WONG YICK MING v. PRICERITE STORES LTD

HCPI 224/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.224 OF 2005

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REASONS  FOR  DECISION

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1. At the conclusion of the hearing, this appeal was allowed with costs here and below to the plaintiff.  These are the brief reasons.

2. This is an appeal against a single paragraph in a checklist review ordered by Master B. Kwan dated 23 November 2005.  The effect of the paragraph being appealed was that a request by the plaintiff for specific discovery of a small bundle of photographs was refused.

3. In outline, the plaintiff was seeking a set of about a dozen photographs which had been taken on 26 September 2003.  The litigation in question is a personal injuries case.  On that day, the plaintiff and a photographer from a firm of loss adjustors had, by agreement, met at the site of the accident, a room in commercial premises.  There, with the plaintiff’s assistance and direction, a number of photographs were taken showing the layout of the room and some of its contents.  On some occasions, photographs were taken by the plaintiff himself.  He photographed the loss adjustor pointing to relevant locations and items in the room.  Also some photographs were taken of parts of the plaintiff’s body.  The whole exercise was done by agreement, jointly and as part of the investigation into the accident.

4. Subsequently, the loss adjustor wrote an accident report and annexed the bundle of photographs taken by both himself and the plaintiff to that report.  Neither the report nor the photographs have ever been disclosed by the defendant.

5. At the first checklist hearing on 19 July 2005, the Master directed that the photos be “inserted into the defence bundle”.  At the adjourned checklist hearing on 23 November 2005, after some legal argument, the Master dismissed the plaintiff’s application for specific discovery of the photographs.

Decision

6. I am satisfied that the plaintiff is entitled to discovery of these photographs.  They were taken by a digital camera belonging to a representative of the defendant.  They are of the locus of the accident, taken by both parties.  It was a joint exercise.  There was no element of confidentiality on either side in the exercise which amounted to no more than a recording of the site of the accident.  How the pictures should be interpreted and how accurately they portray the site at the time of the accident will be a matter of evidence.

7. The fact that the photographs themselves later appeared as an annexure to an accident report prepared by the defence is neither here nor there.  The report itself and the opinions contained therein may be privileged but the photographs annexed to it for purely illustrative purposes are not.

8. It was not suggested at the time the photographs were taken that the sole purpose was to include them in a confidential report later to be prepared.  If that were the case it is hardly likely that the defence would have invited the plaintiff not only to attend but also to take part in the photographic session.

9. The fact that the loss adjustor took some of the photographs and the plaintiff took others is also neither here nor there.  They undertook the task together.  If the plaintiff had not been there, the loss adjustor would not have known what to photograph.

10. Both Mrs Dora Chan for the plaintiff and Miss Kwok for the defendant referred me to a number of authorities concerning issues of privilege, confidentiality, copyright and discovery.  I am grateful to them but it seems to me that on the simple facts of this matter, the photographs taken are relevant and discoverable.  They were not taken in confidential circumstances and are not of themselves privileged documents.