary expert evidence. 115.Mr McLeish submits that Catrin has sought and has been refused leave to obtain and adduce expert evidence from a dietician. The 6th PTR Order provides that:
116.Mr McLeish submits that on its face the 6th PTR Order refusing leave does not permit renewal of the application, and there is no general liberty to apply in such order as a whole. Mr McLeish notes that in making the order the learned judge has prefaced it with the remark “at this stage”,[94] which Catrin may argue evinces an intention to leave the door open, but he says it is apparent from the transcript of the 6th PTR hearing and the order made that the court did not accept that Catrin had made out a case for instructing a dietary expert and instead the court considered a report by the treating dietician could be sufficient. Mr McLeish argues that since Catrin has not obtained the treating dietician’s report that the court wishes to see, the position remains as it was at the 6th PTR hearing such that there can be no basis for disturbing the refusal of leave. 117.Mr Ozorio SC submits that since the 6th PTR Order is prefaced with the phrase “at this stage”, the court has not refused leave outright. He says it is open to Catrin to advance an argument that leave should now be granted. Whilst it is the case that the treating dietician has not provided a report, the defendant has been provided with Catrin’s dietary costs and the dietician treatment records obtained in January 2012 shortly after the 6th PTR Order (“Dietician Records”). 118.I note that some of the grounds Catrin now relies on for suggesting the necessity of dietary expert evidence has been canvassed in the Ozorio Submissions and in Mr Ozorio SC’s oral submissions[95] for the 6th PTR hearing, such as weight issues, her special diced food, feeding difficulties (particularly the length of time it takes for her to eat), and the possibility of PEG tube feeding. 119.In my view, a party disappointed with a case management direction on expert evidence should appeal (and is not entitled to revisit the issue by treading on the same grounds) unless there are new matters that may cast the exercise of the case management discretion in a different light. Here, the only new matters that have arisen since the 6th PTR Order that declined leave for expert evidence from a dietician appears to be the Dietician Records and the elaboration on Catrin’s past/present dietary needs in Dietician Records and in the Mother’s 2nd Statement.[96] But such difficulties/concerns cover well-trodden grounds as set out in the Mother’s 1st witness statement and Ms Hamrouge’s report[97] (which documents have been available prior to the 6th PTR hearing), and indeed in Mr Ozorio’s submissions at the 6th PTR hearing. 120.Mr Ozorio SC submits that since the defendant has failed to register agreement or disagreement as to Catrin’s dietary needs set out in the Dietician Records and the Mother’s 2nd Statement, it is necessary to obtain an expert report to examine Catrin and advise on the dietary regime and costs. Mr McLeish’s short answer is that the defendant agrees to have the Dietician Records (which includes a report by the treating dietician Ms Denise Fair dated 3 January 2012) go in as evidence, which will provide sufficient assistance to the court. 121.Mr Ozorio SC submits this is not enough. He says that consequent to the advice of dieticians Ms Vicky Gallard, Ms Nicole Edwards and Ms Denise Fair, Catrin has only been able to consume liquid foods which have to be specially prepared. She needs assistance in being fed, an activity which requires considerable skill, care and patience. But these matters have been raised at 6th PTR hearing, and they have not persuaded the learned judge to grant leave for expert evidence from a dietician, and they also do not persuade me. The plaintiff has records on feeding issues from her early years,[98] and the Dietician Records for more recent years. The latest evidence from the Mother shows that Catrin now has a more settled feeding regimen and dietary intake.[99] I am also informed that the Parents have studiously kept dietary, food handling and food cost records. Even though Catrin is fed orally and nutritional/dietary support is a continued necessity, it does not follow that evidentially the court must require expert opinion to appreciate her feeding regimen/problems, food costs and dietician expenses. 122.Even though Prof Rosenbloom alludes to risks of aspiration and respiratory infection, none has been evident in the past years. Indeed, Ms Hamrouge states that “Catrin does not aspirate food or drink into her lungs but she gulps her food and drink. Videofluroscopy investigation in 2005 showed that the swallowing reflex and pharyngeal swallow revealed no abnormality”.[100] 123.Mr Ozorio SC submits there have been discussions with dieticians and nutritionists as to whether she should be fed through a PEG tube, but again it has not been necessary for the past 14 years. He reminds that Prof Rosenbloom says Prof Strauss has emphasised that the major factors which determine life expectation of people with cerebral palsy appear to include their nutritional status including the way they receive nutrition.[101] But Prof Rosenbloom accepts that although Catrin is slim and slightly built, there is no evidence of her having an impaired nutritional status.[102] Further, even though Prof Rosenbloom cannot exclude the possibility that gastronomy feeding will be required, he opines that “it is now unlikely that [Catrin] will require or benefit from gastronomy feeding”.[103] More significantly, Prof Rosenbloom opines that “[on] balance and from a clinical perspective [he] would elect not to make any adjustment to the [life expectation] figures” despite what he describes as the “small possibility”[104] of gastronomy insertion. 124.Mr Ozorio SC submits that reports from dieticians/nutritionists are now standard in cerebral palsy litigation in HK. But Mr McLeish complains that no case has been cited to support such proposition. He reminds that neither is there any English case cited in which expert evidence from a dietician was adduced in a cerebral palsy case. In all the circumstances, having carefully considered the above matters, I decline to grant leave for Catrin to adduce expert evidence from a dietician. XI. DENTIST 125.In the Mother’s 1st witness statement, it is said that the gnashing of teeth combined with general slow growth and development has caused problems with Catrin’s teeth, and she was informed during consultation with Prof Nigel King in 2000 that there was delay in development and it was then too early to decide if any surgical intervention would be required.[105] But Prof King in his letter dated 1 February 2001 to Catrin’s solicitors clarified as follows, and I am not persuaded that the complaints by the Mother justify any dentistry expert evidence:
126.The Mother’s 2nd Statement refers to some problems with Catrin’s teeth.[106] The Mother claims that Catrin’s dental requirements far exceed those of a normal child because she needs to have her teeth checked more regularly, and her back teeth have to be treated with fluoride varnish at each consultation since her adult teeth broke through (and Catrin is prone to clamp down on fingers during the process). It is said that the enameling process is compromised due to lack of oxygen at birth. In addition, Catrin’s reflux and vomiting have necessitated extra dental appointments and preventive care. 127.However, Catrin’s reflux has been under control for some time now,[107] and although she needs help with brushing, she “will cooperate in having her teeth brushed and [the Mother] commented that her teeth are, in fact, a very good state”.[108] I cannot see how more frequent teeth check and extra dental appointments for monitoring and varnishing will of themselves command dentistry expert evidence. The schedule of Catrin’s dental appointments from late 2003 to date shows altogether 43 consultations, ie about four consultations a year at about $611 per consultation or under $2,500 a year. The actual number of consultations has decreased from eight in 2010 to six in 2011 and five in 2012; and the first consultation in 2013 is in April. Expert evidence on dentistry is unnecessary and disproportionate for addressing the above matters. The Mother says that Catrin drools excessively resulting in the use of Botox injections. But this is essentially a neurology and not a dentistry issue.[109] It is suggested there is delayed arrival of teeth, but there is no dispute that adult teeth have now “fully broke through”.[110] 128.The Mother says that Catrin’s mouth is overcrowded with the front teeth protruding significantly, and Prof King has advised checking if all her teeth have developed under the gums. It is also said that Prof King suggests that Catrin may need some surgery when all teeth are in place to alleviate the overcrowding. But surprisingly no dental treatment records or dental treatment report are available to support this[111] other than Prof King’s letter dated 1 February 2001 which is unhelpful in this respect. 129.Mr McLeish says that by a letter dated 11 June 2012 the defendant’s solicitors requested Catrin’s solicitors to provide a copy of Prof King’s dental report to enable the defendant to give considered response to Catrin’s proposal to adduce dentistry expert evidence. On the following day, Catrin’s solicitors replied to propose that “Catrin have an up-date examination / treatment by Professor King. Whether expert is then needed – can be determined based on his findings as set out in the treatment report done.” Indeed, Mr Burke’s third affidavit still states that “[up] dated treatment record and short report – are being obtained”. But such up-to-date treatment report has not been forthcoming to date. Mr McLeish says unless and until an up-to-date dentistry report is provided (as promised), Catrin is unable to demonstrate that dentistry expert evidence will be of real assistance to the determination of any issue in this case (as Catrin’ solicitors have apparently accepted in their letter of 12 June 2012). Mr McLeish says it is possible that when such report and/or treatment records are forthcoming they may provide the basis for agreement between the parties (without need for separate expert evidence) as to Catrin’s future dentistry needs/costs. 130.Mr Ozorio SC agrees that the report by Prof King has not been provided, and explains that Prof King has left Prince Philip Dental Hospital (“PPDH”) or possibly HK. But it still begs the question why Catrin’s dental records at PPDH cannot be made available after all this time through personal data request or third party discovery. I also note from the schedule of dental treatment prepared by Catrin’s solicitors that since mid-2012 Catrin has received dental treatment from another dental institution “HKS” instead of PPDH, yet again no dental treatment report/records from such institution have been placed before me. Taking all of the above matters into account, I am not persuaded that a dentistry expert report is justified or needed. The picture that comes across from the available information is that whilst Catrin may have issues with her teeth, they can be effectively and proportionately addressed by the Mother’s witness statements, the schedule of dental treatments, and the treatment records/reports when available. I therefore refuse Catrin’s application for leave to adduce dentistry expert evidence. XII. UK TAX EXPERT 131.Mr Burke’s third affidavit says that any damages that may be awarded in favour of Catrin in the present action will be held in court pending payment out when she is due to relocate to the UK with the Parents. Alternatively, as Mr Ozorio SC submits, damages paid into court in HK may be paid out to the committee appointed under the Mental Health Ordinance Cap 136 (“MHO”), and such funds may be invested by the committee subject to any order made by the court in the exercise of its powers under the MHO. At this stage, there is no need for me to comment on the viability of this course of action during Catrin’s minority. Mr Burke says that at the point when Catrin relocates to the UK, she will be at risk of being subject to UK tax on her earnings, including earnings on the award of damages held and invested in HK. Mr Burke asks this court to bear in mind that the defendant has refused to agree to structured settlement or periodical payments. 132.At first the Ozorio Revised Submissions suggest that commissioning a report of UK tax expert should be deferred, but upon clarification of Catrin’s position in the Ozorio Reply Submissions and Mr Ozorio SC’s oral submissions at the Hearing, there is no need to wait any further.[112] That being the case, Mr Ozorio SC submits that should Catrin relocate to the UK, tax liabilities should be minimised as far as possible to preserve her damages which may well require the funds to be held offshore in entities as to which only a competent international tax adviser will be able to advise. Catrin has in mind a tax expert from Ernst & Young possibly as a single joint expert. 133.Mr McLeish criticises the metamorphosis of Catrin’s application from a request for expert evidence from a UK tax expert in the Summons to an “international tax advisor” in the Ozorio Revised Submissions. Mr McLeish says that a need for tax planning advice on how to minimise Catrin’s tax liabilities by structuring her funds, eg by holding funds in offshore entities, is actually a possible head of claim for inclusion in the RSOD. But, in my view, it does not mean it has no implication for expert evidence on UK tax. 134.In assessing damages for negligence, the court aims to make an award to compensate the plaintiff for his real loss by putting him into a position he would have been but for the index accident, ie as if the wrong has not been committed. Thus, the court has to make what Mr McLeish describes as a Gourley assessment, ie an assessment of the credit to be given by a plaintiff for the tax which he would otherwise have paid on the income he says he lost due to the accident in respect of which he is claiming. But the court also has to take into consideration any incidence of tax on the damages awarded or on the expected earnings made on such damages that have the effect of reducing the quantum of damages or the expected income of such damages in order to provide a full and fair compensation for the plaintiff. It is the latter consideration that we are concerned with in respect of Catrin’s request for opinion from UK tax expert. In my view, any incidence of UK tax on the damages that may be awarded or on any expected income from such damages that has the effect of shrinking the compensation payable to Catrin must be considered. Likewise, the court may be handicapped in approving any settlement unless satisfied that it is in her interest. But in fairness to the defendant, if Catrin can minimise any such tax liability in a way that is justified on a cost-benefit consideration, then she has a duty not to inflate damages by making provision in her claim for damages for UK tax liability that should have been legitimately minimised. 135.In the circumstances, whilst it should not be the remit of any UK tax expert to advise on the structure and/or implementation of tax planning measures (the cost of which Mr McLeish says may be a possible head of claim for damages), in my view such expert should be able to say whether or not (a) there is any incidence of UK tax on the damages to be awarded and/or on the expected income from such damages, (b) anything can be done to minimise such incidence of UK tax (if any), and (c) any step that ought to be considered on a cost-benefit consideration. 136.Mr McLeish submits it is for Catrin’s legal team to first identify the UK tax liability that she may be exposed to with respect to an award of damages in HK before consideration is to be given for instructing a UK tax expert, and even then the issue of whether or not a UK tax expert should be instructed will arise only if there is no agreement on the nature and extent of the tax liability concerned (irrespective of the family relocation issue). I do not accept such submission. Any incidence of UK tax is a matter of foreign law and Catrin’s local legal team cannot be expected to browse English textbooks on UK tax and advise on foreign (ie UK) law on such basis. As Mr Ozorio SC submits, it is precisely for the purpose of determining Catrin’s exposure to UK tax liability in respect of damages awarded before or after her family relocation to the UK that expert evidence from UK tax expert is required. After all, foreign (ie UK) revenue law will have to be proved as a question of fact by an expert in the foreign law.[113] 137.Taking into account the above considerations and bearing in mind expatriate background of the present action, the likely relocation to the UK and the level of damages to be awarded, there is arguable basis and I grant leave for the UK tax expert evidence to be adduced. I further agree that for this field of expertise a single joint expert for both parties is appropriate and proportionate. XIII. PHYSIOTHERAPY 138.Mr Ozorio SC submits that physiotherapy expert reports are standard in disaster and/or cerebral palsy cases in Hong Kong, and are also usual in UK cases such as Whiten[114] and Lewis.[115] He says that Catrin requires detailed assessment and recommendations by physiotherapy experts who are familiar with her complex condition. Catrin proposes to engage HK based Ms Lisbeth Krebbers as her physiotherapy expert. 139.Mr McLeish submits that this area of expertise is not included in the Summons, but added in the Ozorio Revised Submissions. He says Catrin has hitherto been content (as the defendant was/is) to rely on the recommendations for physiotherapy in the 2005 and 2007/2008 reports by Dr Tse, and this is the first time in 12 years that she seeks separate expert evidence for this discipline. He says no proper explanation has been given for this late change of mind, and accordingly it ought not to be acceded to. 140.I note that as early as on 27 April 1999 the physiotherapist at the Child Assessment Centre of the Duchess of Kent Children’s Hospital (“DKCH”) already considered that Catrin would require out-patient therapy. Once a week physiotherapy was undertaken at DKCH.[116] Catrin also began physiotherapy sessions with Ms Maria Trumpp in June 1999 on a twice weekly basis.[117] She was also referred to the physiotherapy department of Prince of Wales Hospital on 18 May 2000, and by January 2001 she had 22 sessions.[118] 141.Presently, Catrin studies at the Learning Support Centre at King George V School and has a dual placement with Sarah Roe School where she receives occupational therapy and has access to the school’s hydrotherapy pool.[119] Physiotherapy is available for Catrin on a full-time basis at the school with two hydrotherapy sessions per week.[120] However, access to hydrotherapy will cease when Catrin leaves the school.[121] Catrin also has a home programme by her carers who are qualified physiotherapists.[122] According to Ms Stockley’s meeting with the physiotherapist at the school, such physiotherapist “has shown [Catrin’s helpers] different exercise”, but “[although] the home workers are very diligent in maintaining Catrin’s exercise regime it was thought likely by the physiotherapist that eventually there would be some long term deterioration in Catrin’s movements ……”[123] 142.I agree with Mr Ozorio SC that Catrin has ongoing intensive and extensive physiotherapy needs. Of concern is the fact that Catrin’s access to physiotherapy and hydrotherapy at the school will cease when she leaves school. I have no doubt that physiotherapy expert opinion is required on her future care regime. This is particularly important as the school physiotherapist, who must intimately familiar with Catrin’s present condition and needs, expects deterioration in her movements in future. There is added concern that qualified physiotherapist helpers may not be available for home programme when Catrin relocates to the UK. In my view, physiotherapy expert opinion is required to assess Catrin’s needs, and in due course the UK based case managers can add on UK costing. In this respect, Dr Tse’s estimations in her 2003, 2005 and 2007/2008 reports, which fail to take into account the fact that Catrin receives physiotherapy from the family helpers, and which has no proper analysis/breakdown of the current physiotherapy regime, are inadequate. 143.Taking into account the above analysis, I grant leave for physiotherapy expert evidence to be adduced. XIV. CONCLUSION 144.In the circumstances, I grant the following order:
145.Since the parties will be obtaining further single joint and/or joint expert reports in due course, it is pertinent to remind the parties of the guidance by Bharwaney J in Liu Ka Chun v Hong Kong Airport Services Limited as follows:[124]
146.This is reiterated by Bharwaney J in Tang Tak Ping v Kai Shing Construction Co as follows:[125]
147.As to the question of costs in respect of the Summons, neither party has succeeded in getting entirely what they want. In the circumstances, I consider that a fair order will be costs in the cause of the assessment of damages. I therefore grant a costs order nisi to such effect, and Catrin’s own costs be taxed in accordance with Legal Aid Regulations.
Mr Micahel Ozorio SC, instructed by Burke & Co, assigned by Director of Legal Aid, for the plaintiff Mr Robin McLeish, instructed by Mayer Brown JSM, for the defendant [1] [2013] 2 HKLRD 1 [2] Catrin’s PTR Notice dated 27 August 2002 [3] Catrin’s PTR Notices dated 30 September 2008 (see paragraph 11 above), 9 June 2010 and 5 November 2010 [4] see also the Father’s 2nd witness statement dated 29 April 2013 at paras 249-250 [5] see also the Mother’s 2nd witness statement dated 29 Apri 2013 at para 389 and the Father’s 2nd witness statement at paras 269-270 [6] see the Mother’s 2nd witness statement dated 29 April 2013 at para 381 and the Father’s 2nd witness statement dated 29 April 2013 at paras 252-266 [7] the Father will not know whether he will be offered an extension of his employment with Cathay Pacific until 3 months prior to his 55th birthday on 5 February 2015 [8] see paragraphs 23-24 above [9] see Mother’s 2nd Statement at para 390 [10] see the Father’s 2nd Statement at para 294 [11] see paragraph 21 above [12] see paragraphs 26-27 above [13] see Leo Whiten v St George’s Healthcare NHS Trust [2011] EWHC 2066 (QB) at para 7 (plaintiff was 7 years old at the time of trial) and Lewis v Royal Shewsbury Hospital NHS Trust [2007] EWHC 1054 (QB) (plaintiff was 11 years old at the time of trial) [14] Ozorio’s Reply Submissions claim that even if Cathay Pacific were to offer an extension of the Father’s employment, it will be for a two-year contract and hence it is uncertain whether it will be renewed [15] HCPI537/2010 (unreported, 15 September 2011) at paras 6-7 [16] HCPI1113/2006 (unreported, 24 June 2011) at paras 9-11 and 15 [17] see paragraph 36 above [18] see Order 1A rule 2(2) of the Rules of the High Court [19] see the Father’s 2nd Statement at para 169 and Mother’s 2nd Statement at para 234 [20] see the Mother’s 2nd Statement at para 236 [21] see the Father’s 2nd Statement at para 13 [22] see the Father’s 2nd Statement at para 19 (see also Ms Stockley’s report of July 2013 at para 5.1.7) [23] see Mr Reid’s report dated 20 December 2012 at para 12.1 [24] see the Father’s 2nd Statement at para 2 [25] see Mr Reid’s report dated 20 December 2012 at para 12.6 [26] see the Mother’s 2nd Statement at para 25 [27] see the Mother’s 2nd Statement at paras 17 and 237 [28] see Ms Stockley’s report of July 2013 at para 7.4 [29] see Mr Reid’s letter dated 21 December 2012 at para 2 [30] see Ms Stockley’s report of July 2013 at para 12.1 and Mr Reid’s letter dated 21 December 2012 at para 1 [31] see Mr Reid’s report dated 20 December 2012 at paras 12.13-12.14 [32] see Ms Stockley’s report of July 2013 at para 12.1 [33] see Mr Reid’s report dated 20 December 2012 at para 12.14 and his letter dated 21 December 2012 at para 1 [34] see Mr Reid’s report dated 20 December 2012 at paras 12.11-12.12 [35] see Ms Stockley’s report of July 2013 at para 7.9 and Mr Reid’s report dated 20 December 2012 at para 12.14 [36] see Ms Stockley’s report of July 2013 at para 12.3 [37] see Mr Reid’s report dated 20 December 2012 at para 12.6 [38] see Mr Reid’s report dated 20 December 2012 at para 12.14 [39] see Ms Stockley’s report of July 2013 at para 12.2 [40] see Ms Stockley’s report of July 2013 at para 12.1 [41] see paragraph 54 above [42] see Mr Reid’s report dated 20 December 2012 at para 12.6 [43] [2011] EWHC 2066 (QB) [44] at para 9 of the judgment by Swift J [45] at para 8 of the judgment by Swift J [46] at paras 12-13 of the judgment by Swift J [47] at paras 285-295 of the judgment by Swift J [48] [2013] EWHC 1730 (QB) [49] at para 1 of the judgment by Stuart-Smith J [50] at para 2 of the judgment by Stuart-Smith J [51] at para 3 of the judgment by Stuart-Smith J [52] at paras 172-198 of the judgment by Stuart-Smith J [53] at paras 262-263 of the judgment by Stuart-Smith J [54] [2007] EWHC 1054 (QB) [55] at para 2 of the judgment by MacDuff J [56] at para 162 of the judgment by Stuart-Smith J [57] at para 163 of the judgment by Stuart-Smith J [58] at paras 164-170 of the judgment by Stuart-Smith J [59] at para 171 of the judgment by Stuart-Smith J [60] see Mr Reid’s report dated 20 December 2012 at para 12.12 and Ms Stockley’s report of July 2013 at para 12.1 [61] see Ms Stockley’s report of July 2013 at paras 10.1-10.2 [62] see the Father’s 2nd Statement at para 8(2)(b) [63] see the Mother’s 2nd Statement at para 25 [64] see the Mother’s 2nd Statement at para 238 [65] see Ms Stockley’s report of July 2013 at para 12.1, Mr Reid’s report dated 20 December 2012 at paras 12.3-12.4 and Mr Reid’s letter dated 21 December 2012 [66] Mr Reid’s report dated 20 December 2012 at para 12.13 [67] Mr Reid’s report dated 20 December 2012 at paras 12.13-12.14 and Ms Stockley’s report of July 2013 at para 12.2 [68] see the Mother’s 2nd Statement at para 26 [69] see the Mother’s 2nd Statement at para 11 [70] see the Father’s 2nd Statement at para 2(b)-(d) and Mr Reid’s report dated 20 December 2010 at paras 8.9 and 8.11 [71] see Mr Reid’s report dated 20 December 2012 at paras 12.13-12.14 [72] see Mr Reid’s report dated 20 December 2012 at paras 5.20 and 5.25 [73] see Ms Stockley’s report of July 2013 at para 12.1 [74] at para 2 of the judgment by MacDuff J [75] at para 66 of the judgment by MacDuff J [76] at para 73 of the judgment by MacDuff J [77] see developmental performance report by Ms Ting (3 pages) and report on current and short term needs from 4 years to 8 years 11 months by Dr Tse and Ms Ting (5 pages) [78] see developmental performance report by Ms Ting (6 pages) and report on long term needs from 9 years by Dr Tse and Ms Ting (4 pages) [79] see assessment report on functional performance by Ms Choy (5 pages) [80] submitted under cover of the letter by the defendant’s solicitors dated 26 August 2013 after the Hearing [81] see paragraph 31 above [82] see paragraph 94 above [83] see paragraph 95 above [84] at paras 303-313 of the judgment by Swift J [85] at para 200 of the judgment by MacDuff J [86] see section (c) on p 3 of Dr Smith’s report dated 30 November 2003 [87] see letter from Ms Russell to Catrin’s solicitors dated 27 June 2012 [88] see paragraph 31 above [89] see paragraph 94 above [90] see Mr Ozorio’s submissions in the Ozorio Revised Submissions in paragraph 109 above [91] at paras 474-482 of the judgment by Swift J [92] at paras 219 and 225 of the judgment by MacDuff J [93] see the Father’s 1st witness statement dated 10 July 2002 at paras 143 and 146-147, the Father’s 2nd Statement at paras 36-48, 94-122 and 180-207, and the Mother’s 2nd Statement at paras 143-155, 163-170 and 332 [94] see transcript of the 6th PTR hearing at p 24L [95] see transcript of the 6th PTR hearing at pp 3-4 [96] see the Mother’s 2nd Statement at paras 24, 52-63 and 278 [97] see the Mother’s 1st witness statement dated 9 July 2002 at paras 116 and 136-148 and Ms Hamrouge’s report of August 2010 at paras8.1-8.17 [98] see the OT report by Prince of Wales Hospital dated 30 January 2001 and the letter from Ms Maureen Humphrey dated 8 February 2001 [99]see the Mother’s 2nd Statement at para 63 [100]see Ms Hamrouge’s report of August 2010 at para 8.2 [101] see Prof Rosenbloom’s report dated 16 October 2012 at p 14 [102] see Prof Rosenbloom’s report dated 16 October 2012 at p 11 [103] see Prof Rosenbloom’s report dated 16 October 2012 at p 13 [104] see Prof Rosenbloom’s report dated 16 October 2012 at p 16 [105] see the Mother’s 1st witness statement dated 9 July 2002 at paras 173-174 [106] see the Mother’s 2nd Statement at paras 226-231 [107] see the Mother’s 2nd Statement at para 15 [108] see Mr Reid’s report dated 20 December 2012 at para 8.4 [109] see the Mother’s 2nd Statement at paras 211 and 214-215 [110] see the Mother’s 2nd Statement at para 229 [111] see also paragraphs 129-130 below [112] see paragraph 31 above [113] see Kemp & Kemp, The Quantum of Damages Vol 1 para 12-014 at p 12007 [114] see para 237 of the judgment by Smith J [115] see para 180 of the judgment by MacDuff J [116] see Mr Reid’s report dated 20 December 2012 at para 2.7 and the Mother’s 1st witness statement dated 9 July 2013 at para 107-110 [117] see Ms Trumpp’s reports dated 23 September 1999 and 8 February 2000 respectively, Mr Reid’s report dated 20 December 2012 at para 2.9 and the Mother’s 1st witness statement dated 9 July 2013 at paras 111-112 [118] see Prince of Wales Hospital’s physiotherapy report dated 30 January 2001 and the Mother’s 1st witness statement dated 9 July 2013 at para 113 [119] see Ms Stockley’s report of July 2013 at para 2.2 [120] see Mr Reid’s report dated 20 December 2012 at paras 4.5, 4.7 and 12.3, Ms Stockley’s report of July 2013 at para 1.15, and the Mother’s 2nd Statement at para 45 [121] see the Mother’s 2nd Statement at para 45 [122] see Mr Reid’s report dated 20 December 2012 at para 11.4, the Father’s 1st witness statement dated 10 July 2002 at para 139, the Mother’s 1st witness statement dated 9 July 2013 at paras 222 and 225-226, and the Mother’s 2nd Statement at paras 178(3), 184 and 187 [123] see Ms Stockley’s report dated July 2013 at para 5.6.4 [124] HCPI416/2009 (unreported, 11 November 2011) [125] [2012] 1 HKLRD 1093, 1103 | ||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCPI 460/2001