"Pain Expert Evidence in Doubt!"

Summary

The Court of First Instance handed down a ruling on 18 November 2009 in respect of the admissibility of a specialist report on pain in personal injuries litigation.

In recent years, personal injury litigation in Hong Kong has experienced a rise in claimants seeking to rely on pain specialists to prove they are genuinely suffering from pain and disprove malingering. This is especially so in soft tissue injuries where there is an absence of neurological trauma. The Court of First Instance decision in the recent case of Chu Sin Yung v. Lee Hon Kwong and The Kowloon Motor Bus Company (1933) Limited (HCPI 191/2008) casts doubts on the admissibility of pain experts.

Background

This matter arises out of a Checklist Review hearing before Master Roy Yu on 14 September 2009 to have the action set down for assessment of damages. During the hearing the Plaintiff intended to include a pain specialist report ("the Report") into the hearing bundle, but this was strongly objected to by the Defendant.

The Master directed the question on admission of the Report be adjourned for argument. The Plaintiff took out a summons for leave to adduce the Report.

The Judgment

Having heard arguments from both sides, the Master held that the Report was not necessary. In coming to this conclusion, the Master affirmed Master Kwan’s comment on a pain specialist report in the case of Cheung Yuen Fan Sally v Hong Kong University of Science & Technology (HCPI 106 & 107 of 2003), where it was commented that:

"Even if a 'pain specialist’s' report is obtained, the report cannot be used to prove that P is in fact suffering pain, or the degree of pain, and disprove malingering. 'Pain' and 'Suffering' are subjective. Despite our advanced technology, no 'pain thermometer' exists to take an accurate measurement of how much pain a person is suffering. ... Therefore even if the trial judge is satisfied that the pain specialist’s report is unimpeachable, the issue is still whether P’s claim that she is suffering from pain is credible. The trial judge will not need to rely on the opinion of a pain specialist to decide whether a witness is credible. In the circumstances, as P’s claim can be brought on the basis of the government hospital reports, I rule that a report from a 'pain specialist' is not necessary."

On the facts of the present case, the Master considered the Report, and was of the opinion that:

1. it was questionable if the expert, who was by qualification an anaesthetist, could identify the pain suffered by the Plaintiff or give an academic measurement of the same;
2. the expert’s opinion on the cause of the pain being related to the subject accident had no scientific basis and was based on information from the Plaintiff and other reports. The learned Master was of the view that it was "dangerous" to rely on such a "conclusion";
3. on the pain finding, the Master queried how the Report would be helpful when the expert relied on the Plaintiff’s information rather than any scientific method or instrument to find out the pain level of the Plaintiff;
4. it was unnecessary for a pain specialist to comment on future treatment which can be commented by the existing orthopaedic experts.

Conclusion

The Court of First Instance’s sensible rejection of the Plaintiff’s attempt to adduce an expert report on the issue of pain has to be welcomed. For one thing it puts a stop to the recent trend of claimant's adducing such evidence. It also sends a clear message to claimants and their lawyers when considering the admissibility of an expert medical report, that the Court will give precedence to the guiding criteria of whether the medical expert evidence is necessary, relevant and of probative value. In this case, application of the criteria did not provide a basis for adducing a pain expert report. As far as pain specialist reports are concerned, unless there is any scientific measurement or identification of the pain alleged, it is unlikely that a court will allow such a report to be adduced as evidence.

For inquiries related to this Client Alert, please contact:

Angela Yim (angela.yim@mayerbrown.com)

Marina Fung (marina.fung@mayerbrown.com) 

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