陳麗玲 v. 國泰航空公司

HCMP 621/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 621 OF 2009

(ON AN INTENDED APPEAL FROM HCPI NO. 1130 OF 2006)

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Before: Hon Tang VP in Chambers

Date of Hearing: 22 April 2009

Date of Decision: 22 April 2009

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DECISION

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1.In this action, the plaintiff claims damages for personal injury allegedly suffered during her employment with the defendant in October 2003.

2.On 28 May 2008, Master B Kwan, who was the personal injuries master, directed that the medical evidence be limited to one orthopaedic consultant per party.  Dr David Cheng was nominated by the defendant to be its orthopaedic expert.  Despite the defendant’s repeated requests, the plaintiff has refused to be examined by Dr Cheng.

3.On 13 January 2009, Master B Kwan ordered that the action be stayed until the plaintiff has been examined by Dr Cheng.

4.The plaintiff appealed against that decision.  Her appeal was dismissed by Poon J on 13 February 2009.

5.The plaintiff now applies for an extension of time to appeal against Poon J’s order.  According to the plaintiff, she did not have sufficient time to prepare for her appeal.  She was out of Hong Kong and in Beijing most of the time.  Whilst she was preparing for her appeal, even when she was in Beijing, because of the amount of documents involved, she could not file the documents in time.

6.She told me that apart from the two sets of documents which she has filed in court which I have, and they run to about 19 pages.  There was a third set of document which she had served for the defendant which contained even more documents.  Even so, I do not believe that is a reasonable excuse for the delay.  It does not matter because in any event, I regard the proposed appeal as hopeless. 

7.According to Poon J, she refused to be examined because the defendant, according to her, has failed to disclose medical report about her injury.  The plaintiff has filed a 15-page affirmation in support of her intended appeal, in which she complained that the defendant is contesting her claim and has refused to pay her any or fair compensation.  She also complained that a report to the Labour Department was inaccurate.  None of this is a good reason for refusing to undergo examination by the defendant’s appointed expert.

8.If she is able to show that the defendant has indeed withheld relevant evidence from her, she can make an application to the court for them.  That is no reason to refuse to undergo examination by the defendant’s appointed expert.

9.For these reasons, I dismiss the application, with costs assessed under O. 62 r. 9A at $16,000.

The Plaintiff, in person, present.

Ms. Y. C. Chan of Messrs Barlow Lyde & Gilbert, for the 1^st Defendant.