THAPA KESHAR v. KONE ENGINEERING & CONSTRUCTION CO LTD AND OTHERS

HCPI 416/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 416 OF 2014

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D E C I S I O N

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1. This is a personal injury claim and the 3 defendants took out an application under Order 18 Rule 12 (1B) for to seek that: -

(i)  The plaintiff shall serve on the defendants with his Statement of Claim a medical report or reports substantiating the injuries pleaded in paragraph 16 of the Statement of Claim within 14 days;

(ii)  The plaintiff’s action be stayed until the plaintiff serve the report(s) on the defendants; and

(iii)  Costs of the application be to the defendants in any event.

Background

2. In the Statement of Claim (under “Particulars of Injuries” in paragraph 9), the plaintiff pleaded that: -

“As a result of the accident, the plaintiff has sustained serious injuries to his right foot injuries, particulars of which are set out in the Statement of Damages filed herewith.”

3. The plaintiff then listed 4 medical reports which are filed with the Statement of Claim.

4. The plaintiff particularized his injuries under paragraph 16 of his Statement of Damages under the heading “Present Problems” which listed various symptoms and complaints like pain, numbness, stiffness, swellings, weaknesses, various “radiation” and “aggrevation” of symptoms, and various disabilities.

5. Mr Mcdaid, solicitor for the defendants, submitted that Order 18 rule 12 (1A) required that a plaintiff in a personal injury case should serve with his Statement of Claim a medical report which should, according to his interpretation of the rule, state all the particulars of personal injuries pleaded.

6. He took the court through the 4 medical reports to show that none of the reports stated the various symptoms and complaints listed under “Present Problems” and submitted that the action should be stayed unless the plaintiff served a medical report or reports which supported all the particulars.

7. Mr Mcdaid also quoted Master Li’s decision in Robbie Ilana Tenzer v Dr Vincent C Goh [2013] which he said supported this interpretation of the rule.

The law

8. Firstly, it should be clear that we are not dealing with expert medical reports here. Order 18 rule 12 only concerns a “medical report” which should be served at the same time as the statement of claim.  Such a medical report is most likely written by the doctor who has treated the plaintiff at the time of the injury.

9. Order 18 rule 12 stated:

“(1A) Subject to paragraph (1B), a plaintiff in an action for personal injuries shall serve with his statement of claim-

(a) a medical report….

(1B) Where the documents to which paragraph (1A) applies are not served with the statement of claim, the court may-

(a) specify the period of time within which they are to be provided….

(1C) For the purposes of this rule-

“medical report” means a report substantiating all the personal injuries alleged in the statement of claim which the plaintiff proposed to adduce in evidence as part of his case at the trial…”

10. The interpretation of (1C) is important here: Mr Mcdaid took a “restrictive” view.  He argued that this meant that every allegation of injuries (including every particular of injuries) pleaded in the statement of claim must be stated in the medical report.

11. In general, the court shall not, within reasons, interfere with how the parties plead their case.  Of course, it is then entirely up to the parties to produce whatever evidence needed to support their pleadings.

12. However, it is the broad aim of case management (and CJR) that evidence should be revealed to the other side as early as possible, especially in personal injury claims where much of the (usually non-controversial) medical evidence by the treating doctors may already be in existence and available.  Paragraphs (1A) to (1C) of Order 18 rule 12 perhaps reflect this peculiar feature of personal injury cases.

13. Further, Order 18 rule 12 should be read with para 65(1) of PD18.1: -

“…At least one medical report must describe the plaintiff’s condition at a time preferably no earlier than 4 months prior to the service (of the statement of claim)”.

14. The requirement stated here is for the medical report to describe the plaintiff’s “condition”.  There is no requirement for the medical report to state every single allegation of injuries pleaded in the statement of claim.

15. On contrary, Mr Mcdaid’s “restrictive” interpretation would envisage a report which must exhaustively list all particulars of every complaint stemming from those diseases/injuries at all periods of time absence of which the plaintiff could not so plead.

16. It could not have been the intention of those drafting Order 18 rule 12, in what appears to be a section defining a “medical report” (that is, paragraph (1C)), to “slip in” such an onerous restriction.

17. Otherwise, I would have expected an open and clearly drafted wordings like : “The Plaintiff shall not plead any personal injuries (including any particulars of injuries) in the statement of claim which is not stated in a medical report to be served at the same time as the statement of claim.”  Of course, no such draconian wordings are found in the rule.

18. More importantly, if this was the intention of those drafting the rule, the court would be asked to audit every allegation of injury (including its particulars) in the statement of claim of every personal injury claim by cross-checking with the medical report.

19. As for the plaintiff, in order to prevent applications like the current one, he must arm himself with a detailed list of symptoms that he not only needs to inform his treating doctor at the time of his injury, but to ensure that the doctor bothers to list every details of such symptoms, however minor or trivial it may seem to the doctor, when he writes his medical report. And if the plaintiff developes a new symptom anytime after this medical report, he must obtain a further medical report stating this otherwise he cannot plead it.

20. This is plainly absurd.

21. I therefore do not agree with Mr. Mcdaid’s “restrictive” interpretation.  What constitute “a report substantiating all the personal injuries…” must be viewed with common sense.

22. There is a wide spectrum of pleadings of “personal injuries”.  On one end of the spectrum, a plaintiff may plead that he has suffered, say, a heart attack, a type of cancer or a major psychiatric illness without any supportive medical report.

23. These are clearly diseases/injuries/conditions that a layperson cannot conceivably self-diagnose and only a doctor, with the knowledge of the relevant diagnostic criteria, can be in the best position to make that diagnosis.

24. In such a situation, it is plainly within the court’s case management power to order that a medical report which substantiates such a disease/injury/condition to be served (with and without a stay of proceedings in the meantime). In extreme cases, the Court can order that pleadings be struck out for lack of supportive medical evidence.

25. At the other end of the spectrum, the plaintiff may simply be pleading some complaints/symptoms (eg a headache, some numbness, or perhaps he could not sleep well etc) which may be related to an underlying disease, injury or condition which has itself been substantiated by a medical report.

26. There might be many reasons why the plaintiff has not told the treating doctor all his complaints/symptoms at the time of consultation.  There might also be many reasons why the doctor, even if so told, decided not to record all of them in his contemporaneous notes.  Further, even if the notes were so recorded, there might be many reasons why the doctor did not repeat all of them in his medical report (which could be in a summary form distilled from the contemporaneous notes and which was usually commissioned at a later stage).

27. It is for the plaintiff to prove the existence of such “outside-report” complaints/symptoms and why they are caused by the underlying disease/injury/condition.  I cannot see why the court should interfere.

28. I have no doubt that Master Li made the correct ruling in the case of Robbie Ilana Tenzer.

29. In that case, the claim was against a dentist for a dental mishap. The dental mishap required a bone graft taken from the patient’s hip.  The patient raised a claim for a second injury which was possibly a hip bone/muscle injury (with additional “psychological/psychiatric trauma”).  This was clearly a separate injury from the original dental injury.  The dental experts, quite rightly, declined to opine on bone/muscle injuries which should be in the realm of orthopeadic surgeons.  However, in an attempt to substantiate this second injury, the plaintiff had only produced the physiotherapist’s contemporaneous treatment notes.

30. It is clear that this was a second disease/injury the diagnosis of which should be made by a doctor.  This injury should be substantiated in the doctor’s medical report, and Master Li correctly pointed out that a physiotherapist’s notes did not satisfy the definition of “medical report” in (1C).

31. In Elijah Saatori v Raffles Medical Group CACV 184/2009, the plaintiff alleged that he suffered from a symptom (tinnitus) but failed to serve a medical report under Order 18 rule 12 (1A) with his statement of claim.  Hon Yuen JA mentioned, in passing, that Master Lung and then Master Kwan both ordered such a medical report be served.

32. Again, these were no doubt the correct orders: although the plaintiff in this case only pleaded a particular complaint/symptom, there was no medical report substantiating the underlying disease or injury. Without this, the court would be at a loss to assess what the underlying cause of the complaint/symptom was and whether this might be caused by any alleged injury.

33. Ms Chung, solicitor for the plaintiff, also argued that the particulars of injuries were titled “Present Problems” and therefore should not be considered “personal injuries” as defined under (1C), and further that such “Present Problems” were only stated in the statement of damages and not in the statement of claim.

34. I am of the view that it does not matter whatever one calls the “particulars” or whether the “particulars” are listed in the statement of claim or statement of damages (but with a reference to such in the statement of claim as in this case).  Following the principle above, the more important consideration is the nature of such “particulars” and whether the underlying disease/injury/condition in the statement of claim has been substantiated by a medical report.

35. In the current case, I am satisfied that the underlying injury (fracture of 5^th metatarsal bone of the right foot) has been more than adequately substantiated by 4 medical reports.  It is for the plaintiff to prove the existence of any “outside-report” complaints/symptoms (and their casual link with the underlying injury) and I cannot see why the court should interfere.

Order

36. I would therefore dismiss the 1^st, 2^nd and 3^rd defendants’ Summons dated 13 October 2014 and award the costs of the Summons to the plaintiff to be taxed if not agreed.