MAN SAI KUN v. LEUNG KIT KEE MENTAL WORKS AND OTHERS

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 75
(Civil)

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J U D G M E N T

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Liu, J.A.:

1. This action arose from an alleged accident which occurred on 28 August 1992. The plaintiff claims to have suffered from an electrocution shock on that day. The shock caused him to jerk upwards and forwards, thus leaving him with residual pain. He was treated in hospital on the diagnosis of a prolapsed intervertebral disc. A primary line of defence is based on his alleged past back pain. The defendants strongly refute the plaintiff's claim of injury from an electrocution shock, and there would appear to be some evidence for simply a back strain whilst the plaintiff was lifting a heavy weight.

2. Both liability and quantum would depend on whether the injury said to have been sustained by the plaintiff in 1992 was a spontaneous recurrence of a pre-existing condition left with the plaintiff by an old 1982 back injury, or whether his 1982 back pain was re-introduced or activated by just a minor twist to or trivial load on his spine in 1992, or whether in fact he did suffer an electric shock in 1992 as he now claims, that brought about his complaint. In the circumstances, there would seem to be room for those acting for the defendants to be sceptical about the cause for the plaintiff's suffering. The defendants are naturally interested in past incidents, particularly that way back in 1982.

3. The requests for interrogatories took an eventful turn. At the Check List hearing on 9 May 1997, no information was sought on a 1982 complaint. In the Pre-trial Review Statement dated 14 October 1997 later, there was no mention of the need to investigate any 1982 accident. Then the First Interrogatories were served on 9 December 1997. At the Pre-trial Review on 11 December 1997, no 1982 accident was canvassed before the judge. The defendants merely sought Further and Better Particulars. An Answer dated 5 January 1997 to the First Interrogatories was delivered on 6 January 1998. The Further Interrogatories were served on the same day, 6 February 1997. An Answer was given to them on 13 March 1998. Today is 9 April 1998 and the trial is scheduled to be heard on 27 April 1998.

4. In his Answer to the First Interrogatories, the plaintiff stated on oath that he consulted no private doctor. That was inaccurate. After the service of the Further Interrogatories on 6 January 1998, by a letter dated 13 February 1998, the plaintiff through his solicitors offered to provide, inter alia, the name and address of his private doctor. In the plaintiff's Answer to the Further Interrogatories a month later, strange enough, the plaintiff claimed that he no longer recalled the name of the doctor nor the address of his clinic, except that the doctor's clinic was somewhere in Lam Tin. In subsequent correspondence, the plaintiff through his solicitors supplied the information that the building where the doctor's clinic was had been demolished. A demolition site is expected to pin-point its location.

5. Two letters sent by solicitors for the plaintiff need to be referred to. The first one is dated 22 February 1998, in which for the plaintiff, it was disclosed that the private doctor, consulted in 1982, had his clinic in Lam Tin and that on a referral from his private doctor, treatment was received at Queen Elizabeth Hospital and Kowloon Hospital. In the further letter dated 16 March 1998, for the plaintiff, more information was furnished to the effect that he, the plaintiff, consulted his private doctor on one or two occasions, that the private doctor made no diagnosis and that he received no treatment from him except for some pain-relieving medicine. The defendants were also given to understand that in 1982, the plaintiff was sent away from the hospitals with a message that no injury was detected. On such progressive information and in the way revelation was made, the defendants were becoming increasingly curious. And bearing in mind that the plaintiff's claim which will be sought to be refuted by the defendants does not seem to be wholly consistent with the documents in hand, it is not difficult to appreciate why the defendants resorted to the service of two Interrogatories.

6. This court is concerned with the Answer to the Further Interrogatories. Nguyen, J. ordered some interrogatories to be answered, but for some interrogatories relating to information of consultation and treatment by the private doctor in 1982, the judge permitted the plaintiff to supply corresponding information in writing, "if they [those he instructs] wish[ed]". That is the first complaint. It is submitted that despite the information provided in writing, the disclosure by and on behalf of the plaintiff with respect to his private doctor visits ought to be committed on oath in a formal Answer. There are inconsistencies which would provide good material for interesting cross-examination. The plaintiff is expected to be called in support of his claim and the written answers in respect to his private doctor's consultations could readily be verified by the plaintiff on oath at the trial. If the plaintiff should deny knowledge of the contents of his solicitors' letters, counsel's cross-examination would come across more effectively to his disadvantage. If the plaintiff affirms all the information supplied in his solicitors' letters, then what is being suggested by the defendants as a hindrance may perhaps be illusory. It is close to trial. The minimal advantage of having these answers with reference to the private doctor's consultations on oath is insufficient to enable this court to interfere with the judge's discretion as regards items 2(l) to (o). I refer to this aspect for completeness because Mr Sarony, senior counsel appearing for the defendants, has virtually conceded that this matter is of no moment and could be satisfactorily resolved at the hearing.

7. Let me turn to two more items in the complaints of the defendants. They are answers to the Further Interrogatories 4 and 5. The plaintiff has given explanations or excuses. It would have been arguably legitimate for the defendants to interrogate the plaintiff on oath as to whether he would have any more excuses or explanations to give. But interrogatories 4 and 5 are framed in terms of an enquiry as to the mental process of the plaintiff, upon receiving medical advice at various times such as: What the plaintiff thought? Why he was fearing that operation might not be successful? etc. Those are evidently matters of opinion, not proper subject-matters for interrogatories. See p. 481 1997 White Book Vol. 1, 26/1/4. I would not be prepared to overrule the judge for interrogatories 4 and 5. Mr Sarony, leading counsel for the defendants, is again quick to concede that 4 and 5 seek information with reference to the mental process of the plaintiff, tantamount to interrogating the plaintiff on matters of opinion.

8. In the result, only interrogatories 1(a) and 1(b) are outstanding. They relate to what private and government doctors told the plaintiff in 1982 and what the plaintiff told those doctors in the same consultations. The plaintiff is invited to identify the nature of his 1982 complaint, the number of occasions he experienced pain, the daily frequency of back pain, the location of the affected area or areas, the type of pain in the attack and whether there were any, so to speak, referred pain and other symptoms.

9. Mr Remedios for the plaintiff submits that the information sought is utterly irrelevant and would hardly advance the cause of the defendants. Counsel argues that such matters would offer no assistance to a medical evaluation in Professor Leong's analysis. It is emphasised that Professor Leong would rely heavily on x-rays taken after the current complaint, which are missing with other hospital records and that without these x-rays, nothing conclusive could be postulated. But that is not the point, particularly in the suspicion generated by the circumstances, correspondence and conduct of the proceedings, for which the plaintiff may not be personally responsible.

10. It would seem that the defendants should have prior information on oath from the plaintiff not so much as to what medical practitioners advised him in 1982 which has been sufficiently disclosed but what he complained to those practitioners, both private and government, in 1982 and of the various matters associated with his complaints as identified in interrogatory 1(b). Not only would that enable cause of the alleged injury to be disposed of fairly but it would also save costs.

11. There was clearly no ground for the judge to decline the interrogatories in part of question 1(a) and in 1(b). Disclosure would allow the defendants, despite the 27 April trial and the little time left before hearing, to make whatever enquiry possible for the proper prosecution of their defence. In the circumstances, there would seem to be ample justification for interfering with judge's order with respect to part of interrogatory 1(a) and the whole of interrogatory 1(b).

12. So far as interrogatory 1(a) is concerned, I would order answers limited to (not what doctors, private or government, advised of the plaintiff) but what the plaintiff complained to those doctors in 1982. The response to interrogatory 1(b) would have to be in extenso. I would allow the appeal to the extent I have just indicated.

Chan, C.J.H.C. :

13. I agree. With regard to questions 2(l) to (o) of the first set of interrogatories, the judge directed that "the plaintiff may, if they wish, answer by way of letter". We do not have the benefit of the written reasons of the judge below. It may be that he thought it was optional for the plaintiff to answer these questions. Question 2(l) follows question 2(k) and starts with the words "If the answer is yes". The answer to question 2(k) is clearly in the negative. Hence, I should think that it is more likely that the judge had intended to refuse to order the plaintiff to answer these questions. In any event, the plaintiff had provided further answers in the form of a letter which was dated 16th March 1998. The defendants see fit to appeal against that part of the order of the judge and ask for the answers to these questions to be on oath. There is of course a technical advantage in having answers given on oath. But the trial has been fixed for the end of this month. It would not be difficult for the defendants to extract a confirmation or denial of these matters on oath at the trial. In the circumstances of this case, I do not think it is appropriate now to direct the plaintiff to answer these interrogatories on oath.

14. With regard to questions 1(a) and 1(b) in the second set of interrogatories, it is accepted that there is no longer any available medical record regarding the plaintiff's back problem in 1982. The plaintiff's case is clear from the answers to the other interrogatories such as questions 2(a) to (t) and his solicitors' letter dated 16th March 1998. The defendants argue that the information sought is relevant and necessary for their expert Professor Leong to form a better opinion on the linkage between the 1982 back problem and the 1992 injuries. On the other hand, the plaintiff submits that this is totally irrelevant and unnecessary in view of the inability of Professor Leong to give an opinion on the matter without any x-ray or medical record relating to the 1982 back problem. With respect, I do not agree with the submissions of the plaintiff. In the absence of any medical record relating thereto, what the plaintiff complained of to the doctors in 1982 and what he had suspected to be the cause of that problem are clearly relevant for the forming of a fuller clinical picture regarding the position in 1982. It may or may not be that helpful to Professor Leong but in the absence of medical information, the more that can be obtained the easier it is for the expert and eventually the court to decide on the linkage between the 1982 and 1992 injuries. If Professor Leong is unable to form any view on the matter, it may be that the matter would not be pursued. Hence, in my view, the information sought under these two intergatories can be regarded as necessary to fairly dispose of this particular matter and saving costs. I would agree with Liu, J.A. that the second part of interrogatory 1(a) and the whole of interrogatory 1(b) should be ordered.

15. With regard to questions 4 and 5, they relate to the plaintiff's refusal to undergo an operation after the 1992 accident. The respondent has already stated in his answers to previous interrogatories what some doctors had told him and how he felt about undergoing such an operation. Whether his reasons are sound and whether his fears are well-founded or not is a matter for the court. Asking him for the grounds of his fears etc is, in my view, seeking opinion and is tantamount to cross-examination. I cannot see how these are necessary to dispose of the matter fairly or to save costs.

16. In the circumstances, I would agree with the order proposed by Liu, J.A.