XCHRX WONG SEE MING v. ALFULSO LTD. AND ANOTHER

1997 No. P. I. 1012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1012 OF 1997

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J U D G M E N T

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1. This action has come before me at an interlocutory stage on the basis of two summonses issued by the Defendants seeking a stay of the action until the infant Plaintiff consents (or his mother on his behalf) to examination by a psychiatrist (the subject of one summons) and an orthopaedic consultant (the subject of the other). Quite why it was thought necessary to issue two summonses I do not understand. It has been an unjustified waste of time, cost and paper. The mother of the infant Plaintiff has declined his being further examined as her son finds the process upsetting. In order to consider the reasonableness of the Defendants' request and of the Plaintiff's refusal (assuming the request to be reasonable) it is necessary to review the nature of the proceedings and its history in terms of the medical evidence.

2. Over eight years ago in August 1990, the infant Plaintiff, then eight years of age, was crossing the Tam Kong Shan Road, Tsing Yi, in daylight by means of the pedestrian crossing, when he was struck by a light goods vehicle being driven by the second Defendant. That Defendant duly pleaded guilty to an offence of reckless driving. When proceedings were commenced in early 1993 the Defendants pleaded contributory negligence against this eight year old Plaintiff on the basis that he was crossing outside the pedestrian crossing area. The second Defendant's plea of guilty to the prosecution puts paid to this and in due course, within the past 12 months i.e. seven years after the accident, the Defendants admitted liability.

3. The Plaintiff has had medical reports provided on his injuries and their sequelae by Dr. J.P. O'Donovan in July 1991, by Dr. Ian Nicholson in February 1994 (relating to the cosmetic aspect and healing of the areas of graft) and more recently by Dr. Danny Tsoi, (in August 1998). Although Dr. O'Donovan is a general surgeon with specialist experience in traumatic injuries, the Defendants' counsel, Mr. John Kerr, contends that he is not an orthopaedic consultant. Whilst that may technically be correct, I have seen many of his reports and he has been properly treated as an expert in orthopaedic matters generally. Because he is no longer available in Hong Kong, the Plaintiff's solicitors have obtained the up-to-date report from Dr. Danny Tsoi, who is more of an orthopaedic specialist. However it is clear that the Plaintiff would have stayed with Dr. O'Donovan had he not emigrated.

4. The Defendants on the other hand had the Plaintiff examined by Dr. Falli Shroff in April 1993 and December 1997. My understanding of Dr. Shroff's expertise, confirmed by Mr. Kerr, is that he is a neurologist though he has been treated as a generalist by the Defendants, and he may indeed now hold himself out to be such.

5. The Defendants' argument runs that the Plaintiff having an up-to-date report from an acknowledged orthopaedic specialist, they will be prejudiced if they are not accorded a similar facility. The Plaintiff's resort to Dr. Danny Tsoi has been forced upon them by circumstances. The Defendants, in a case that clearly called for at least a general consultant or surgeon in orthopaedic matters, have been content for some years to rely upon a neurologist. As I understand the position, they have not submitted Dr. Tsoi's report to Dr. Shroff.

6. A consideration of Dr. Tsoi's report discloses to the layman a static picture, with the anticipated future limitations on a young man who has suffered such a severe injury to his foot. Dr. Shroff found in his later report (1997) that matters were essentially as he had found them to be in 1993. Although he has not seen Dr. Tsoi's report, common sense suggests that he would not disagree with it. Dr. Tsoi enjoys a reputation which I am sure is acknowledged at large. I cannot recall any other orthopaedic consultant taking issue with him on essential clinical findings and prognosis in straightforward cases such as this. There is something of a philosophy amongst many Defendants in personal injury cases, exemplified by the approach "If they have a report we want a report", without exercising any professional judgment as to whether it is really necessary to subject a claimant to a further examination. Furthermore examinations and reports are expensive items of cost. Almost invariably they become costs in the cause, with a Plaintiff running the risk of paying such cost if he fails. In these circumstances a responsible attitude and approach is called for. It may be that judges will have to look very carefully, before and after trial, at the question of whether expenditure of this nature is called for. They ought to be able to rely upon an experienced profession to do only what is necessary by way of medical examinations.

7. This infant Plaintiff does not want to undergo any more medical examinations. If I were to accede to the Defendants' request, it would mean his having to go through the same routine to no good purpose with someone he had not met before. It is apparent that he has enough difficulty in coping with the cosmetic and functional state of his leg, as it is, without another reminder. I sympathise entirely with his view and that of his mother who is no doubt more sensitive to his feelings than any lawyer or judge for that matter. The Defendants request is unreasonable. The Plaintiff's reaction is reasonable. There is no need for such further examination.

8. There is also a psychiatric aspect to this young man's claim. It is arguably more properly termed psychological. I feel it necessary to restate that the longer litigation drags on, the more likely will be the development of additional adverse factors affecting a person's recovery. Some personal injury actions are inevitably protracted because of uncertainty of the degree of physical recovery, academic attainment, or employment prospects. Others are relatively straightforward. It is in the interests of Plaintiffs and Defendants to resolve such litigation at the earliest possible stage. This is such a case. Keeping liability as an issue, even though lawyers experienced in such cases would know that such an issue was unrealistic, is not conducive to early and reasonable settlement. This is a case where court approval will have to be sought in any event.

9. The Plaintiff was examined by a psychiatrist in August 1991. She did not provide her report until February 1992. The Defendant had him examined by Dr. Chung See Yuen in December 1996 and he reported that same month. There were clear areas of disagreement between the two psychiatrists although it is to be noted that Dr. Chung saw him over four years after he had seen Dr. Chen. For what appear to be very good reasons the Plaintiff's solicitors had him examined by Dr. Barry Connell in August 1998. There is agreement on all the essentials between the two psychiatrists. Dr. Connell makes reference to the possible intervention of a sports psychologist to assist him, I anticipate with an acceptance of his more obvious limitations but also to encourage him in those areas where he still has an aptitude and physical capacity. This is, with a young man of his age and school level, very much a matter of common sense. Mr. Kerr argues for the Defendants that they must have a further examination of the Plaintiff in order to assess the question of a sports psychologist and to bring their evidence up to date. I could not disagree more. This boy has seen enough of psychiatrists. He needs to be allowed to get on with the job of adjusting to the obvious consequences of his severe injury. There is no good purpose to be served by putting him through more examinations as a matter of routine. A dispassionate assessment of the two reports shows this to be the case. I suggest both sides agree that the judge assessing damages has both psychiatric reports before him.

10. I have of course considered a number of authorities referred to by both parties in their skeleton argument. Essentially these cases, as in so many circumstances, turn upon their own facts. Edmeades v. Thames Board Mills [1969] 2 Q.B. p.67 is not a case in point. A significant change in the nature of the physical sequelae of the injury emerged without prior indication, and the Plaintiff was offered a choice from six named specialists. The request was wholly reasonable. The rejection was quite unreasonable. In the English Court of Appeal decision of Lane v. Willis & Lane v. Beach [1972] 1 W.L.R. p.326, the facts of which I do not need to identify, Sachs L.J. stated, "when the refusal of a medical examination is alleged to be unreasonable, the onus lies on the party who applies for the order to stay in default of the examination, to show that he is unable properly to prepare his case without that examination." I regard that as part of the basic criteria. Finally in Starr v. National Coal Board [1977] 1 W.L.R. p.63, again the situation was wholly different. The Plaintiff objected to being examined by a particular neurologist but was willing to be examined by another neurologist of similar standing and experience, but gave no reasons for his objection. In the circumstances of that case the court held, unarguably in my view, that the request was reasonable and the refusal unreasonable. They considered all the earlier cases including Pickett v. Bristol Aeroplane Co. Ltd. (Bar Library Transcript 114 of 1961) and Murphy v. ford Motor Co. Ltd. (Bar Library Transcript 379 of 1970) and favoured the reasoning of Denning M.R.

"It is now clearly established that, if the Defendants in a personal injury case make a reasonable request for the Plaintiff to be medically examined by a doctor whom the Defendants have chosen, then the Plaintiff should accede to such a request unless he has a reasonable ground for objecting to that particular doctor."

11. On the facts of the case I am considering, I am satisfied that the Defendants' requests are unreasonable; even if I had formed a different view, I would nonetheless be satisfied that the Plaintiff's objection was wholly reasonable. It is, however, clear beyond argument that the Defendants are in no way impeded or prejudiced by not being able to have the Plaintiff examined by an orthopaedic consultant or by a psychiatrist.

12. These applications are dismissed with costs to the Plaintiff. I order an expedited trial on the issue of quantum.

(Conrad Seagroatt)

Judge of the High Court