ROBBIE ILANA TENZER v. DR VINCENT C. GOH

HCPI 718/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 718 OF 2011

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R U L I N G

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1. This is an application by the defendant for an unless order against the plaintiff compelling her to answer certain requests for further and better particulars of the Statement of Claim and Statement of Damages.

2. The background leading to this application had been set out in paragraphs 1 to 14 of the written submission of Mr Tse, solicitors for the defendant and was agreed to by Mr McDaid, solicitors for the plaintiff.  I do not intend to repeat all the paragraphs, and only set out the fact relevant to my ruling.

Background

3. This is a dental negligence case.  Writ was issued on 7 October 2011 and served on 29 June 2012.  Statement of Claim and Statement of Damages were filed and served on 27 July 2012.

4. By a letter dated 24 August 2012 (“the Request Letter”), the defendant requested for a number of further and better particulars on the Statement of Claim and the Statement of Damages.  The plaintiff did not provide the particulars and the defendant took out a summons on 12 September 2012 for an order to compel the plaintiff to provide the particulars.  At the same time, they asked the plaintiff to provide security for costs, which application for security had been dismissed by Master A. Li (as he then was) on 19 April 2013.

5. The request as set out in the Request Letter had not been argued before Master A. Li.  Instead, parties had reached an agreement and by a consent summons filed on 15 May 2013, the plaintiff agreed to file and serve further and better particulars in answer to the Requests set out in the Request Letter.  The consent summons came before me and I granted an order in terms on 11 June 2013.

6. The plaintiff had filed an Answer to the Request Letter on 4 June 2013. But the defendant was of the view that the answers provided had not answered the Request Letter and took out a summons on 10 July 2013 under Order 18 rule 12(3) to compel the plaintiff to file and serve the requested further and better particulars.  The application came before me on 16 July 2013.

7. It may worth setting out some of the answers provided, as this would be relevant to the application before me today.  I take request 1 of the Request Letter which asks for further and better particulars of paragraph 6 of the Statement of Claim as an example.  The request reads –

“The Plaintiff first consulted the Defendant at the Clinic on or about 13 October 2008 for pain in her upper right central incisor … and the loose dental bridge which replaced the missing upper right lateral incisor … The said bridge was cemented to the two teeth adjacent … and the upper right canine …”, state

(a) which dentist in the first place installed the said dental bridge which had become loose;

(b) when the said dental bridge was installed;

(c) the clinic where the said dental bridge was installed; and

(d) whether the dentist who installed the said dental bridge in the first place was aware that the Plaintiff had no back teeth to chew on, as referred to in paragraph 12 of the Statement of Claim and, if not, why not.”

8. I only refer to the Answer to request (a) as an example, and the plaintiff pleads –

“(a) Without prejudice to the fact this request is request for evidence the identity of the dentist who installed the dental bridge which had become loose is totally irrelevant to this claim. Had the Defendant sought this information at the initial consultation with the Plaintiff, he may have positioned himself to deliver dental procedures to the standard expected of a competent general practitioner. The fact that the Defendant asks the questions now after the event is prima facie evidence of the Defendant's negligence and/or breach of an implied term in the contract and tantamount to an admission of liability.”

9. It is obvious that the so called answer is not an answer to the request.  It is rather a statement that the defendant is not entitled to the requested particulars, together with some averment of the plaintiff.

10. As another example of the problem with the answers, I would also refer to the request for particulars under paragraph 32 of the Statement of Claim (which is one of the unresolved disputes before me today).  The request reads –

“The Plaintiff subsequently attended the clinics of Dr Lee, Prof Cheung, and other dental practitioners in the UK and the United States on numerous occasions for remedial dental treatment”,

(a) identify each of the “other dental practitioners in the UK and the United States”;

(b) state –

(i) the date; and

(ii) the place

 of each of the “numerous occasions for remedial dental treatment”; and

(c) give full particulars of the “remedial dental treatment” on each of the “numerous occasion”. ”

11. The plaintiff gives the following Answer –

“Without prejudice to the fact the questions posed under paragraphs (a), (b) and (c) request evidence that would have been disclosed at the appropriate time, i.e. when List of Documents are to be filed following the close of pleadings, the information sought under paragraph 4 dealing with paragraph 32 of the Statement of Claim has already been provided. Furthermore as the Plaintiff's treatment is ongoing and will be updated as treatment is administered and when our respective Lists of Documents are filed and Revised Statement of Damages filed prior to trial.”

12. There is no direct answer to the question raised.  It at best is a reference to the evidence already disclosed, without even identifying which document, or which set of documents.  It does not serve as an answer.

13. I do not intend to go through all the answers which the defendant complains that they are not direct answer or sufficient answer.  On the hearing on 16 July 2013, I make the remark that there are no direct answers or no answer to the Request Letter.  The dispute has been summarily determined and instead of unless order, I directs the plaintiff to comply with my order to given the answer within 6 weeks.

14. On or about 28 August 2013, Further Answer to Request for Further and Better Particulars have been filed.  I believe the Further Answers filed replace the Answer filed in June.  For better record, I believe the Answer filed in June should be redacted.  I would hear from parties in the next Checklist Review Hearing.

15. If I would refer to the answer given in the Further Answer in reply to the said Request 1(a) of the Request Letter, the new answer given is “Dr Mark Sher first installed the said dental bridge.”  This is clear and straight forward. There is no further complaint raised by the defendant.  Indeed, most of Requests have been answered.

16. But the defendant complains that in respect of 3 of the answers, the plaintiff has not answered the Requests and not complied with my order.  One of the disputed answers relates to the request on paragraph 32 of the Statement of Claim (as set out above).  In the Further Answer, the plaintiff now set out the names and addresses of each dental practitioner that the plaintiff consulted in the UK and United States, and the dates when she attended the dentists.  And for the question (c), ie “full particulars of the remedial treatment on each of the numerous occasions”, the plaintiff sought to give “as much detail as she can provide”.  Just as an example, for the consultation with Dr Jay Padayachy of UK, information is given in the following manner –

21.9.2009	New patient consultation
23.9.2009	New patient interview
	Implant consultation
25.9.209	Treatment plan
29.9.2009	EC LOW INC/PRE UL5, B, Endocare Lower Incisor C
	EC LOW INC/PRE LL5 M, Endocare Lower Incisor C
05.10.2009	BRIDGE RELATED SERVICES

“Clinical Notes: make 12 unit temp bdg from ur7 to ul5 - comp on metal with good thimbles on abutments. 1 cart artic xylo ur7, 1 cart artic and 1/2 cart xylo ul1. temps on uper 1’s with tempbond ne, no cem for ul5, ur7. delay +++ on ul5, ur7, pt informed. full arch imp in metal tray with flexitime. Denar facebow. shade a1”

C2DW UL5, Directly Placed Post + Core With Prep

“Clinical Notes: lightpost #n1 cem with total etch, obond 1 and 2 and bisco duo link cem and luxacore comp core”

C2DW UL1, Directly Place Post + Core With Prep

“Clinical Notes: existing post ok, so preped as is”

I1TB UL7, Inlay Preparation/Placement of Temp(B)

12.10.2009    ……

16.10.2009    ……

17. The defendant complains that the plaintiff only repeats what is stated in the medical notes of individual dentist.  The notes are difficult to follow and understand, and do not tell what exactly was the “remedial dental treatment” on each occasion.  The Answer is not a proper pleading and therefore is not an answer given in compliance with my order.

18. A similar complaint is made in respect of Request 1 for further and Better Particulars of the Statement of Damages.  The Request read –

“Had the Defendant carried out the treatment planning and the treatments on the Plaintiff properly and competently, the Plaintiff would not have to undergo numerous remedial surgical and restorative dental procedures which also caused pain and discomfort to the Plaintiff. The remedial dental treatment of the plaintiff is still ongoing …

(a) identify the “numerous remedial surgical and restorative dental procedures”; and

(b) give full particulars of the “remedial treatment of the Plaintiff” which is still ongoing.”

19. Again, in the Further Answer to this question, the plaintiff quoted from various medical notes of the dentists and hospital.  The defendant complains that these answers are difficult to follow and not proper pleading.

The Submission

20. We have an interesting debate on pleadings.  Mr Tse refers to paragraph 18/7/9 of the Hong Kong Civil Procedure 2013, which reads –

“In personal injury actions, sufficient particulars of injuries complained of must appear in the body of the pleading, and it is incorrect and objectionable simply to refer the Defendant to the matters set out in a medical report attached to the pleading.”

21. He submits that by analogy, it is incorrect and unacceptable for the plaintiff to set out the dental notes from the dental records of various dentists, instead of proper particulars of the “remedial dental treatment” on each of the “numerous occasions.”  The dental notes are not proper further and better particulars and the plaintiff has failed to comply with my order in respect of the above 2 Requests.  (I would come to the 3^rd Request complained of later.)

22. Mr McDaid said in court that the answer is not exact copy of the medical notes and he has done some editing before putting that down as an Answer.  He also made submission on “pleading”.  He refers to the judgment of Deputy Judge Marlene Ng given in Willwin Development (Asia) Co Ltd v Wei Xing [2013] HKEC 273 including the following passages –

“ a. …the current practice of requiring witness statements, expert reports and so forth to be exchanged should reduce the need for further and better particulars to clarify pleadings, and as long as the pleadings do convey the nature of the party's case and state the material facts, they should not attract application for further and better particulars even though some details that are likely to come forth in discovery or witness statement are not disclosed.

b. Unless there is some obvious purpose to be served by fighting over the precise terms of a pleading, contests over their terms are to be discouraged. … The judiciary had been exhorting proportionality whenever an appropriate opportunity to do so arose.

 c. It must also be remembered that Order 18 rule 12(3B) of the Rules of High Court, which was introduced by the Civil Justice Reform, provides that no order for further and better particulars shall be made unless it is ‘necessary’ either for disposing fairly of the cause or matter, or for saving costs …”

23. Further, Mr McDaid submits that the Statement of Claim has adequately informed the defendant of the nature of the case he has to meet. Notwithstanding the fact that the plaintiff has agreed to provide the requested answers, the requests made are for evidence of the particularised items.  And before the Statement of Claim and/or Statement of Damages had been provided, the defendant was supplied with the bulk of the documentation he now seeks clarification upon.  The particulars sought are matters covered by discovery, witness statement and/or expert reports.

Discussion and Ruling

24. I believe there is no dispute on the said principles in the judgment of Deputy Judge Marlene Ng on the matter to be considered when to order further and better particulars.  But the order for further and better particulars that I gave in June 2013 is an order granted with agreement of the parties recorded in the said consent summons.  By such agreement, the court would assume that the plaintiff concedes that the requested particulars ought to be given.  And the plaintiff has not sought to set aside the agreement or my order on any grounds.  The order is binding on the parties.  The question before me today is whether the answer is drafted in the form of a proper pleading and has provided the particulars as requested. 

25. I would first refer to another paragraph in the judgment of Deputy Judge Marlene Ng –

25. There is no dispute that (a) pleadings must contain material facts and not evidence, (b) material facts are those facts which must be proved in order to establish a ground of claim or defence, (c) all necessary particulars of the material facts must be pleaded, and (d) the court will not order FBP of a pleading where the particulars sought constitute evidence.

26. By repeating the medical notes, this is stating evidence and not giving a proper summary of the material facts on which the plaintiff relies.  While on this issue, the purpose and importance of pleadings has recently been considered by the Hon Chief Justice Ma in Kwok Chin Wing v 21 Holdings Limited FACV 9 of 2012.  I refer to the following paragraphs in the judgment –

“ 21. It should by now really be quite unnecessary to issue yet another reminder on the rationale behind pleadings. The basic objective is fairly and precisely to inform the other party or parties in the litigation of the stance of the pleading party (in other words, that party’s case) so that proper preparation is made possible, and to ensure that time and effort are not expended unnecessarily on other issues:- Wing Hang Bank Limited v Crystal Jet International Limited. It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round. In other words, it will not be acceptable for unpleaded issues to be raised out of the evidence which is to be or has been adduced.

……

  23.   The purpose of pleadings, in clearly and unambiguously setting out the true extent and nature of a dispute not just for the benefit of the parties but also for the Court in managing and trying cases, remains important under our system of civil justice.  The retention of the old rules as to pleading as well as the introduction of new provisions over four years ago under the Civil Justice Reform, reinforce this.”

27. I believe the judgment of the Hon Chief Justice Ma reminds us that pleadings shall set out in clear and unambiguous wordings the extent and nature of a dispute.  It would be inadequate pleadings if the drafting is unclear or ambiguous.

28. Further, the issue in dispute is determined by the pleadings, including particulars.  When the pleading is silent or unclear on certain dispute, the court would not receive evidence in that aspect.  The Hon Chief Justice Ma has stated clearly that it is the pleadings that determine the scope of the evidence to be introduced and not the other way round.  Hence, before one come to consider evidence to be produced, the pleader must have set out the issue in clear and unambiguous terms. 

29. It is trite that further and better particulars are part of the pleadings.  And it has to be carefully drafted in order that it can be understood by the parties and the court, and people with legal training.  It would not help if it is written in some form of medical shorthand which can only be read by experts.  It is the complaint of Mr Tse that some of the answers cannot be comprehended by ordinary people.  And further, when the answers give too many details but in a chaotic manner, the true issue in dispute could be hidden, making the answer unclear and ambiguous.

30. Just quote one example from the answer given to the request in respect of paragraph 32 of the Statement of Claim, the treatment received on 29 September 2009 is “EC LOW INC/PRE UL5, B, Endocare Lower Incisor C”.  Grammatically, these are fragments of sentence and some are clear abbreviations.  To a layman like me, I could not understand the meaning of this phase.  That would not serve the purpose of a pleading.

31. Further, for treatment on 5 October 2009, the answer mentions of bridge related service and set out the medical note.  What the plaintiff is asked to provide is the kind of remedial treatment he received, and not the details on how the treatment is processed.  If for example the kind of remedial treatment by Dr Jay Padayachy is to form a bridge to replace the missing teeth, then I believe what the Plaintiff has to plead is “bridge forming” with identification of the tooth/teeth being treated.  The details of the treatment are matter of evidence and could be set out in the witness statement of Dr Jay Padayachy, if necessary.  Setting out the notes in the pleading is not necessary, and in the answer now provided blurred the issue in dispute.

32. It is only with the proper answer, the court can determine if the evidence introduced by the plaintiff at the trial is relevant.  I agree with Mr Tse that the answers given to both of the Requests mentioned above are difficult to understand, if not impossible.  They are ambiguous and unclear, and not proper answers.

33. Mr McDaid seems to suggest that the plaintiff need not give the particulars as the particulars have been given in the Statement of Claim and Statement of Damages.  As I mentioned above, by the agreement, and my order given, the plaintiff is bound to give the particulars.  The order cannot be varied without an appeal.  But even if I have to re-visit the issue, Mr McDaid has not persuaded me that the particular is not required.

34. Paragraph 32 of the Statement of Claim states that the plaintiff has received numerous remedial dental treatments.  This averment would be relevant at least on 2 areas.  First, the costs incurred could be recovered as damages, and to determine if the cost so incurred is reasonable, one must ask the nature of the remedial treatment.  Secondly, the remedial treatment would be relevant to the subsequent development of her dental health, and would affect the finding on the recovery of the plaintiff when determining the permanent damage to her health, if any, flowing from the alleged negligence of the defendant.  Without knowing what the “numerous remedial dental treatments” are, the defendant could not sufficiently plead their defence.  I consider the Requests to be both relevant and necessary.

35. Mr McDaid suggests that since he has given an answer, if the defendant are not satisfied, they should apply for further and better particulars of the Answer given, and not to ask for an unless order.

36. Order 18 rule 12(3) of the Rules of High Court reads –

“(3) The Court may order a party to serve on any other party particulars of any claim, defence or other matter stated in his pleading, or in any affidavit of his ordered to stand as a pleading, or a statement of the nature of the case on which he relies, and the order may be made on such terms as the Court thinks just.”

37. I agree that in many cases when answer to request for further and better particulars have been given, the other party who is not satisfied with the details could again serve request for further and better particulars on the answer. But it does not follow that when a pleader gives some form of answer and then the requesting party is obliged to serve request for further and better particulars.  If the answer is not an answer, it does not stop this Court from requesting the pleader to answer properly.

38. The Answer in the current state is chaotic and difficult if not impossible to understand.  Reading as a whole, it does not answer the Request. And if the defendant has to serve request again, it would be against many items of the Answer and the number of new answers given would create greater difficulty to understand the issue in dispute.

39. In summing up, I found that the answers is not properly pleaded, and in any event does not answer the said 2 Request the plaintiff agreed to answer. Fresh answer should be provided for the said 2 Requests.

40. I now move on to the last issue in dispute.  Request 3 of the Statement of Damages reads –

“To date, the Plaintiff has already incurred HKD158,639.00, GBP23,418.70 and USD101,000 on remedial dental treatments”, give full particulars of the “remedial dental treatments” for which “the Plaintiff has already incurred HKD158,639.00, GBP23,418.70 and USD101,000” [my emphasis]

41. The Answer given starts by saying “the Plaintiff has incurred the expenses” and then set out details of the payment to various dentists and hospitals.  But the Request does not ask for particulars of the payment, it asked for the particulars of the remedial treatment received which is covered by these payments.  The remedial treatment received has not been given.  The answer is not in response to the Request and hence the Request has not been answered at all.

42. Generally, Mr McDaid also complains that the defendant has taken out unnecessary application to delay the progress of the case, including taking out the said application for security for costs.  As I record at the beginning of this ruling, the Writ was issued in 2011 but only served in June 2012. Application for security for costs was taken out in September 2012.  It was resolved in April 2013.  The issue of further and better particulars has been resolved in June 2013 when parties reached agreement.  It is unfortunate that the plaintiff takes the aforesaid stance in giving the answer the manner mentioned above or some time could be saved.  Anyway, for better case management, I have directed a Checklist Review Hearing be fixed on 29 October 2013 and I would discuss further with parties on the way forward.

43. I agree that the plaintiff shall be ordered to provide the proper answers to the said 3 Request.  And this is the second time that the same issue is argued.  It is justified to impose unless order.  I allow the application of the defendant in terms of paragraph 1 of the summons dated 2 October 2013, save that the time for the plaintiff to comply with my order be set at 4:00 pm of 12 November 2013.

44. There is no reason why costs should not follow the event and I grant an order nisi that the defendant do have costs of this application to be paid forthwith.  The order nisi shall become absolute within 14 days from today. The defendant shall within 7 days thereafter file their statement of costs for my gross sum assessment.  The plaintiff may file objection within 7 days thereafter before I assess the costs.