ALLAHA DITTA v. RODNEY ENGINEERING CO LTD

HCPI 981/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 981 OF 2005

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J U D G M E N T

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1. This is an appeal by the defendant against the decision of the Master given on 21 November 2006 whereby the Master dismissed the defendant’s application for specific discovery as per the defendant’s summons dated 7 June 2006.

Background

2. This is a claim for damages by the plaintiff for personal injuries relating to an accident to the plaintiff during the course of his employment with the defendant which occurred on 12 July 2004 when the plaintiff fell from the top of a container thus sustaining injuries to his trunk and back.

3. The Writ was issued on 25 October 2005.

4. In default of any defence filed, interlocutory judgment was entered against the defendant with damages to be assessed on 1 June 2006.

5. What remained in issue between the parties in this case relates therefore to quantum.

The specific discovery sought

6. The specific discovery sought by the defendant is contained in the Schedule to their summons dated 7 June 2006 which states :

“1.    All clinical notes from all medical institutions attended by the plaintiff;

 2.    Post-Accident earnings records up to-date including but not limited to payment/salary receipts, MPF records, bank statement and employee’s returns and employer’s returns filed with the Inland Revenue Department; and

 3.    The plaintiff’s security guard permit valid for the years from 2004 up to present.”

7. At the outset of the hearing, I was informed by Mr Burns who appeared for the defendant, that the defendant no longer pursued Item 3 of that Schedule since that item has already been disclosed by the plaintiff.

8. Moreover, the defendant is agreeable to narrowing the ambit of Item 1 of the Schedule in a way to which I will return later in this judgment.

9. As for Item 2, this is being sought but that some of the items stated there have been disclosed by the plaintiff though not in its entirety.

10. I shall deal individually with each of the two items of documents sought.  But before I deal with each of the item sought, I should deal with the procedural point raised by the plaintiff in this appeal that the application for specific discovery was premature.  This applies to the application for specific discovery as a whole irrespective of the items of documents sought, and if found in favour of the plaintiff, would be the end of this application for specific discovery entirely.

Was application premature

11. The procedural point taken by the plaintiff in this application is that the summons taken out by the defendant for specific discovery is premature and therefore should be dismissed entirely.

12. It is the plaintiff’s contention that the summons for specific discovery being dated 7 June 2005 pre-dates by two days the plaintiff’s List of Documents filed herein.  In that respect the plaintiff says that the defendant have jumped the gun when it should have waited for the plaintiff’s List of Documents before taking out the summons for specific discovery.

13. The application is made under Order 24, rule 7 of the Rules of High Court, sub-rule (1) of which states :

“7.—(1)  Subject to rule 8, the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is, or has at any time been, in his possession, custody or power, and if not then in his possession, custody or power when he parted with it and what has become of it.”

14. The use of the words “at any time” in sub-rule (1) of rule 7, coupled with the absence of any provisions in Order 24, rule 7 to require an application for specific discovery to be made only after filing of the List of Documents by the party against whom specific discovery was sought is, in my view, sufficient to dispose of this procedural point taken by the plaintiff.

15. In addition, in the present case, this application by the defendant for specific discovery, although it pre-dates the plaintiff’s List of Documents, is vindicated by the fact that the plaintiff’s List of Documents only contains two items (being item 69 and 70 in the List of Documents) relevant to post-accident employment and which will be dealt with later in this Ruling.

16. For these reasons, I am not prepared to accede to the plaintiff’s contention that the application for specific discovery should be dismissed for being premature.

Item 1 documents

17. Prior to taking out the summons, the defendant has by letter dated 8 March 2006 made a similar request for the discovery of the same documents.

18. As already indicated above, the defendant is prepared to narrow down this item sought in that the defendant accepts that the Item 1 documents should properly refer to the injuries of the plaintiff arising from the accident in question.  Secondly, the defendant is also prepared to further narrow down the Item 1 documents to being the medical records or reports from the private doctor(s) consulted by the plaintiff and referred to in Dr Tsoi’s medical report dated 12 July 2005.

19. That concession comes about in this way.

20. When the claim was started the plaintiff had served with the claim four medical reports given by government doctors all relating to the injuries suffered by the plaintiff from the accident, the subject matter of this claim.

21. In the medical report of Dr Danny Tsoi, the orthopaedic expert instructed by the plaintiff, dated 12 July 2005, it was stated :

“After the last follow up at CMC in April 2005, [the plaintiff] also sought treatment from private doctors twice.  No further specific treatment was offered to him.”

22. The request of the defendant’s solicitors by way of correspondence for medical reports or records from the private doctors referred to by Dr Tsoi was met with the following answer contained in the plaintiff’s solicitor’s letter dated 30 November 2006 :

“There is a reference in the report of Dr Danny Tsoi to our client attended private doctors twice, but having re-checked the matter with out client, it would appear that this is not correct and we confirm that he did not attend any private doctor.”

23. Based on the above words stated by Dr Tsoi in his report, it is submitted by Mr Burns that firstly, it is unsatisfactory that such answer is contained in the plaintiff’s solicitor’s letter which is unsworn.  The defendant is entitled to discovery of such medical records or report if it should exist, and if not, the defendant is entitled to be told of its non-existence in an affidavit or affirmation on oath.

24. Relying on the case of Peruvian Guano, Mr Burns further submits that if such record or report exists, it may lead the defendant to follow a train of enquiry which the defendant is entitled to.

25. The plaintiff’s submission, on the other hand, is that since four medical reports have already been disclosed and served by the plaintiff, all relating to the present injuries of the plaintiff relating to this accident, it is quite unnecessary for the defendant to seek specific discovery of records or reports relating to what was stated by Dr Tsoi.  It would merely be a waste of costs, particularly since the plaintiff’s solicitors have already answered such queries by its letter of 30 November that what is sought by the defendant do not exist.

26. In deciding on the Item 1 documents, I accept that the defendant is, strictly speaking, entitled to follow a train of enquiry from such medical records or report in the light of what has been stated by the plaintiff’s own expert in his medical report.

27. However, in the light of the plaintiff having disclosed and served four medical reports from government hospital relating to the same injuries, I would have thought it unnecessary for the defendant to have embarked on such a costly exercise as this and would have dismissed this application had the Item 1 documents been the only documents sought by the defendant.

28. In like manner, I can fully see why the Master said in her Ruling on this matter that the Item 1 documents sought by the defendant was a ‘fishing expedition’.  That was before any attempt to narrow down that item was made.

29. I turn now to consider the other item of documents.

Item 2 documents

30. The Item 2 documents relate to post-accident employment as a security guard and post-accident earnings.

31. They are relevant to the case because there is a dispute between the parties as to whether the plaintiff was employed by the defendant as a security guard (as well as a driver) before the accident.  It is the plaintiff’s case that he was employed by the defendant as a driver in the daytime and as a security guard at night.  The defendant only admits that the plaintiff was employed by it as a driver in the daytime, but denies employing the plaintiff as a security guard at night.

32. In the witness statement of the plaintiff dated 7 March 2006, it was stated that in so far as post-accident work is concerned, the plaintiff, after his sick leave had expired in April 2005, was initially unemployed, but later was able to secure employment as a security guard with Fan Asia Security Services Ltd on 1 August 2005.  From 1 September 2005, he obtained a job, also as a security guard with Intersafe Property Management Ltd earning $5,510 per month.

33. However, no mention was made of such post-accident employment in his Statement of Damages which was dated 25 October 2005, at a time after he had obtained both those jobs.

34. It was against this background that the defendant’s summons dated 7 June 2005 for specific discovery was issued.

35. Two days after the defendant’s summons was issued, the plaintiff filed a List of Documents dated 9 June 2005.  In the List of Documents filed by the plaintiff the only documents contained therein relating to post-accident employment were the last two items therein, being copy of an ID issued by Intersafe Property Management Ltd to the plaintiff (item 69 in the list of document) and copy of a security personnel permit issued to the plaintiff (item 70 in the list of document).

36. In a Hearsay Notice dated 20 July 2006 and filed by the plaintiff, both the above documents (items 69 and 70 in the List of Documents) were included together also with a copy bank book issued to the plaintiff and covering the period 19 November 2005 to 7 March 2006.  These three items in the Hearsay Notice were put under the heading “Documents re jobs after expiration of Sick Leave”.

37. By letter dated 30 Novemeber 2006, the plaintiff’s solicitors wrote to the defendant’s solicitors (in answer to the defendant’s solicitor’s letter of 27 November) stating :“If our client has wage slips etc., we will provide you with copy of same.”

38. By a further letter of 10 December 2006 to the defendant’s solicitors, the plaintiff’s solicitors confirmed that no wage slips were issued to the plaintiff in respect of his earnings since the expiration of his sick leave.  They also confirmed that there are no MPF documents in the plaintiff’s possession in respect of his employment since the expiration of his sick leave.  However, they provided an updated copy (updated to 10 December 2006) of the same Bank Book already disclosed in the List of Documents and also provided a copy of an Employer’s Return of Remuneration from Intersafe Property Management Ltd for the year 1 April 2005 to 31 March 2006.

39. From the above chronology and background, it can at once be seen that the plaintiff has been somewhat lax in the manner in which he has gone about making discovery of evidence relating to his post-accident employment.  The piecemeal way in which discovery was made by the plaintiff does not inspire much confidence in the denials contained in the letters of the plaintiff’s solicitors as to the existence of such documents.  Those denials are not on oath, but that the defendant is entitled to discovery of such documents if they exist and to know for certain if the plaintiff says he has not possession, custody or power of them.

40. For these reasons, I have arrived at the conclusion that I ought to make an order for specific discovery of the Item 2 documents by the plaintiff and if he says that he has not possession of them, to put that down on oath in an affidavit.

Decision

41. In light of the decision I have reached on the Item 2 documents, I would also make the order that if the plaintiff says he has not possession of the narrowed down Item 1 documents, then that should also be put down on oath in an affidavit.

The order

42. There will be the following order :

The plaintiff do within 14 days make an affidavit/affirmation stating whether any of the following document is, or has at any time been in his possession, custody or power, and if not then in his possession, custody or power when parted with it and what has become of it :

(a)      medical records or reports from the private doctors consulted by the plaintiff as referred to in page 3 of the medical report of Dr Tsoi Chi Wah Danny dated 12 July 2005;

(b)     post-accident earning records up to-date including but not limited to payment/salary receipts, MPF records, bank statements and employee’s returns and employer’s returns filed with the Inland Revenue Department save and except those that have already been disclosed.

Costs

43. There will be a costs order nisi that the costs of this appeal and of the application and hearing before the Master in respect of the defendant’s summons dated 7 June 2006 be to the defendant in any event.