The subjective nature of PTSD calls for more steps to be taken to ensure credible claims and to exclude malingering. Is the idea of a mandatory re-examination of the victim feasible albeit compelling?
Legal and Actionable “Stress”: A Case for Post-Traumatic Stress Disorder
Post-traumatic stress disorder or PTSD, as it is more commonly referred to is a recognised and claimable psychiatric illness. There seems to be an upward trend in the number of cases in Singapore where parties claim for damages for PTSD as a result of another party’s negligent act, whether as primary or secondary victims. There are other forms of psychiatric illnesses, such as pathological grief, which victims may sustain as a consequence of their experiences of traumatic events, which may be claimable too.
Nervous shock may manifest itself in various forms of psychiatric illnesses with PTSD being just one of them. At the same time, PTSD is claimable not only as a result of suffering from nervous shock but also on its own without the nervous shock element. In the event a plaintiff is claiming for nervous shock as manifested in PTSD, then like in any other tortious claim, the plaintiff has to prove a close relationship between the plaintiff and the victim of the alleged nervous shock, as well as proximity in time and space to the incident. There must be a duty of care owed by the defendant to the plaintiff where it is reasonably foreseeable that the negligent act of the perpetrator of the tort could cause the plaintiff psychiatric harm. It does not matter whether the plaintiff is the primary or secondary victim of the traumatic event since either type of victim may make a claim. *(1), (2) and (3)
Post Traumatic Stress Disorder (“PTSD”)
PTSD is defined in the Guidelines For The Assessment Of General Damages In Personal Injury Cases by the Subordinate Courts, as a “severe anxiety disorder that develops after exposure to a traumatic event. Formal diagnostic criteria (DSM-IV and ICD-9) require the symptoms to last more than a month and there is significant impairment in all aspects of a person’s life”.
The essential feature of PTSD as found in the Diagnostic and Statistical Manual of Mental Disordersby the American Psychiatric Association, is described in para 309.81 therein as “the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or a threat to the physical integrity of another person; or learning about unexpected or violent death, serious harm, or threat of death or injury experienced by a family member or other close associate”. It further states that the response to such an event must involve intense fear or helplessness or horror. Therefore, it can be sustained as a result of an accident, or after experiencing violent attacks or torture, natural disasters, and so forth.
There appears to be a preference by the Courts to support a diagnosis of PTSD which relies on the criteria set out in the DSM-IV-TR as published in the Diagnostic and Statistical Manual of Mental Disordersby the American Psychiatric Association to determine whether a patient has PTSD or not (Deepika Sharma v Lee Zhihui [2007] SGDC 276). Briefly, the criteria can be set out as follows:
Criterion A
direct personal exposure to a traumatic event which involves actual or threatened death or grave injury to one’s physical self or integrity or that as experienced by a family member or one with a close relationship, and the plaintiff’s response to the incident must be intense or involves agitated behaviour;
Criteria B
persistent re-experiencing of symptoms consisting of recurrent upsetting thoughts, perceptions nightmares or having flashbacks of the traumatic incident or having physical reactions;
Criteria C
symptoms of avoidance of thoughts, emotions or conversations of the traumatic incident or numbing of emotions, with little or no expectations to have or enjoy a career, marriage, interpersonal relationships, and so forth;
Criteria D
irritability or fits of anger, or increased arousal/anxiety or hypervigilance or having difficulty focussing on or completing tasks;
Criteria E
the symptoms must be present for more than a month (it is described as “acute” if the symptoms persist for less than three months, and longer than that, it is classified as “chronic”); and
Criteria F
“the disturbance must cause clinically significant distress or impairment in social, occupational or other important areas of functioning”.
Re-examination
One of the first issues that come to mind in such cases is that of re-examination of the plaintiff. As it stands, the defendant is usually entitled to request for the re-examination of the plaintiff upon receiving the report which confirms the diagnosis of the plaintiff’s PTSD. There are cases where plaintiffs have refused to submit themselves for a re-examination for a variety of reasons. It is my view that in such cases the plaintiffs’ claims for PTSD should be struck out. Plaintiffs should not be allowed to proceed with their claim for PTSD if they attempt or try to deny the defendants their right of putting up a proper defence and an equal opportunity to challenge the plaintiffs’ claim via a re-examination or if they cannot provide a valid reason for refusing a re-examination.
I think it is no longer sufficient that a plaintiff’s refusal to submit to re-examination should go simply to an adverse inference being drawn against the plaintiff. It would seem that in such circumstances, defendants are being unfairly denied their right to satisfactorily defend their claim or challenge the plaintiff’s claim with the benefit of a report from a re-examining doctor. Indeed, it may seem harsh and extreme but in view of the increasing number of cases for such claims and, with an increasing amount being claimed under this head, the bar should be raised in terms of the burden of proof on the plaintiff. Taking out an application to compel the plaintiff to submit to a re-examination may be one method. It may well be that the plaintiff will feel compelled to go for a re-examination if there is an order of Court. However, the plaintiff may still refuse and would “rather be in contempt” than submit to a re-examination and the recourse for the defendant is merely the drawing of an adverse inference against the plaintiff. Moreover, I am of the view that this is not satisfactory as it entails the defendant incurring costs and unnecessary effort to get the plaintiff re-examined.
Further, it is my opinion that re-examination of the plaintiff must be allowed even if it is a late application, perhaps subject to costs. Again, it is my view that unless and until the plaintiff can prove that a late re-examination will have such serious consequences or will prejudice the plaintiff’s condition or case in any way, it should be allowed to be made at any time of the proceedings, akin to an amendment of pleadings and subject to the discretion of the Court. After all, technically, the plaintiff has the right to amend his or her pleadings at any stage of the action to include further claims such as PTSD subject to costs. Therefore, why should a defendant not be granted a re-examination of the plaintiff for PTSD even at a late stage subject to costs and proof of prejudice to the plaintiff which cannot be cured with an award of costs. Hence the basis for the same argument to apply here for PTSD cases, as for late amendments of pleadings. The defendant will then not be shut out from trying to put up a defence or to challenge the plaintiff’s claim even at a later stage so long as this can be redressed adequately by costs. It is important, I feel, that a defendant be given any opportunity he needs to defend the plaintiff’s claim as he was brought into the action by the plaintiff.
Expert / Expert Witness Report
To better ensure that the plaintiff’s claim for PTSD is genuine and based on grounded evidence, I would advocate that the report of any examining doctor should be categorised as the report of an expert witness and should be subject to O 40A of the Rules of Court.
Order 40A of the Rules of Court(Singapore Civil Procedure 2003 Paragraph 40A/1/1)
1. Order 40A r 1 creates a practical distinction between an “expert” and an “expert witness”. An expert is a person with a high degree of skill and knowledge in a particular subject, who has relevant and up-to-date expertise with regard to issues in the case, and sufficient education and communication skills to produce a clear written report, and, if necessary, to provide helpful oral evidence to the Court. The relevant consideration is when the expert’s duty to the Court arises.
The practical effect of these rules is to create a distinction between:
a. an expert who advises a party on a specialist or technical matter within his/her expertise at any stage of a problem, dispute, or claim; and
b. an expert witness who is instructed by a party during proceedings, usually to prepare a written report for the Court.
2. The difference is not purely semantic as an advisory expert may not be involved at all in the litigation, and their identity may not be known to the other party or to the Court. Whereas once a party has sought and obtained the approval of the Court to rely upon the opinion evidence of an expert witness during the litigation, the name and status of the expert witness, and invariably the written report, becomes “disclosable” to the other party and to the Court.
3. Order 40A r 1(2) provides:
A reference to an “expert” in this Order is a reference to an expert who has been instructed to give or prepare evidence for the purpose of court proceedings. Order 40A therefore applies to the expert witness who has been instructed by the solicitor to prepare a written report for the court. In such a case, the expert would also owe the Court duties under Order 40A Rule 2 and his evidence will need to fulfil the requirements under Order 40A Rule 3.
While there may be a very fine distinction between an advisory expert and an expert under O 40A, it is my humble opinion that once a report is submitted on behalf of a party to an action, whether in support of the party’s claim or otherwise, it should fall under O 40A. And thus, all the requirements thereunder should apply and the expert should be considered an “expert witness”. The reason for saying this is that once an expert’s opinion is tendered into Court, irrespective of whether the said report supports a claim or not, it is subject to cross-examination. Hence, I am of the view that it should not matter that the report was not initially made in contemplation of Court proceedings, as long as it is submitted into Court for Court proceedings,
O 40A should apply.
At this juncture, I refer in particular to O 40A r 3, which sets out the requirements of an expert witness’ report and as to what details are to be included as follows:
3. (1)
Unless the Court otherwise directs, expert evidence is to be given in a written report signed by the expert and exhibited in an affidavit sworn to or affirmed by him testifying that the report exhibited is his and that he accepts full responsibility for the report.
(2) An expert’s report must –
(a) give details of the expert’s qualifications;
(b) give details of any literature or other material which the expert witness has relied on in making the report;
(c) contain a statement setting out the issues which he has been asked to consider and the basis upon which the evidence was given;
(d) if applicable, state the name and qualifications of the person who carried out any test or experiment which the expert has used for the report and whether or not such test or experiment has been carried out under the expert’s supervision;
(e) where there is a range of opinion on the matters dealt with in the report –
(i) summarise the range of opinion; and
(ii) give reasons for his opinion;
(f) contain a summary of the conclusions reached;
(g) contain a statement of belief of correctness of the expert’s opinion; and
(h) contain a statement that the expert understands that in giving his report, his duty is to the Court and that he complies with that duty.
Any expert giving his opinion and who produces a report for a party’s PTSD claim which is submitted to the Court, should be made subject to such requirements so that his or her report is more complete and a cross-examination of the said expert and plaintiff can be more thorough.
I believe that a more thorough report containing grounds of how the diagnosis was reached would be helpful for all parties. The report should try to establish that the plaintiff’s evidence is safe from malingering and is corroborated. The examining doctors, including re-examining doctors should also be made to disclose their clinical notes to back their diagnosis of the plaintiff’s claim. The bottom line here is, it should not be a bare report or a report lacking the essential facts forming the diagnosis. I also believe that with a more complete report, an equally, if not a more thorough, re-examination can be done. The report should state how the expert has formed his or her opinion and ruled out malingering. This will lead to saving time during the hearing and reaching a “safer” judgment.
It is my view that the expert’s report in cases for PTSD should not just generally lay down the diagnostic criteria; it should contain specific facts upon which the diagnosis was formed. One example is if the plaintiff with PTSD was diagnosed on the basis that the plaintiff’s work or personal life has been adversely affected by the traumatic event. This is merely “a bare expression of … opinion” (refer to * Sim Ah Song & Anor v Rex[1951] MLJ 150 in the paragraph below). It should be supported by facts from the plaintiff’s own experiences. This will also comply with O 40A r (3) and reasons should be given for the expert’s opinion. Ought this be made a requirement for all expert reports and not limited only to when there is a range of opinion on the matter? Indeed, I would say yes. In further support, I quote Halsbury’sLaws of Singapore, Evidence, Volume 10 (2006 Reissue) at paragraphs [120.255] and [120.258] respectively, as follows:
The grounds or bases of an opinion are not only relevant, they are also important since without the grounds being made available to the trier of fact, he would be in no position to evaluate the opinion.
In not a few cases, an expert opinion is rejected or given little weight because its application of the scientific premises or theory to the particular facts of the case is unsatisfactory or inconsistent or it is purely a hypothetical opinion, there being little attempt to apply it to the particular facts, or because the basis for it is unexplained.
At this point, I am drawn to the case of Sim Ah Song & Anor v Rex [1951] MLJ 150in relation to an expert’s opinion, and I quote, “But a bare expression of his opinion has no evidential value at all. Unless he gives an explanation which supplies the undertaking of the subject which the Court lacks, the Court is no better position than it was before to determine the question which it is its duty to determine, and if the Court acts upon a bare expression of the expert’s opinion the determination of the question becomes that of the expert and not of the Court”.
My observation is that in practice, the distinction between an “expert” and “expert witness” is rarely raised, especially in personal injury cases. I would dare say that it is used or thought of or regarded as interchangeable. It would appear that the examining doctor in such cases, including PTSD, is taken to be an “expert witness”. For practical reasons, it seems a logical and natural assumption. Hence, my argument for O40A r 3 to apply to such experts.
Absence of Re-examination Report
Be that as it may, an absence of a re-examination report does not mean that the plaintiff’s claim is proven by default. It also does not mean that the plaintiff is automatically entitled to his or her claim. The burden of proving his or her PTSD sustained as a result of the defendant’s negligence, remains with the plaintiff. The plaintiff needs to discharge this burden. The plaintiff must satisfy the Court that the report produced by his or her expert has supported his or her claim not only to the extent that there is a valid claim but also as to the degree of severity of the PTSD suffered by the plaintiff. This is relevant as it affects the amount the plaintiff will be awarded if the PTSD is proven.
From the judgment in the case of Lim Chwee Soon v Public Prosecutor[1996] SGCA 76, it appears that the Court has the liberty to come to its own conclusion in spite of the opinion in an expert’s report, albeit in this particular case, there was an alternative report the Court preferred. However, I would argue that M Karthigesu, JA (as he then was), came to such a decision after finding that the “trial judge had correctly tested the conflicting expert psychiatric testimony against the circumstantial evidence”. I am inclined to think that although this was a criminal matter, it can be stretched to apply to expert reports in PTSD cases too, in that the Court has the authority to accept or reject or accord any weight it deems appropriate to an expert’s report based on the facts of the case and the evidence before it. It is not bound to accept an expert’s report, even if there is no alternative or conflicting report.
In the case of Ismail Sukardi & Siti Sharmilah bte Ismail v Kamal Bin Ikhwan & Transtar Express Liner Sdn Bhd [Suit No 212 of 2008/Q, RA 468 of 2010/A], the Assistant Registrar at the hearing for Assessment of Damages handed down the highest award ever for PTSD then in the sum of S$50,000.00. At the appeal, the award for PTSD was reduced markedly to S$10,000.00, despite the fact that there was no re-examination report in this case. The defendant’s application to have the plaintiff concerned re-examined was not allowed because it was deemed late.
It would go to show that the absence of a re-examination report is not fatal to the defendant’s defence although it would make it an uphill battle and a tremendous challenge against a plaintiff’s claim backed by an examining doctor’s report. Nevertheless, the above decision also supports the argument that the Court is not bound to follow or adopt or accept any expert opinion simply because it is not formally challenged by an alternative or conflicting report from another expert. The Court can by its own authority assess the expert report before it and choose to accept, reject or give it any weight it deems fit from the facts and evidence presented to the Court at the hearing itself.
Interlocutory Judgment
Upon parties agreeing to enter interlocutory judgment in cases where there is a claim for PTSD, again I would say that although the defendant has admitted to liability to the tort, the plaintiff remains responsible for proving the damage he or she has suffered and the extent of the damage. Chao Hick Tin JA (as he then was) said in Aberdeen Asset Management Asia Ltd v Fraser & Neave Ltd [2001] 3 SLR (R) 355 that the “appellation interlocutory” is not, in my view conclusive: It only denotes the fact that the quantum of damages remains to be assessed. However, in so far as liability is concerned, the order of the High Court, affirming that of the District Court, must surely be treated as final”. *(8)
Order 13 r 2 of the Rules of Courtstates that “interlocutory judgment means that such a judgment is interlocutory only as to amount, and is final as to the right of the plaintiff to recover damages, together with costs as the amount thereof, when ascertained, entitles him to”.
The plaintiff shoulders the responsibility of adducing the necessary evidence to support the validity and extent of his or her claim. In spite of the admission of liability on the part of the defendant, the defendant should only be made liable for the damages satisfactorily proven by the plaintiff and to the extent that it is proven. That is to say, although the defendant has agreed that the tort was his or her fault, the burden of proof still lies with plaintiff to provide evidence that the PTSD alleged is a valid claim, and if so, the degree of severity.
Apart from the defence of novus actus interveniens, where the defendant will have to show that the chain of causation from the tortious act to the damage suffered by the plaintiff has been broken, an interlocutory judgment does not deviate from the requirement that a plaintiff must still prove the damage he or she is alleged to have suffered and the degree of suffering.
Damages
I have found the Guidelines For The Assessment Of General Damages In Personal Injury Cases by the Subordinate Courts to be helpful in providing some logical and grounded yardstick for PTSD claims (Chapter 4, Part B) with the “Severe” ranging from S$25,000.00 to S$50,000.00*(4) and (5)to “Minor” or “Moderate” ranging from S$2,000.00 to S$4,000.00*(6) and S$4,000.00 to S$10,000.00*(7) respectively.
It is convenient that each category comes with a short summary, for example, “Severe” is described as “the effects are debilitating. He is unable to cope with daily life due to recurrent flashbacks and he is also tense and angry (hyperarousal) despite treatment”. Further, it states that if full recovery is made within a year or two with minor symptoms only lingering, that is considered minor.
The cases of Pang Koi Fa and Goh Eng Hong *(4) and (5) listed at the end of this article, are examples of cases where the degree of severity of the PTSD suffered by the victims was serious. Further, in these cases, the victims were gravely affected by the tragic and traumatic events they experienced that it severely impaired the functions of their daily lives. Goh continued to be “haunted” by everyday noises even air conditioners, after she was injured and traumatised when the lift she was using fell to the bottom of the lift shaft. She was not able to function normally to the extent that she required ongoing medical treatment as well as someone to accompany her for most of her daily activities. It was reported in Pang’s case that the victim went through a personality change and suffered to the extent that she was not only on the verge of a breakdown but almost committed suicide. The Court made awards of S$30,000.00 in each case for PTSD.
The symptoms suffered by the victim in the Ismail Sukardi case seems pale in comparison to those suffered by Pang’s and Goh’s cases. The victim who was diagnosed as having “chronic” PTSD was able to carry on with her daily life satisfactorily in that the victim who was studying at the time of the tragic incident completed her studies without delay, secured herself a job and appeared to be able to keep her job and has gotten married. Certainly a far cry from Pang’s and Goh’s situations.
Conclusion
There can never be “too much proof” where PTSD cases are concerned, since in most PTSD claims, it is difficult for parties to see or observe the injury sustained unless they are extremely serious cases. Consequently, it may be open to abuse. As claims for PTSD are on the rise, more can and ought to be done even now to safeguard the system against exaggerated claims or claims which are arbitrary and not sound.
As the final word, I would like to say that this article has focussed particularly on claims for PTSD. The introductory paragraphs are merely to add background to this topic. It is not my intention to discuss the criteria or the way PTSD is diagnosed in this article. I wish to make clear that this article is my personal opinion on the issues discussed in this article.
*Cases also referred to:
(1) McLoughlin v O’Brian[1983] 1 AC 410.
(2) Alcock v Chief Constable of the South Yorkshire Police[1992] 1 AC 310;[1991] 4 All ER 907 (foll’d).
(3) Man Mohan Singh s/o Jothirambal Singh v Zurich Insurance (Singapore) Pte Ltd[2008] 3 SLR (R).
(4) Pang Koi Fa v Lim Djoe Phing[1993] SGHC 153.
(5) Goh Eng Hong v Management Corporation of Textile Centre and Another[2000] SGHC 97.
(6) Lim Yuen Li Eugene v Singapore Shuttle Bus Service Pte Ltd and Another[2005] SGHC 189.
(7) Azizah bte Chalan Hassan v Chan Poh Teong[2009] SGHC 22.
(8) Lim Chi Szu Margaret and another v Risis Pte Ltd [2005] SGHC 206.
Special thanks to John Lim (Harry Elias Partnership LLP) for his input.
► Yasmeen Jamil Marican
Harry Elias Partnership LLP
E-mail: [email protected]