THEBE SURYA KUMAR v. G4S GURKHA SERVICES LTD

HCPI 192/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 192 OF 2010

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BETWEEN

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D E C I S I O N

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1.  I have before me what remains of a summons that was taken out by the plaintiff’s solicitors, which can be separated into two parts.  The first part is in relation to specific discovery of medical notes and records from three specific doctors and discovery of the correspondence between the defendants’ solicitors and those doctors.

2.  A number of orders were made against the defendant for discovery of those documents and not complied with, which resulted in this summons being issued and which was fixed for hearing before me this morning.

3.  However, on 23 November 2010, albeit very late, compliance was finally made of the specific discovery orders and all the medical notes and records which were in the possession of the doctors concerned had been obtained by Messrs Deacons and then furnished to the plaintiff.

4.  Mr Millar, for the plaintiff, nevertheless argued this morning that all had not been done because he was able to identify a particular letter referred to in the correspondence disclosed, a letter dated 10 June 2010 which he said he had not received.  That was quickly remedied when a copy of the same was given to him by Ms Lau, who was instructed to appear this morning by Messrs Deacons.

5.  A copy of that letter is also provided to me and nothing of controversy turns on it.  It is a letter written to Dr Baldwin Chan from Messrs Deacons and requesting specifically for all MRI scans in his possession.

6.  It seems to me that this outstanding matter is not something that ought to have taken at least a good 20 minutes of this morning.  A simple query would have produced the same response; namely, the handing over of that particular letter.

7.  Mr Millar then moved on and directed me to sub‑paragraph 3 of his summons and asked me to make an order in terms of that sub-paragraph which reads, “The defendants do within 7 days file and serve an affidavit sworn by a director as to whether they or anybody acting on their behalf directly or through a third party have had Mr Thebe examined by any doctor other than Dr Fung Yuk Mei, Dr Baldwin Chan or Dr Peter H.W. Liu, and if so, who.

8.  Mr Millar readily conceded that he was not able to identify from any documentation that there had been an examination of his client by any other doctor. He did say that although one would expect the person being examined to know that he was being examined by a specific doctor, his client was not well educated and was not able to assist.

9.  But even so, I think it is accepted by Mr Millar that the burden was on him to establish at least a prima facie case of an examination by another doctor before I could make an order in terms of the order he sought and, as a result of that exchange between Mr Millar and the Bench, Mr Millar then said that he was no longer pressing for an order in terms of paragraph C.

10.  Had he done so, I would have refused that order for the same reason — that in the absence of some prima facie evidence of the existence of the fact that such examination took place from which one could infer the existence of any documentation of this so-called doctor examining the plaintiff, I do not have the evidential basis to make this order.  Therefore, really, there are no orders that can be made in respect of the first part of the plaintiff’s summons.

11.  It seemed to me that the reason why we were here at all was in respect of the second part of the plaintiff’s summons, which is that the defendants be debarred from having Mr Thebe examined by any medically

qualified doctor, whether a specialist in orthopaedics or otherwise; or, if such be permitted, then otherwise than jointly with Professor S.M. Kumta; and in the last event that such examination do take place at Professor Kumta’s and Mr Thebe’s convenience and that the cost of any such examination charged by Professor Kumta and/or incurred by Mr Thebe be paid by the defendants within 7 days of notification of such.

12.  The history that led to this particular application is that prior to the commencement of proceedings, Mr Millar, acting for the plaintiff on the assignment of the Legal Aid Department, had requested a joint examination and had nominated Professor Kumta as the expert chosen by his client.  That did not take place because of the defendant’s difficulties in procuring an orthopaedic expert who was willing to conduct such a joint examination with Professor Kumta.

13.  In the end, Professor Kumta carried out a solo examination which the defendants complained was against the practice of the courts; namely, that if there is any dispute or differences between the parties as to the conduct of a medical examination, then the matter should be before the Master and directions sought in that regard.

14.  In any event, all of that became what I may call water under the bridge when, on 23 November 2010 by their second letter of that date, the defendants in effect, I think, threw in the towel on this issue.  And very wisely, if I may say so, because they had by then re-approached Dr Chun Siu Yeung who had changed his mind and now indicated that he was willing to conduct a joint examination with Professor Kumta.

15.  What they offered in that letter was this, that:

“medical evidence be limited to one orthopaedic expert for each party, namely, Professor Kumta for the plaintiff and Dr Chun Siu-yeung for the defendant;

the parties shall arrange for a joint medical examination within 14 days and that such examination do take place at Professor Kumta’s and the plaintiff’s convenience;

and this is a very serious concession:

“that the costs of and occasioned by the solo medical examination conducted by Professor Kumta be paid by the defendants, whereas the costs of the joint medical examination shall be costs in the cause.”

16.  I say this a very serious concession because by making this concession they were giving up, at least on the face of it, a point which appeared to me to have some validity; namely, they were giving up their complaint that the plaintiff had conducted a solo examination without first obtaining the court’s direction that the plaintiff could be allowed to do so.

17.  This is certainly not the proper case for me to consider in depth the guidance that has been provided on two occasions by Deputy Judge Marlene Ng, who is now Master Marlene Ng, in the two cases Ansar Mohammad v Global Legend Transportation Limited and Siu Fook Cheong v Siu Kwok Fai. If there is going to be any substantial application to me to review the guidance offered in these two cases and to suggest that I, as the personal injuries judge, should give different and other guidance than what we have, then that is a matter that of course must be properly argued.

18.  I can foresee that the exercise may be slightly costly because I would certainly need to be furnished with detailed and full submissions

and authorities on the proper practice in such cases. This certainly was not the proper forum for those submissions to be advanced in the light of what I described as quite a serious concession being made by the defendants. I say no more, therefore, about the matter.

19.  The offer of the defendant was also to pay the costs of the plaintiff’s summons in any event. Having made these offers, the defendants therefore requested the plaintiff to withdraw the summons and to vacate the hearing before me. Mr Millar declined to do so and submitted before me that I should debar the defendant from having the plaintiff medically examined by an expert of his choice.

20.  He said that I should do so because he was of the belief that the doctors that were allegedly treating the plaintiff — namely, Dr Fung Yuk Mei, Dr Baldwin Chan and Dr Peter Liu — were really expert witnesses engaged by the defendants’ insurers at a very early stage, and, having had a bite of the cherry, so to speak, they should not be allowed to have another bite by engaging another orthopaedic expert.

21.  The submission is one that, of course, must be seriously considered in the light of the evidence that is before me. And that evidence as to whether or not the doctors were performing the role of expert witnesses or whether they were performing the role of treating doctors was before me in the form of the bundle of documents that had been received from these doctors and which appear in my bundle at pages 95 to 142. Included in them are the letters from Messrs Deacons asking the doctors to produce all their records and so on.

22.  Having reviewed these records and notes, and I think Mr Millar accepted this as well, I conclude that there is nothing in them to suggest that these doctors were performing any other role than that of a treating doctor, so Mr Millar really did not have the evidential basis to make the submission that he made.

23.  In the result, therefore, I conclude that the proper orders that I should make are in fact the orders that were proposed by the defendants in their letter of 23 November 2010, and I do so. I therefore make an order in terms of paragraph 1 of that second letter, paragraph 2 of that second letter, paragraph 3 of that second letter and paragraph 5 of that second letter, because unless and until those offers were made, the plaintiff was clearly justified in taking out the summons and coming to court before me on them.

24.  Mr Millar argues that the conduct of the defendant is such that I should give an order of costs on a different basis. He first sought an indemnity order and then he said perhaps something between indemnity and party and party costs. I am not persuaded that this is a proper case for me to make a costs order which is of a punitive nature. It seems to me that the conduct of both parties leaves much to be desired. If litigation is going to be pursued in a constructive and efficient manner, then we should not have the sort of what one may call bickering that I have seen in the correspondence being exchanged even as recently as 25 and 30 November 2010.

25.  It is not all one-sided, because I think the defendant does have a serious complaint which it can justifiably make, that notwithstanding the correspondence with the plaintiff, the plaintiff went ahead and caused that solo examination to be conducted by Professor Kumta without first seeking the direction of the PI Master to do so.

26.  For these reasons, I think the proper order to make is the normal order and that is that the defendant pays the costs of the plaintiff’s summons in any event, to be taxed if not agreed, and of course it is right that the plaintiffs own costs be taxed in accordance with the Legal Aid Regulations; which then therefore brings me to what costs orders I should make this morning.

27.  In the light of the orders I have made on the summons, there is a lot to be said about the defendant’s submissions that “technically speaking, we did not need to be here.” However, I am going to take a slightly more lenient view of the matter and not accede to Ms Lau’s suggestion that there be no costs of the hearing today because, strictly speaking, it was not necessary.

28.  I am going to make an order that the costs of today be costs in the cause and I think this is an order which is generous to Mr Millar. Costs in the cause and that there be Legal Aid taxation for the plaintiff’s own costs. I have to, however, say to Mr Millar that he has to be very, very careful in pursuing the sort of claims that he is pursuing if he has been offered proposed draft orders which really conclude the matter very, very satisfactorily in his client’s favour.

29.  There is a lot to be said about the plaintiff, in fact, paying costs to the defendant for this hearing, but I think in the light of the fact that the 10 June letter was not forthcoming until this morning; in the light of the conduct of the defendant in the past — repeated non-compliance of clear orders of the court; in the light of the fact that perhaps this is a good opportunity for the court to express its views to both sides on how to conduct proceedings in an efficient and constructive manner, not forgetting their role as officers of the court as well as paid agents for their clients, then I think the proper order I should make for this morning is that the costs of today be in the cause.

[Submissions re directions]

30.  The time for filing and service of the statement of damages be extended to 1 March 2011, liberty to apply. The checklist review adjourned to a date in mid-January be further adjourned to a date in April 2011. The plaintiff’s solicitors shall fix the adjourned checklist review with the listing clerk within 21 days.