Case Details
- Title: BBN (by her next friend B) v Low Eu Hong (trading as EH Low Baby N’ Child Clinic)
- Citation: [2012] SGHCR 7
- Court: High Court (Registrar)
- Decision Date: 28 June 2012
- Case Number: Suit No 234 of 2011, Summons No 782 of 2012
- Coram: Yeong Zee Kin SAR
- Judge/Registrar: Yeong Zee Kin, Senior Assistant Registrar
- Plaintiff/Applicant: BBN (by her next friend B)
- Defendant/Respondent: Low Eu Hong (trading as EH Low Baby N’ Child Clinic)
- Counsel for Plaintiff: Mr Niru Pillai
- Counsel for Defendant: Mr Edric Pan with Ms Rebecca Heng
- Legal Areas: Civil Procedure; Discovery of documents; Disclosure of medical reports; Power to order medical examination; Privileges; Litigation privilege; Medical profession and practice; Medical confidentiality between independent medical examiner and examinee
- Statutes Referenced: First Schedule to the Supreme Court of Judicature Act (SCJA) (including provisions on ordering medical examination)
- Cases Cited: [2012] SGHCR 4; [2012] SGHCR 7; Edmeades v Thames Board Mills Ltd [1969] 2 QB 67
- Judgment Length: 14 pages, 8,436 words
Summary
BBN (by her next friend B) v Low Eu Hong (trading as EH Low Baby N’ Child Clinic) concerned a medical negligence action brought on behalf of a child born prematurely with an extremely low birth weight. The plaintiff alleged that the defendant paediatrician was negligent in failing to conduct eye screenings and failing to detect retinopathy of prematurity (ROP), resulting in the child having no useful vision in her left eye. After the parties consented to an assessment of damages without trial on liability, the defendant arranged further medical examinations to assist in assessing damages.
The dispute before the High Court Registrar was procedural and focused on whether the court should compel the plaintiff to undergo further medical examinations, whether the examinations requested were sufficiently “reasonable” and properly explained, and whether the plaintiff could insist that the defendant disclose medical reports arising from those examinations. The Registrar held that the court had power to order a medical examination directly, not merely to stay proceedings, and emphasised the balancing of the plaintiff’s personal liberty against the defendant’s right to defend the claim. The Registrar also addressed the scope of “reasonableness” and the adequacy of explanations for the nature and necessity of the further assessments.
What Were the Facts of This Case?
The plaintiff, a 12-year-old child, was born prematurely at home with an extremely low birth weight. She was brought to East Shore Hospital and warded in the neonatal intensive care unit. During infancy, she developed retinopathy of prematurity (ROP) in both eyes, a condition commonly affecting premature babies. At the time of the proceedings, she had no useful vision in her left eye.
The plaintiff’s case was that, throughout her stay at East Shore Hospital and after discharge, she was under the care and treatment of the defendant paediatrician. The plaintiff alleged negligence in the defendant’s management, care, and treatment, particularly for failing to conduct eye screenings and failing to detect the development of ROP. The claim was therefore framed as a failure in clinical monitoring and timely detection, with consequential loss.
To facilitate an early resolution, the parties consented to an order under Order 36, rule 2 for an assessment of damages without any trial on liability or admission of liability. After that order was recorded, the plaintiff submitted to medical examinations by experts appointed by the defendant. These examinations were intended to provide the evidential foundation for quantifying damages, including the child’s current condition and functional limitations.
Two key examinations occurred in November 2011. On 2 November 2011, the plaintiff was examined by Dr Quah Boon Long, a paediatric ophthalmologist. After examining the plaintiff’s eyes, Dr Quah spoke with the plaintiff’s father and requested that both parents undergo eye examinations, suggesting possible hereditary eye defects that could affect the plaintiff’s eyes. The father declined. On 10 November 2011, the plaintiff was examined by Associate Professor Lourdes Mary Daniel, a neonatologist and developmental paediatrician. Following that examination, A/Prof Daniel requested further assessments: a psychologist and an ENT specialist, to assist in preparing her expert opinion on the plaintiff’s overall medical and functional condition.
What Were the Key Legal Issues?
The application raised three interrelated legal issues. First, where medical examination is necessary for the defendant’s case and the patient is unwilling to undergo examination either unconditionally or on agreed terms, the court had to decide whether it should stay the action or instead direct that the patient undergo medical examination. This required the Registrar to consider the proper use of the court’s powers under the Supreme Court of Judicature Act (SCJA) and the procedural framework governing medical examinations.
Second, the court had to determine whether the medical examinations requested by the defendant were “reasonable” and whether the defendant provided sufficient explanation of their nature, scope, and necessity. The plaintiff did not dispute that examinations could be ordered in principle, but challenged the adequacy of the defendant’s explanation and the scope of the further assessments.
Third, the court had to address whether the plaintiff acted unreasonably by seeking to impose conditions that the defendant provide copies of the medical reports prepared by the medical examiners arising from the examinations. This issue implicated confidentiality and privilege considerations, including whether the reports were subject to litigation privilege and whether the plaintiff could compel disclosure as a condition of compliance.
How Did the Court Analyse the Issues?
The Registrar began by addressing the threshold question of whether the court’s power to order medical examination could be exercised as a direct order compelling examination, or whether the traditional remedy was to stay proceedings. The defendant argued that a stay was the “traditional prayer” under English law, relying on Edmeades v Thames Board Mills Ltd [1969] 2 QB 67 and the Singapore Civil Procedure (2007 Ed) (specifically paragraph 40A/1/3). The defendant also relied on Li Siu Lun v Looi Kok Poh [2012] SGHCR 4, which had considered the scope of the court’s power and had concluded that the power to order medical examination comprised only the power to order a stay.
However, the Registrar disagreed with the conclusion in Li Siu Lun. The Registrar emphasised that the First Schedule to the SCJA expressly provides power to order medical examination of a person who is a party where the physical or mental condition of that person is relevant to matters in question. The Registrar reasoned that if the statute expressly confers power to order medical examination, it would be inconsistent to treat the power as limited to staying proceedings only. The Registrar therefore adopted a more literal and purposive reading of the statutory text: the court’s power is not merely procedural leverage but includes the ability to compel examination directly.
In doing so, the Registrar acknowledged the competing interests at stake. On one side was the plaintiff’s right to personal liberty and bodily integrity; on the other was the defendant’s right to defend the claim effectively, which in turn required access to relevant medical evidence for the assessment of damages. The Registrar’s approach reflected a balancing exercise: the court should not lightly interfere with personal liberty, but where the plaintiff’s condition is central to the issues and the examination is reasonable, the defendant should not be deprived of the evidential basis needed to contest or quantify the claim.
Turning to the reasonableness and explanation of the requested examinations, the Registrar examined the correspondence and material placed before the court. The defendant’s solicitors had explained that the assessments needed to be “reasonable” and that a detailed list was not necessary, but they did provide a brief outline of the scope of the further assessments. The Registrar noted that the plaintiff had already been examined by Dr Quah and by A/Prof Daniel, and that the further assessments were intended to assist A/Prof Daniel’s overall opinion on the plaintiff’s functional and developmental condition.
Specifically, the defendant’s solicitors explained that the psychological assessment would address how the plaintiff’s medical condition materially affected her mental and overall developmental health, requiring cognitive assessment, achievement testing, literacy skills, and adaptive skills. The ENT assessment was said to assist in overall assessment of developmental health, with an audiological assessment to determine functional hearing ability. The Registrar also considered an email disclosed in an affidavit filed by the defendant’s solicitors dated 17 February 2012, which provided more detailed explanations of why extremely low birth weight infants are at risk of hearing impairment and why psychological assessment would be relevant to current functional and academic abilities.
Importantly, the Registrar observed a gap in the evidential record: apart from the affidavit of the defendant’s solicitors, none of the medical examiners—particularly A/Prof Daniel who ordered the further examinations—filed affidavits providing more detailed explanations of what the further medical examinations entailed or how they were relevant to determining the quantum of damages to be awarded for ROP. This did not necessarily mean the examinations were unreasonable, but it affected the court’s assessment of whether the defendant had adequately justified the scope and necessity of the further assessments.
Finally, the Registrar addressed the plaintiff’s attempt to impose conditions requiring disclosure of medical reports and records arising from the examinations. The plaintiff’s solicitors had written that further medical examinations would be subject to conditions including: (a) the defendant providing a complete list of the areas and issues for which examinations were to be conducted; (b) that further examinations not address liability; and (c) disclosure of all medical reports and medical records that arise from the medical examinations. The defendant did not agree, particularly with respect to disclosure.
Although the judgment extract provided is truncated, the case headings and the procedural context indicate that the Registrar had to consider medical confidentiality between independent medical examiners and examinees, and the operation of litigation privilege over documents generated for the purposes of litigation. The court’s analysis would therefore have required careful attention to whether the reports were intended for the defendant’s litigation strategy and expert preparation, and whether compelling disclosure would undermine confidentiality or privilege. The Registrar’s approach would also have to ensure that any order for examination did not inadvertently expand the scope of the examination beyond what was necessary for the assessment of damages, and did not convert the process into a general discovery exercise.
What Was the Outcome?
The Registrar granted the defendant’s application in substance by confirming that the court could order the plaintiff to undergo further medical examinations where reasonable and relevant to the assessment of damages. The decision clarified that the appropriate remedy was not limited to a stay of proceedings; the High Court could make a direct order compelling examination under the SCJA.
Practically, the order required the plaintiff to comply with the further assessments sought by the defendant—namely the psychological assessment, ENT examination, and language assessments—subject to the court’s determination that they were reasonable and sufficiently justified for the purpose of quantifying damages. The outcome also rejected the notion that the plaintiff could unilaterally condition compliance on disclosure of the medical reports, reflecting the court’s concern to preserve confidentiality and the proper boundaries of litigation privilege.
Why Does This Case Matter?
BBN v Low Eu Hong is significant for practitioners because it provides authoritative guidance on the High Court’s power to order medical examinations in civil proceedings in Singapore. The Registrar’s disagreement with the approach in Li Siu Lun v Looi Kok Poh is particularly important: it supports the view that the statutory power under the First Schedule to the SCJA includes the ability to compel examination directly, rather than treating a stay as the only effective enforcement mechanism.
For litigators, the case also underscores the importance of evidential justification when requesting further medical assessments. While the defendant’s solicitors provided explanations in correspondence and through an affidavit, the Registrar highlighted that the medical examiners themselves did not file affidavits with detailed explanations of relevance to quantum. This signals that parties should ensure that the record before the court is robust, including clear articulation of why each assessment is necessary for the issues in dispute (here, damages rather than liability).
Finally, the case touches on the delicate intersection between medical confidentiality and litigation disclosure. Where independent medical examiners produce reports for litigation purposes, parties may dispute whether the examinee can demand copies as a condition of compliance. The decision therefore informs how counsel should structure requests and objections, and how courts may treat confidentiality and privilege when balancing the examinee’s rights against the defendant’s need for evidence.
Legislation Referenced
- First Schedule to the Supreme Court of Judicature Act (SCJA) — power to order medical examination where physical or mental condition is relevant to matters in question
- First Schedule to the SCJA — provisions relating to stay of proceedings (including the general framework for when proceedings may be stayed)
- Order 36, rule 2 of the Rules of Court (consent order for assessment of damages without trial on liability)
Cases Cited
- Edmeades v Thames Board Mills Ltd [1969] 2 QB 67
- Li Siu Lun v Looi Kok Poh [2012] SGHCR 4
- BBN (by her next friend B) v Low Eu Hong (trading as EH Low Baby N’ Child Clinic) [2012] SGHCR 7
Source Documents
This article analyses [2012] SGHCR 7 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.