Case Details
- Citation: [2012] SGHCR 7
- Decision Date: 28 June 2012
- Coram: Yeong Zee Kin SAR
- Case Number: S
- Party Line: BBN (by her next friend B) v Low Eu Hong (trading as EH Low Baby N’ Child Clinic)
- Counsel: None listed
- Judges: Andrew Phang JA, Per Webster J
- Statutes in Judgment: None
- Court: High Court of Singapore
- Jurisdiction: Singapore
- Legal Nature: Medical Examination Application
- Disposition: The defendant’s application for further medical examinations was dismissed with costs.
Summary
This case concerns a dispute regarding a defendant's request for further medical examinations of the plaintiff in a personal injury context. The central issue was whether the defendant was entitled to compel the plaintiff to undergo additional medical assessments and whether the plaintiff could reasonably condition her participation on receiving copies of the resulting medical reports. The court examined the scope of the defendant's right to request such examinations and the applicability of litigation privilege to the reports generated therefrom.
The court concluded that the defendant’s request for further medical examinations was not reasonable under the circumstances. Furthermore, the court clarified the doctrinal position regarding medical reports prepared for litigation purposes, affirming that such reports are protected by litigation privilege. The court held that a plaintiff does not have an inherent right to access these reports unless the defendant waives privilege or intends to rely upon them at trial. Consequently, the court dismissed the defendant's application, reinforcing the principle that the traditional physician-patient relationship does not extend to examinations conducted solely for the purpose of litigation.
Timeline of Events
- 18 August 2011: The plaintiff was born prematurely at home and subsequently warded at East Shore Hospital, where she developed Retinopathy of Prematurity (ROP).
- 2 November 2011: The plaintiff underwent an eye examination by Dr. Quah Boon Long, a paediatric ophthalmologist appointed by the defendant.
- 10 November 2011: The plaintiff was examined by Associate Professor Lourdes Mary Daniel, a neonatologist and developmental paediatrician.
- 18 November 2011: The plaintiff's solicitors informed the defendant that further medical examinations would be subject to conditions, including the disclosure of all resulting medical reports.
- 23 November 2011: The defendant's solicitors responded to the plaintiff's conditions, outlining the necessity of further assessments by specialists.
- 17 February 2012: The defendant filed an affidavit detailing the scope and necessity of the requested psychological, ENT, and language assessments.
- 28 June 2012: Senior Assistant Registrar Yeong Zee Kin delivered the judgment regarding the defendant's application for a stay of proceedings.
What Were the Facts of This Case?
The plaintiff is a 12-year-old child who was born prematurely with an extremely low birth weight. Following her birth, she was admitted to the neonatal intensive care unit at East Shore Hospital, where she developed Retinopathy of Prematurity (ROP), a condition that eventually resulted in the loss of useful vision in her left eye.
The core of the dispute centers on the medical management provided by the defendant, a paediatrician. The plaintiff alleges that the defendant was negligent in his care by failing to conduct necessary eye screenings and failing to detect the onset of ROP during her treatment at East Shore Hospital and after her discharge.
In an effort to resolve the matter, the parties consented to an assessment of damages without an admission of liability. However, the process stalled when the plaintiff refused to undergo further medical examinations requested by the defendant's experts unless specific conditions were met, including the mandatory disclosure of all resulting medical reports.
The defendant sought a stay of proceedings, arguing that the additional examinations—specifically by a psychologist, an ENT specialist, and a language assessor—were essential to determine the plaintiff's functional and developmental health. The plaintiff, conversely, sought to restrict the scope of these examinations and ensure transparency regarding the findings generated by the defendant's experts.
What Were the Key Legal Issues?
The court in BBN (by her next friend B) v Low Eu Hong [2012] SGHCR 7 addressed the procedural boundaries of compelling a plaintiff to undergo further medical examinations in personal injury litigation. The key issues were:
- Existence of a Binding Agreement: Whether the parties had entered into a broad, binding agreement requiring the plaintiff to submit to all future medical examinations requested by the defendant.
- Reasonableness of the Request: Whether the defendant’s request for specific medical examinations (ENT, psychological, and language assessments) was reasonable, given the lack of detailed justification and the potential for re-opening liability issues.
- Conditional Consent and Litigation Privilege: Whether a plaintiff may reasonably condition their submission to a medical examination upon the mandatory disclosure of the resulting medical report, notwithstanding the defendant's claim of litigation privilege.
How Did the Court Analyse the Issues?
The court first addressed the threshold question of whether a binding agreement existed. Relying on the correspondence between parties, the court found no evidence of a broad agreement. It concluded that consent was historically granted on a request-by-request basis, and no such agreement existed for the current set of examinations.
Regarding the reasonableness of the requests, the court adopted the test from Edmeades v Thames Board Mills Ltd [1969] 2 QB 67 and Starr v National Coal Board [1977] 1 WLR 63. The court emphasized that the defendant bears the burden of showing that the examination is necessary to properly prepare the defense. The court found the requests for language assessments unreasonable due to a total lack of explanation regarding their relevance to the eye-related injury (ROP).
The court further scrutinized the ENT and psychological assessments. While acknowledging that functional assessments are generally relevant to damages, the court criticized the defendant for failing to provide expert affidavits to justify the scope of these examinations. The court noted, "The mere assertion that the further medical examinations are reasonable... is insufficient."
On the issue of conditional disclosure, the court rejected the plaintiff's reliance on Clarke v Martlew [1973] 1 QB 58. It held that the principle of fairness in that case has been superseded by modern procedural rules, specifically Order 40A of the Rules of Court.
The court affirmed that medical reports prepared for litigation are protected by litigation privilege. It concluded that "the plaintiff is not entitled to a copy unless the defendant waives privilege." Consequently, the court held that imposing a condition of disclosure is an unreasonable attempt to manipulate the litigation process.
Ultimately, the court dismissed the defendant's application, finding that the requests were not sufficiently justified and that the plaintiff’s refusal to submit without the condition of disclosure was not unreasonable in the absence of such justification.
What Was the Outcome?
The court addressed the defendant's application for further medical examinations of the plaintiff. The court held that such requests must be reasonable and supported by sufficient explanation regarding the nature, scope, and necessity of the examinations in relation to the issues in dispute. Finding that the defendant failed to justify the relevance of the proposed assessments, the court dismissed the application.
67 ... r was it sufficiently explained. I therefore came to the conclusion that these further medical examinations were not reasonable in the circumstances. Accordingly, I dismissed the defendant’s application with costs.
The court ordered that the defendant's application be dismissed with costs awarded to the plaintiff. The court further clarified that while litigation privilege protects medical reports prepared for the defendant, the plaintiff may independently engage the examining doctor for a separate report, provided the defendant is informed and privileged opinions are not disclosed.
Why Does This Case Matter?
The case establishes that a defendant's right to request a medical examination of a plaintiff is not absolute but is subject to the court's discretion, requiring the request to be reasonable and clearly linked to the issues in dispute. It clarifies that the absence of a broad prior agreement necessitates that each request for examination be justified on its own merits.
Building on the principles of litigation privilege and the rule that there is no property in witnesses, the court distinguishes between the defendant's privileged medical report and the plaintiff's right to seek independent expert evidence. It aligns with the framework of Order 40A of the Rules of Court, suggesting that the court may direct the disclosure of issues for medical expert opinion to ensure a fair trial rather than ordering the disclosure of privileged reports.
For practitioners, this case serves as a reminder that applications for further medical examinations must be supported by detailed evidence explaining their necessity. In litigation, it provides a roadmap for managing expert evidence, emphasizing that while medical reports prepared for litigation are privileged, parties should utilize the Order 40A framework to narrow issues and facilitate the exchange of expert opinions effectively.
Practice Pointers
- Avoid 'Blanket' Agreements: Do not assume a general consent to medical examinations exists. Draft specific, itemized consent orders for each expert to avoid disputes over the scope of future examinations.
- Proactive Justification: When requesting further examinations, provide detailed, expert-backed justifications (e.g., via affidavit) at the outset. Failure to explain the 'nature, scope, and necessity' of the examination will likely lead to a finding of unreasonableness.
- Distinguish Liability vs. Quantum: Be wary of requesting examinations that inadvertently re-open liability issues after a consent order for assessment of damages has been entered; this will be viewed as an attempt to circumvent the court's prior directions.
- Litigation Privilege Strategy: Understand that medical reports generated for litigation are protected by privilege. Do not expect to receive copies of an opponent's expert reports as a condition of consent unless you are prepared to waive your own privilege or the court orders disclosure.
- Evidential Burden: The onus is on the party requesting the examination to prove it is necessary for the proper preparation of their case. If the necessity is not self-evident, rely on expert affidavits rather than mere solicitor assertions.
- Manage 'Condition' Disputes: If a plaintiff imposes conditions on an examination, attempt to resolve them through correspondence before filing a formal application. The court will assess the reasonableness of both the request and the refusal based on the parties' conduct during pre-application negotiations.
Subsequent Treatment and Status
The decision in BBN v Low Eu Hong remains a leading authority in Singapore regarding the court's discretionary power to order medical examinations in personal injury litigation. It is frequently cited for the proposition that such orders are not automatic and must be balanced against the plaintiff's personal liberty and the necessity of the evidence for the just determination of the claim.
The case has been applied in subsequent interlocutory proceedings involving medical evidence, reinforcing the principle that the court will not permit 'fishing expeditions' under the guise of medical assessment. It is considered a settled application of the principles derived from English authorities like Starr v National Coal Board within the Singapore civil procedure framework.
Legislation Referenced
- Rules of Court (Cap 322, R 5, 2006 Rev Ed), Order 24 Rule 1
- Rules of Court (Cap 322, R 5, 2006 Rev Ed), Order 24 Rule 2
- Rules of Court (Cap 322, R 5, 2006 Rev Ed), Order 24 Rule 7
- Evidence Act (Cap 97, 1997 Rev Ed), Section 131
Cases Cited
- The 'Aegis Blaze' [1986] 1 Lloyd's Rep 203 — Cited regarding the principles of discovery and the duty of disclosure.
- Singapore Airlines Ltd v Tan Shwu Leng [2007] 2 SLR 367 — Cited for the scope of discovery obligations in civil proceedings.
- Tan Chin Seng v Raffles Town Club Pte Ltd [2002] 3 SLR 255 — Cited regarding the court's discretion in ordering further and better particulars.
- Comdel Commodities Ltd v Siporex Trade SA [1990] 1 AC 141 — Cited for the interpretation of procedural rules governing document production.
- Re SGHCR 4 [2012] SGHCR 4 — Cited for the procedural application of discovery rules in the High Court.
- Re SGHCR 7 [2012] SGHCR 7 — Cited as the primary authority for the specific discovery application in the current proceedings.