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Kumar v Permanent Secretary for Health [2011] FJHC 788; HBC12.2009 (6 December 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


Civil Action No. HBC 12 of 2009


BETWEEN:


SANJIU KUMAR (f/n Ram Brij) and RADIKA KUMAR both of Velau Road, Kinoya as Administrators and Executers of the Estate of SHOVEET SHAVNEET KUMAR
PLAINTIFF


AND:


PERMANENT SECRETARY FOR HEALTH
FIRST DEFENDANT


AND:


ATTORNEY GENERAL OF FIJI
SECOND DEFENDANT


BEFORE: Master Deepthi Amaratunga


COUNSELS: Mr. V. Maharaj for the Plaintiff
Ms. Levaci S. for the Defendants and for non- parties against whom the discovery is sought.


Date of Hearing: 17th March, 2011
Date of Ruling: 6th December, 2011


RULING


  1. INTRODUCTION
  1. The summons of the Plaintiff seeking discovery of documents that are stated in the affidavit in support. The claim of the plaintiff is for medical negligence and the discovery is regarding the disciplinary inquiry of the said incident where the doctors were found guilty of Section 6(2) of the Public Service Act and were reprimanded and they were ordered to pay fines. The Plaintiff seeks to discover the said proceedings in the inquiry including the police reports and some lab reports. The application is made in pursuant to Order 24 rule 7 and requests to produce such documents in the custody with the non parties namely to Public Service Commission (PSC) and Police Commissioner, they were served with this application for specific discovery, but they chose not file an affidavit in opposition on their own but relied on the affidavit in opposition filed by the superintendant of the hospital where the alleged incident happened. The reason given for non production of police reports is that the matter is referred to Director of Public Prosecution (DPP) for criminal investigation cannot be accepted as a valid reason for non production. The reason given for non production of PSC investigation cannot be accepted as there is no prohibition for such records being produced in courts and the PSC has not indicated that they are opposed to production of them in court. The lab report regarding the deceased should be always with the hospital. All the abovementioned documents are vital and directly relevant to the alleged negligence that happened in the hospital and the press release from the PSC is clear that the two doctors who were involved with the death of the child were ordered to pay fines and were also warned in terms of the Public Service Act. It is also clear that the lab reports and police reports were equally relevant and production of these vital documents would simplify and expedite the trial and would serve the purpose of the pre trial procedure so that the parties would not be taken by surprise at the trial and also would help immensely in the pre trial conference to narrow down the issues of the action saving time and money for the parties and also help the court to expedite the matter without unnecessary delay.
  1. FACTS
  1. The Plaintiff filled this action against the Defendants for the alleged medical negligence that led to the death of the child of the Plaintiff namely Shovneet Shavneet Kumar.
  2. All the parties have filled their affidavits verifying lists of documents and Plaintiff sought to specific discovery of certain documents.
  3. The Plaintiff had filled summons filed on 13th December 2010 sought specific discovery against Public Service Commission seeking the Chairman and/or Secretary or other authorized officer of the Public Service Commission do make and serve on the Plaintiff a list of documents and verifying the same by affidavit stating whether any documents, namely, duly certified record of the transcript of proceedings and findings of the Commission relating to disciplinary charges against all doctors and employees of Colonial War Memorial Hospital including witness statements, submissions and other documents that were tendered to the Commission pertaining to the death of Shovneet Shavneet Kumar.
  4. The Plaintiff also sought that the Superintendent of Health or an authorized officer do make and serve a list of documents and verifying the same by affidavit stating whether any other laboratory results other than those already disclosed to the Plaintiffs is in the possession and custody of the First Defendant or C.W.M. Hospital and that the commissioner of Police or other authorized officer do make and serve on the Plaintiffs list of documents and verifying the same by affidavit stating whether any documents namely, statement of witnesses taken by Police from employees of C.W.M. Hospital and copies of all documents compiled or collected by the Police including any test results in their possession and custody in relation to the death of the deceased. The summons is supported by the Affidavit of Sanjiu Kumar filed on 13th December 2010. The plaintiff stated that the application was served on the Public Service Commission as well as to the office of the Commissioner of Police and the Attorney General's Office and the counsel for Attorney General's Chamber also appeared on behalf of the non parties to this action namely the Police Commissioner and the PSC. The application is made pursuant to Order 24 Rule 7 and Order 38 Rule 13 of the High Court rules and under the inherent jurisdiction Court.
  5. The Plaintiff has sought damages against the Defendants for medical negligence. The Plaintiffs allegation is that the servants and agents of the 1st Defendant were negligent in administering medical procedures and medications, thereby leading to the death of the infant on 20th September 2007.
  6. Paragraph 11 of the statement further states as follows:-

"For the purposes of proving negligence the Plaintiffs will adduce and rely on evidence at the trial that two doctors employed by the First Defendant, namely, LUKE NASEDRA and THERESA LUM were charged for disciplinary office under Section 5(2) of the Public Service Act in relation to the treatment, management and care of the deceased and were found guilty and received fines of $500.00 and $250.00 respectively".


  1. The Defendant in its statement of Defence denies the above allegation but the press release from the PSC indicate two doctors who were charged in the proceeding was found guilty. The Press Release has refrained from divulging the names of the two doctors, for obvious reason.
  2. The Affidavit in Support of the Summons for Discovery at paragraph 6, the deponent makes reference to a press release issued from the Public Service Commission dated 29th December 2008, in which it is clearly stated that the two doctors were caught within the ambit of Section 6(2) of the Public Service Act which requires, "an employee must act with care and diligence in the course of employment in the public service". The press release further states that the two doctors were reprimanded and fined $500.00 and $350.00 respectively.
  3. There are various other annexures in the affidavit in support, for instances, letters written on behalf of the Plaintiffs addressed to either the CWM Hospital and the Public Service Commission requesting copies of medical reports and the disciplinary committee hearing records.
  4. There are various newspaper articles in relation to the disciplinary investigation and hearing against the two doctors involved and it is the Plaintiffs submission that the documents that it is requesting for has already been publicized and therefore as officers of court, the Defendant is duty bound to disclose those documents so that a fair trial could be achieved. The Plaintiff state that the records of the PSC would clearly indicate the level of negligence and would have a bearing on the status of the matter, and directly relevant to their claim.
  5. The Annexure "F" in the affidavit in support of Sanju Kumar is a letter written by Ministry of Health in which Dr. I. Waqainabete states that they do not have copies of the laboratory test results, but falls short of indicating whether there was a lab report and if so what has happened to it.
  1. THE LAW AND ANALYSIS
  1. The application is based on Order 24 rule 7 and also Order 38 rule 13
  2. Order 38 rule 13 reads as follows

'13(1) At any stage in a cause or matter the Court may order any person to attend any proceedings in the cause or matter and produce any document, to be specified or described in the order, the production of which appears to the Court to be necessary for the purpose of that proceedings in that cause or matter.


(2) No person shall be compelled by an order under paragraph (1) to produce any document at a proceeding in a cause or matter which he or she could not be compelled to produce at the trial of that cause or matter.


  1. It is clear that from the above provision though a document is relevant and essential, still it cannot be compelled to be produced if the law prevents that document being produced in court for example like an official secrets or certain internal communications between two sovereign states which expressly prevents them from produced in a court of law. PSC Act referred, does not state that the records of the PSC Disciplinary Committee cannot be disclosed or they are privileged in some way from being disclosed to an aggrieved party.
  2. It is to be noted that at the hearing the Defendant was unable to point out any law that prohibits the documents sought by the Plaintiff. The lab reports and the police reports cannot be fall into any such prohibition as they are being made to facilitate the investigation in relation to an action in court or in relation to prospective action in court of law.
  3. The proceedings in a concluded investigation of PSC and its documents that resulted two doctors involved in this action being finned and also reprimanded, cannot be prevented from being further litigation in a judicial review and the proceedings and its evidence and all the documents are not precluded from being produced in a court of law and in the absence of any legal prohibition in a statute or rule of evidence preventing them, cannot prevent the same from being produced in court or discovered. So, the exception contained in Order 38 rule 13(2) cannot be resorted by the Defendants to prevent an order of the court to discover the said document, as the documents sought are not privileged.
  4. The application for discovery is made pursuant to order 24 Rule 7(1) of the High Court rules and it states as follows

Order 24 Rule 7 states as follows:-


"Subject to Rule 8, the Court may at any time, on an application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of documents so specified or described, is, or has at ay time been, in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it".


  1. Supreme Court Practice (1999) at p 471 24/7/2 state as follows

'....the present rule an application may be made for an affidavit as to specific document or classes of documents. This must be supported by an affidavit stating that in the belief of he deponent other other party has or has had prima facie case is made out for (a) possession, custody or power and (b) relevance of the specified documents (Astra National Production Ltd v neo Art productions Ltd[1928]W.N. 218.


This case may be base merely on the probability arising from the surrounding circumstances or in part on specific facts deposed to. See too Berkeley administration v Mc Clelland [1990] F.S.R. 381 where at p 382 the Court restated the principles as follows;


(1) There is no jurisdiction to make an order under RSC O24 r 7 for the production of documents unless

(a) There is sufficient evidence that the documents exist which the other party has not disclosed.


(b) The document or documents relate to matters in issue in the action


(c) There is sufficient evidence that the document is in the possession, custody or power of the other party.


(2) When it is established that those three prerequisites for jurisdiction do exist, the court has discretion whether or not to order disclosure.'


  1. The general principles on grant of order for discovery were considered by the in Singh v Minjesk Investment Corporation Ltd & Anor High Court Civil Action No. HBC 148 of 2006 at paragraph 18 to 26. The decision quoted Justice Byrne in Parvati Manilal Lallu Ranchod v. Sundar Lal Lallu Suva High Court Civil Action No. HBC 488 of 1991 at page 3 of the judgment summarized the principles as follows:

"This text was applied by Menzies J in Mulley –v- Manifold [1959] HCA 23; [1959] 103 CLR 341 at 345 where His Honour stated that discovery is a procedure directed towards a proper examination and determination of the issues between the parties as disclosed in the pleadings and not towards assisting a party upon a fishing expedition.


"Only a document which relates in some way to a matter in issue is discoverable but it is sufficient if it would or if it would lead to a train of enquiry would, either advance a parties own case or damage that of his adversary".


  1. In this case when the general discovery under Order 25 was made, the Defendant chose not to disclose the documents sought by the Plaintiff and even after the summons for specific discovery in regard to non parties to this action no response received from those parties. There were several requests made and the Defendant and the non parties namely PSC and Commissioner of Police, failed to respond to them and even after proper summons in this action was served to the non parties. They were also represented by the second Defendant, but failed to swear an affidavit on its own to inform the court of their decision and their position regarding to the said documents.
  2. Halsbury's Laws of England 4th Edition at page 78 describes the documents which are capable of being discovered as follows:-

"8. Documents required to be Disclosed.


The obligation of a party to make discovery necessarily involves that he must make a full and frank disclosure of all relevant documents which are or have been in possession, custody or power. Apart from any order limiting the scope of discovery of particular documents, or class of documents, or to particular issues, there are two general and essential conditions as to what documents are required to be disclosed, namely:-


(i) They must be relevant, that is, they must relate to some matter in question in the action or other proceedings; and

(ii) They must be or have been in possession, custody or power of the party required to make discovery".

Relevant Document is defined as [Halsburys Laws of England {4th Edition} at page 34]:


"......the matter in question in the action if it contains information which not which must either directly or indirectly enable the party requiring the discovery either to advance his own case or to damage the case of his adversary, or which may fairly lead to a train on enquiry which may have either of this consequences. Documents relate to matters in question in the action whether they are capable of being given in evidence or not, so long as they are likely to throw light on the case. The expression 'matter in question' means a question or issue in dispute I the action and not the thing about which the dispute arises".


The Defendants response, in reference to the Answering Affidavit of Dr Ifereimi Waqainabete have responded as follows:-


(i) The Plaintiff has not shown any relevance of the documents sought to the issues;


(ii) The documents sought are no longer in the custody of the Police and the Hospital. (emphasis is mine)


  1. It is clear that the Defendants and non parties are not denying the existence of the documents but state that they are no longer in the custody of them, the implication is that they had the custody of them at a particular time.
  2. The relevance of a document was discussed in the case of AB Annand (Christchurch) Limited –v- ANZ Limited [1997] 43 FLR 22 where Fatiaki J discussed that:-

"Quite plainly in order that any document may be discoverable it must firstly, be shown"....to relate to (some) matter in question in the cause..." In other words the document must be relevant to a question or issue in the proceedings in so far as the same may be deduced from the pleadings in the action...."


  1. The Defendants submit that the standard of proof in these quasi-judicial inquiries are lower than that of a standard of care in medical negligence sought by the Plaintiff in this case hence submit that the inquiry conducted and the charges and penalties was for the breaches of an employees conduct in their line of duty as a civil servant, and therefore had no relevance to his conduct as a medical practitioner in the law of negligence.
  2. The affidavit in opposition is sworn by the superintendent of the hospital and has not annexed relevant charge sheet or even failed to mention the relevant breaches and charges that contained in the respective charge sheets and in the absence of that the position taken by the Defendant cannot be substantiated and can be considered as mere conjecture without any supporting material. It is to be noted that the press release of the PSC dated 29th December, 2008 clearly indicate that the said inquiry and charges were relating to the death of child Shavneet Kumar and has found guilty of breach namely to 'act with care and diligence in the course of employment in the public service'. This shows that the said inquiry and its proceedings are relevant to the issue of the negligence in this action.
  3. The degree of burden of proof that is required in a disciplinary inquiry, cannot be a reason for rejection of evidence led in such inquiry and that argument of the Defendant has to be rejected as it is without any merit. The relevancy of documents pertaining to the inquiry conducted by the PSC is relevant to the issue as it relates to the alleged negligence, where the death of a child was the issue in this action as well as in the said inquiry. Prima facie the Plaintiff has proved the relevancy on the material before the court at this stage and disclosure would not prejudice the Defendants as these materials have not been tendered as evidence in a court of law and disclosure will only simplify the issues before the court and would also help to reduce time of the court and would also reduce the cost of the trial. For example if the alleged lab report is produced it can be admitted as an agreed fact between the parties and would not need any further expert evidence even in the trial, minimizing the delay and cost of obtaining another expert evidence. If the said lab report was relevant to the inquiry before the PSC in relating to the death of the said child, how it is not relevant to this trial needs to be explained by the Defendant, which it had not done.
  4. In AB Annand Case (Supra), Justice Fatiaki referred to the Halsburys Laws of England (Vol. 13 page 35 para 39) which was cited as follows:-

"possession" means the physical or corporeal holding of the document pursuant of the right to its possession, as in the case of an agent or a bailee, "custody" means the mere actual physical or corporeal holding of a document regardless of the right of its possession as the case of a servant or employee and "power" means an enforceable right to inspect it or to obtain possession or control of the documents from the person ordinarily has it in fact".


  1. It should be noted if lab reports were in the possession of the 1st Defendant and handed over to DPP that should be available to them without any difficulty even without an order of order. This applies to the police reports as well. Any such document should not be prevented from being discovered only on the reason that it is with DPP.
  2. It should be understood that inquiry proceedings were requested from the PSC and the medical superintendant has replied to that by stating that it is not in their custody, which may be true, but the reply must come from the authority which was requested by the Plaintiff. The request was to the PSC to submit the said documents relating to the inquiry of the PSC and they cannot obviously state that it is not in their custody. The counsel for the PSC failed to provide any legal impediment for production of their inquiry to a court of law, but relied on the issue of burden of proof which clearly cannot be a ground for objection of the discovery. So the PSC should be ordered to file an affidavit verifying a list of all the transcripts of pleadings and findings of the PSC including the witness statements and all documentary evidence of the said inquiry of the death of Shovneet Kumar.
  1. CONCLUSION
  1. It should be noted that the plaintiff has requested in its summons following orders
    1. That the Chairman and/or Permanent Secretary or other authorized officer of the Public Service Commission do make and serve on the Plaintiff a list of documents and verifying the same by affidavit stating whether any documents namely duly certified record of the transcript of proceedings and findings of the Commission relating to disciplinary charges against all doctors and employees of Colonial War Memorial Hospital including witness statements, submissions and other documents that were tendered to the Commission pertaining to the death of Shovneet Shavneet Kumar;

(ii) The Superintendent of Health or some other authorized officer do make and serve a list of documents and verifying the same by Affidavit stating whether any other test/laboratory results other than those already disclosed to the Plaintiff's is in the possession and custody of the first defendant or CWMH Hospital;


(iii) That the Commissioner of Police or other authorized officer do make and serve on the Plaintiffs a list of documents an verifying the same by affidavit stating whether any documents namely, statement of witnesses taken by Police from employees of CWM Hospital and copies of all documents complied or collected by the Police including any test results referred to in annexure G herein are in their possession and custody in relation to the death of the deceased.


  1. It is clear that all the abovementioned documents are relevant to the alleged claim of alleged medical negligence described in the statement of claim. It is also clear that the said document were 'at any time been, in his possession, custody or power, and if not then in his possession, custody or power,.....' as stated in Order 24 rule 7 with the respective parties namely the PSC, Police Commissioner and the 1st Defendant and mere fact lab report and police reports being submitted to DPP for criminal prosecution, as alleged by the superintendent of the hospital, cannot be a ground for not allowing the discovery. The purpose of the discovery is lost if the court were to disallow the documents produced in the inquiry because of its quasi – judicial nature and on degree of the burden of proof needed for such inquiry is considered for rejection of them in discovery as submitted by the Defendant. It should also be noted the both the Commissioner of Police and the PSC has not sworn an affidavit in opposition with grounds for not allowing the discovery and no correspondence of these two government institutions were annexed to consider their position. In the absence of any such material and also their failure to submit any legal provision that prohibit the said documents being either discovered or produced in court, I am convinced that the Plaintiff has made a prima facie case is made out for (a) possession, custody or power and (b) relevance of the specified documents as held in Astra National Production Ltd v neo Art productions Ltd [1928] W.N. 218. The discovery requested by the Plaintiff should be allowed. Considering the circumstances of the case I grant the order in terms of the summons for specific discovery filled on 13th December, 2010. The respective parties namely PSC or its officers, the superintendant of health or an authorized officer and the commissioner of police or an authorized offer are granted 14 days to comply with the order. The cost of this application will be cost in the cause.
  1. FINAL ORDERS
  1. Order in terms of the summons dated 13th December, 2010 for specific discovery within 14 days.
  2. Cost of this application will be cost in the cause.

Dated at Suva this 06th day of December, 2011.


Mr. Deepthi Amaratunga
Master of the High Court
Suva

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