LIU CHUN KOW JOE v. LEE SAU WING

HCPI 399/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 399 OF 2001

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D E C I S I O N

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The background

1.  This is the Defendant’s appeal in a personal injury action brought against the Plaintiff, from an order of Master B Kwan made on 6 January 2005 wherein she struck out certain paragraphs of the Defendant’s Answer and 2^nd Supplemental Answer and ordered 663 pages of documents be removed from the Assessment Bundle.   The paragraphs in the Answer and 2^nd Supplemental Answer were struck out on the grounds that they are scandalous and will tend to prejudice, embarrass or delay the assessment of damages.

2.  The Plaintiff suffered personal injuries in a traffic accident on 28 June 1998.  He obtained interlocutory judgment against the Defendant with damages to be assessed on 17 January 2002.  In his Revised Statement of Damages, the Plaintiff pleaded that as a result of the accident, he is suffering from low back pain and compression of nerve root problems, various psychiatric/psychological problems including hyperventilation attacks, depressed mood, lack of drive resulting in psychiatric disability or permanent impairment.  In essence, the Defendant’s case is that the Plaintiff’s claim is exaggerated as his medical and psychological condition was pre-existing before the accident and was not accident-related. 

The applicable legal principle

3.  Practice Direction 18.1 requires that a Statement of Claim in a personal injuries action shall be filed together with the plaintiff’s medical report in support of his claim and a Statement of Damages.  The Statement of Damages and the Answer thereto take on the character of a pleading.  The purpose of pleadings is to ensure that the issues between the parties can be defined in advance of trial.  Order 18 of the Rules of the High Court, which sets out certain formal requirements for pleadings, is therefore applicable to Statement of Damages and Answers in a personal injuries action.  Under Order 18 rule 7, every pleading must contain and contain only a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits.  The function and form of an Answer are also addressed in Paragraph 10 of the Guidance Note to Practice Direction 18.1 which reads: 

“An Answer is required to set out the Defendants' case in respect of each and every head of damage. A simple denial that the Plaintiff is entitled to claim a certain head of damage is not sufficient. That is no more than is likely to have been pleaded in the Defence save that more words will have been used in the Answer to say the same thing. What is required is the reason for the denial with a counter statement of what is claimable if it were to be proved. Counsel and solicitors are advised to take note. If the answer is simply in the form of a denial, cross-examination of the Plaintiff on a basis not pleaded in the Answer will not be allowed. Similarly submissions in relation to whether a head of damage is claimable at law will not be allowed unless this too is pleaded. Furthermore in the event of the Defendant succeeding in an action, the costs of an Answer which does not meet the requirements will not be allowed. Similarly a Statement of Damages which does not identify properly for the Defendants the heads of damage claimed will result in costs penalties.” (my emphasis)

4.  Thus as a matter of form, an Answer may only contain a succinct statement of material facts which sets out the Defendant’s case in respect of each and every head of damages.  Only relevant or material facts may be pleaded.   It must not contain evidence in support of those facts pleaded or arguments on credibility of witnesses or submissions on the law.  A simple denial is not sufficient.  A defendant is not allowed to cross-examine the plaintiff on a basis which has not been pleaded. 

5.  However, a pleading may not necessarily be struck out merely because it does not comply with these formal requirements or because it contains unnecessary or irrelevant pleading of facts.  A pleading or part of it may only be struck out on one of the grounds stated in Order 18 rule 19, i.e. (1) it discloses no reasonable cause of action or defence, or (2) it is scandalous or (3) it tends to prejudice, embarrass or delay the fair trial of the action.  The offending paragraphs in the instant case are struck out on the latter two of these grounds. 

6.  A pleading is scandalous if the matter alleged to be scandalous which would be admissible in evidence to show the truth of any allegation in the pleading is immaterial with reference to the relief that is prayed: per Selborne LC in Christie v Christie (1873) LR 13 Eq 443.  As for the tendency to prejudice, embarrass or delay, these words are to be given a liberal interpretation: see Berdan v Greenwood (1878) 3 Ex D 251 at 256.  A pleading may not be struck out merely because it is unnecessary, so long as it is otherwise harmless.  Similarly, a pleading will not be struck out unless it is clear on the face of the allegations that they are irrelevant.  But if the immaterial matter is set out in such a way that the other party must plead to it and so raise irrelevant issues, which may involve expense, trouble, and delay, then the irrelevant issues will be struck out as it will prejudice the fair trial of the action.  Thus, an Answer which does not address to any of the heads of damage in a Statement of Damages is scandalous and if the immaterial pleading is set out in such a way that the other party must plead to it and occasion unnecessary costs and delay in the trial of the matter, it has the tendency to prejudice, embarrass or delay a fair trial of the action.

7.  With these principles in mind, I now turn to examine the paragraphs in the Answer and 2^nd Supplemental Answer which have been struck out by the Master.  

The struck out paragraphs

8.  The Master struck out Paragraphs 4 to 9 of the Answer to Revised Statement of Damages which read as follows:

“	4.	The Defendant note that much of the medical information recited above is not provided by the Plaintiff voluntarily.  Despite order of Master Kwan dated 23rd June 2003 ordering the Plaintiff to provide discovery of his complete medical records, medical information in relation to para. 2 above was not supplied by the Plaintiff.  While the experts appointed for purpose of these proceedings were examining the Plaintiff and his medical records, it was found that much medical records of the Plaintiff had not been disclosed.  This results in the Defendant issuing an application on 3rd July 2002, and Mr. J. Suffiad made an order against the Plaintiff on 15th November 2002 that he should file all his Lists of Documents, an affidavit to verify discovery with costs to be paid by him.
	5.	The said order of Mr. J. Suffiad dated 15th November 2002 was made without prejudice to the Defendant’s application for third party discovery against the Hospital Authority directly for all medical records of the Plaintiff.  Such application was issued on 16th November 2002.  Although the Hospital Authority raised no objection to the application, the Plaintiff opposed to this application for third party discovery by the Hospital Authority vigorously.  After hearing argument, Mr. J. Suffiad made another order on discovery that the Hospital Authority should provide discovery with costs of the application and all hearing be paid by the Plaintiff.  Mr. J. Suffiad has however reserved costs of the Hospital Authority and the Defendant until extent of discovery by the Hospital Authority is known.
	6.	Direct discovery of the Hospital Authority shows that the Plaintiff has in fact withheld discovery of substantial amount of his medical records, despite order of Mr. J. Suffiad dated 15th November 2002 (ordering the Plaintiff to file all his List of Documents and an affidavit to verify discovery) and his having filed an affidavit to verify discovery on 6th December 2002 under the said order.  Much of the newly disclosed materials can be found in the exhibits annexed to affirmation of Kwan Long Yee Corrina filed on 2nd May 2003.  On application and being informed of the extent of discovery withheld by the Plaintiff, Mr. J. Suffiad made an order on 5th May 2003 that the Plaintiff should also pay costs of the Defendant’s application against the Hospital Authority and the hearing on that day.
	7.	The Plaintiff’s repeated and deliberate attempts (despite several orders made against him) to keep medical records of his pre-accident medical conditions and other injuries away from the present proceedings suggest strongly that much of his complaint (including the prolonged sick leave) set out in his Revised Statement of Damages is not accident-related.
	8.	Relevant to para. (g) of Revised Statement of Damages is another order of Master B. Kwan dated 19th May 2003 and 27th June 2003 regarding discovery by the Plaintiff and his solicitors.  The Defendant will refer to the order for its full terms and effect at trial.  Under order, Messrs. Munros representing the Plaintiff issued a letter dated 11th July 2003 which confirms that all medical notes and records of the Plaintiff have been disclosed.
	9.	However, it was subsequently found out that such confirmation made under order is not correct and on 13th November 2003, Messrs. Munros, on requests of the Defendant, disclosed 2 medical reports prepared by Medical Assessment Board of QMH convened on 22nd January 1999 and 31st March 2000 respectively.”

9.  Paragraphs 3 to 5 of the 2^nd Supplemental Answer which have been struck out by the Master read as follows:

“	3.	Despite:
		(1)	the order made by Mr. J. Suffiad dated 15th November 2002 that the Plaintiff should file all his List of Documents within 14 days and an affidavit to verify his discovery within 7 days thereafter;
		(2)	the Plaintiff filing his 2 List of Documents respectively dated 25th February 2002 and 4th December 2002 under the said order; and
		(3)	the Plaintiff filing an affidavit to verify discovery on 4th December 2002 under the said order;
		the Plaintiff has filed his 3rd List of Documents on about 5th August 2004 which discloses substantially more pre-existing documents in support of his increased claim in medical expenses at HK$42,917.00.
	4.	The Plaintiff’s said 3rd List of Documents dated 5th August 2004 includes more documents (e.g. invoices, receipts, etc.) on medical expenses allegedly incurred by the Plaintiff.  The Defendant annexes hereto this 2nd Supplemental Answer a summary of medical expenses disclosed by the Plaintiff in his 3 Lists of Documents.  It is noted that the medical expenses receipts issued by Hong Kong Central Hospital, Canossa Hospital and some private medical practitioners are only disclosed in the said 3rd List of Documents of the Plaintiff.  Those expenses were however incurred during 1998 to 1999, before the present proceedings were issued and the 1st Statement of Damages dated 8th February 2002.  On about 4th December 2002, the Plaintiff filed his affidavit to verify his discovery under order by Mr. J. Suffiad dated 15th November 2002, the Plaintiff’s late discovery of documents which all pre-exist the present proceedings or his said affidavit to verify discovery is a questionable conduct.
	5.	The Defendant submits that by making a claim for medical expenses incurred with the said Hong Kong Central Hospital and Canossa Hospital, the Plaintiff should agree that the medical records kept by those hospitals and written by the treating doctors are highly relevant to issue of proceedings.  However, despite:
		(1)	the order and the Plaintiff’s said affidavit to verify discovery as referred to in para. 3 above;
		(2)	the order of Master B. Kwan dated 19th May 2003 ordering, inter alia, that “within 7 days i.e. on or before 26th May 2003, the Plaintiff’s solicitors to confirm in writing to the Defendant’s solicitors that all medical notes and records of the Plaintiff have been disclosed…”;
		(3)	the unless order of Master B. Kwan dated 27th June 2003 ordering, inter alia, that “unless the Plaintiff complies with paragraph 1 of the order dated 19th May 2003 within 14 days (by 4:00 p.m. on 11th July 2003), the action shall be stayed”;
		(4)	Messrs. Munros acting for the Plaintiff, under the said 2 orders of Master B. Kwan, issuing a letter dated 11th July 2003 which confirms that all medical notes and records of the Plaintiff have been disclosed,
		the Defendant found out from the newly disclosed medical expenses receipts/invoices that medical records/notes kept at the said hospitals and private medical practitioners have not been disclosed.  Discovery of those medical notes/records were lately made by the Plaintiff on request of the Defendant after the latter had seen evidence of expenditure in the Plaintiff’s said 3rd List of Documents.”

The striking out application

10.  I have quoted the struck out paragraphs in full.  In essence, the Defendant alleged the Plaintiff of withholding medical information about his pre-accident condition.  These paragraphs are in clear breach of the formal requirements under Order 18 rule 7.  They contain pleading of facts, arguments on credibility of the Plaintiff and submission on the law, not to mention whether the pleading of facts are relevant or necessary.   Ms Lau, counsel for the Defendant, does not seek to justify these paragraphs as succinct statements of facts but argues that despite its prolixity, the pleading nonetheless discloses a reasonable defence.  She argues that the Defendant’s principal contention is that the Plaintiff is a malingerer in that he is putting forth a false case or is exaggerating his claim and that the struck out paragraphs are intended to establish this contention.  Reading the Answer and the 2^nd Supplemental Answer as a whole, I am quite unable to read in such a plea in the Answers alleging withholding of medical information.  I agree with Mr Sakhrani’s submission that these paragraphs are not an answer to the various heads of damages pleaded in the Revised Statement of Damages.  If it is the Defendant’s case that the Plaintiff is putting up a fraudulent claim or that he is a malingerer, these should be clearly and specifically pleaded with material particulars so that the Plaintiff can deal with the allegations in his evidence rather than by reciting irrelevant sub-ordinate facts.   

11.  Paragraphs 4 to 7 of the Answer deal with the Orders of Master B Kwan and Mr Justice Suffiad regarding discovery by the Plaintiff and his solicitors and the events that followed after these Orders were made.   In a nutshell, the Defendant alleged that the Plaintiff deliberately obstructed discovery and withheld medical information from the Defendant.  Paragraphs 8 and 9 deal with another incident of the Plaintiff withholding two medical reports prepared by the Medical Assessment Board of Queen Mary Hospital convened on 22 January 1999 and 31 March 2000.

12.  It should be noted that the Plaintiff complained of two problems caused by the accident, one is orthopaedic and the other is psychological.  The fact that the Plaintiff was suffering from these pre-existing conditions prior to the accident and the medical information in support have been pleaded in the Answer.  All the medical reports and Court Orders referred to in these paragraphs are also included in the Assessment Bundle.

13.  While the Plaintiff’s pre-existing medical condition is an answer to the Revised Statement of Damages, insofar as the Plaintiff’s pre-existing orthopaedic condition is concerned, this is no longer a live issue.  The orthopaedic experts of both parties have prepared a joint medical report in which the experts agreed that :

(1)	The Plaintiff was suffering from a degenerative disc   disease of his back at the time of the accident;
(2)	the degenerative condition was already symptomatic prior to the accident;
(3)	the accident caused an aggravation to the Plaintiff’s back;
(4)	the Plaintiff’s post-accident incidents happened probably because his back was impaired;
(5)	the Plaintiff suffered 10% impairment of the whole   person;
(6)	the impairments were probably triggered by the accident that had aggravated a pre-existing degenerative disc disease and attributed 30% of the impairment to the accident; and
(7)	the sick leave granted to the Plaintiff is reasonable.

As a result of the late disclosure of the two reports of the Medical Assessment Board of Queen Mary Hospital (referred to in Paragraphs 8 and 9 of the Answer), the experts revised their opinion on the Plaintiff’s working capacity and opined that he is capable of resuming full duty as an officer in the Correctional Services Department where he was working prior to the accident.  The experts were in full agreement.  What is left is for the Court to assess the damages suffered on the basis of the agreed medical evidence.  The Plaintiff’s history of withholding his pre-accident medical information etc do not come into the equation of the assessment.  The issues raised by these pleadings are clearly irrelevant and immaterial which would only occasion additional time and costs for the parties were the Plaintiff required to plead to them and to engage in these disputes.

14.  Insofar as the Plaintiff’s pre-existing psychological condition is concerned, the parties’ experts are not in full agreement.  While they agreed as to the degree of impairment and loss of earning capacity suffered  by the Plaintiff, they differed as to whether the psychiatric impairment was wholly caused by the accident.  However, the Defendant has already pleaded the Plaintiff’s pre-existing psychiatric/psychological condition.  All medical information has now been disclosed and medical reports included in the Assessment Bundle.  The Plaintiff’s history of withholding pre-accident medical information is irrelevant, unless the issue of fraud or malingering has been specifically raised, but it has not. 

15.  Ms Lau argues vigorously that the Plaintiff’s deliberate withholding of his medical information suggests that the Plaintiff has no credibility generally and that the Defendant was required to raise this in the pleading lest he may not be permitted to cross-examine the Plaintiff and attack his credibility.  I think it is not permissible to raise an issue in a pleading for the purpose of solely discrediting the Plaintiff if that issue is not relevant and has already been disposed of in earlier discovery proceedings.  Such pleading is scandalous and will tend to prejudice, embarrass or delay the fair assessment of damages.

16.  Paragraphs 3 to 5 of the 2^nd Supplemental Answer deal with the late discovery of receipts for medical expenses.  They are excessively verbose and contain submission on credibility.  These paragraphs are unnecessary.  The Orders and receipts referred to in these paragraphs are contained in the Assessment Bundle.  Credibility is a matter to be dealt with by counsel at trial.  These paragraphs are scandalous and will prejudice and embarrass or delay the assessment of damages.

17.  Accordingly, the Master was right in striking out these paragraphs from the Answer and 2^nd Supplemental Answer.

Removal of documents

18.  Ms Lau rightly concedes that the Master’s order to remove documents from the Assessment Bundle stands or falls with the order to strike out as the documents.  In view of my conclusion reached in respect of the striking out order, it necessarily follows that the Master’s order to remove documents must be upheld.  I shall, however, make a few observations.

19.  The 663 pages of documents which were removed comprised of orders, summonses and thirteen affirmations including 347 pages of exhibits attached thereto which have also been included in the medical record bundle.  Ms Lau agrees to the removal of these duplicated materials and eleven of the affirmations. 

20.  I think for the purpose of assessment of damages, the judge only needs to have reference to the pleadings, Checklist Review Orders, Pre-trial Review Orders, witness statements, medical reports documents and medical documents.  Paragraph 16.3A of Practice Direction 18.1 sets out the pleadings and related documents to be included in the Assessment Bundle.  It refers to relevant orders such as Checklist Review Orders and Pre-trial Review Orders but does not refer to other orders or affirmations or summonses at all.  All Checklist Review Orders and Pre-trial Review Orders have been included in the Assessment Bundle.  The other orders and summonses which the Defendant sought to be included are irrelevant and cannot assist the court in the evaluation of the claim which is the purpose of the assessment.

21.  Of the remaining two affirmations which the Defendant sought to be included in the Assessment Bundle, one is the affirmation of the Plaintiff’s solicitor dated 6 October 2002 verifying that all relevant discovery has been made, the other is the affirmation of the Defendant’s solicitor exhibiting 129 pages of medical records from Queen Mary Hospital and Pamela Youde Nethersole Eastern Hospital (“PYNEH”) provided directly by the Hospital Authority to the Defendant’s solicitors as a result of third party discovery which were never discovered by the Plaintiff.   

22.  It appears that the purpose of including the first affirmation is show that the Plaintiff had not been frank in the discovery process.  Such evidence has little probative value as that affirmation was filed at the time of filing of the 2^nd List of Plaintiff’s Document and five more lists were filed subsequently.  It could serve little purpose for the purpose of cross-examining the Plaintiff as it was prepared by his solicitors.  I think the affirmation is rightly excluded.

23.  Ms Lau’s argument for the inclusion of the second affirmation is that without this affirmation, the court would not be able to identify which were the records from Queen Mary Hospital and PYNEH that the Plaintiff had failed to disclose and which the Defendant had obtained directly from the Hospital pursuant to the Order Mr Justice Suffiad and hence the Defendant would not be able to argue that the records received by the Defendant’s solicitors from the Hospital Authority show that significant medical records from Queen Mary Hospital and PYNEH which may have an adverse effect on the quantum of the Plaintiff’s claim were intentionally withheld from the Defendant by the Plaintiff.  However, as the Defendant has not expressly pleaded fraud or malingering, such argument is not open to the Defendant.  Besides, should the Defendant decide to take that course, it may be necessary for him to call his solicitor to give formal evidence on the discovery and to identify the documents discovered, if such evidence could not be admitted by consent.  In the light of the Answer and 2^nd Supplemental Answer as they now stand, the affirmation is properly excluded.

Conclusion

24.  For the above reasons, the Defendant’s appeal is dismissed with costs.