LUI YIU NGA v. HOSPITAL AUTHORITY

HCPI 410/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 410 OF 2000

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J U D G M E N T

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1. This is an appeal from the order of Master Kwan made on 2 July 2002 whereby the Master ordered the production by the plaintiff of the medical notes of Dr Sung Wan Sin ("Dr Sung") dated 3 February 1999 and the medical notes of Dr W.B. Wong ("Dr Wong") dated 22 June 2000.

2. At the start of the hearing, after indicating to counsel for the defendant that I had taken the liberty to look inside the brown envelopes in which the plaintiff had exhibited these documents to be viewed only by the court whilst maintaining her objection to production of same, and further indicating to counsel for the defendant that the medical notes of Dr Sung dated 3 February 1999 is indeed irrelevant to the issues in this case, counsel for the defendant then indicated that they did not wish to further pursue the production by the plaintiff of that document.

3. Thereafter, the appeal concentrated on the medical notes of Dr Wong dated 22 June 2000.

4. Likewise, this judgment will deal only with that one aspect of the appeal.

Background

5. The plaintiff brings this claim against the defendant as her former employer in respect of three accidents which the plaintiff had when working for the defendant as a student nurse, all of which resulted in the plaintiff slipping and injuring her right ankle.

6. The three slipping accidents are alleged by the plaintiff to have occurred on 23 June and 26 November 1997 and on 6 February 1999 at the plaintiff's then places of work respectively. It is the plaintiff's case that the floors of the places where she had slipped on all three occasions were wet and slippery and that was due to the negligence of the defendant.

7. The Writ was issued by the plaintiff's solicitors in April 2000. The Statement of Claim was dated 11 April 2000.

8. On 11 March 2002, Master Lung made an order for specific discovery against the plaintiff. Pursuant to that order of Master Lung, the plaintiff filed an affirmation dated 2 April 2002 stating that she had in her possession (inter alia) copies of medical notes and records kept by the Department of Orthopaedic Surgery (made by Dr Wong) dated 22 June 2000 but at the same time objecting to production of such notes on the grounds of legal professional privilege.

9. At the Check List Hearing on 2 July 2002, Master Kwan, after hearing arguments from the parties, ordered the plaintiff to produce for inspection (inter alia) the notes made by Dr Wong dated 22 June 2000.

10. It is against this order of the Master that the plaintiff appeals.

Plaintiff's arguments

11. The plaintiff has deposed to on affidavit that the dominant purpose upon which she consulted Dr Wong on 22 June 2000 resulting in the doctor making the notes, the subject matter of this appeal, was that she had wanted to consult him in order to obtain his medical opinion on an aspect relating to this claim so as to be able to go back to her assigned solicitors with such medical opinion in order to obtain legal advise from them.

12. That being the dominant purpose for which she consulted Dr Wong, his notes of such consultation are therefore privileged since that consultation was a step taken by her for the purpose of obtaining legal advice.

Defendant's arguments

13. Mr Clough who appeared for the defendant at the hearing of the appeal submits firstly that since the consultation with Dr Wong by the plaintiff (from which resulted the notes in question) did not involve any lawyers therefore there can be no legal privilege attaching.

14. Secondly, Mr Clough says that once solicitors had been assigned to the plaintiff by the Director of Legal Aid, it is for the solicitors, and not the plaintiff herself, to approach a medical expert to obtain expert opinion necessary for legal advise. In so submitting, Mr Clough suggests that had it been the solicitors and not the plaintiff who had approached the doctor for expert opinion with a view to obtaining legal advise, that may have been different and that legal privilege may have attached to such expert medical opinion. But that was not the case here.

Decision

15. In so far as the purpose for which the plaintiff consulted Dr Wong on 22 June 2000 is concerned, it should be noted firstly that there is no contradictory evidence from the defendant that the purpose stated by the plaintiff was not the purpose for which she consulted Dr Wong that day. Secondly, it is further borne out by those notes made by Dr Wong under the heading "Conclusion" that "needs to discuss i (with) solicitors of Legal Aid...." (the quoted italics of the note made by Dr W.B. Wong was referred to by counsel for the plaintiff in his skeleton submission and to that extent I am not revealing any part of the document for which the plaintiff has claimed privilege).

16. The law in this area is quite clear. The law relating to privilege was cited to me at length by both counsel in submission. I take the view that the fact that a solicitor was not involved in the consultation between the plaintiff and Dr Wong (in which those notes came into existence) cannot be fatal to the plaintiff's claim for legal professional privilege. What is important is that the dominant purpose of that consultation with Dr Wong, and therefore the notes made, was for the purpose of obtaining legal advice and that legal privilege attaches because of that.

17. The statement of the law which I rely upon can be found in Phipson on Evidence, 15th edition. There, the author of Phipson categorizes privilege into two categories : Legal Advice privilege and Litigation privilege. Under the first category, at paragraph 20-04, Phipson states :

"Confidential communication between a lawyer and client which come into existence for the purpose of giving or getting legal advice are privileged at all times. The privilege may be asserted by successors in title. It covers direct communications and communications through agents. It covers all documents generated for the purpose of giving or getting legal advice, not merely letters to and from solicitors and instructions to and opinions from counsel, but also all working papers and drafts. The privilege exists whether or not litigation is contemplated or pending."

As for Litigation privilege, Phipson says this at paragraph 20-05 :

"The second category of legal professional privilege is wider than the first but arises only when litigation is in prospect or pending. From that moment on, any communications between the client and his solicitor or agent or between one of them and a third party will be privileged if they come into existence for the sole or dominant purpose of either giving or getting advice in regard to the litigation or collecting evidence for use in the litigation. This is the basis for claiming privilege for correspondence with witnesses of fact or experts and proofs, reports or documents generated by them."

18. Accordingly, I find that the notes and records made by Dr W.B. Wong on 22 June 2000 to be privileged from production.

Order

19. The order of Master Kwan made on 2 July 2002 is set aside in its entirety.

20. There will be a cost order nisi that the cost of this appeal and of the hearing below be to the plaintiff in any event, to be taxed if not agreed.