HO KI HUNG AND ANOTHER v. CHAN NGAI HO AND ANOTHER

Head Note

                 Discretion exercised in favour of examination of Plaintiff an injured person by defendant's doctor so that all 3 doctors (including government doctor's) reports may be available in evidence. Principles in Edmeade (1969) 2 All ER 127 applied.

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO.8177 OF 1984

_____________________

___________________

EXTEMPORE RULING

___________________

1. This is an application by the Defendant that the Plaintiff in a motor accident claim be submitted to medical examination by one Dr. Horsfall which application is being contested by Mr. Wong to the effect that the Plaintiff be examined by Dr. Wedderburn. In short each party is insisting on a doctor of his own choice. The injuries as pleaded by the Plaintiff consisted of laceration of the skull, face and the knees, and more seriously, fracture of the right ulnar shaft at a junction of the disdal and middle third.

2. The law on this subject matter has been considered and reconsidered in a large number of cases in the English Court Of Appeal and below, of course. Sufficed to say that Pickett (1961) CLY 7183, (1961) times 17th March, C.A. has been unhesitantly disregarded by the subsequent decisions with the net result that the principle to be applied is clearly stated in edmeades (1969) 2 Q.H. 67 that the Court had jurisdiction to grant a stay whenever it was just and reasonable so to do and could do so where the Plaintiff's refusal was such as to prevent the just determination of the cause (See Lane (1972) 1 ALL E.R. 430.

3. In Starr (1977) 1 WLR 63 it was observed that in exercising the discretion, the Court must have regard to the fundamental right of the Plaintiff to personal liberty, but also of the defendants to defend himself in litigation as his advisers think fit. The principles to be followed were those indicated in Edmeades, Picketts cannot stand against those two cases. The Court's discretion cannot be exercised unless each party exposes the reason for his action.

4. In National Quote Board (1977) 1 Weekly Law Report 63, it was held to the effect that if Defendant asked for the Plaintiff to be examined by a particular consultant doctor the Court has jurisdiction to stay the action if the Plaintiff refuses reasonably to submit to such examination, unless it can show some substantial ground for refusal, such as particular doctor's likely to conduct his examination or makes his report unkindly or unfavourably. Of course, it is safer to offer the Plaintiff a choice of doctors.

5. In the circumstances of this case, I find on the evidence as exhibited by the various affidavits that it is in the interest of juctice for Dr. Horsfall to examine the Plaintiff in order to enable the defence to prepare its case and meet that part of the claim relating to particulars of injuries, hence damages adequately. There is nothing to stop the Plaintiff to be examined, if mindful of so doing, by Dr. Wedderburn. In that event, the trial judge will have three medical reports including that of the Government doctor and will have to decide on their evidence. That will be expensive, but it will further the interest of justice in the best possible way. Interest of justice must come over and above delay and expense when need be.

6. In the event, it is ordered that the application is allowed with the conditions laid down in conditions No. 2, 3, 4 and 6 of Ex. CY1 of Mr. Charles Yuen's affidavit dated 17th of May 1985. I further order that costs shall be in the costs in the cause so as to follow the event. By consent, it is further ordered that the hearing date on the 5th of June 1985 be vacated and the proceedings be stayed until all the medical examinations will be completed including that of Dr. Horsfall and possibly Dr. Wedderburn. Parties are given liberty to restore the case then and either party may apply for a date to be fixed for hearing.