LEE CHUI YING AND ANOTHER v. CHAN YEE LING ELAINE

DCPI 1665/2011

[2020] HKDC 1249

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1665 OF 2011

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BETWEEN

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DECISION

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1.  In dismissing both the 2^nd plaintiff’s claim and the defendant’s counterclaim, I made an order nisi that there be no order as to costs. Following the disclosure to the Court of the parties’ pre-trial attempts to settle the matter, the costs order nisi was so varied that:-

(a) The costs of these proceedings, including any reserved costs, incurred by the 2^nd plaintiff from 29 November 2014 be paid by the defendant to the 2^nd plaintiff, to be taxed on an indemnity basis if not agreed with certificate for one counsel;

(b) Interest on those costs above to be at 2% above judgment rate;

(c) Costs of the 2^nd plaintiff’s summons and the defendant’s summons (including costs of the hearing) be to the 2^nd plaintiff with certificate for counsel (“the Costs Order”).

The Application

2.  The main reason for the Costs Order was that the October 2014 Sanctioned Payment made by the 2^nd plaintiff ought to have been taken into account in determining the parties’ costs liability. The defendant now applies for leave to appeal against the Costs Order.

The principles

3.  Section 63A(2) of the District Court Ordinance, Cap 336 provides as follows:

“(2) Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that …

(a) the appeal has a reasonable prospect of success;

(b) there is some other reason in the interests of justice why the appeal should be heard.”

4.  The test governing applications for leave to appeal is well-established. “Reasonable prospect of success” involves the notion that the prospects of appeal must be reasonable and more than fanciful, without having to be probable: Wing Tat Haberdashery Co Ltd v Elegance Development & Industrial Co Ltd, unreported, HCMP 357/2011, 8 July 2011.

5.  Costs is of course a matter of discretion. It is trite law that the Court of Appeal will not interfere with the judge’s exercise of discretion unless it is satisfied that the judge failed to exercise the discretion, or exercised it on a false principle, or did not exercise it judicially, or the exercise of discretion was demonstrably flawed: Lee Yui Kai v TD Co Ltd v Others[2019] HKCA 256, at §35. Hence, the Court of Appeal will not interfere with a costs order merely because it would have exercised the discretion differently: See Hadmor Productions Ltd v Hamilton [1983] 1 AC 191.

The Draft Grounds of Appeal

6.  The defendant has put forward 5 grounds of appeal. I shall now deal with them one by one.

Grounds (1) and (2)

7.  Both grounds (1) and (2) concern the validity of the October 2014 Sanctioned Payment made by the 2^nd plaintiff and can be dealt with together.

8.  To recap, before the 2^nd plaintiff made the October 2014 Sanctioned Payment, she had made 4 offers to settle. For various reasons (the readers of this Decision are referred to my earlier Decision dated 20 March 2019), those offers were ineffective and unable to serve their intended purpose. As for the October 2014 Sanctioned Payment, there was no serious dispute that it was validly made. In fact, the defendant did not raise any objection to the validity of the October 2014 Sanctioned Payment in counsel’s written submissions or during the substantive hearing.  In any event, the defendant now seeks to argue that it was irregular and that it was supposed to confine to the settlement of the counterclaim of the defendant. The irregularity, according to the defendant, arises from the fact that the 2^nd plaintiff’s offer to settle by way of the October 2014 Sanctioned Payment should be considered an offer to settle the counterclaim and not the whole of the action. If the 2^nd plaintiff wished to settle the entire action (including her own claim), she should have made a sanctioned offer under Order 22 rule 4 rather than using the prescribed Form 23 and making a sanctioned payment under Order 22 rule 8. In other words, only a defendant can make an effective sanctioned payment.

9.  The defendant further argues that the October 2014 Sanctioned Payment was unclear and led to confusion. In particular, the defendant argues that one can be confused whether the October 2014 Sanctioned Payment also covers the 2^nd plaintiff’s claim against the Defendant.

10.  I have no sympathy for the defendant’s arguments.  First, by definition, a counterclaim is a claim and a defendant to a counterclaim (though also suing in his original capacity as a plaintiff) is considered a defendant. The 2^nd plaintiff, as a defendant to counterclaim, is certainly entitled to offer to settle the counterclaim by making a sanctioned payment under rule 8.  Secondly, there can be no confusion over the effect of the October 2014 Sanctioned Payment, which is clearly entitled:

No.23

NOTICE OF SANCTIONED PAYMENT

ORDER 22 RULE 8(2)

11.  Further, aside from stating that “the 2^nd Plaintiff CHEUNG MAN KOK has paid $50,000 into court in settlement of the whole of your claim” (ie the defendant’s counterclaim), it is also stated in the Form that it “takes into account all (part) of the following counterclaim or set off” and that “[t]he 2^nd Plaintiff’s claim of HK$100,000 made herein shall be wholly discontinued and set off against the Defendant’s counterclaim made herein, upon the Defendant’s acceptance of this payment in court …”.

12.  The terms and conditions under which the October 2014 Sanctioned Payment were made are plain and clear. There is no basis for the saying that the sanctioned payment in question only serves to “settle the opposite side’s claim and not otherwise” (§20 of the defendant’s written submissions).

13.  Counsel for the defendant has made lengthy reference to the case of Montrio Ltd v Tse Ping Shun David (unreported, HCA 757/2009, 29 November 2011) in the written submissions for the defendant. Suffice it to say the case stresses the importance of strictly following the rules in making a sanctioned offer. There is nothing in it that supports the notion that a defendant to a counterclaim cannot make a sanctioned payment.

14.  Grounds (1) and (2) are in my view unmeritorious.

Ground (3)

15.  The gist of ground (3) is that the defendant was able to do better than the October 2014 Sanctioned Payment.

16.  It is not understood how it can be said that the defendant did better than the settlement offer at the end. In considering whether the defendant was able to beat the October 2014 Sanctioned Payment, one must not lose sight of the fact that the 2^nd plaintiff in making the sanctioned payment offered to (a) pay $50,000 to the defendant, and (b) discontinued her own claim. Plainly, the defendant was not awarded more than she had been offered.

17.  The defendant further argues that “…this is a special case to which the names of the parties matter… and the outcome [of the trial] vindicates her name.” and thus she should be considered a winner (§40 and 41 of the defendant’s written submissions).

18.  In this case, there has been no attempt by this court to “vindicate” the name of anyone. After all, this is a personal injury action, and it is not the concern of the court to restore the reputation of either party. In any event, both the claim and counterclaim were dismissed after trial and there was no finding (which is of course unnecessary) that the defendant was more believable than the 2^nd plaintiff, or vice versa. There simply does not exist any basis for the contention that the defendant “won” after trial.

19.  The defendant seems to have suggested that the 2^nd plaintiff was the “aggressor”, and she was somehow innocently dragged into prolonged litigation (§§44-45 of the defendant’s written submissions). Suffice it to say that the defendant was the one who made an over HK$1 million counterclaim for damages for personal injuries, malicious prosecution and aggravated damages for false imprisonment when facing a much smaller claim. And, it was the 2^nd plaintiff, not the defendant, who had been making serious attempts to settle.

Ground (4)

20.  Ground (4) hinges entirely on grounds (1) to (3) (§7 of the draft Notice of Appeal. As grounds (1) to (3) carry no merits. Ground (4) is liable to fail.

Ground (5)

21.  Ground (5) reads “… the 2^nd Plaintiff is the principal partner of the firm of solicitors representing her where a genuine concern exist as to whether there were payment of legal costs to the said firm of solicitors which would justify the said compensatory order.” .

22.  It should be noted that the defendant did raise her concern (which is again a suspicion not founded in evidence) in her written submission or during the substantive hearing of the variation of costs application. In any event, the so-called concern belongs to same category of unsubstantiated allegations against the 2^nd plaintiff like “she caused P1 to sue me”, “she sued me to gain profits for her firm”, and so forth.

23.  Ground (5) is in my view equally unarguable.

Conclusion

24.  In my view, all the proposed grounds of appeal are without merits. I therefore dismiss the defendant’s application for leave to appeal with costs to the 2^nd plaintiff with certificate for counsel.

25.  I thank both counsel for their assistance. 

Ms Fiona Chong, instructed by Christine M Koo & Ip, Solicitors & Notaries LLP for the 2^nd plaintiff

Mr Wong Chao-wai Brian, instructed by Wai & Co, Solicitors for the defendant

DCPI 1665/2011

[2019] HKDC 377

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1665 OF 2011

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DECISION

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1.  In dismissing both the 2^nd plaintiff’s claim and the defendant’s counterclaim, I made an order nisi that there be no order as to costs. Both the 2^nd plaintiff and the defendant now seek to vary the costs order nisi.

The applications

2.  By her summons dated 29 August 2016, the 2^nd plaintiff seeks indemnity costs and enhanced interest against the defendant.  Specifically, the 2^nd plaintiff seeks an order that all the costs incurred by her after 24 September 2013 be paid by the defendant on an indemnity basis.  The 2^nd plaintiff also asks for certificate for two counsel.  By another summons dated 31 August 2016, the defendant seeks to vary the costs order nisi to the effect that the 2^nd plaintiff “do pay the defendant costs or a certain percentage of the proceedings.”

The rules

3.  The rules governing the exercise of the court’s discretion are to be found in Order 62 of the Rules of the District Court (“RDC”).  Rule 5 provides as follows:-

“(1) The Court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account—

(aa) the underlying objectives set out in Order 1A, rule 1;

(a) …

(b) any payment of money into court and the amount of such payment;

(c) …

(d) any written offer which is expressed to be “without prejudice save as to costs” and which relates to any issue in the proceedings, but the Court may not take the offer into account if, at the time it is made, the party making it could have protected his position as to costs by means of a sanctioned payment or a sanctioned offer under Order 22;

(e) the conduct of all the parties;

(f) …

(g) any admissible offer to settle made by a party, which is drawn to the Court’s attention.

(2) For the purpose of paragraph (1)(e), the conduct of the parties includes—

(a) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(b) the manner in which a party has pursued or defended his case or a particular allegation or issue;

(c) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim; and

(d) conduct before, as well as during, the proceedings.”

4.  Order 22, Rule 5 of the RDC provides for the form and content of a sanctioned offer.

The 2^nd plaintiff’s summons

5.  The 2^nd plaintiff had been attempting to settle with the defendant since 2013.

6.  By a letter dated 27 August 2013, which is said to be a sanctioned offer and referred to as “August 2013 Offer” in this hearing, the 2^nd plaintiff through her solicitors offered to settle on the following terms:-

(a)   The defendant discontinue her Counterclaim in the action here.

(b)   The 2^nd plaintiff discontinues her Claim in the action here.

(c)   There be no order as to costs.

7.  By a letter dated 4 February 2014, marked “Calderbank Offer”, the 2^nd plaintiff made another attempt to settle on the same terms (“the February 2014 Offer”).

8.  About a month later, by another letter dated 7 March 2014 which is marked “Sanctioned Offer”, the 2^nd plaintiff offered to pay $48,000 to the defendant and proposed that the parties discontinued their respective claim against each other (“the March 2014 Sanctioned Offer”).  Unlike the August 2013 Offer, the March 2014 Sanctioned Offer made no reference to costs.

9.  By yet another letter to the defendant dated 7 April 2014, which is marked “Calderbank Offer”, the 2^nd plaintiff improved her last offer by agreeing to pay costs of the defendant in defending the 2^nd plaintiff’s claim up to the date of the Amended Defence and Counterclaim (“the April 2014 Offer”).

10.  By a letter dated 2 September 2014 and marked “Without Prejudice”, the 2^nd plaintiff offered to pay a global sum of $200,000 to settle all the disputes between the parties (“the September 2014 Offer”).

11.  On 29 October 2014, the plaintiff made a sanctioned payment in the sum of $50,000 (“October 2014 Sanctioned Payment”).

12.  I shall now deal with the various settlement offers.

13.  In so far as the August 2013 Offer is concerned, although it is said to be a sanctioned offer, there being a specific provision as to costs, it cannot be a valid sanctioned offer: Wong Yim Man Anthea v Wong Ho Ming Felix [2016] 3 HKLRD 249.  Thus, the defendant cannot be said to be wrong in ignoring it.

14.  As for the February 2014 Offer, Ms Lau, counsel for the defendant, argues that the offer is subject to the exclusionary rule under O  62, r 5(1)(d) because the 2^nd plaintiff could have protected her position by means of a sanctioned payment or sanctioned offer.

15.  On this issue, I agree with Ms Lau.  Although the letter in question is not marked “without prejudice save as to costs”, unlike the offer in Ming An Insurance Co (HK) Ltd v Ritz Carlton Ltd ((2009) 12 HKCFAR 745), it is not an open offer.  The letter is ended with the remark “This letter will be produced to the Court when the matter of costs and interest are adjudicated.”  Clearly, the 2^nd plaintiff made the offer on a without prejudice basis.  Given that the offer was intended to work and treated as a without prejudice offer, it is in my view subject to the exclusionary rule.

16.  As for the March 2014 Sanctioned Offer, Ms Lau argues that the offer is also subject to the exclusionary rule under O 62, r 5(1)(d) because the 2^nd plaintiff ought to have made a sanctioned payment rather than a sanctioned offer.  I am not aware of any rule against a sanctioned offer as such but can understand the rationale behind Ms Lau’s argument.  In this case, the 2^nd plaintiff did make a sanctioned payment in October 2014.  I agree with Ms Lau that there was nothing to prevent the 2^nd plaintiff from making a sanctioned payment back in March 2014.  Applying the same rationale that prefers payment into court to a calderbank offer when the party is in a position to make a payment into court, I take the view that the 2^nd plaintiff cannot rely on the March 2014 Sanctioned Offer.

17.  The April 2014 Offer is not marked “without prejudice save as to costs”.  However, like the February 2014 Offer, the offer was made on a without prejudice basis.  It is in my view also subject to the exclusionary rule.

18.  The September 2014 Offer, which was marked “without prejudice”, is clearly subject to the exclusionary rule.

19.  As for the October 2014 Sanctioned Payment, there is no serious dispute that it was validly made.  The defendant had 28 days to decide whether she should accept the sanctioned payment.  The adverse costs consequences from her refusing the sanctioned payment arose on 26 November 2014.

20.  Ms Lau further argues that any costs awarded against her client should be assessed as if the action were commenced in the Small Claims Tribunal.  Reference is made to my assessment that damages for pain, suffering and loss of amenities should be $15,000 (in case the defendant won).  Given the defendant’s counterclaim, which is for a sum vastly in excess of the jurisdiction of the Small Claims Tribunal, I have no sympathy for such argument.

21.  Ms Chong, counsel for the 2^nd plaintiff argues that there should be certificate for two counsel.  Whilst I fully appreciate that the parties have their names to protect, this is not a complicated case.  I will give certificate for one counsel.

The defendant’s summons

22.  The defendant has filed a lengthy affirmation in support of her summons that she be paid a certain percentage of the costs of the proceedings.  Ms Lau has made no attempt to clarify how much costs should be awarded to her client.  In any event, most if not all of the matters stated in the defendant’s affirmation, including the allegation of fraud, illegal funding of litigation, the 2^nd plaintiff pressurizing the police into arresting the defendant and trying to make profit costs out of these proceedings and so forth, are pure speculations and not supported by any evidence of substance.  I have no hesitation in dismissing the defendant’s summons.

Orders

23.  The costs order nisi be varied that:-

(a)   The costs of these proceedings, including any reserved costs, incurred by the 2^nd plaintiff from 26 November 2014 be paid by the defendant to the 2^nd plaintiff, to be taxed on an indemnity basis if not agreed with certificate for one counsel;

(b)   Interest on those costs above to be at 2% above judgment rate;

(c)   Costs of the 2^nd plaintiff’s summons and the defendant’s summons (including costs of the hearing) be to the 2^nd plaintiff with certificate for counsel.

24.  I thank both counsel for their assistance.

DCPI1665/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1665 OF 2011

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JUDGMENT

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1.  This action arose out of a scuffle in the form of a tug of war between two solicitors that happened at the office of Messrs. Christine M. Koo & Yip (“the Firm”) on 30^th July 2011. The 2^nd Plaintiff alleges that she was assaulted, or alternatively negligently injured by the Defendant, and in turn, the Defendant alleges that she was assaulted and falsely imprisoned by the 2^nd Plaintiff. The issue central to this case is which of the two diametrically opposed versions of the incident should be accepted.

The Parties

2.  The 2^nd Plaintiff is and was at the relevant times the principal partner of the Firm. The 1^st Plaintiff, who has discontinued her action against the Defendant, used to be a secretary to Mr. Victor Yau (“Mr. Yau”), a partner of the Firm. The Defendant was an “associate” of the Firm. The capacity in which the Defendant was engaged is an issue that the parties have been vigorously debating since 2011, and is pending adjudication by the Labour Tribunal.

The 2^nd Plaintiff’s Case on Liability

3.  The parties tell two different stories. The following is a summary of the 2^nd Plaintiff’s.

4.  According to the 2^nd Plaintiff, the Defendant, held out as an “associate” though, was not an employee but an independent contractor of the Firm who was remunerated by commission. On 25^th July 2011, the Defendant’s engagement under the letter of appointment dated 17^th January 2011 (“the Letter of Appointment”) was terminated by mutual agreement.

5.  On 30^th July 2011 at around 10:00 a.m., the Defendant attended the office of the Firm.  She was brought to a conference room and told to wait there. After a while, the 2^nd Plaintiff and an accounting clerk called Ah Man joined the Defendant in the conference room. Ah Man gave the Defendant 4 cheques, each of which was accompanied by a voucher, and a commission table. The Defendant took issue with the commissions for the months of July, August and September and told the 2^nd Plaintiff that she wanted to see Mr. Yau, another partner of the Firm who was supposed to have better knowledge of the matters relating to the Defendant’s commissions. However, Mr. Yau was not in the office on that day. Attempts were made to contact him but to no avail. The 2^nd Plaintiff asked the Defendant to sign the documents that she had just been provided. The Defendant refused. Instead, she took pictures of the documents with her mobile phone. After taking pictures of the cheques, vouchers and commission table, the Defendant put them into a black recycle bag (“the Bag”). The 2^nd Plaintiff asked for the return of the vouchers and commission table but the Defendant refused. She claimed that she wanted to take the documents to the Inland Revenue Department because she believed that they contained incriminating evidence against the Firm. The 2^nd Plaintiff offered to provide the Defendant with copies of the documents and asked her to return the originals. The Defendant insisted that the documents belonged to her and refused to return any of them.

6.  The 2^nd Plaintiff then instructed her staff to make a report to the police and seek help from the security office. The Defendant was at that moment busy making telephone calls. Apparently, she was trying to reach Mr. Yau. She also appeared to have made a report of theft to the police. The Defendant finally managed to get Mr. Yau on the phone. The 2^nd Plaintiff did not know what was being discussed but heard that the Defendant was yelling at the phone. The 2^nd Plaintiff told Mr. Arthur Chan (“Arthur Chan”), a para-legal who was also there, to try to talk to the Defendant. As it was very noisy, Arthur Chan did not appear to have noticed what the 2^nd Plaintiff was talking to him. The 2^nd Plaintiff then decided to resort to self-help and grabbed the Bag, which was lying on the conference table. On seeing that, the Defendant grabbed the Bag from across the table. A tug of war and scuffle ensued. In the scuffle, the Defendant extended her arm to scratch or poke or punch the 2^nd Plaintiff in her face, causing her injuries in the nose and inside of the month. The 1^st Plaintiff, who was trying to calm them down, was bitten in the right forearm by the Defendant.

7.  The Defendant managed to get the Bag back. She then sat on a chair, took out her phone, and reported a case of false imprisonment. The police arrived after a moment and took over the scene.

The Defendant’s Case on Liability

8.  The Defendant’s case is that she was a solicitor employed by the Firm.  On 25^th July 2011, out of disagreement with the Firm’s practice, she gave two months’ notice to terminate her employment. At around 10:00 a.m. on 30^th July 2011, she returned to the office of the Firm. However, she was denied access to her room and was told to wait in the conference room. After a while, the 2^nd Plaintiff and Ah Man came with some cheques, vouchers and a commission table. Although she disagreed with the amounts payable to her, she put the cheques, vouchers and commission table into the Bag and decided to leave. The 2^nd Plaintiff asked for the return of the vouchers and commission table, the Defendant refused. The Defendant then stood up and left. As she was walking out of the conference room, she said to the 2^nd Plaintiff that she would make a report to the Labour Department. Upon hearing that, the 2^nd Plaintiff rushed to her and grabbed the Bag, which was on the Defendant’s right shoulder. The 2^nd Plaintiff grabbed the Bag with such force that the Defendant was caused to sprain her shoulder and lose balance. Her glasses were also thrown to the ground.

9.  The 2^nd Plaintiff then asked Arthur Chan to block the door. The 2^nd Plaintiff also asked the 1^st Plaintiff to help retrieve the documents from the Bag.  A bi-parte tug of war turned into a tri-parte one. After some pulling and screaming the 2^nd Plaintiff pulled the Defendant to a chair and put her neck in an arm lock. In the midst of the chaos, the 1^st Plaintiff’s forearm came into contact with the month of the Defendant. The contact was, according to the Defendant, purely accidental and not due to any intention on her part to bite the 1^st Plaintiff.

10.  The tug of war came to an end with the Defendant succeeding in defending the Bag. While the parties were waiting for the police, the 2^nd Plaintiff expressly instructed the 1^st Plaintiff to tell the police that the Defendant had bitten her deliberately. The 2^nd Plaintiff also instructed Arthur Chan not to tell the police that they had prevented the Defendant from leaving.

The Law

11.  As the disputes are purely factual in nature and the legal principles are not dispute, the law can be stated briefly.

12.  Battery is the direct imposition of any unwanted physical contact on another person, while assault is an act which causes another person to apprehend the infliction of immediate, unlawful force on his person. To constitute assault, the defendant’s act must be coupled with the intention to carry the battery into effect: Clerk & Lindsell on Torts (21^st ed.) at §15-09 & §15-12.

13.  False imprisonment is committed when a claimant has suffered a complete deprivation of liberty for any amount of time, however short, without lawful cause, and in the absence of any lawful authority on the part of the defendant to justify such imprisonment. The claimant must also show that the defendant had the necessary intention as well as the ability to detain the claimant: Clerk & Lindsel on Torts (21^st ed.) at §15-23 & 15-27.

Creditability of Witnesses

14.  No doubt this case will turn on the credibility of the 2^nd Plaintiff and the Defendant. The relevant principles in assessing the creditability of witnesses are summarised by Chu J. in Ip Fung Kuen HCA 1897/2009 (unreported, date of judgment: 6^th April 2016) at §65-67:

“65. The relevant principles in assessing a witness’s evidence have been set out by Poon J (as he then was) in Big Island Construction (HK) Ltd v Wu Yi Development Co Ltd (unreported) HCA 1957/2005, 28 July 2011; and DHCJ Eugene Fung SC in Hui Cheung Fai v Daiwa Development Ltd (unreported) HCA 1734/2009, 8 April 2014.

66. In Big Island Construction (HK) Ltd , the then Poon J had explained as follows:

“24. In assessing credibility, the court takes into account, among other things, the inherent probabilities or improbabilities of one’s testimony, the contemporaneous documents or any evidence, which is undisputed or indisputable, tending to support or contradict one account or the other and the overall impression of the characters and motivations of the witnesses: see In re B (Children), supra, per Baroness Hale at para 31 at p.24, applied by this court in Standard Chartered Bank v Li Wai Ping & others, HCA10587/2000 & HCA3575/2003, 17 February 2011, unreported, at para19. Where there exists a wealth of contemporaneous documents, credibility is to be tested by reference most particularly to them : see Esquire (Electronics) Ltd v Hong Kong & Shanghai Banking Corp. Ltd [2007] 3 HKLRD 439, per Stock JA (as he then was) at para.158 at p.494”

67. In Hui Cheung Fai , DHCJ Eugene Fung SC has said:

“76. In making my findings of fact in this case, I am guided by a number of general principles which judges apply as to fact finding and the assessment of credibility.

77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in questionemerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce). … 

78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).

79. In determining a witness’s credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence.  The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36-37 (Bokhary PJ)), or from the assessment of the witnesses’ character (Esquire (Electronics) Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA)).

81. The practical approach to assessing credibility of witnesses in a case such as the present may have best been summarised by the words of Robert Goff LJ, as he then was, in The Ocean Frost [1985] 1 Lloyd’s Rep 1 at 57:

‘Speaking from my experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.’

82. Whilst these words were spoken in the context of a fraud case, I believe they are applicable to any case where a witness’ credibility features prominently in the court’s determination.  They are particularly apposite in a case like the present where very serious allegations (akin to allegations of fraud) have been made by the Son against the defendants.”

Criminal Proceedings

15.  In 2012, the Defendant was convicted after trial for two charges of assault occasioning actual bodily harm to the 1^st and 2^nd Plaintiffs. On appeal, the convictions were quashed. 

Witnesses

16.  Apart from the 2^nd Plaintiff and the Defendant, none of the parties involved in the incident was called as a witness. Thus, I have to decide this case purely on the evidence of the 2^nd Plaintiff and the Defendant without the benefit of evidence of independent witnesses.

Collateral Issues Relevant to Credibility

17.  The parties have raised quite a number of collateral issues, such as the relationship between the parties, the Firm’s mode of operation, the Defendant’s attitude towards other partners of the Firm, the way in which the Defendant’s service was brought to an end, and so forth. Strictly speaking, those issues are not directly relevant to the issues to be decided. However, as the parties’ evidence on the collateral matters is relevant to their general credibility, both counsel submit and I agree that I should proceed to deal with them. Having said that, given that the employee/independent contractor issue is to be resolved in the Labour Tribunal, I shall refrain from making any finding on the Defendant’s status while with the Firm.

18.  I shall deal with the case of the Defendant first as most of the collateral issues are raised by her.

19.  Much has been made of the status of the Defendant. The 2^nd Plaintiff’s case is that she was an independent contractor of the Firm held out in the name of an “associate”. Her package comprised an advance commission of $10,000 per month, which would be set off against the actual commission earned by her. On the other hand, the Defendant’s case is that she was an employee of the Firm earning a basic salary of $10,000 per month. In addition to her basic salary, she was remunerated by way of commission for the work she actually undertook.

20.  Mr. Pang for the 2^nd Plaintiff submits that the Defendant’s case is inconsistent with the Letter of Appointment and the contemporaneous emails between the Defendant and Mr. Yau.  In so far as the Appointment Letter is concerned, I agree with Mr. Pang that the Defendant’s case is inconsistent with some of the terms of the Letter of Appointment. For instance, the Letter of Appointment provided:

“Clause 2: The Defendant will be paid an advance commission at the rate of HK$10,000 per month which will be set off against commission earned;

Clause 6: The Defendant shall be responsible for her own CPD and MPF and practicing certificate while the Firm will be responsible for the Defendant’s professional indemnity insurance premium;

Clause 8: It is mutually agreed that there is no employer/employee relationship between the Firm and the Defendant.”  

21.  The Defendant’s answer in her witness statement and in court is that the Letter of Appointment produced by the 2^nd Plaintiff is a forged document. The allegation is no doubt a very serious one. Having been a litigation lawyer for many years, the Defendant must be fully aware of the seriousness of the allegations and the heavy burden on her to prove such allegation.  However, she has made no attempt to prove what she alleges. Her readiness to make a serious allegation against another professional without bothering to prove it casts doubt on her general credibility and is a matter that I have to take into account in assessing her evidence.

22.  Also for the emails between the Defendant and Mr. Yau, Mr. Pang submits that the Defendant was so rude in her emails that she did not act like an employee. Whilst I agree that the Defendant might appear to be rude, I do not think the apparent lack of respect for Mr. Yau or other partners of the Firm is necessarily conclusive of the Defendant’s status. What concerns me is not the Defendant’s attitude generally but the fact that she considered that she had the right not to follow instructions. The following emails of her to Mr. Yau are telling:

(1) 7^th April 2011: “For the avoidance of doubt, please note that I am not prepared to send you the progress report on a regular basis.”

(2) 8^th April 2011: “Please do not mix up the matter and waste my time to do any non-paid work.”

(3) 27^th April 2011: “Let’s discuss the matter AFTER you received costs on account from client.”

(4) 19^th July 2011: “1. I am a professional charging at a hourly rate. Hence, I am not going to do anything for you not to get paid. 2. If you are so concerned the progress of DLA files, it is better for you to handle them independently, then you know the progress direct…”

(5) 21^st July 2011: “I am not going to spend extra hours for non-chargeable thing (i.e. to communicate with you and spend extra time to concldue the matter) … I consider that I do have the right to say “NO”. Be remember, I am not your staff.”

23.  The Defendant’s evidence under cross-examination is that she had never seen any of these emails before she was served a copy of the 2^nd Plaintiff’s supplementary witness statement. During cross-examination, she said she suspected that the emails produced by the 2^nd Plaintiff had been edited. She even tried to blame her secretary for writing and sending some of the emails. I find the Defendant’s evidence wholly incredible. Given her background, had she been confronted with emails that had been edited or otherwise tampered with, she would have disputed their authenticity, sought inspection of the originals and if necessary instructed an expert to examine them.  It is inconceivable that she would choose to wait until trial to disown them.  On the collateral issues, it is my view that the Defendant is economical with the truth and has shown a tendency to make groundless allegations.

24.  Before leaving the collateral matters, given that the issue whether the Defendant was an employee or independent contractor is an issue to be resolved in the Labour Tribunal, I shall make it clear that there is no finding by this court on the issue.

The Defendant’s Claim for Assault and False Imprisonment

25.  As I have been dealing with the Defendant’s creditability, I shall start with her case.

26.  To recap, the Defendant’s case is that the 2^nd Plaintiff instructed Arthur Chan to guard the door to prevent her from leaving, forcibly grabbed the Bag from her shoulder, pulled her to a chair and put her neck in an arm-lock.

27.  Notably, the Defendant’s only complaints to the police were that the money that she had kept in her office had gone missing and that she had been prevented from leaving the office. There was no complaint that she had been assaulted. Her evidence in the criminal proceedings also contrasts most starkly with her present complaint of assault. When cross-examined during the criminal trial, she said:

問：	你同唔同意你喺現場同警察報告呢件事嘅時候，冇投訴畀人毆打架？
答：	我冇投訴畀人毆打，係。
問：	點解呀？
答：	佢哋都冇呀，我唔覺得呢係毆打囉。
問：	即係嗰個…….
官：	等等先，等等先下。佢哋有冇一件事喇，你係話你唔覺得呢個係毆打，係咪呀？係咪呀？
答：	我當其時第一個minds呢，就覺得佢哋係搶我嘢同埋唔畀我走。

28.  It is of importance to note that the Defendant herself did not consider that she had been assaulted. There was also no mention of her being pulled to a chair and wrapped around the neck.

29.  As for the Defendant’s allegation that the 2^nd Plaintiff had instructed the 1^st Plaintiff to tell the police that she had been bitten by the Defendant and warned Arthur Chan that he should not tell anyone that they had prevented her from leaving, such serious allegation of perverting the course of justice was never raised until the Defendant gave evidence at the trial of this action. The absence of any previous complaint is in my view strong evidence that the allegation is nothing but yet another groundless allegation she causally made. I have no hesitation in rejecting her evidence.

30.  On the whole, I find the Defendant an unreliable witness and am not satisfied that the 2^nd Plaintiff had inflicted any force that was sufficient to amount to an assault on her. Nor am I satisfied that she had been falsely imprisoned by the 2^nd Plaintiff.

The 2^nd Plaintiff’s Claim for Assault and Negligence

31.  I shall now turn to the case of the 2^nd Plaintiff.  

32.  The 2^nd Plaintiff was extensively cross-examined as to why she insisted on getting back the vouchers and commission tables, both of which could be easily recompiled from the primary materials. Her explanation was that she saw no reason why her staff should be troubled with the task of recompiling them. I am not satisfied with the 2^nd Plaintiff’s explanation. After all, the documents are not documents of any real importance and can be easily recompiled. Judging from the 2^nd Plaintiff’s manner of giving evidence, it seems to me that it was out of frustration over the Defendant’s repeated refusals to return the documents or her desire to reassert authority over the Defendant that she insisted on getting back the documents.

33.  The 2^nd Plaintiff was also cross-examined as to why she chose to grab the Bag and start the tug of war instead of waiting for the police and security guards, both expected to arrive very soon. The 2^nd Plaintiff’s explanation was that she did not really want to have police and security guards in the office of the Firm. I do not find her explanation a satisfactory one. Given that the Defendant had also made a report to the police, the 2^nd Plaintiff must have known that the police were coming and would have come in any event whether or not she was to succeed in retrieving the documents. In the absence of any convincing explanation for her taking the matter in her own hands, I am of the view that it was due to frustration or anger on her part that she went ahead to grab the Bag.

34.  In any event, whatever the reason for the 2^nd Plaintiff’s deciding to start the tug of war, it remains necessary to resolve whether she was assaulted or negligently injured in her mouth and nose. In the 2^nd Plaintiff’s statement to the police, she said she was accidentally injured in the nose. There was no complaint of assault and nothing was said about the injury in the mouth. In this respect, I agree with the Defendant’s counsel that the 2^nd Plaintiff did not, at least at the time of the incident or shortly after it, consider that she had been assaulted by the Defendant.

35.  More importantly, it should be noted that it is the evidence of the 2^nd Plaintiff at the trial that the injury in her nose was the result of an accident. I find it hard to understand how a person in the position of the 2^nd Plaintiff can tell that one of the two injuries, both inflicted in the midst of complete chaos, was the result of an accident and the other was due to an intentional assault. No doubt the sticking of the Defendant’s finger into the 2^nd Plaintiff’s month left a deep impression in the mind of the 2^nd Plaintiff (she vividly described the Defendant’s finger as “chicken feet”). Yet, I see no reliable basis to conclude that one of the two wounds was inflicted accidentally and the other intentionally. In fact, the 2^nd Plaintiff did not seem able to describe how the injury in her month was inflicted. A variety of words like punch, poke and scratch were used when the 2^nd Plaintiff gave evidence. On the evidence, it is my view that the 2^nd Plaintiff has failed to establish that she was assaulted in the month by the Defendant.

36.  In so far as the negligence claim is concerned, the particulars pleaded in the Amended Statement of Claim are:

(1)      using excessive force in attempting to pull the recycled bag from the 2^nd Plaintiff’ grasp;

(2)      failing to have due regard to the 2^nd Plaintiff’s safety when attempting to pull the recycled bag from the 2^nd Plaintiff’s grasp.

37.  The only act or omission on the part of the Defendant that Mr. Pang relied on in his closing submission is the Defendant’s failure to stop pulling and let go of the Bag. While I can understand how a party in a tug of war may cause injury to his opponent by suddenly letting go of the rope and causing his opponent to fall onto the ground, I cannot see how it can be said that a party in a tug of war is under a duty to stop pulling. Also, if the Defendant was under a duty to stop pulling, why should the 2^nd Plaintiff, who started the tug of war in the first place, not also stop pulling? With respect to Mr. Pang, I reject his contention that there was a duty on the Defendant’s part to stop pulling and let go of the Bag.

38.  Furthermore, I do not see any causation between the act or omission complained of and the injuries to the 2^nd Plaintiff. Even if the Defendant was under a duty to let the 2^nd Plaintiff have the Bag, her failure to do so did not cause the injuries to the 2^nd Plaintiff. There being no causation, the 2^nd Plaintiff’s negligence claim must fail.

Conclusion on Liability

39.  I find that neither the 2^nd Plaintiff nor the Defendant has managed to prove her case. Thus, both the Plaintiff’s claim and the Defendant’s counterclaim are dismissed.

Quantum

40.  For completeness sake and in case I am wrong in my judgment on liability, I shall deal with quantum briefly.

Quantum – the 2^nd Plaintiff’s Claim

41.  The 2^nd Plaintiff’s only claim is for damages for pain, suffering and loss of amenities.

42.  After the incident, she attended Canossa Hospital for treatment. Examination showed an ulcer over the right side of the upper lip and a 1 cm abrasion over the left side of the nose. She was given a course of antibiotics and discharged. The abrasion healed well and there was no visible scar.

43.  Mr. Pang for the 2^nd Plaintiff suggests that the appropriate award should be $50,000. On the other hand, Mr. Gidwani suggests that the award should not exceed $5,000.

44.  Taking the following minor injury cases into account, I award $15,000 for pain, suffering and loss of amenities suffered by the 2^nd Plaintiff:

(1) Fong Wai Mui v Cheung Fung Lan DCCJ 24639/1998 (date of judgment: 18 December 2000) – the defendant punched the plaintiff in the face and on the chest, causing the plaintiff to fall to the ground. The plaintiff suffered a cut lip which was stitched. The plaintiff was awarded $13,000 for PSLA.

(2) Wong Shing Kam v Leung Ming Kwong DCPI 171/2005 (date of judgment: 24 January 2006) – the plaintiff suffered a 1 cm laceration over the lower gum region, right elbow bruising, swelling in the right face and bleeding of the mouth following a traffic accident. He was awarded $25,000 for PSLA.

(3) Yip Chun Nam v Chan Kang & Anor DCPI 183/2002 (date of judgment: 24 March 2003) – the plaintiff was assaulted by the defendants and sustained mild swelling in the chest because of 3 punches. Damages for PSLA was assessed at 17,500.

45.  There will be interest on the award at 2% per annum from the date of the writ of summons.

Quantum – the Defendant’s Claim

46.  The Defendant sought medical treatment on 1^st August 2011, i.e. two days after the incident. Her explanation for not seeking medical treatment immediately after the accident was that she thought the pain in the neck and shoulder would go away. According to the medical report of Dr. Yio of Tang Shiu Kin Hospital dated 7^th December 2011, no physical or neurological deficit was identified when she attended Tang Shiu Kin Hospital on 1^st August 2001.

47.  The Defendant was diagnosed of post-traumatic stress disorder and prescribed a course of anti-depressant in late October 2011. Subsequently, she was found to have mild to moderate depressive disorder. She then received psychiatric treatments and counselling services from psychiatrist and psychologist in the private sector.

48.  All the psychiatrist and psychologists whom the Defendant has consulted and the psychiatric expert instructed by the Defendant are of the opinion that the Defendant’s conditions were due to the incident on 30^th July 2011. In the light of the evidence before me, which is not subject to any challenge, I accept that the Defendant’s conditions were caused by what happened to her on 30^th July 2011.

49.  The Defendant received dental treatment for a fractured tooth some two months after the incident. In the absence of evidence that she got a fractured tooth as a result of the incident on 30^th July 2011, I am not satisfied that the fractured tooth had anything to do with what happened at the office of the Firm.

Damages for Pain, Suffering and Loss of Amenities

50.  In assessing damages for pain, suffering and loss of amenities, I have taken the following cases into account:

(1) Chung La Ha v Ching Mei Yee DCPI 2755/2012 (date of judgment: 20^th January 2014) – the defendant entered the plaintiff’s office, locked the door and went on to assault the plaintiff on her back, chest and face. the plaintiff suffered abrasions, bruises and soft tissue injury. She developed post-traumatic stress disorder which was expected to last indefinitely. She was also prevented from continuing with her career which she had taken more than 30 years to develop. The plaintiff was awarded $300,000 for PSLA.

(2) Wong Ka Wai Johnny v Lee Man Wai DCPI 145/2010 (16^th January 2012) – the defendant in that case scolded the plaintiff, a security guard, smashed 2 vases and a glass notice board at the service counter where the plaintiff worked and kicked the plaintiff. As a result, the plaintiff suffered slight injuries on his right leg and adjustment disorder with mixed anxiety and depressed modes and symptoms suggestive of post-traumatic stress disorder. The plaintiff was awarded $100,000 for PSLA.

(3) Lau Yuk Sim v Wong Yuk Chung DCPI 107/2004 (date of judgment: 3^rd September 2004) – the defendant assaulted the plaintiff by slapping her face, grabbing her by her hair, pulling her into the reception area of the defendant’s office and attacking her on the back of her head with a high heeled shoe for over 10 times. The plaintiff suffered mild physical injuries, adjustment disorder with anxiety and depression. She was awarded $180,000 for PSLA (reduced by 45% to $99,000 after deduction for pre-existing condition and poor drug compliance).

51.  Taking all the factors into account, damages for PSLA is assessed at $150,000. 

Loss of Earnings

52.  According to the list of earnings of the Defendant filed in the related employees’ compensation proceedings (DCEC 1395/2011), the Defendant’s average monthly earning at the time of the incident was $27,761. The figure is in line with the MPF payment records and employer’s return filed with the Inland Revenue Department.

53.  The Defendant claims that she used to earn $45,000 per month. In support of her allegation, she has produced several commission tables. The tables, which are self-serving documents, do not actually support her claim that she used to earn $45,000 a month. On the evidence, I adopt the figure of $27,761 as the Defendant’s earning at the time of the incident.

54.  The Defendant joined another firm of solicitors in September 2011. Her monthly earning was ranging some $20,000 to $25,000 in the 3 years that followed. There was a drop in the Defendant’s earning in 2014-15, which was followed by a sharp rebound in 2015-2016. Neither the drop nor the rebound is accounted for. Doing the best I can, I shall simply adopt the figure of $22,500 (being [($20,000 + $25,000) ½]) as the Defendant’s monthly earning after the incident. The difference between the amount the Defendant used to earn at the time of the incident and the amount she was capable of earning after the incident was $5,261 (being $27,761-$22,500). Given that the Defendant’s conditions are not permanent in nature and will improve with treatments and counselling (in fact, there is no claim for future loss of earnings), I shall assess the Defendant’s loss of earnings on the basis that she would have suffered zero loss after 4 years. Thus, the Defendant’s pre-trial loss of earnings is assessed at $265,154 (being $5,261 x 48 x 1.05).

Loss of Earning Capacity

55.  To succeed under this head, the Defendant will have to show that there is a real risk that she will lose her present job at some time before the estimated end of her working life as a result of the injury caused to her.

56.  In this case, the Defendant lost her job sometime before the commencement of trial. During the cross-examination of the 2^nd Plaintiff, Mr. Gidwani put it to her that it was due to her bad-mouthing the Defendant that the Defendant was caused to lose her job. Although the case put to the Defendant was finally withdrawn (it is not pleaded and never mentioned in the Defendant’s witness statement), Mr. Gidwani relies on the fact that the Defendant recently lost her job as evidence of her being disadvantaged in the labour market. 

57.  Judging from the medical evidence and the fact that the Defendant was able to resume work fairly quickly and to continue to work for some 4 to 5 years, I am not satisfied that the Defendant is disadvantaged in the labour market. Nor do I accept that the fact that she lost her job recently is relevant. The claim under this head is dismissed.

Medical Expenses

58.  The Defendant’s claims include a claim for $17,600, being the cost of some yoga trainings. As there is no evidence that such trainings were either necessary or reasonable, the claim is disallowed. After deducting the cost of the yoga trainings and cost of dental treatment, I allow $11,600 under this head.

Tonic Food

59.  There is no evidence as to what kind of tonic food was consumed and why it is said that it was necessary. The claim for tonic food is disallowed.

Travelling Expenses

60.  The claim for $5,000, which is not particularised, appears to be excessive. I shall allow $1,000 under this head.

Interest

61.  There will be interest on (a) damages for PSLA at 2% per annum from the date of the writ of summons and (b) special damages at 4% per annum from 30^th July 2011.

Disposal of the Action

62.  I make the following orders:

(1)      Both the 2^nd Plaintiff’s claim and the Defendant’s counterclaim are dismissed with no order as to costs;

(2)      The above costs order being a costs order nisi will become absolute in the absence of application for variation within 14 days.

63.  I thank counsel for their assistance.

DCPI 1665/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1665 OF 2011

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DECISION

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Introduction

1.  This is the defendant’s appeal against Master J Chow’s decision refusing leave to adduce expert evidence of a psychiatrist.

Factual background

2.  The action arose out of a scuffle which took place in the office of a law firm on 30 July 2011 (“the Incident”).  The second plaintiff and the defendant were both practising solicitors – the former the principal partner of the firm and the defendant its associate at that time. (The first plaintiff, an employee of the firm, had earlier discontinued her claim against the defendant.)

3.  According to the defendant, shortly prior to the Incident, she served notice to terminate her contract with the firm.  On the day of the Incident, the defendant was in the office.  While she was in a conference room with the second plaintiff, there was some pulling and tugging at a recycled bag carried on the defendant’s shoulder as the second plaintiff was trying to seize the bag which the latter alleged contained documents belonging to the firm.  Both the second plaintiff and the defendant claim that they were hurt during the scuffle. 

4.  The writ was issued in August 2011.

5.  The second plaintiff claims that as a result of the Incident, she suffered injuries and seeks damages in the sum of $100,000.

6.  The defendant counterclaims that as a result of the Incident, she sustained injuries to her neck and shoulders, scratches to her right arm and a fractured tooth.  Further, shortly afterwards, she showed signs of “insomnia, nightmares, headache, unstable mood and [had] frequent flashback experience”.  She experienced “feelings of helplessness, hopelessness and lack of confidence”.

7.  In her revised statement of damages dated 5 November 2013, it was pleaded that she still suffered from a number of psychiatric symptoms, including persistent depressed mood, loss of energy, lack of motivation, fatigue, loss of interest in activities, avoiding friends, loss of trust in other people, insomnia and related sleeping problems, impairment of concentration and memory, feeling detached from friends, severe nausea after taking medication, loss of confidence and flashbacks and nightmares of the Incident, avoidance of repeating the thoughts or conversations about the Incident.

8.  The defendant counterclaims damages of around $1.3 million but states that she will waive any damages awarded in excess of the District Court’s monetary jurisdiction of $1 million.

Psychiatric evidence presently available

9.  In respect of her alleged psychiatric illness, the defendant has been receiving treatment since October 2011, ie, shortly after the Incident.  In these proceedings, she has made disclosure of a number of reports and medical notes compiled by her treating doctors recording the diagnosis and treatments to date.

(a) Starting from August 2011, she attended the Violet Peel General Out-Patient Clinic for her shoulder and neck injuries.  In the consultation notes, it was recorded that she was suggested to seek help from a clinical psychologist or psychiatrist in respect of her psychiatric symptoms.

(b) From October 2011 to March 2012, the defendant consulted a psychiatrist, Dr Jenny Tsang.  In her report made in February 2015, Dr Tsang stated that back in 2012 the defendant was suffering from active symptoms of depression and that her depression was caused by the Incident.  At that time, Dr Tsang recommended a treatment plan of psychotherapy from a clinical psychologist, giving details of the number of sessions required and the hourly fee.

(c) From April 2012 to December 2013, the defendant consulted a psychologist, Dr Rhoda Yuen.  In her report made in January 2014, Dr Yuen stated her diagnosis to be post-traumatic stress disorder as a result of the Incident and that “[t]he long term symptoms and disturbance created much distress and impairment in her occupational, emotional and social functioning”. Dr Yuen recommended a treatment programme of “cognitive-behavioral therapy and mindfulness practices for relaxation”, also giving details of the number of sessions required and the fee.

(d) From April to June 2012, the defendant received psychotherapy treatment provided by St John’s counselling services.

(e) From March 2014 to September 2014, the defendant consulted another psychiatrist, Dr Li Derek Seung Yau.  The diagnosis was post-traumatic stress disorder and depressive disorder.  Dr Li reported that the defendant “could also manage some legal work although not as competent as before”.

History of proceedings

10.  The writ was issued in August 2011.  The defence and counterclaim was filed in October 2011 (which was subsequently amended twice).  It should be noted that while the defendant’s own case is that she has started receiving treatment for her psychiatric symptoms as early as in October 2011, she only made her application to adduce expert psychiatric evidence in February 2015, more than three years later.

11.  Apart from the above timing concerning her application, two matters are also of importance in the present appeal:-

(a) At the checklist review hearing on 27 November 2013, ie, about three weeks after the filing of the revised statement of damages (which, as noted in §7 above, set out extensively her alleged psychiatric symptoms), both parties elected not to adduce expert evidence on liability and medical expert evidence on quantum at trial.

(b) It is common ground that when the defendant’s application to adduce expert psychiatric evidence was made in February 2015, the case was ready to be set down for trial.  The only reason that it was not set down was because of the defendant’s application.

12.  These matters would clearly be relevant to the determination of the present appeal.

13.  I would also record that there appeared to have been some uncertainty as to whether the defendant was indeed pursuing the present appeal, right up to the last moment.  At the beginning of the appeal hearing, Mr Henry Fung, counsel for the defendant, was asked to explain why he had not lodged with the court any skeleton submissions prior to the hearing.  He informed the court that just two days before the hearing, he was told that the defendant would withdraw the appeal.  However, at 3.30pm on the day before the hearing, he was told instead that the appeal would go ahead.  As a result, he had not been able to prepare his submissions.  At the hearing, he simply adopted the submissions prepared by the counsel who appeared for the defendant before Master J Chow.

Legal principles

14.  The legal principles governing whether leave should be granted to adduce expert evidence is not in dispute. 

15.  As explained in Bharwaney J in Fung Chun Man v Hospital Authority HCPI 1113/2006, 24 June 2011, the court adopts a two-stage approach.

16.  First, it should be determined whether a prima facie case is made out for the admission of expert evidence, this means that:-

“The expert evidence must be in a recognised discipline, reasonably required to enable the court to resolve the issues in dispute, and proportionate” (at §15)

17.  If so, the court should then carry out a balancing exercise. 

“[I]n 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 …” (at §16)

Authorities on prima facie case for admission

18.  In determining whether the applicant has made out a prima facie case, the guiding criteria are necessity, relevance and probative value, as stated by Suffiad J in Chan Kwok Ming v Hitachi Electric Service Co Ltd HCPI 322/2002 and applied in many subsequent cases, including, more recently, by the Court of Appeal in Leung Kang Wai v Dussmann Service Hong Kong Ltd HCMP 2098/2011, 29 December 2011 at §§14, 21.

19.  The courts have over the years formulated a number of questions in determining whether the above criteria are met.

20.  In Mann v Chetty and Patel [2000] EWCA Civ 267, Hale LJ posed the following questions (at §17):-

“Clearly, therefore, the court has to make a judgment on at least three matters: (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.”

21.  These remarks were made with reference to the relevant English CPR provisions.  However, they are accepted to be providing guidance to the Hong Kong courts in this context: see, eg, Fung Chun Man v Hospital Authority at §13.

22.  As to what is considered to be “helpful” expert evidence, the courts have laid down the following guidance.

23.  In Barings plc v Coopers & Lybrand (No 2) [2001] Lloyds Report Bank 85, Evans-Lombe J commented on what kind of evidence is “not helpful” (at §45):-

“Evidence meeting this test [of recognised expertise] 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.” (emphasis added)

24.  In Wong Hoi Fung v American Assurance Co (Bermuda) Ltd [2002] 3 HKLRD 507, Chu J, referring to the Barings case, said (at §12):-

“Secondly, the evidence must be relevant, in the sense that it is helpful to the court in arriving at its decision on one or more of the issues to be resolved …”

25.  In Fung Chun Man, Bharwaney J said that the evidence ought to be “of real assistance to the determination of the issues” (at §11).

26.  Accordingly, where there are factual disputes which need to be resolved at trial and expert evidence is sought to be adduced in respect of those issues, one of the prerequisites for admission is whether and, if so, how much assistance or benefit the trial judge can derive from such expert evidence in the discharge of his fact-finding duty.  In some cases, the assistance or benefit is clear and obvious and there would be little doubt that such evidence ought to be admitted. 

27.  However, in other cases, the assistance or benefit may not be readily apparent or may be less easy to gauge or measure, then it may perhaps be instructive to ask the converse question in order to determine the level of assistance or benefit, namely – would the trial judge be prevented from making a sound assessment of the relevant facts or a fully informed decision without the expert evidence; or, would his ability to reach findings of fact be seriously affected without that evidence?  If the answer is “No”, it would seem that the evidence would not be considered “helpful” for present purposes.  See the approach of Bharwaney J in Fung Chun Man at §§39, 40 and 45.  And it follows that in such a case, the expert evidence sought would not be necessary, relevant or of probative value and should not be admitted into evidence.

Approach of courts where psychiatric evidence is sought

28.  Insofar as expert psychiatric evidence is concerned, the court’s general approach seems to be as follows.

29.  First, generally speaking, where a party alleges that he has suffered from a psychiatric illness as a result of the tort complained of, the starting point is that the court will “almost invariably” require a clinical psychologist or a psychiatrist to determine whether that is the case and resolve other issues, such as causation: see Fung Chun Man at §§23, 24.  Accordingly, this is the starting point which I should take in this appeal.

30.  Secondly, a distinction ought to be made between factual psychiatric evidence coming from the treating doctors and forensic psychiatric expert evidence.  In the latter type, the expert would carry out an impartial evaluation in a forensic context for the purpose of litigation. The objective is to assess the veracity of the claimant’s account of his illness or symptoms – whether they are genuine or not, or whether they have been invented or exaggerated.  It has been said that this type of forensic evidence from a medical perspective would often assist the trial judge in the fact-finding exercise: see Bai Siba Kumar v Nishimatsu Construction Co Ltd HCPI 883/2012, 8 October 2013, per Deputy High Court Judge Marlene Ng, at §§63 to 65.

31.  However, whether the trial judge will in fact be assisted by forensic psychiatric evidence would obviously depend on the circumstances of each case.

Analysis

32.  Applying the above principles, I should first determine whether the defendant has made out a prima facie case for the admission of psychiatric evidence now sought by her.  If so, the next question is whether I should exercise my discretion to grant leave after carefully balancing the potentially competing factors for and against the application, such as those set out in §17 above.

First stage – prima facie case for admission

33.  In order to answer the first question, it is important to identify the issues which will arise at trial, insofar as the defendant’s alleged psychiatric injury is concerned.  Broadly, they are as follows:-

(a) Did the defendant in fact suffer from any psychiatric injury or condition?

(b) If so, what was the extent of such injury or condition?

(c) Was such injury caused by the Incident?

(d) What would be the reasonable costs of past medical treatments?

(e) What is the prognosis and what will be the costs of future treatment?

34.  The resolution of the causation issue will be relevant to the incidence of liability whereas the resolution of the other issues will directly affect the quantum of a number of heads of claims, including PSLA, pre-trial and future medical expenses, pre-trial and future loss of earnings and loss of earning capacity.

35.  I should pause here to note that at the hearing, Mr Fung confirmed that the expert evidence now sought is intended to substantiate the defendant’s psychiatric conditions, as presently alleged in the pleadings, and to support her present claim on quantum.  The intention is not to rely on the new expert evidence to increase the quantum of her claim, since her counterclaim already exceeds the jurisdiction threshold.

36.  As noted in §29 above, generally speaking, expert psychiatric evidence is required in order to assist the trial judge to determine all of the above issues in a case of this nature.

37.  In my view, however, there are a number of special features in this case which may justify a departure from this generally adopted position.

38.  First, there are already before the court medical reports and notes on the defendant’s condition made by two psychiatrists (namely, Dr Jenny Tsang and Dr Derek Li) and one psychologist (namely, Dr Rhoda Yuen).  In these documents, the doctors set out their respective diagnosis of the defendant’s psychiatric condition.  These consultations spanned over a long period of time, namely, from October 2011 to September 2014.  Both Dr Tsang and Dr Yuen gave opinions on the causation issue and made recommendations on future treatment plan and gave an estimate of the costs involved.  Dr Li made a comment on her working capability.  See §9 above.

39.  Secondly, Mr Ashok Sakhrani, counsel for the second plaintiff, confirmed at the hearing that at trial the second plaintiff would not dispute that the defendant had indeed seen those medical practitioners or that the latter had made the diagnosis as stated in their respective reports.  The dispute between the parties at trial would instead focus on the veracity of the complaints of the defendant’s alleged psychiatric symptoms, as she related to her treating doctors. 

40.  The second plaintiff’s position is that, as confirmed by Mr Sakhrani at the hearing and subsequently in writing, if the trial judge accepts as a fact the truthfulness of those complaints, the second plaintiff would not go behind or challenge the diagnosis or the other opinions made by the doctors as regards causation or future treatment, as there would be no rebuttal evidence for her to do so.  (Although it was not made clear at the hearing, I take it that Mr Sakhrani’s confirmation was made without prejudice to the plea that the alleged psychiatric injury was the result of the defendant’s own action in the Incident, or alternatively, the result of reasonable actions by the second plaintiff to protect herself during the Incident.)   

41.  Given the position of the second plaintiff, it would seem to me that at least insofar as the issues identified in §§33(c), (d) and (e) above and the issue of quantum generally are concerned, if the trial judge finds that the defendant’s complaints are genuine, he will have all the necessary materials to make the rulings, namely, the opinions stated in the existing medical reports.  Further psychiatric evidence is simply unnecessary for the trial judge to make these factual findings or rulings on quantum.  He does not require any further assistance from any further expert report, insofar as these questions are concerned.  In my view, the present case can be distinguished from the authorities relied on by the defendant in which the existing medical reports in those cases either did not “fully address” the claimant’s psychiatric condition (as in Fung Bun Mo v Hong Kong Airport Services Ltd DCEC 1200/2005, 24 March 2006 at §27) or contained only a “brief account” (as in Man Yun Fei Angela v Tong Chi Ming DCPI 2277/2009, 10 August 2011 at §24).

42.  I next turn to the issues in §§33(a) and (b) above.  These require a determination of the genuineness of the defendant’s symptoms (including the impact of her psychiatric condition on her working ability).  While that is ultimately a question of fact to be decided by the trial judge, as discussed in §30 above, the general approach (or starting point) of the court would seem to be one of ready admission of expert psychiatric evidence of a forensic type – see Bai Siba Kumar. 

43.  The expert can be expected to conduct examination or perform tests in order to verify or test the claimant’s symptoms or conditions.  His view would assist the court to come to the necessary finding.  In fact, this view was echoed by Mr Sakhrani at the hearing when he remarked that unlike physical injuries, psychiatric injuries cannot be “x-rayed” and analysed as such and the treating doctor who is to arrive at a diagnosis of a patient’s psychiatric injuries would very much rely on that patient’s own account of his symptoms.  He further commented that for any further psychiatric evidence to be useful or meaningful, it has to be in the form of a forensic assessment of the defendant’s condition.

44.  In this regard, the presently available reports of the defendant’s treating doctors may not be helpful to assist the trial judge in the fact-finding exercise since the doctors might have made their diagnosis based on the defendant’s own account of events without taking any active step to evaluate the genuineness of the defendant’s complaints in the first place. 

45.  That is, however, only a general position adopted by the court.  I should still consider whether in the present case such forensic evidence can offer real assistance to the trial judge.

46.  In this regard, the burden rests squarely on the defendant to demonstrate to the court at this (late) stage what kind of forensic psychiatric evidenceshe wishes to adduce, for instance, what examination or clinical tests can now be conducted, to assist the court to determine the veracity of the defendant’s alleged symptoms.  However, the submissions of the defendant, either oral or written, are completely silent on this point.  (In fact, it was Mr Sakhrani who first brought up the issue of forensic assessment at the hearing.)  The defendant should also satisfy the court on the cogency of such evidence.   But there is really nothing before me which sheds any light on how cogent the evidence of a new psychiatrist who is to see the defendant for the first time more than four years after the Incident will be.

47.  One must also bear in mind the nature of the alleged symptoms in this case.  The defendant is complaining of depressed mood, loss of energy, lack of motivation, insomnia, poor memory, poor concentration and flashbacks and nightmares of the Incident etc – see §7 above.  She also complains that she cannot perform her duties as a solicitor as well as before the Incident.  It does seem to me that even in the absence of any forensic psychiatric evidence, the court is in a good position to carry out the fact-finding exercise by hearing the defendant give evidence and be cross-examined at trial. This is not a case where the primary complaint relates to any impairment of cognitive function or the like. 

48.  Therefore I am not satisfied that the trial judge would be seriously affected in his task of resolving the factual issue as regards the issues in §33(a) and (b) by the absence of any further psychiatric evidence.  Such evidence would not be reasonably required to enable the court to resolve the issues in dispute. 

49.  Accordingly, I conclude that the defendant has failed to make out a prima facie case for the admission of further psychiatric evidence.

50.  It is therefore not necessary for me to proceed to carry out the balancing exercise as required under the two-stage test in Fung Chun Man.  However, for completeness, I shall briefly set out my view on that.

Second stage – balancing exercise

51.  I would not have exercised my discretion to allow the further psychiatric evidence sought for the following reasons.

52.  First, this is a very late application.  It was taken out almost 15 months after the filing of the revised statement of damages. The need for further psychiatric evidence would have been clear to the defendant at least by the time when that document was filed since it set out extensively her alleged symptoms.

53.  Secondly, there is no justification for such lengthy delay.  The defendant said that her psychiatric symptoms had only become less intense shortly before she took out the summons.  To the extent that the defendant is saying that she was not capable of making a decision to seek leave to adduce expert evidence because of her medical condition, I agree with Mr Sakhrani that this allegation is unbelievable.  Throughout the relevant time, ie, from November 2013 to February 2015, there were activities going on in these proceedings.  The defendant filed the revised statement of damages in November 2013 and a supplemental witness statement (containing 13 pages) in October 2014.  Further, she did resume working as a solicitor after the Incident (although she said she could not concentrate and worked only part-time).  It is incredible for the defendant to suggest that she had been prevented by her psychiatric condition from making the application when throughout the relevant time, she managed to do so many other things.

54.  Thirdly, as noted in §11(a) above, the defendant has previously elected not to adduce expert medical evidence.  There is no reason why she should now be allowed to retract that election without any material change of circumstances.  Not only has the defendant changed her mind then, she was also blowing hot and cold about whether to pursue the present appeal, as seen in §13 above.  Such conduct is certainly not conducive to the expeditious disposal of the proceedings, which is of course one of the underlying objectives under the CJR regime.

55.  Fourthly, even though no milestone date has been scheduled, when the application was taken out, the case was ready to be set down for trial.  If leave is granted to adduce expert evidence, the trial would necessarily be delayed, which Mr Sakhrani estimated to be in the region of six to nine months.  I accept it is a realistic estimate.  It is now more than four years after the action was commenced.  A further delay is clearly a significant factor against the grant of leave in the balancing exercise.

Conclusion

56.  For the above reasons, the expert psychiatric evidence sought to be adduced by the defendant ought not to be allowed.  I therefore dismiss the defendant’s appeal.

57.  I further make an order nisi that the defendant pay the second plaintiff’s costs of the appeal, to be taxed if not agreed, with certificate for counsel.

DCPI 1665/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1665 OF 2011

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DECISION

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Introduction

1.  The defendant applies for leave to adduce psychiatric expert evidence at trial of this action by way of a summons filed on 3February 2015. The 2^nd plaintiff opposed.

Background

2.  The action was brought about from a scuffle in the office of a solicitors’ firm, Messrs Christine M Koo & Ip (“the Firm”).  The 1^st and 2^nd plaintiffs are respectively its employee and the principal partner; the defendant is its consultant.

3.  On 25July 2011, the Firm served a notice on the defendant to terminate her consultancy contract.  On 30July 2011, the defendant went to the Firm to collect commission which were due and owing.  The 1^st and 2^nd plaintiffs alleged the defendant seizing documents belonged to the Firm by putting them into her recycle bag. The scuffle occurred while the 2^nd plaintiff attempted to retrieve those documents from the hands of the defendant. Both the 2^nd plaintiff and the defendant hold onto the recycle bag by pulling it towards themselves repeatedly. The defendant punched the 2^nd plaintiff’s mouth and bit the 1^st plaintiff’s right wrist.  The defendant complained of shoulder pain after the incident (“the Incident”).

The proceedings

4.  The 1^st and 2^nd plaintiffs claimed and the defendant counterclaimed for damages. The 1^st plaintiff discontinued her personal injury claim against the defendant on 12July 2012.

5.  The 2^nd plaintiff claims the defendant damages under the head of pain, sufferings and loss of amenities in sum of $100,000.

6.  In the defendant’s Revised Statement of Damages filed on 5 November 2013, the defendant counterclaimed the 2^nd plaintiff over $1 million damages, she abandoned her claim beyond the District Court jurisdiction.

7.  As there are quite a number of interlocutory applications since the 1^st Checklist Review hearing on 26January 2012, the action has not been set down for trial. It is worth noting that the defendant changed her representation four times since the commencement of this action.

8.  The relevant Checklist Review orders relating to adducing medical expert evidence are as follows:-

(i)  In the Order dated 21August 2013, I directed “no medical expert evidence shall be adduced at trial of this action”.

(ii)  In the Order dated 27November 2013, I directed “the 2^nd plaintiff and the defendant elect not to adduce expert evidence on liability and medical expert evidence on quantum at trial of this action”.

Analysis

9.  The defendant applies for leave to adduce psychiatric expert evidence because she claimed to have suffered from psychiatric injury after the incident.

10.  The defendant first relied on a psychiatric report by her treating doctor, Dr. Li Derek Seung Yau, dated 16 September 2014 in her first affirmation. Dr. Li said the defendant first came to see him on 22 March 2014.  Dr. Li stated the defendant’s psychological problems started as early as October 2011, after an alleged attack by her employer at work.  Dr. Li said the defendant complained of poor concentration and poor memory.  She suffered cognitive impairment and could not perform her duties as a lawyer.  The defendant complained she was “in fear when going near Admiralty” (where the Firm’s office was located).  The defendant was seen with depressive symptoms, namely, insomnia, nightmares, low mood, loss of appetite, loss of interest in leisure activity and desire to work.  Dr. Li diagnosed the defendant was suffered from post traumatic stress disorder and depressive disorder (moderate to severe).  The defendant was administered with antidepressant and was given psychological treatments.  Dr. Li concluded the defendant was in need of further treatment.

11.  The defendant then relied on other medical notes and reports in her second affirmation. She disclosed medical notes of Violet Peel General Out-Patient Clinic (“Violet Peel”) where she had paid visits from August to September 2011. She further relied on a psychiatric report dated 17 February 2015 from another treating doctor, Dr. Jenny Tsang where she had paid four visits from 4October 2011 to 7 March 2012. The defendant added a medical report from her psychologist, Dr. Rhoda Yuen dated 14 January 2014.  She paid three visits since 4 April 2012.

12.  The defendant deposed in her third affirmation, after the Incident, she was charged and was convicted with one count of assault occasioning actual bodily harm. On an appeal, her conviction was quashed by the Court of Appeal.  

13.  The test of adducing medical expert evidence is whether such expert evidence is necessary, relevant, and with probative value.  In applications for leave to adduce psychiatric expert evidence, the party who applies for leave bears the burden to demonstrate there is casual link between the physical injury and the psychiatric injury sustained arising from the accident.

14.  In this application, the issues are (i) whether the defendant can demonstrate a casual link between her psychiatric symptoms and her physical injury arising from the Incident; (ii) should leave be granted to adduce psychiatric expert evidence in light of her late application and checklist review orders; and if so, (iii) whether the defendant can satisfy the test of necessity, relevance, and probative value.

15.  It is also an important concern of the court to take into account  the underlying objectives of the Civil Justice Reform.  (see Order 1A of the Rules of District Court, Cap 366H).  Even there is a prima facie case leave should be granted, the court has to satisfy such exercise is proportionate and costs effective. The legal principles in adducing psychiatric expert evidence after the implementation of the CJR are well laid down by Bharwaney J in Fung Chun Man v. Hospital Authorityandanother (HCPI 1113/2006).

The casual link

16.  Mr. Sakhrani submitted the defendant had failed to establish the casual link / causation of her psychiatric symptoms with her physical injury.  The causation of the psychiatric injury may be unrelated to the Incident. He argued, it might be a result of anxiety and concern on the part of the defendant when she was being prosecuted with a criminal charge. Be it plausible, Dr. Jenny Tsang mentioned the defendant was suffering from shoulder pain after the Incident. The possibility that the psychiatric symptoms accompanied by the physical injuries could not be displayed.

17.  I accept, neither did Dr. Li Derek Seung Yau nor Dr. Rhoda Yuen mentioned in their respective medical reports that the defendant has suffered from psychiatric symptoms accompanied by her shoulder pain. The remarks that the defendant was suffered from post-traumatic stress in medical notes from Violet Peel is not be a good pointer because the treating doctor in an out-patient clinic might not possess requisite expertise in this field. Yet, considering all medical evidence from the defendant’s treating doctors, I cannot conclude a casual link does not exist.

Late application & discretion to vary previous checklist review orders

18.  Having said that, I am not satisfied leave should be granted to the defendant to adduce psychiatric expert evidence.

19.  Firstly, the defendant’s present application was taken out at a late stage of the proceedings, which was more than one year from the filing of the defendant’s Revised Statement of Damages on counterclaim. The reports of Dr. Jenny Tsang and Dr. Rhoda Yuen were well pleaded therein where she was diagnosed to have suffered from, inter alia, depression / depressive disorder. At time of filing, the defendant’s injury and quantum of her counterclaim should be crystallized.

20.  Secondly, in the Order dated 27^th November 2013, I directed when sitting as a PI Master in the Checklist Review hearing, upon election of parties, “the 2^nd plaintiff and the defendant elect not to adduce expert evidence on liability and medical expert evidence on quantum at trial of this action”.  

21.  The defendant explained her late application and her change of stance because her psychiatric symptoms were only lessoned in recent months, she was then capable to take out the present application. Her explanation was not believable. The reason being, the defendant is a practicing solicitor at all times, and was represented by Messrs. Szwina Pang, Edward Li & Co. during the checklist review when such order was given.

22.  Albeit the defendant has psychiatric symptoms, her cognitive function, as at November 2013, was not impaired. Although Dr. Derek Li mentioned impairment of her cognitive function in his report, it was irrelevant because the defendant only started to see Dr. Li from March 2014.

23.  Although Dr. Rhoda Yuen mentioned “the long term symptoms and disturbance created much distress and impairment in her occupational, emotional and social functioning” in her report. I am not satisfied the defendant lacks the ability to give instructions to her formal solicitors for directions in Checklist Review hearing on 23^rd November 2013. Should it be the case, I expect her formal solicitors should have raised this issue at the said Checklist Review hearing.

24.  It was also pleaded in her Revised Statement of Damages on counterclaim that she was working as a part time solicitor with Messrs. Fongs.  It would be unpersuasive that she lacks the ability to instruct her former solicitors to take out the present application at that particular time.

25.  I find the defendant must have the ability to decide whether to take out an application for leave to adduce psychiatric expert evidence as at the Checklist Review hearing on 27 November 2013. The defendant’s change of stance to apply for leave to adduce psychiatric expert evidence is not justified. The reason put forward by the defendant is far from sufficient for me to exercise discretion to order otherwise.

Necessary, relevant and with probative value

26.  Looking at this action in its perspective, I find the psychiatric expert evidence could not assist the trial judge.  The defendant has adduced three psychiatric / psychological reports from Dr. Li Derek Seung Yau, Dr. Jenny Tsang and Dr. Rhoda Yuen. All three treating doctors reached similar opinion on the defendant has been suffering from some psychiatric / psychological symptoms. Dr. Rhoda Yuen had suggested a treatment plan on the defendant. I am confident with the aid of the three comprehensive medical reports and the medial notes of Violet Peel, the trial judge would be able to make decision on both causation and quantum of the defendant’s counterclaim.

27.  Psychiatric expert evidence is not necessary, irrelevant and without probative value. It could not add anything further to the existing medical evidence from her treating doctors. An order to allow the defendant to adduce psychiatric expert evidence would be in contravention to the underlying objectives of the CJR, it is disproportionate, not costs effective and would further prolong this action when the parties are already at the verge of setting down this case for trial.

Conclusion

28.  The defendant’s application for leave to adduce psychiatric expert evidence be refused. I dismiss the defendant’s summons filed on 3^rd February 2015 with costs to the 2^nd plaintiff, with certificate for counsel, to be taxed if not agreed.