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					由此


A                                                                                               A

                                                                        HCPI 1113/2006
B                                                                                               B
                     IN THE HIGH COURT OF THE
C            HONG KONG SPECIAL ADMINISTRATIVE REGION                                            C
                      COURT OF FIRST INSTANCE
D              PERSONAL INJURIES ACTION NO. 1113 OF 2006                                        D


E                                 ----------------------------                                  E

     BETWEEN
F                                                                                               F

           FUNG CHUN MAN                                                            Plaintiff
G                                                                                               G


H                                             and                                               H


I                                                                                               I
           HOSPITAL AUTHORITY                                                  1st Defendant

J          SECRETARY FOR JUSTICE for and on behalf of                          2nd Defendant    J
           SECRETARY FOR FOOD AND HEALTH
K                                                                                               K
                                   --------------------------
L                                                                                               L
     Before : Hon Bharwaney J in Chambers
M    Dates of Hearing : 9 June 2011                                                             M

     Date of Decision : 9 June 2011
N                                                                                               N
     Date of Reasons for Decision : 24 June 2011
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                     -------------------------------------------------------
P                      REASONS FOR DECISION                                                     P
                     -------------------------------------------------------
Q                                                                                               Q
     1.           This is an application by the plaintiff, who claims damages for
R                                                                                               R
     personal injuries, to adduce expert evidence of a clinical psychologist at the

S
     trial of the action. The application has been made after the case was set                  S
     down for trial. The trial of this action will take place before me on
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     2-9 September 2011. On 23 March 2011, the plaintiff’s solicitors wrote to

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     my clerk to say that they had set the action down for trial on that day. They
     also intimated that the plaintiff might apply to adduce psychological expert
     evidence notwithstanding that the action had been set down. On 11 April
     2011, the plaintiff’s solicitors again wrote to my clerk stating that the parties
     failed to agree on the appointment of a clinical psychologist as the single
     joint expert in the case and also failed to agree that a joint examination be
     conducted by the parties’ respective experts.        The plaintiff’s solicitors
     enclosed, in their letter of 11 April 2011, a letter dated 7 April 2011 from
     Professor Peter Lee, a clinical psychologist, which expressed his view that a
     comprehensive assessment of the plaintiff’s overall psychological status and
     well being, as well as his overall cognitive functioning, should be
     undertaken. On 13 April 2011, the plaintiff issued a summons returnable
     before me on 18 May 2011 for leave to obtain and adduce expert evidence
     from a clinical psychologist at the trial of this action. Given the opposition
     to the summons by the defendants’ solicitors, I re-listed the summons,
     originally fixed for 3 minutes, to be heard before me on 9 June 2011.


     2.           After hearing submissions from the parties’ counsel and
     solicitors on 9 June 2011, I dismissed the plaintiff’s application and
     awarded costs of the application to the defendants, with certificate for
     counsel. The plaintiff is legally aided, and I directed that the plaintiff’s own
     costs be taxed in accordance with the Legal Aid Regulations.


     3.           These are the reasons for my decision.


     The relevant legal principles

     4.           Even prior to the enactment of the Civil Justice Reform
     (“CJR”), the right of the parties to adduce expert evidence at trial was
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     subject to the leave of the court. However, it is fair to say that leave was
     usually granted, provided that the parties seeking to call such evidence
     established the expertise of the individual concerned and disclosed the
     substance of his or her opinion evidence in written form prior to trial. The
     prevailing judicial view was to allow the parties to call the experts of their
     choice, just as they could call factual witnesses of their choice. Indeed, in
     personal injury actions, the plaintiff was required, from very early on, to
     serve, with his statement of claim, medical reports substantiating all the
     personal injuries alleged in the statement of claim which the plaintiff
     proposed to adduce in evidence as part of his case at the trial1.


     5.            The substantial increase of expert evidence, particularly in
     personal injury cases, became the subject of judicial criticism. Beginning
     with the English Court of Appeal case of Liddell v Middleton [1996]
     PIQR 36, expert evidence reconstructing a road traffic accident became the
     exception rather than the rule2. The clampdown on expert evidence on
     liability issues in personal injury cases extended to cover non-medical
     expert evidence on quantum issues, such as evidence from employment
     consultants and property surveyors. Whilst “mainstream” medical expert
     evidence from orthopaedic surgeons and neurologists continued to be
     readily admitted, a sea change was occurring with regards to
     “quasi-medical”      expert     evidence      from   occupational     therapists,
     rehabilitation consultants, physiotherapists, speech therapists, nursing
     consultants and care managers. In Wong Hin Pui v Mok Ying Kit and anor.3
     Seagroatt J said :

     1
          O.18, r.12(1A) of the Rules of the High Court
     2
          Tong Ho Wing v. Wong Fuk HCPI 1369/1999, 19 July, 2000, Suffiad J and Cho Kam
          Chuen v. Tse Chi Hung HCPI170/2000, 25 October 2000, Seagroatt J
     3
          HCPI763/1997, 21 December 1999
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                    “56. I cannot stress too strongly that this court is aware of the
                    excessive, expensive and wholly unjustified use of occupational
                    therapists in personal injury cases. In the vast majority of cases
                    their reports state no more than is apparent to any judge with any
                    understanding of the effect of serious injuries on any human being.
                    Essential matters are within the cognisance of orthopaedic and
                    neurological consultants. Any practical problems can adequately
                    be dealt with by rehabilitation consultants and nursing advisers.

                    …

                    58. In this case I read reports from neurologists, psychiatrists
                    and occupational therapists totalling 170 pages, quite apart from
                    the essential reports, one of which I ordered as a joint report.
                    Some of these reports were in any event premature. This aspect of
                    the case is a classic example of what this court sees as an
                    unrestrained use of resources with little regard for the cost
                    involved. As a consequence a significant amount of time and
                    effort has been wasted. The trial lasted at least two days more
                    than was necessary. If the Plaintiff is required to meet any of the
                    costs to which I have referred, out of his damages, then that would
                    be wholly unwarranted. In my view they fall to be paid out of the
                                               4
                    costs of the legal advisers who failed to exercise that judgment,
                    where they are not met by the unsuccessful party. The time is now
                    ripe for the court to exercise a controlling hand far earlier than I
                    thought was necessary if practitioners are not prepared to look
                    hard and fast at the case of the person they represent and ask
                    themselves – “What do we really need in the way of expert
                    evidence, and what can we ask the Defendants to agree at an early
                    stage?”


     6.             The court’s control over medical evidence in personal injury
     cases was evolving long before the court’s case management powers were
     created by the CJR. The evolutionary process, initiated by the need to
     ensure cost efficient and speedy resolution of personal injury litigation,
     resulted in the adoption of a joint approach, both at the pre-action and at the
     post-writ stages, of obtaining and deploying expert medical evidence for use
     at trial. The tri-partite benefit of such an approach, to the courts and to the
     parties concerned, cannot be denied. As Fung J explained in Mok King Sun


     4
          I was one of the junior counsel engaged in that case.
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     v Turn Round Company Limited5 at §26, a joint approach has the following
     virtues :

                  “(1) avoidance of different observations on different occasions,
                       or disputes on observations under single examination;

                   (2) discussions amongst the experts to narrow down the issues;

                   (3) specifying matters agreed and matters not agreed and the
                       reasons for any non-agreement;

                   (4) avoidance of numerous supplemental reports commenting
                       on the reports of the other side;

                   (5) minimizing the need to call the experts to deal with matters
                       which could have been dealt with under (1) to (4) above.”


     7.           The adoption of the joint approach, even before the
     implementation of the CJR, can be seen from the decisions of Fung J at
     Cheng Lung Fong v Mitoyo Hong Kong Limited (HCPI63/2007,
     22 September 2009), Limbu Bhimraj v All Clad Asia Limited (HCPI603 &
     606/2007, 4 November 2008), Wong Kam Lee v Dragages et Travaux
     Publics (HK) Limited (HCPI 824/2004, 17 November 2008) as well as in
     Mok King Sun v Turn Round Company Limited quoted above.


     8.           The adoption of the joint approach can also be seen in the
     decisions of HH Judge Marlene Ng in in Ansar Mohammad v Global
     Legend Transportation Limited (DCEC1090/2006, 8 May 2007), Lau Lai
     Shan v Hospital Authority (DCEC784/2007, 29 February 2008), Lee Sau
     Fat v F.H. Security Services Company Limited (DCEC1720/2006, 6 July
     2009), Ip Sau Lin v Hospital Authority (DCEC584/2007, 9 April 2009),
     Wong Cheuk v Falcon Insurance Company (Hong Kong) Limited



     5
          HCPI865/2007, 25 March 2009
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     (DCEC688/2008, 29 May 2009) and Chan Lai Ying v A S Watson & Co Ltd
     (DCEC1767/2006, 31 July 2009).


     9.             The enactment of the CJR did not result in a change to O.38,
     r.36 of the Rules of the High Court (“RHC”). However, after the enactment
     of the CJR, it is clear that the court’s discretion, whether or not to grant leave
     to a party to adduce expert evidence, is to be exercised within the ambit of
     the court’s management powers. Those powers must be exercised in the
     light of the underlying objectives of the CJR, including the need to ensure
     the cost effectiveness of the proceedings; to ensure that the case is dealt with
     expeditiously; to ensure reasonable proportionality having regard to the
     amount of money involved, the importance of the case, the complexity of
     the issues, and the financial position of each party; to ensure procedural
     economy in the conduct of the proceedings; and to ensure fairness between
     the parties.


     10.            The courts recognise that the primary aim of its case
     management powers is to secure the just resolution of the dispute in
     accordance with the substantive rights of the parties.            However, the
     substantive rights of the parties to a personal injury action do not include a
     legal right to call experts of their choice.


     11.            The expert evidence can only be adduced with leave of the
     court and, in deciding whether or not to grant leave, the court must ensure
     that such evidence is admitted only if it is likely to be of real assistance to
     the determination of the issues, and that it is adduced in the most effective
     and economic way consistent with the objectives of the CJR.
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     12.          In this regard, I echo the observations of Evans-Lombe J in
     Barings PLC v Coopers & Lybrand (No.2) [2001] Lloyds Report Bank 85:

                  “45. Expert evidence is admissible …. in any case where the
                  court accepts there exists a recognised expertise governed by
                  recognised standards and rules of conduct capable of influencing
                  the court’s decision on any of the issues which it has to decide and
                  the witness to be called satisfies the court that he has a sufficient
                  familiarity with and knowledge of the expertise in question to
                  render his opinion potentially of value in resolving any of those
                  issues. Evidence meeting this test can still be excluded by the
                  court if the court takes the view that calling it will not be helpful to
                  the court in resolving any issue in the case justly. Such evidence
                  will not be helpful where the issue to be decided is one of law or is
                  otherwise one on which the court is able to come to a fully
                  informed decision without hearing such evidence.”


     13.          The Court of Appeal in Mann v Messrs. Chetty & Patel (a firm)
     [2000] EWCA CIV 267 proposed 3 questions that ought to be asked before
     deciding to allow expert evidence :

                  “(a) how cogent the proposed expert evidence will be;

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

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


     14.          Chu J, as she then was, referred to Barings PLC v Coopers &
     Lybrand and concluded, in Wong Hoi Fung v. American Assurance Co.
     (Bermuda) Ltd. [2002] 3 HKLRD 507, that the expert evidence must be
     reasonably required to resolve the issues before the court before leave would
     be granted to adduce it.
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     15.          In summary, the expert evidence must be in a recognised
     discipline, reasonably required to enable the court to resolve the issues in
     dispute, and proportionate.


     16.          However, even if a prima facie case is made out for the
     admission of expert evidence, in every case, the court must also have regard
     to other relevant circumstances, such as the potential disruption to the trial,
     the prejudice to the other parties, and the explanation offered by the
     applicant in cases where a late application is made for expert evidence to be
     adduced. These matters have to be considered and weighed in the light of
     and against the underlying objectives of the CJR: to ensure cost
     effectiveness and economy, expedition, proportionality, and fairness
     between the parties. Ultimately, the court strives to do justice between the
     parties and, in cases where the court permits the parties to call expert
     evidence, the court strives to ensure a level playing field with fair access to
     proper experts for all parties.


     17.          These objectives and the joint approach are reflected in the
     protocol for commissioning expert reports set out in section I of the Personal
     Injuries List Practice Direction PD18.1. Of particular relevance are the
     general provisions §§69-71, reproduced as follows :

                  “69. As a general rule, leave of the court or consent of the parties
                       is required before any expert evidence can be adduced at
                       trial.

                  70.   A party who obtains expert evidence before obtaining leave,
                        other than from a single joint expert or pursuant to joint
                        examination and joint expert report with the expert(s) of the
                        other party or parties, does so at his own risk as to costs
                        and/or eventual refusal of leave to adduce such expert
                        evidence.
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                  71.   As soon as it is realized there exists a need or an anticipated
                        need for adducing expert evidence at trial or if parties failed
                        to reach agreement on arranging joint examination and/or
                        compiling joint expert report by the parties’ respective
                        experts before or after the commencement of proceedings or
                        if no agreement can be reached as to directions on obtaining
                        expert evidence and/or for permission to adduce expert
                        evidence, a party shall apply (by inter partes summons or by
                        restoring the case for Check List Review Hearing) or the
                        parties shall jointly apply (by Consent Summons to expedite
                        or restore the hearing of the Check List Review) to the
                        PI Master as soon as possible upon the commencement of or
                        in the course of proceedings, as the case may be, for
                        directions on obtaining expert evidence and/or for
                        permission to adduce expert evidence.”




     18.          It must be emphasised that the courts do not purport to control
     or inhibit a party’s right to consult experts and to obtain reports from them.
     The party with means may do so. The party, not under disability, who has
     obtained an interim payment, may deploy part of that payment towards the
     costs of such experts. In a recent case involving a plaintiff who was either in
     a permanent vegetative state or minimally conscious state, I indicated that I
     might be willing to grant leave for part of the interim payment received to be
     used in obtaining a functional MRI report to ascertain the true level of
     consciousness of the plaintiff. In a legal aided case, such as the present one,
     the plaintiff or his legal advisers may be able to persuade the Director of
     Legal Aid to grant permission to obtain an expert’s report. However, the
     point to emphasise, as reflected in §70 of PD18.1, is that, whilst a party is
     free to obtain his own expert report, he does so at his own risk as to costs and
     possible refusal of leave to adduce such expert evidence. In addition, parties
     need to know that non-compliance with PD18.1 and the pre-action protocol
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     set out therein without good reason may result in adverse costs
     consequences and sanctions, including wasted costs orders6.


     19.             Another point to emphasise is that the party who obtains an
     expert’s report, without agreement of the other party and without leave of
     court, runs the risk of disqualifying that expert from appointment by the
     court as the single joint expert. The risk may not be high at the beginning of
     proceedings when the court, although refusing leave for the party to adduce
     his solo expert report, may be amenable, nevertheless, to grant leave for a
     joint examination to be carried out by the expert concerned in conjunction
     with the expert nominated by the other party, and for a joint report to be
     prepared by them. However, if application is made, late in the day and when
     trial is imminent, for expert evidence to be adduced, the court may refuse the
     application or may only allow it on the basis of a single joint expert being
     appointed.


     20.             Another point to note is that the party who obtains an expert’s
     report without agreement of the other party and without leave of court runs
     the risk of losing his right to claim privilege over such a report, if leave is
     later granted to appoint the same expert as one of the 2 joints experts to
     examine the plaintiff and to report on the case.


     21.             A detailed exposition on the protocol for commissioning expert
     reports, both at the pre-action stage and at the post-writ stage, is contained in
     the post-CJR decision of Master Marlene Ng in Siu Fook Cheong v Siu
     Kwok Fai (HCPI768/2009, 2 February 2010).             The judgment provides
     particular guidance on the proper approach to be adopted in commissioning

     6
           Para. 9 of PD18.1
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     expert reports at the pre-action stage. If pre-action communications do not
     result in agreed arrangements for single joint report or joint expert medical
     examination and report, the intended plaintiff is entitled to commence legal
     proceedings forthwith, without risk as to costs, and to issue an inter partes
     summons, as soon as possible after the commencement of proceedings,
     returnable before the PI Master, to seek directions on obtaining expert
     medical evidence. Alternatively, the intended plaintiff can apply for the
     CLR hearing to be expedited for the same purpose.


     Expert evidence from clinical psychologists or psychiatrists

     22.             A psychiatrist is a medical doctor who has specialised in
     psychiatry. He can prescribe drugs and admit people to hospital. A clinical
     psychologist may have a doctorate degree but he does possess a medical
     degree. He is trained to administer psychological tests but he cannot
     perform physical examinations. He cannot prescribe drugs and he cannot
     admit people to hospital. Whilst a clinical psychologist can carry out
     psychotherapy and can advise on the plaintiff’s need for psychotherapy, he
     cannot advise on drug therapy. Where drug therapy is expected to play a
     role in the treatment of psychiatric injury, whether or not in conjunction
     with psychotherapy, expert opinion from a psychiatrist is preferable to
     opinion from a psychologist7. Where a case involves the assessment of
     cognitive impairment, a report from a psychologist, who is trained to carry
     out a battery of tests for such purpose, is to be preferred. In the latter case,
     unless a single joint expert is to be appointed, it is preferable for
     arrangements to be made for joint testing by the parties’ respective



     7
           There is an express requirement under the English Criminal Injuries Compensation
           Scheme for a psychiatrist’s opinion to be obtained before an award can be made.
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     psychologists. As Deputy Judge Carlson noted in Chu Man Ting v Kwan
     Kam Kei8:

                     “33. The fact remains that these IQ readings, as both experts
                     accept, are liable to be something of a movable feast depending on
                     the candidate’s performance on any given date.”


     23.             There appears to be a misconception that the courts will not
     readily grant leave for evidence from a psychiatrist or a psychologist to be
     adduced. The law of negligence does not provide a remedy for distress
     which does not amount to a recognised psychiatric illness 9 , unless the
     distress, anxiety or fear is accompanied by a physical injury. 10 The courts
     award damages where a party has suffered a recognisable psychiatric illness
     over and above emotional distress and disquiet. The court will almost
     invariably require expert evidence to determine whether or not this is the
     case 11 .   Even where it is not disputed that the plaintiff suffers from
     psychiatric illness, there may be a dispute as to causation: was the
     psychiatric illness caused or contributed to by the tort complained of. A trial
     judge who has to determine this issue of causation may need assistance from
     an expert in this field.


     24.             Indeed, in most cases, the need for psychiatric treatment or
     psychological counselling is apparent long before the commencement of




     8
           HCPI1039/2001, 30 January 2003
     9
           Wainwright v. The Home Office [2004] 2 A.C. 406; Hinz v. Berry [1970] 2 QB 40;
           Hicks v. Chief Constable of South Yorkshire Police [1992] 2 All ER 65; Reilly and
           Reilly v. Merseyside Regional HA [1995] 6 Med LR 246
     10
           Berhens v. Bertram Mills Circus Ltd. [1957] 2 QB 1; H. West & Son Ltd. V. Shepard
           [1964] AC 326, Kralj v. McGrath [1986] 1 All ER 54
     11
           Mullins v. Gray [2004] EWCA Civ 1483, at para. 12
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     proceedings. Inappropriate conduct or speech is noted by family members
     or recorded on the hospital records. Prolonged sadness, excessive anxiety,
     unusual irritability and temper tantrums are all indicia of possible
     psychiatric illness. These are often recognised by treating doctors and
     nurses and the patient referred to a psychiatric unit, whether in-patient or
     out-patient, for assessment and treatment. Even if the hospital records or
     treating doctors and nurses make no mention of a plaintiff’s psychiatric
     illness or possible psychiatric illness, orthopaedic or neurological experts
     examining a plaintiff in order to prepare expert medical reports on his
     physical condition will often recognise the presence of a psychological or
     psychiatric component and recommend that reports be obtained from
     relevant experts in that field. Each case must depend on its own facts and a
     mere recommendation without supporting reasons by an expert from
     another field may be insufficient, but where the need for psychiatric or
     psychological evidence is clear and obvious, there can hardly be any
     realistic challenge to a request for relevant expert examination and
     reporting.


     25.          In other cases, where there is no apparent indicia of a
     psychological component in addition to the physical injuries suffered by the
     plaintiff, the request for leave to adduce evidence from a psychiatrist or a
     psychologist will need to be properly justified. Such justification may be
     provided by submitting a written note from the intended expert setting out
     brief reasons explaining why the expert opinion is necessary in the
     particular case. However, for the reasons set out in §§18 and 19 above, a full
     medical examination and report should not be commissioned without
     agreement from the other party or leave of court.
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     26.          If the request is made late in the day, or close to the
     commencement of trial, it is likely to be refused even if justified. As Brooke
     LJ explained in Baron v. Lovell [2000] PIQR P20, each party is afforded an
     opportunity by the rules to make a well informed valuation of the claim and
     a well informed Part 36 offer (or, in Hong Kong, a sanctioned offer). The
     regime simply will not work if the former latitude in serving late evidence is
     allowed to persist. It is quite wrong for a trial to be delayed, and for the
     possibility of making an effective Part 36 offer (or, in Hong Kong, a
     sanctioned offer) to be rendered nugatory, because of the late service of an
     expert’s report.


     The present case

     27.          This is a medical negligence claim against the 2 nd defendant,
     the Secretary for Justice on behalf of The Secretary for Food and Health, in
     respect of the matters of complaint spanning from the period from 24 June
     1990 to 19 December 1991 and against the 1st defendant, the Hospital
     Authority, in respect of the matters complained of after 19 December 1991.
     It is alleged that the plaintiff was born at the Prince of Wales Hospital on
     23 July 1990 with a normal Apgar score and that, on 24 July 1990, the
     plaintiff was misdiagnosed as suffering from transposition of great arteries
     (“TGA”), and that the infant underwent unnecessary surgery on 26 July
     1990 when a balloon septostomy was performed. The surgery created an
     atrial septal defect (“ASD”), commonly described as “a hole in the heart”.
     Prior to its closure on 5 February 2003, it is alleged that the child’s normal
     growth and development was stunted and it is further alleged that the
     plaintiff suffers from life-time disabilities, consequent upon the unnecessary
     surgery performed on 26 July 1990 and negligent treatment during the
     period from March 1991 to August 2002.
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     28.         Substantial claims for damages had been advanced in the
     Revised Statement of Damages including a claim for future loss of earnings
     which was pleaded in these terms :

                 “IV. FUTURE LOSS OF EARNINGS

                      The Plaintiff is now aged 20. He is studying at Hong Kong
                      University of Science and Technology. The Plaintiff is
                      studying Chemical and Environmental Engineering. He
                      hopes this will lead to a B. Eng. Degree. The Plaintiff’s
                      future career will be restricted and in particular:

                      (a) His education progress was delayed and diminished
                          because of his disabilities and the constant medical
                          treatment.

                      (b) His future career prospects are limited by his physical
                          problems and in particular chest pains on exertion and
                          when under stress.

                      (c) His promotion prospects are reduced.

                      On graduation, the Plaintiff can anticipate earnings in the
                      region of HK$10,000 to HK$12,000 per month rising to
                      about HK$30,000 per month within 5 years. Were it not for
                      his disabilities his future earnings within 5 years would at
                      least HK$40,000. It is unlikely he will be able to move into
                      a management role with much higher earning since his work
                      experience will be more limited than able bodied colleagues.
                      Website pay analysis (USA) shows that higher salaries are
                      about 60% higher than lower salaries in this field e.g.
                      http://www.doe.mtu.edu/news/degree_ worth.html. It is
                      likely that the Plaintiff will be at the low end whereas were
                      it not for his disabilities he would be likely to be at the
                      higher end. Were it not for the negligence of the 1st and/or
                      2nd Defendants, their servants or agents, the Plaintiff’s
                      choice of his future employment would not be constrained
                      as it now is.

                      The Plaintiff’s choice of employment is limited. He will
                      suffer significant loss of earnings. Additionally, in the
                      future the Plaintiff will be at risk on the labour market and
                      more vulnerable in times of economic downturn or other
                      events outside his control. In the event that he loses his
                      employment or otherwise seeks new employment, he will
                      be at risk on the labour market.
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                       The Plaintiff’s academic development has been stunted so
                       he is precluded from high paid jobs requiring professional
                       or other high-level qualifications. He cannot perform any
                       high paid jobs that involving large physical effort. His loss
                       of earnings will be at least HK$10,000 per month.

                       The appropriate multiplier is 20. The Plaintiff’s claim for
                       loss of future earnings is:

                       HK$[10,000 (monthly loss) x 12 (months) x 20 (multiplier)
                       x 1.05 (MPF)]

                       FUTURE LOSS OF EARNINGS                     HK$2,520,000”


     29.           The proceedings were commenced on 18 December 2006 at
     which time the plaintiff was still an infant and he sued by his father and next
     friend, Mr Fung Kwai Fuk. After his 18th birthday, the pleadings were
     amended to enable the plaintiff to sue as an adult person.


     30.           Master Betty Kwan made orders at the Check List Review
     hearing on 24 July 2009, including an order that the medical expert on the
     issue of quantum be limited to a consultant in cardiology for each party.
     Dr David Hu was nominated as the plaintiff’s expert, and Dr Ng Yin Ming
     as the expert of the 1st and 2nd defendants. Directions were given by Master
     Kwan for their reports to be prepared and exchanged, and for supplementary
     reports to be prepared and exchanged.


     31.          Since then, the matter came before Master Roy Yu once on
     3 February 2010, and before Fung J on 11 March 2010 and 21 April 2010.
     On those occasions, there was no application for additional expert evidence
     on quantum to be adduced. Nor was any such application made before me
     when the matter came before me, on a case management conference, on
     10 November 2010, and at the pre-trial review on 16 February 2011.
     I ordered that no further additional expert medical reports were to be
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     obtained or adduced without leave of the PI Judge on the first occasion and,
     at the PTR on 16 February 2011, I ordered that Dr Hu and Dr Ng be called at
     trial to give oral evidence, that no further or additional expert medical
     reports were to be obtained or adduced without leave of the PI Judge, and
     that the case be set down for trial in the fixture list commencing on
     2 September 2011.


     32.          The plaintiff’s expert on liability and quantum is Dr Hu and
     the defendants’ expert is Dr Ng. In his report on quantum dated 19 August
     2009, Dr Hu recorded the complaint that, from 1996 until after the
     corrective surgery, the child had repeated respiratory symptoms of shortness
     of breath and suffered from edema, in particular in the lower limbs. His
     father recalled that he had difficulty feeding the infant as compared with his
     sisters. In 1996, the child was admitted to Princess Margaret Hospital due to
     generalized swelling, abdominal pain and skin rash. Dr Hu had examined
     the plaintiff on 12 August 2009. He gave the appearance of being a nervous
     boy. He had just finished his A-Level exams. He complained of chest pains,
     for which he took painkillers prescribed by doctors from Grantham Hospital,
     shortness of breath and inability to exercise or attend P.E. lessons since
     childhood. He expressed a deep suspicion and distrust of doctors. Dr Hu
     noted that the plaintiff’s self confidence and the way he viewed himself
     appeared to be low. His exercise stress test showed that the plaintiff was in
     normal cardiac rhythm but that he was only able to run 10 minutes on the
     treadmill when he should have been able to run 14 minutes. His heart rate
     had shot up to 190 beats per minute and he was extremely exhausted. Dr Hu
     expressed the opinion that his exercise function was comparable to that of a
     50-year-old man. He concluded that the delayed surgical repair brought
     about consequential morbidity and “deep psychological damage to this child
由此                                      - 18 -

     and family” and that the plaintiff suffered “physical and psychological
     impairment during teenage years with possible long-term consequences”.


     33.          Dr Hu stated that the current limitation of physical activity and
     the symptoms sensed by the plaintiff was likely to be a result of long-term
     self, or parental, imposed limitation; initially out of necessity from
     symptoms of heart failure. These limitations had been imposed in the long
     term since childhood and it had been reinforced in his mind all his life that
     he could not run or exercise. This would take long-term psychological
     treatment to correct, together with exercise therapy. Of prime importance
     was the need for psychological assessment and rehabilitation by
     psychologists and physical exercise regime by a cardiac rehabilitation
     specialist. His physical and psychological impairment had to be assessed by
     these specialists.


     34.          Notwithstanding this clear call from the plaintiff’s cardiologist,
     no application to call a clinical psychologist was made until recently.


     35.          The defendants’ expert, Dr Ng, prepared a report on quantum
     dated 3 November 2009 in which he stated that there could be psychological
     factors affecting the plaintiff’s physical ability after 2005. He was probably
     worried and distressed about his heart surgery and the presence of a sternal
     scar. He could not enjoy swimming like others because of the scar which he
     would consider to be unsightly. He might be affected by the frequent and
     multiple follow-up and investigations for the first year that he was seen at
     Grantham Hospital. He was old enough to understand the importance of the
     litigation and the imminent legal action and might worry about the results
     and compensation. Dr Ng expressed the opinion that the plaintiff might
由此                                          - 19 -

     have some psychological impact and disturbance with the surgery, the
     follow-ups, the scar, the attitude of the father and the litigation.


     36.            In conclusion, Dr Ng expressed the opinion that there was no
     deleterious side effect of the ASD on the plaintiff’s health or lifestyle before
     surgical repair as he had been enjoying good health with excellent growth
     (“97 percentile in weight and height”), and he had been participating in
     competitive basketball games. Dr Ng made the observation that there was
     no psychological impact on the plaintiff, nor any record of such impact,
     before he reached the age of 15, not even after the operation performed on
     5 February 2003, but that it surfaced with the timing of the legal action.


     37.            Dr Hu and Dr Ng cannot give expert opinion evidence on the
     psychological condition of the plaintiff, but neither can they give an opinion
     on the cause of any psychological condition suffered by him. In their joint
     report dated 31 May 2010, appears the following statement :

                    “From conversing with the patient and his father, Dr Ng felt that
                    there may be family pressure involved in influencing the
                    behaviour of Fung Chun Man and his exercise ability. Whilst,
                    Dr Hu felt that the inherent mistrust of the doctors made a
                    tremendous influence on the psychology of Fung Chun Man
                    which may have long-term consequences.”


     Dr Hu was clearly right to call for specialist opinion from a psychologist to
     be obtained.


     38.            Mr Neal Clough, who appeared on behalf of the plaintiff to
     seek leave to adduce the expert report of the clinical psychologist,
     Professor Peter Lee, complained that the underlying psychological
     problems should have been apparent over the years to the plaintiff’s treating
由此                                       - 20 -

     doctors and that these should have been addressed. Be that as it may, it is
     clear that both cardiologists alluded to the plaintiff’s suffering from a
     psychological condition, and that the plaintiff’s own expert expressly stated
     that an opinion should be sought from a psychologist. In the light of that, I
     do not understand the submission made to me by Mr Clough that there was
     nothing in the medical history to indicate any psychological overlay. It may
     well be that, before he attained the age of 18, the plaintiff’s case was
     conducted by his father and instructions were given on the basis of the
     plaintiff’s physical complaints, and not his psychological problems, and that,
     on attaining his majority, he was still influenced by his father. Nevertheless,
     the need to obtain a psychological report was apparent as early as Dr Hu’s
     report dated 19 August 2009. There was no good reason advanced to me to
     explain why it should take almost 2 years to obtain legal aid approval and to
     make the present application.


     39.          The plaintiff’s claim for future loss of earnings as pleaded in
     his Revised Statement of Damages was pleaded without the benefit of
     Professor Lee’s psychological report. To that extent, the inability to adduce
     his report is not fatal to the plaintiff’s claim, although it must be recognised
     that the plaintiff would not have the benefit of Professor Lee’s opinion that
     the plaintiff’s social awkwardness, distress of his body, together with
     chronic physical malaise, as well as pervasive sense of inferiority, will
     likely impose a highly adverse impact on his future career attainment.
     However, the absence of that opinion evidence at trial will not prevent me
     from making my own assessment of the personality of the plaintiff, when he
     gives evidence before me, the factors that affected his development into
     adulthood, and what adverse impact, if any, that development and his
     personality, would have on his future career prospects.
由此                                       - 21 -

     40.          Apart from supporting the claim for loss of earnings,
     Mr Clough said that he wished to rely on the expert opinion of Professor
     Peter Lee at trial on the quantum of the PSLA award by demonstrating that
     the plaintiff suffered from an adjustment disorder, with mixed anxiety and
     depressive symptoms of a chronic nature, of mild to moderate intensity.
     However, the absence of that opinion would not prevent me from taking into
     account the anxiety and emotional state of the plaintiff, suffered as a result
     of his heart condition over the years of his growth from childhood to
     teenager to young adult, and his current emotional state, and to adjust the
     award for PSLA accordingly. The court can award damages for anxiety and
     emotional distress consequent upon physical injury suffered by the plaintiff.


     41.          Clearly, absent the opinion of Professor Peter Lee, Mr Clough
     cannot advance a claim for the costs of counselling.            However, he
     acknowledged that the reason for the application was primarily to support
     the claims for future loss of earnings and PSLA, and not so much to claim
     the costs of counselling.


     42.          Mr Sakhrani appeared on behalf of the 1st defendant to oppose
     the application and his submissions were adopted by Mr Wong, who
     appeared for the 2nd defendant. Mr Sakhrani submitted that the defendant
     opposed the granting of leave to adduce Professor Lee’s report as his views
     were highly contentious and disputed by the defendants. The defendants’
     case was that this was a case of a son who was affected by the actions of an
     obsessional father. There were controversial issues of causation and if
     expert evidence were to be admitted, to assist the court to decide to what
     extent the heart condition of the infant impacted on the plaintiff, as opposed
     to the influences of his father and his own personality traits, the trial would
由此                                        - 22 -

     be lengthened, even if such evidence could be adduced in time for trial
     commencing in September 2011.


     43.          Whilst I am not sure that I agree with the submissions of
     Mr Sakhrani that this case was more appropriate for the opinion of a
     psychiatrist, as opposed to a psychologist, I certainly accept that a person’s
     motivation can have a huge impact on the results of psychological tests
     administered on him. It is for this reason that such tests should be conducted
     jointly by the two psychologists nominated by the parties, in cases where a
     single joint expert is not appointed. That, however, is a luxury not available
     to the parties in the present case without derailing the trial dates or, at the
     very least, prolonging the duration of trial.


     44.          I also accept the submission of Mr Sakhrani that the need for a
     psychological expert report was apparent as early as 3 November 2009
     when Dr Ng prepared this report on quantum. Indeed, the need for such
     evidence was apparent even earlier, when Dr Hu reported on quantum in his
     report dated 19 August 2009.


     45.          Balancing the impact of the psychological evidence on the
     quantum of the plaintiff’s claims; the cost implications of allowing
     Professor Peter Lee’s report to be adduced and granting leave to the
     defendants to obtain a report from their nominated psychologist, with the
     consequent need for a further joint report from the psychologists; the
     likelihood of the trial dates being derailed by this process or, at the very least,
     the trial being lengthened by the additional expert evidence which is likely
     to be contentious, particularly as regards the cause of the plaintiff’s current
     psychological condition, if any, I had little hesitation, seeing that the
由此                                        - 23 -

     application was made so late in the day and at the eve of trial, to dismiss it.
     In this case, the expert evidence sought to be adduced is from a recognised
     discipline. The evidence is reasonably required to enable me to resolve the
     issues in dispute although, for the reasons explained above, I would not be
     seriously affected in my ability to resolve this case without that evidence.
     I am also prepared to accept that the costs of adducing such evidence are
     proportionate, perhaps just barely proportionate, to the sums at stake.
     However, the potential disruption to the trial, and the absence of a good
     explanation for the late application, have led me conclude that I ought to
     dismiss this application.


     45.          I cannot conclude this judgment without expressing my
     dissatisfaction at the fact that the full report of Professor Lee dated 25 May
     2011, and numbering some 40 pages, was submitted to me under cover of
     the plaintiff’s solicitors’ letter dated 3 June 2011, less than a week before the
     hearing on 9 June 2011, as a “Draft Clinical Psychological Report”.
     I cannot understand how this report can be described as a draft report when
     it contains a declaration signed by Professor Lee that he has compiled with
     in accordance with the code of conduct for expert witnesses contained in
     Appendix D of O.38 of the RHC, and when he has appended his statement
     of truth at the end of the report stating that he believed that the facts stated in
     the report were true and the opinion expressed in it were honestly held. This
     is a solo expert report obtained by the plaintiff without the leave of the court,
     obtained in breach of the protocol for commissioning joint reports contained
     in PD18.1, and obtained in breach of my orders of 10 November 2010 and
     16 February 2011. Calling it a draft report does not change its character. If
     the plaintiff had not commissioned this full report but had simply relied
     upon Professor Peter Lee’s earlier letter of 7 April 2001, in which he
由此                                       - 24 -

     justified the need for a comprehensive assessment of the plaintiff’s
     psychological status and well being, and if the plaintiff’s solicitors had
     expedited the application before me for leave to obtain such evidence, I may
     well have been persuaded to appoint a clinical psychologist as a single joint
     expert for all the parties, particularly given the earlier call for such evidence
     by Dr Hu. At that time, an expedited single joint expert, to be adduced
     without calling oral evidence, could have been obtained without disrupting
     trial dates.




                                                   (Mohan Bharwaney)
                                            Judge of the Court of First Instance
                                                        High Court


     Mr Neal Clough, instructed by Messrs Henry H.C. Wong & Co.,
        for the Plaintiff

     Mr A. Sakhrani, instructed by Messrs P.C. Woo & Co., for the 1st Defendant

     Mr Geoffrey Wong, SGC of the Department for Justice, for the
        2nd Defendant

				
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