Mohammad Arif v. Hing Lee Construction (International) Ltd and Another

DCEC825/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 825 OF 2005

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BETWEEN

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Coram: H H Judge Ng in Chambers (Open to the Public)

Date of Hearing: 19 August 2005

Date of Delivery of Ruling: 19 August 2005

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R U L I N G

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1.In relation to this application for specific discovery, on a superficial reading of the application, and given that today is a callover hearing, I have, at the initial stage, indicated on a preliminary basis that perhaps it would be appropriate to defer consideration of this application until after discovery between the parties. However, my attention was brought to the substantive nature of the present application.

2.The present application was preceded by correspondence between the parties, as exhibited to the affirmation of Miss Chan of the respondents’ solicitors.  It appears from the correspondence (and Mr Sit, on behalf of the respondents, have confirmed) that the respondents have by such  correspondence requested for medical reports in relation to the applicant to enable them to ascertain the nature of the injuries suffered on the matter of causation, to determine the categories of experts required and to enable such experts to properly examine the applicant sometime in November of this year.

3.Mr Carey, on behalf of the applicant, has brought my attention to the fact that the application pursuant to the specific discovery summons is not in relation to medical reports but in relation to medical and clinical notes and records in relation to four hospitals and various scans and films. Mr Carey has also confirmed to the court that it is his practice to seek the applicant’s medical notes and records in EC cases and, for this case, he has the medical notes and records of Princess Margaret Hospital and Tuen Mun Hospital to hand.  He submits that the application is premature, particularly in view of the fact that today we are here for the callover hearing at which directions for discovery can be given. 

4.Mr Carey further submits that had a proper request been made for the medical notes and records prior to the specific discovery application, he would have been able to advise the respondents’ solicitors that the medical notes and records of Princess Margaret Hospital and Tuen Mun Hospital are already to hand.

5.The parties are prepared to agree to directions for discovery today. Mr Carey is prepared to agree to directions for discovery to be made within 21 days although the respondents wish for 42 days. 

6.In my view, the case is at the commencement stage and discovery has not been made.  This is the first callover hearing and the parties are agreeable to proceed with discovery.  The applicant is prepared to make discovery within 21 days.  Such discovery will disclose the medical notes and records of Princess Margaret Hospital and Tuen Mun Hospital.  If the medical records of Tin Shui Wai Health Centre and Yuen Long Jockey Club Health Centre Yuen Long GOPC are of any relevance to the applicant’s accident or his injuries, they should be discovered if they are in the possession, custody and control of the applicant.

7.The examination to be done by the respondents’ experts is scheduled for November this year.  There will be well enough time after discovery for specific discovery application if the discovery is not complete.  I also bear in mind that there has been no direct request for what is asked for in the inter partes specific discovery summons before it is  made.   In all the circumstances, bearing in mind the submissions of the parties and the particular circumstances of this case, I do not consider it appropriate, at this stage, to make any specific discovery order in relation to the medical notes and records of Tin Shui Wai Health Centre and Yuen Long Jockey Club Health Centre Yuen Long GOPC, and for the scans and films. 

8.I will not make a direct dismissal of the application on these matters, but I will simply adjourn these matters to be dealt with subsequently.  Unless I hear further from the parties on the matter of costs, then given my indications above that the application is premature, the respondent will have to persuade me on their entitlement to costs of the hearing today in relation to this application.

(Discussion on costs)

9.In relation to costs of the hearing today in respect of this application, they will have to be paid by the respondents to the applicant.  The application in relation to paragraphs (a)(i) and (ii) of the schedule to the summons in relation to Princess Margaret Hospital and Tuen Mun Hospital is dismissed.  As to the residue of the application, it is adjourned sine die with costs reserved.  There be liberty to apply.

Representation: