MA MAN WAN HELEN v. HONG KONG LAND GROUP LTD

 HCPI 381/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.  381 OF 2005

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REASONS FOR JUDGMENT

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1. The plaintiff appealed against the order of Master K.W. Lung dated 19 December 2005.  I dismissed the appeal.  I now give reasons.

2. This is a personal injury case.  The plaintiff was employed by the defendant as a secretary.  She claims that her work caused her to suffer from bilateral tennis elbow and that her disability was caused by the negligence or breach of contract of employment of the defendant.

3. The defendant’s expert orthopaedic surgeon, Dr Tsoi Chi Wah, Danny, examined the plaintiff on 15 October 2004.  He listed various medical reports and other documents which were made available to him.  The defendant applied for specific discovery of some of those documents.  Before the Master, the defendant consented to give discovery of some of the documents, and the plaintiff withdrew its application in respect of one of them.  The Master, however, dismissed the application in respect of three documents, and it is against this dismissal that the plaintiff now appeals.

4. The documents concerned are a “comment from the respondent company on the applicant’s job duties” and two letters, dated 19 and 23 November 2003 from the defendant to its insurer.

5. There is now no dispute, since an affidavit covering the point has been filed, that the documents came into being for the purpose of litigation, specifically the plaintiff’s employee’s compensation claim, and are privileged.  The plaintiff’s argument is first, that the defendant has waived privilege by allowing Dr Tsoi to consider the documents, and second, that fairness requires that her own expert, Dr Lau Hoi Kuen, should be allowed to base his assessment on the same documents, and the court should therefore, in the exercise of its discretion, order their discovery.

6. It is not in dispute that discovery should be given of the documentary material which an expert has considered in reaching that opinion.  See the judgment of Seagroatt J in Chan Mun Kui v. Lau Yuk Lai, unreported, HCPI 301 of 1998.  Mr Li, counsel for the plaintiff also relied on the decision of Bracewell J in Clough v. Tameside & Glossop Health Authority [1998] 2 All ER 971 as authority for the proposition that even a passing reference by the expert to material supplied to him as part of background documentation was sufficient to waive privilege attaching to that material.

7. However, the mere reference to a document does not waive privilege in that document.  There must be reference to the contents and reliance.  See Marabeni Corp. v. Alafouzos [1986] CA transcript 996, and Bourns Inc. v. Raychem Corp & Anor, 1999 3 All ER 154.  Aldous LJ, having stated that he could not support all Bracewell J’s statements on the law, though he said that she probably reached the correct result, went on to say this at page 166-167 :

“The principles of law are clear.  Service of a witness statement, whether it be a statement of an expert or a witness to fact, waives privilege in that statement.  As stated in the Marubeni Corp case mere reference to a document does not waive privilege in that document; there must at least be reference to the contents and reliance”

8. Here, there is no specific reference in the report of Dr Tsoi to any of the documents concerned or to their contents.  It is suggested that the doctor must have got some information, such as the estimated weight of the telephone handset which the plaintiff had to lift repeatedly in the course of her work, from the documents, because he does not say in terms that he got it from the plaintiff when taking her history.  However there is no real basis for such an inference, because everyone has experience of handling telephone handsets.  Further, the history which Dr Tsoi took from the plaintiff is much the same as that taken by her own expert.  I cannot see that there is any basis to say that Dr Tsoi must have relied on the contents of the documents.

9. As to the exercise of discretion, I have been shown the documents.  There is nothing in them, so far as I can see, which would indicate that that Dr Tsoi had any advantage over Dr Lau, in arriving at their respective opinions.  Therefore, there is no good reason to exercise the discretion in the plaintiff’s favour.

10. For these reasons I dismissed the appeal.