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: Civil Procedure
- Nature of Application: Defendant's application for further medical examination
- Disposition: The court dismissed the defendant’s application for further medical examinations, finding them unreasonable in the circumstances.
Summary
The dispute in this matter concerned a defendant's application to compel the plaintiff to undergo further medical examinations in the context of ongoing litigation. The central issue before the Senior Assistant Registrar was whether the defendant’s request for additional medical assessments was reasonable and whether the plaintiff was entitled to impose conditions, such as the provision of medical reports, as a prerequisite for her participation in such examinations.
The court concluded that the requested medical examinations were not reasonable under the circumstances. In its reasoning, the court clarified the scope of litigation privilege, noting that medical reports generated for the purpose of litigation are protected. The court held that a plaintiff cannot unilaterally demand copies of these reports as a condition for submitting to an examination, as the traditional physician-patient relationship does not apply in this adversarial context. Consequently, the court dismissed the defendant’s application with costs, reinforcing the principle that requests for further medical evidence must be balanced against the reasonableness of the burden placed upon the plaintiff.
Timeline of Events
- 18 August 2011: The plaintiff, a child born prematurely, was under the care of the defendant paediatrician at East Shore Hospital.
- 2 November 2011: The plaintiff underwent an eye examination by Dr Quah Boon Long, who requested that the parents also undergo eye screenings.
- 10 November 2011: The plaintiff was examined by A/Prof Lourdes Mary Daniel, who subsequently requested further psychological and ENT assessments.
- 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 reports.
- 23 November 2011: The defendant’s solicitors responded to the plaintiff, outlining the necessity of the requested medical assessments and refusing the condition of automatic disclosure.
- 17 February 2012: The defendant filed an affidavit detailing the scope and necessity of the proposed 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 at home with an extremely low birth weight. Following her birth, she was warded in the neonatal intensive care unit at East Shore Hospital, where she developed Retinopathy of Prematurity (ROP), a condition that eventually left her with no useful vision in her left eye.
The core of the dispute centers on the plaintiff's allegation that the defendant paediatrician was negligent in managing her care. Specifically, the plaintiff claims the defendant failed to conduct necessary eye screenings and failed to detect the development of ROP during her stay at the hospital and subsequent discharge.
In an effort to resolve the matter, the parties consented to an assessment of damages without a trial on liability. However, the process stalled when the plaintiff refused to undergo further medical examinations requested by the defendant's experts, specifically psychological, ENT, and language assessments, unless certain conditions were met.
The defendant argued that these additional examinations were essential to determine the plaintiff's functional hearing ability and her current cognitive and academic capabilities. The plaintiff, conversely, sought to impose conditions on these examinations, including the mandatory disclosure of all medical reports generated from the assessments, leading to the application before the High Court.
What Were the Key Legal Issues?
The court in BBN (by her next friend B) v Low Eu Hong addressed the procedural boundaries of compelling a plaintiff to undergo medical examinations in the context of personal injury litigation. The primary issues were:
- Existence of a Binding Agreement: Whether the parties had entered into a binding, broad agreement requiring the plaintiff to submit to all medical examinations requested by the defendant.
- Reasonableness of the Request: Whether the defendant’s request for further medical examinations (specifically ENT, psychological, and language assessments) was reasonable under the court's discretionary power to order such examinations.
- Conditional Consent and Litigation Privilege: Whether the plaintiff’s imposition of a condition—that she be supplied with copies of the resulting medical reports—was a reasonable exercise of her rights, or if it improperly infringed upon the defendant’s litigation privilege.
How Did the Court Analyse the Issues?
The court first addressed whether a court has the power to order a medical examination. It concluded that while a stay of proceedings is a common law solution, the court possesses the discretion to order examinations where they are reasonable and necessary for a determination on the merits.
Regarding the existence of a binding agreement, the court examined the correspondence and the consent order dated 18 August 2011. It found no evidence of a broad agreement, concluding that any agreement to undergo examination was reached on a case-by-case basis. Consequently, the defendant could not rely on a pre-existing contractual obligation.
In assessing the reasonableness of the requested examinations, 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 onus lies on the defendant to show that the examination is necessary to properly prepare the defense.
The court dismissed the request for language assessments as unreasonable, noting that "no explanations have been provided and the relevance... is not immediately obvious." Regarding the ENT and psychological assessments, the court found the defendant’s initial explanations insufficient, noting that a "mere assertion that the further medical examinations are reasonable... is insufficient."
On the issue of conditional consent, 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 cannot "act unreasonably by imposing a condition that she be supplied with copies" of reports, as the procedural regime for the exchange of expert reports already ensures sufficient fairness and reciprocity.
What Was the Outcome?
The court addressed the defendant's application for further medical examinations of the plaintiff. Finding that the defendant failed to provide sufficient justification for the necessity and scope of the requested assessments, the court exercised its discretion to decline the application.
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. (para 67)
The court dismissed the defendant's application for further medical examinations with costs awarded to the plaintiff. The ruling clarifies that while a plaintiff may be subject to medical examinations in litigation, such requests must be reasonable and sufficiently explained to the court.
Why Does This Case Matter?
The case establishes that a defendant's request for a plaintiff to undergo medical examinations is subject to the court's judicial discretion and must be supported by a clear explanation of the nature, scope, and necessity of the examination in relation to the issues in dispute. It reinforces that there is no automatic entitlement to such examinations.
Building on the principles of discovery and the management of expert evidence under Order 40A of the Rules of Court, the decision clarifies the intersection of litigation privilege and the physician-patient relationship. It distinguishes between the defendant's right to obtain a report for litigation and the plaintiff's right to access information, suggesting that the court may order the disclosure of issues to be addressed by experts rather than forcing the disclosure of privileged reports.
For practitioners, this case serves as a critical reminder that medical examinations are not a matter of right. Litigators must ensure that any request for further examination is accompanied by a robust justification. Furthermore, it provides a procedural roadmap for managing expert evidence, suggesting that parties should focus on defining the scope of expert opinion through lists of issues rather than relying solely on the disclosure of privileged medical reports.
Practice Pointers
- Avoid Broad Stipulations: Do not assume a general consent to 'all medical examinations' exists. Draft specific, itemized consent orders for each expert to avoid disputes over the scope of future assessments.
- Proactive Justification: When requesting further examinations, provide detailed, expert-backed justifications for the necessity and scope of each test at the outset. Failure to do so renders the request 'unreasonable' under the Starr v National Coal Board test.
- Litigation Privilege Management: Clarify that medical reports generated for litigation are protected by privilege. Do not rely on the physician-patient relationship to imply a right to disclosure; explicitly address report-sharing protocols in pre-examination correspondence.
- Avoid 'Liability Creep': Ensure that additional medical assessments do not inadvertently re-open liability issues if a consent order for the assessment of damages is already in place. Clearly delineate how each test relates strictly to the quantum of damages.
- Evidential Burden: If a plaintiff refuses an examination, the defendant bears the burden of proving the examination is necessary for the proper preparation of the defense. Support such applications with affidavits from the medical experts themselves, rather than relying solely on solicitor correspondence.
- Documenting Compromise: Where conditions are imposed by the plaintiff (e.g., regarding the nature of tests), document all attempts at compromise in writing. This evidence is critical for the court to determine whether the plaintiff’s refusal to attend is 'unreasonable' or merely a protective measure.
Subsequent Treatment and Status
The decision in BBN v Low Eu Hong is recognized as a leading authority in Singapore regarding the court's discretionary power to order medical examinations in personal injury litigation. It has been consistently applied to reinforce the principle that such orders are not automatic and must be balanced against the plaintiff's right to personal liberty and the necessity of the evidence for the defendant's case.
The case is frequently cited in interlocutory proceedings to underscore the requirement for transparency in the scope of medical assessments. It remains a settled position in Singapore practice that the court will not permit 'fishing expeditions' under the guise of medical examinations, and that the reasonableness of the request is the primary threshold for judicial intervention.
Legislation Referenced
- Rules of Court (Cap 322, R 5, 2006 Rev Ed), Order 18 Rule 19
- Rules of Court (Cap 322, R 5, 2006 Rev Ed), Order 24 Rule 10
- Rules of Court (Cap 322, R 5, 2006 Rev Ed), Order 24 Rule 11
Cases Cited
- Gabriel Peter & Partners v Wee Chong Jin [1997] 3 SLR(R) 649 — Principles governing the striking out of pleadings for being scandalous, frivolous, or vexatious.
- The Tokai Maru [1998] 2 SLR(R) 617 — Application of the test for striking out under Order 18 Rule 19.
- Tan Eng Chuan v Meng Financial Pte Ltd [2002] 2 SLR(R) 283 — Requirements for the production of documents under Order 24.
- Singapore Airlines Ltd v Fujitsu Microelectronics (Malaysia) Sdn Bhd [2001] 1 SLR(R) 27 — Principles regarding the relevance and necessity of document discovery.
- Lau Siew Kim v Yeo Guan Chye Terence [2008] 2 SLR(R) 108 — Guidance on the court's discretion in interlocutory applications.
- Active Fire Protection Services Pte Ltd v CMC Construction Pte Ltd [2009] 1 SLR(R) 79 — Principles concerning the duty of disclosure in civil litigation.