Lin Siu Fong Chloe v. Dr. Chan Fan

HCPI 506/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 506 OF 2015

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R U L I N G

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The Application and Preliminary Issues

1.This is an application by the defendant to strike out the statement of claim and to dismiss the Action on the ground that the plaintiff's claim is time barred.  Before I consider the main argument, I have to deal with some preliminary issues.

2.The writ herein was filed on 14 May 2015.  The acknowledgement of service of the defendant was filed on 26 August 2015, disputing the claim.  The statement of claim and statement of damages were filed on 3 November 2015 and 19 October 2015 respectively.  No defence had yet been filed.  This summons had been taken out by the defendant under Order 18 rule 19 on 11 December 2015.  And by consent, the proceedings, including filing of defence, was stayed pending the determination of this application.

3.In the course of argument, Mr Lam, counsel for the plaintiff submitted that limitation was a defence.  As such the plaintiff had the right to bring the action.  And when the defence of limitation was pleaded by the defendant, the plaintiff could respond in the reply, and/or to apply under section 30 of the Limitation Ordinance to uplift the limitation.  Mr Lam appeared to suggest that the application was premature.  This was not in his written submission. 

4.I accept that limitation was a defence.  But when the defendant had stated clearly in the supporting affirmation that limitation was raised, and relied on the same as a ground to strike out the Statement of Claim, the issue of limitation was before this Court. I would not consider it premature to hear the application.

5.Mr Lam also referred to a judgment by Mr Justice Suffiad given in Wong Kim Ying v Hospital Authority HCPI 265 of 2004 dated 29 June 2006.  The application of uplifting the limitation under section 30 of the Limitation Ordinance was deferred for determination at the trial because it would be necessary to make finding of facts to determine when the plaintiff had the requisite knowledge.  Mr Lam submitted that the matter of uplifting the limitation could be deferred for determination at the trial and I should not strike out the Action even if I found that the claim was time barred.

6.But Mr Justice Suffiad had deferred the determination because it was found that some of the factual dispute could not be determined until after hearing the evidence and cross examination.  The ruling of the case should not be of general application.  Indeed, His Lordship considered it would be of benefit to all concerned to determine the issue at the interlocutory stage.  Each case should be determined on its own factual matrix.  There were other authorities submitted by the parties when the issue was resolved at the application for striking out. 

7.For the present application, most of the facts relied upon by the defendant in support of this application came from the case of the plaintiff or not disputed.  And I did not believe I have to make finding of facts to come to a determination of this application. I therefore proceeded with the application.    

Law on Striking out

8.I believe the law relating to striking out as submitted by Mr Lam and Mr Szeto, solicitors for the defendant, in their written submission were not in dispute and I would not repeat.  I only set out the principle analysed in the judgement of Master Marlene Ng (as she then was) given in Lam Siu Ping v The Secretary for justice for and on behalf of Leisure and Cultural Services Department, HCPI 345/2010 dated 19 October 2011:

“131. It can only be in the most blatant cases that a striking out application is appropriate to a limitation defence. McGee, Limitation Periods 6^th ed para.21.005 at pp.456-457 states as follows:

‘...... The test is to be found in the speech of Lord Bridge of Harwich in Lonrho Plc v Fayed [[1992] 1 AC448, 470].  The defendant must show that the claimant’s claim is obviously doomed to fail.  It may be said that the only such cases will be those where it appears from the terms of the statement of claim that the action is time-barred, and the claimant has not adduced any argument to show why the apparent barring of the action should not prevent him from bringing it.  This view was adopted by the Court of Appeal in Ronex Properties Ltd v John Laing Construction Ltd [[1983] QB 398], where the point was made that a statement of claim which pleads only an action which is time-barred does normally disclose a cause of action, at least in those cases where the expiry of the limitation period serves only to bar the plaintiff’s remedy rather than to extinguish his right.’ (my emphasis)”

9.I agree with the principle and would add that, in most cases, the way the plaintiff could persuade this Court to retain the action if the claim was time barred must be by way of a successful application to uplift the time limit. 

Background Facts

10.Some background of the case:

(1) The defendant was and still is an obstetrician and gynaecologist;

(2) The plaintiff was pregnant in 2002 and first consulted the defendant on 25 June 2002 for antenatal check up.  Thereafter, she attended regular antenatal follow-ups by the defendant;

(3) On 4 January 2003, the plaintiff attended the last antenatal consultation. It was pleaded in the statement of claim that the plaintiff was diagnosed with cephalo-pelvic disproportion.  The plaintiff claimed that the defendant opined that elective Caesarean section was mandatory and the only option;

(4) The plaintiff accepted the advice and on 6 January 2003, Caesarean section was performed by the defendant at Union Hospital.  A baby girl was delivered through Pfannenstiel skin incision.

(5) In paragraph 8 of the Statement of Claim, the plaintiff claimed that “after the Pfannenstiel incision, the plaintiff had chronic pain caused by nerve entrapment.”  And it was claimed in paragraph 9 of the Statement of Claim that “the diagnosis of cephalopelvic disproportion and the Defendant’s opinion that elective Caesarean section was the only option with no alternative, was wrong, inaccurate, or misleading and failing to act with the standards of reasonably competent medical practitioners in the circumstances.”

11.It is further claimed in the Statement of Claim that but for the wrong diagnosis, the plaintiff would not have consented to Caesarean section.  As elaborated by Mr Lam in his written submission, the plaintiff was not alleging that the surgery was carried out negligently.  She based her claim on the wrong diagnosis when she had to have the Caesarean section leading to the pain thereafter.

12.And at paragraph 12 of the Statement of Claim, it had been claimed that “the chronic pain was caused by the Defendant’s negligence, professional misstatement or erroneous opinion as to the mode of delivery”. The chronic pain and injuries were set out in greater details in the Statement of Damages which I shall come back shortly.

13.It could not be disputed that the alleged wrongful diagnosis/advice was given in 2003, about 12 years before the writ herein was issued.  The defendant submitted that the claim of the plaintiff was time barred, the Statement of Claim should be struck out and the Action dismissed.

Limitation

14.Section 27(4) of the Limitation Ordinance provides that:

“(4) Except where subsection (5) applies, the said period is 3 years from-

(a) the date on which the cause of action accrued; or
(b) the date (if later) of the plaintiff's knowledge.”

15.Mr Lam was not disputing that the primary limitation period of 3 years as provided by section 27(4) (a) had lapsed.  The plaintiff was relying on section 27(4)(b) and claimed that she did not have the knowledge of the cause of action, i.e. the wrong diagnosis until she obtained the first report by her liability expert Dr Shek in 2014 (which had been filed in support of her claim).  Accordingly, the 3 years limitation should not begin to run until 2014 and hence the writ was taken out within time.

The Law on Secondary Limitation Period

16.On the law relating to secondary limitation, section 27(4) (b) had to be read with section 27 (6)-(8) of the Limitation Ordinance:

“(6) In this section, and in section 28, references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts-

(a) that the injury in question was significant; and

(b) that that injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and

(c) the identity of the defendant; and

(d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant, and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.

(7) For the purposes of this section an injury is significant if the plaintiff would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

(8) For the purposes of this section and section 28 a person's knowledge includes knowledge which he might reasonably have been expected to acquire-

(a) from facts observable or ascertainable by him; or

(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek,

but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.”

17.The starting consideration was when the plaintiff knew, actually or constructively that she had an injury. The requisite knowledge was knowledge that the injury was attributable to the act of the defendant, but did not include knowledge that the defendant had been in breach of a rule. 

18.The principle was best explained by Sir Thomas Bingham MR and Hoffmann LJ in Dobbie v Medway HA [1994] WLR 1234, and was adopted by Ribeiro PJ in Kensland Realty Lt v Tai, Tang & Chong (2008) 11 HKCFAR 237:

“Sir Thomas Bingham MR, in the Dobbie case, illustrated the way the equivalent of section 31(5)(b) works with the following example:

‘Time starts to run against the claimant when he knows that the personal injury on which he founds his claim is capable of being attributed to something done or not done by the defendant whom he wishes to sue. This condition is not satisfied where a man knows that he has a disabling cough or shortness of breath but does not know that his injured condition has anything to do with his working conditions. It is satisfied when he knows that his injured condition is capable of being attributed to his working conditions, even though he has no inkling that his employer may have been at fault.’ [my emphasis]”

“...Section 31 does not concern itself with any knowledge on the plaintiff's part concerning the defendant's liability. The courts have emphasised that the words "knowledge that the damages was attributable in whole or in part to the act or omission which is alleged to constitute negligence" do not invite such discussion. As Hoffmann LJ stated in Dobbie v Medway Health Authority:-

“...the words ‘which is alleged to constitute negligence, nuisance or breach of duty’ serve to identify the facts of which the plaintiff must have knowledge without implying that he should know that they constitute a breach of a rule, whether of law or some other code of behaviour.”

19.I agreed with the principle.  And it had been provided in section 27(6)(d) that knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty was irrelevant in assessing the knowledge that trigger the time to run.

20.Before I move on, I am aware that Kensland’s case was about the interpretation of section 31 of the Limitation Ordinance.  In some tortuous application, the time did not begin to run until the claimant had knowledge of the damages.  The wording of section 31 on knowledge was similar to section 27.  Hence the Court of Final Appeal made reference to the Dobbie’s case which was a personal injury action when interpreting section 31.  And I took the view that the ruling in Kensland was equally binding on this Court on the interpretation of “knowledge” in section 27.  And to say the least, the ratio in Dobbie’s case had been applied with approval in the Court of Final Appeal. 

21.Mr Lam submitted that the plaintiff could not have knowledge of the wrong diagnosis.  Mr Lam referred to a passage in Jackson & Powell on Professional Liability, 7^th Edition, at paragraph 5-091:

“In the context of clinical negligence actions, the most important part of the definition of “date of knowledge” is sub-paragraph (b). The claimant is often aware that his medical treatment has not been wholly successful.  This in itself does not necessarily indicate that there has been any mishap.  If the claimant is not alerted to the relevant act or omission until he consults another doctor or specialist, that may well be that date when time begins to run ....”

22.I accept that there could be situation when a plaintiff would not be regarded by law to have knowledge of the injury until he consulted another doctor.  But to complete the legal principle as suggested by the learned author, the rest of paragraph 5-091 is also relevant, and indeed paragraph 5-092

“5-091...In Bradley v Guy Clapham & Co, however it must have been obvious to the claimant, even without the benefit of expert advice, that there was something significantly wrong and she was thereby fixed with knowledge. Hoffman L.J. summarised the approach in this way :

‘Section 14(1)(b) [the equivalent of our section 27(6)(b)] requires that one should look at the way the plaintiff puts his case, distil what he is complaining about and ask whether he had, in broad terms, knowledge of the facts on which that complaint is based.’

5-092 The crucial question is when the claimant became aware, or constructively aware, that the injury was attributable to the defendant’s act or omission. The claimant need not be alerted to the question of negligence. [The author continues with a discussion on Dobbie v Medway HA]” [my emphasis]

23.The learned author relied on the same principle discussed above and there was no disagreement on the principle on what would trigger the time to run.  Hence there could be cases when a plaintiff was not aware of the injury, or that the injury was not apparently related to a medical treatment, and the time did not run until he obtained the first medical report.  But if the plaintiff could be fixed with knowledge that there was something significantly wrong and he was aware or constructively aware that the injury was attributable to the act of the defendant, then the time would run even if he was not alert to the question of negligence.

24.And the injury had to be significant. This had to be read with section 27(7) of the Limitation Ordinance.  Mr Szeto also referred to paragraph F1/29/7 of the Hong Kong Civil Procedure:

“The test is partly subjective and partly objective because the court needs to ask: (i) whether this plaintiff has considered the injury sufficiently serious; and (ii) whether this plaintiff has been reasonable if he did not regard it as sufficiently serious.”

25.I agree with the learned editors.  I also refer to the judgment of Ribeiro PJ given in the Kensland Realty case:

“Section 31(5)(a) establishes a low threshold. If a reasonable person knows that the defendant will not contest liability and will pay up, quite minor damage may be thought to justify the cost and effort of issuing a writ. It follows that where a plaintiff becomes aware or has imputed to him knowledge of some actual damage, provided that it is not so trivial as to be not worth bothering about, the knowledge requirement of section 31(5)(a) is likely to be satisfied.” [my emphasis]

26.The wordings of section 31(5) (a) is similar to the wordings of section 27(7) which is applicable to personal injury cases.  I would adopt the ruling of Ribeiro PJ. 

27.And the injury that was significant had to be attribute to the act of the defendant.  And on attributability, Mr Szeto had referred to a judgment by Master Marlene Ng (as she then was) given in Lam Siu Ping v The Secretary for Justice for and behalf of Leisure and Cultural Services Department HCPI 345/2010 on what amount to knowledge of attributability, which I agree:

“Knowledge of attributability is not satisfied merely by knowledge of the acts or omissions alleged to constitute negligence or breach of duty, but rather by knowledge that the damage was ‘attributable’ in whole or in part to those acts or omissions. So time does not begin to run against a plaintiff until he knows there is a real possibility (but not necessarily a real probability) his damage was caused by the act or omission in question (see London Strategic Health Authority at pp.461-462 and 469). But even though knowledge of attributability must be causatively relevant to the act or omission complained of, it need only be in relatively broad or general terms. [my emphasis]

28.I agree with the ruling of the learned Master.

29.I cannot conclude the discussion on legal principle without dealing with the provision on constructive knowledge.  I would adopt the ruling in the judgment of Master Marlene Ng in the case of Lam Siu Ping again:

“Section 27(8) brings in the concept of ‘constructive’ or ‘imputed’ knowledge by providing that a plaintiff’s knowledge includes knowledge that he might reasonably have been expected to acquire (a) from facts observable or ascertainable by him or (b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek, but he shall not be fixed with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.

In respect of an injury on duty with allegations of default on the part of the employer, even though the employee plaintiff may not have sufficient actual knowledge, he may know sufficient to make it reasonable for him (by himself or with advice) to acquire further knowledge of the link between his injury and his working conditions. The burden is on the defendant to show constructive knowledge on the part of the plaintiff by a date earlier than the three-year period prior to the issue of the writ of summons (i.e. on or before 9 July 2007 for the 1^st Accident Claim in the present action), and the relevant test is an objective one that requires the court to consider the objective situation in which the plaintiff finds himself in, including the effects of his injury but excluding the personal characteristics individual to him (see Cheung Yin Heung at pp.84-86 and London Strategic Health Authority v Whiston [2010] 3 All ER 452, 468).” [my emphasis]

The Issues

30.With these legal background facts, I could now set out the issues for determination.  I should start with what is the claim of the plaintiff as distil from the pleadings.  And it must be the chronic pain she had had after the Caesarean section.  The issue would be when she was aware that the chronic pain is a significant injury, and when she was aware that it was attributed to by the act of the defendant.  On the issue of section 30 application, this would be dealt with separately.

The Chronic Pain and Treatment

31.To determine the issues, it would be necessary to set out some additional information on the condition of the plaintiff after the Caesarean section and the treatment and examination she had for the pain.  These were extracted from the Statement of Damages, affirmations of the plaintiff and the submissions:

(1) 11 January 2003, the plaintiff was discharged home;

(2) 20 February 2003, the plaintiff complained of mild wound pain;

(3) In 2003 and 2004, she had pain localised at the lateral aspect of left hip and was mild.  During year 2003, the pain was occasional and about twice a month.  The pain lasted for about several seconds on each occasion and the pain intensity was about 1 out of 10 by numeric rating scale.  It got more frequent in 2004 and she telephoned the defendant once and was comforted that there was no problem. (“1^st stage of Pain Symptom”)

(4) In early 2005, the pain worsened.  The occasional pain increased to several times a month and the intensity was about 4 out of 10.  The plaintiff consulted her family doctor, Dr Li Ming.  She had been admitted to Union Hospital for examination and Dr Li advised the plaintiff that no definite reason was found for the pain. (“The 2^nd stage of Pain Symptom”).

(5) The plaintiff telephoned the defendant on a number of occasions in 2005.  It was claimed that the defendant responded to the plaintiff in details and was told that the pain might be due to gynaecological problems and/or her previous back trauma in a traffic accident in 1997.  Plaintiff consulted the defendant on 27 October 2005.  She was prescribed with medication and was advised to see a pain specialist.  The clinical diagnosis was low abdominal pain of uncertain origin.

(6) In early 2006, the plaintiff claimed that the pain worsened further.  Frequency of pain was 2 to 4 times a week.  The pain intensity was about 6 to 7 out of 10 and last 10-15 minutes on each occasion.  When the plaintiff telephoned the defendant, the defendant suggested her to see Dr Ho Sin Shing at Union Hospital. (“the 3^rd stage of Pain Symptom”)

(7) The plaintiff did consult Dr Ho on 15 July 2006.  She was told that the cause of her pain might be due to elective Caesarean section and prescribed some medicine.  But the medicine did not help.  The plaintiff telephoned the defendant who promised to help.  It is the case of the plaintiff that the defendant procured Dr Ho to refer her to the United Christian Hospital of Hospital Authority in August 2006. 

(8) The plaintiff had the first appointment with United Christian Hospital in February 2007 and continued to have treatment until now.  The pain clinic of United Christian Hospital also referred the plaintiff to orthopaedic specialist clinic, gynaecology clinic, and Psychology clinic.

(9) From September to November 2007, the plaintiff also received treatment from Dr Lau Sing Ki Kenric.  On each occasion when Dr Lau informed her about the cause of her pain, he added that for any operation, including elective Caesarean section, nerve injury was a known possible complication and might not be preventable.  She was suggested to accept such consequence.

(10) Despite the treatment, the pain worsened.  In 2008, the plaintiff claimed the pain worsened and she had pain attack every night.  The pain became even more severe with intensity of 8 out of 10, and the duration of pain was about 30-45 minutes on each occasion. (“the 4^th stage of Pain Symptom”)

(11) And in 2009, other than night attack, the plaintiff had occasional daytime pain attack which lasted for about 30 minutes on each occasion.

32.The pain worsened in 2010. The plaintiff was advised by United Christian Hospital to apply for her operations records from Union Hospital so that the pain specialists could investigate further the cause of her pain.  And when she visited Union Hospital, she was arranged to be examined by Dr Kong Kau Fung, which the plaintiff claimed that she did not have to pay.  She consulted Dr Kong in September and December 2010 and was told that the likely cause of her pain was injury to her nerves around the reproductive organs by virtue of movement of the embryo during gestation in 2002.

33.And in 2011, she wished to consult Dr Kong but was received by Dr Tam Mo Shing Paul.  She consulted Dr Tam on 3 occasions and was advised that her pain was caused by psychiatric illness and/or her injuries at the traffic accident in 1997.  She had not paid for these consultations. 

34.In 2011, the plaintiff again consulted her family doctor Dr Li Ming who arranged her to have examination carried out in Union Hospital.  After examination, Dr Li informed her that no definite reason was found for the pain.

35.From 2012 to now, the plaintiff claimed she was still suffering from the pain, with frequency, duration and intensity similar to that in 2011.

36.There are two other matters to be noted.  It was stated in the affidavit of the defendant that in or around August 2010, the defendant was informed by Union Hospital that the plaintiff had made a complaint against her regarding the Caesarean section, and the defendant was required to prepare a medical report.  This was not disputed by the plaintiff.

37.Further, in or around 2011, the plaintiff also made a complaint against the defendant to the Medical Council of Hong Kong which was subsequently dismissed.  The solicitors for the defendant had requested the plaintiff to make discovery of the letter of complaint before this hearing which was refused.

Discussion and Ruling

38.I first distil the claim of the plaintiff from the pleadings. In the statement of claim, and as analysed above, the plaintiff complained of chronic pain after the Caesarean section.  It was claimed that the chronic pain was caused by the defendant’s negligence.  It was clear that the chronic pain was the injury that the plaintiff was complaining of and for which she was seeking remedy against the defendant.  When she had knowledge of the chronic pain?

39.Mr Szeto submitted that the plaintiff had the knowledge of the chronic pain shortly after the Caesarean section and the time should start to run in 2003. As analysed above, the plaintiff had been complaining of the chronic pain shortly after the Caesar Section, but with different magnitude. 

40.Following the ruling in Dobbie’s case as set out above, I first consider the 1^st and 2^nd Stages of Pain Symptom.  I accept the argument of Mr Lam that it might be treated as residual pain after any operation and did not alert the plaintiff that she was injured, particularly for the 1^st Stage.  It could be argued that the pain was mild and did not alert her that she had had an injury that she could maintain an action.  

41.But at the 3^rd and 4^th stage of Pain Symptom, when the pain got serious and the attack became more frequent, the plaintiff should know the injury was significant.  They could not be regarded as trivial and would alert the plaintiff that she had an injury.

42.It was the argument of the plaintiff that she did not have the knowledge of the injury until she received the first report from Dr Shek.  Mr Lam submitted that when the plaintiff applied for Legal Aid, she (and possible DLA) was then thinking of an action against Union Hospital and/or the defendant in respect of her treatment received for the period from 6 January 2003 up to now at Union Hospital.  She now sought remedy from the treatment by the defendant in the clinic before the Caesarean section.

43.The main argument of Mr Lam was to treat the diagnosis at the clinic as one act of the defendant.  And the Caesarean section was to be treated as the second and a distinct act of the defendant.  The plaintiff could not know that the first act had attributed to her chronic pain until the first report of Dr Shek. 

44.Mr Lam also referred to North Esex DHA v Spargo [1997] 8 Med LR125.  He quoted from the judgment given by Lord Justice Brooke at 130 –

(4) On the other hand she will not have the requisite knowledge if she thinks she knows the acts or omissions she should investigate but in fact is barking up the wrong tree; or if her knowledge of what the defendant did or did not do so is so vague or general that she cannot fairly be expected to know what she should investigate; or if her state of mind is such that she thinks her condition is capable of being attributed to the act or omission alleged to constitute negligence, but she is not sure about this, and would need to check with an expert before she could be properly said to know that it was.”

45.I had no disagreement with the principle.  But this was applicable to case when the plaintiff had vague knowledge of what the defendant did or did not do.  In the same judgement, Lord Justice Brooke also said –

(3) A plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigation whether or not she has a case against the defendant.

46.The plaintiff had made effort to find the cause of her chronic pain.  And with her own description of the pain at the 3^rd or 4^th Stage of Pain Symptom, there was no reason to doubt that she knew that the injury, namely the chronic pain, was caused by or related to the act of the defendant.  Alternatively, she would have sufficient information to begin to investigate whether she had a case against the defendant while she might not know the exact wrong or mistake committed by the defendant (as alleged).  That was sufficient to start the time to run.  The suggested distinction between diagnosis and the Caesarean section was related to the alleged negligence or fault of the defendant.  It was the injury that would trigger the time to run. (Dobbie’s case). 

47.And I refer to the plaintiff’s affirmation when she claimed that she was confused on the cause of the pain.  But she did say that from September to November 2007 she was treated by Dr Lau Sing Ki. She was informed by Dr Lau about the cause of her pain.  Dr Lau added the comment that for any operation, including elective Caesarean section, nerve injury was a known possible complication.  And according to the medical report of Dr Lau exhibited to the affidavit of the defendant, “CF-18”, it was suggested that she might have cutaneous nerve entrapment after caesarean section over the pelvic region.  Further, she had MRI of pelvic region on 5 November 2007.  The clinical diagnosis was also cutaneous nerve entrapment of pelvic region. 

48.Quite contrary to her allegation of confusion, she had investigated the cause of her injury.  There could be no confusion that there was chronic pain and that it was related or attributable to the Caesarean Section, as advised by the defendant. 

49.Could it be said that the plaintiff is so confused that, while she might be aware that she was injured, she did not know the pain was attributable to any act of the defendant?  I noted the claim of the plaintiff that there were different diagnoses on the cause of her chronic pain.  But attributability was satisfied if the plaintiff knew there was a real possibility, not necessarily a real probability that her injury was attributable by the act of the defendant.  From the history of treatment for the chronic pain, notwithstanding there were comments by doctors for other causes of the pain, the plaintiff should know that it was a real possibility that the pain was caused by the Caesarean section as advised by the defendant.  At the 3^rd or latest 4^th Stage of Pain Symptom, the plaintiff should know that her pain was attributable to the act of the defendant.  It could not be later than 2008.

50.It was obvious from the above analysis that the plaintiff had actual knowledge of the injury was attributable to the act of the defendant latest by 2008 when she knew enough and was reasonable for her to carry out investigation.  Alternatively, a reasonable plaintiff would have investigated into the cause of the injury and taken action to claim.  I do not accept the argument of Mr Lam.

51.Mr Lam referred to section 26 of the Limitation Ordinance and submitted that the defendant concealed the cause of the plaintiff’s pain.  The time should not start to run until the report of Dr Shek.  I only need to refer to section 26(1), in particular section 26(1)(b):

“(1) Subject to subsection (4), where in the case of any action for which a period of limitation is prescribed by this Ordinance, either-

(a) the action is based upon the fraud of the defendant;

(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or

(c) the action is for relief from the consequences of a mistake,

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.”

52.Mr Lam submitted that the defendant had tried to conceal the cause of the plaintiff’s pain by not telling her that it was caused by the Caesarean section.  Further, the plaintiff had sought to suggest that the doctors at Union Hospital, Dr Kong and Dr Tam were paid by the defendant for her treatment.  She claimed that the defendant devised a plan to delay her investigation.  There was no substance in this allegation.  Even if the defendant had paid for the treatment, I could not see that there was a possible case to suggest that there was any ulterior motive to deliberately conceal any fact by the defendant.  It would be the speculation of the plaintiff.  And most importantly, she had consulted other doctors, including Dr Li, Dr Lau and the United Christian Hospital as aforesaid.  She would have sufficient means to investigate.  Factually, the plaintiff had no basis to bring this argument.

53.Further, section 26 is applicable to case involving fraud, concealment or mistake and should have no application to a negligence claim.  Section 26(1) could not assist the plaintiff.

54.And Mr Szeto also referred to section 27(8) and submitted that the plaintiff had constructive knowledge of her injury.  With the fact as set out above, I see no doubt that the plaintiff would be imputed with the knowledge of the injury attributed in whole or in part by the Caesarean Section.  The analysis of her chronic pain showed that all point to the Caesarean section.  It would be reasonable for her to acquire further knowledge of the link between the injury and her treatment latest by 2008.

55.I understand Mr Szeto sought to rely on the fact that the plaintiff had indeed complained to the United Hospital against the defendant in 2010 and to the Medical Council in 2011.  She should know about the chronic pain was attributed to by act of the defendant before she raised these complaints.  He also complained that the plaintiff wrongfully refused to disclose the relevant letters of complaint and invite this Court to draw adverse inference against the plaintiff.

56.I agree with Mr Szeto that there could be no other reasons for complaining against the defendant except about the Caesarean section.  She might be under the wrong impression that the operation was negligently performed.  But this must show that the plaintiff reasonably believed that the pain was related to or was attributable to the act or omission of the defendant. 

57.I do not have to rely on this as I found sufficiently to conclude that the plaintiff should have knowledge (at least constructive knowledge) that her pain was attributed to by the act of the defendant in 2008.  And if necessary, in the alternative, by latest 2010, the time must start to run.

58.With these analyses, while I do not agree with Mr Szeto that as from the date of operation, the plaintiff had the requisite knowledge at 2008 alternatively latest at 2010.

59.Mr Lam submitted that from 2005 to 2010, the plaintiff was busy having treatment.  She also received various diagnoses and felt confused.  While I have sympathy for the plaintiff, when she should be aware of the injury, and was seeking treatment, it did not procure her from instructing legal advisor to bring the action. 

60.Accordingly, the plaintiff was 4 years out of time to issue this Writ.  Even if I were to use 2010 as the time when she had the requisite knowledge under the Limitation Ordinance, when she issued the writ in 2015, she was 2 years late and hence her cause of action is time barred.

61.The next question to consider is the issue of uplifting the time bar.

Section 30 of the Limitation Ordinance

62.The plaintiff appeared to apply for relief under section 30 of the Limitation Ordinance (I refer in particular to paragraph 67 onward of the written submission of Mr Lam.)  At the submission, Mr Lam submitted that the plaintiff was not applying for the relief under section 30 at this hearing.  Mr Lam only asked me to take into consideration whether the plaintiff had a plausible application under section 30 in deciding if I should dismiss the Action.

63.But if the plaintiff did not invite me to exercise the discretion under section 30, I had no reason to determine if the time limit should be uplifted.  I did not believe it is appropriate for me to comment on whether this Court would exercise the discretion if the application came before me.  And as I had mentioned above, since I ruled that the writ was time-barred, unless the plaintiff could invoke the discretion under section 30, I had no good reason not to strike out the Action.

64.Further, the issue of section 30 application had been fully covered by the submission of both parties.  And in the wider sense of res judicata, I failed to see why the application should not be taken out with the argument of striking out, if the plaintiff did intend to issue the application.  I would therefore direct the plaintiff to respond within 14 days from today whether they would apply for uplifting the limitation under section 30 of the Limitation Ordinance.  If there was no application, I would then formally strike out the statement of claim and dismiss this Action with costs.

65.If there were an application, a summons should be issued within 14 days from date of this ruling returnable before me.  I would treat the written and oral submission of the parties as the submission on this issue.  No further written submission would be allowed except as hereinafter directed.

66.I bear in mind the legal principle submitted by the parties.  I do not think that the legal principle on when and how to exercise the discretion under section 30 of the Limitation Ordinance were disputed.  I would only repeat part of my ruling given in Wong Ieok Hoi v DrKwokKwanHo & Ors HCPI 22 of 2012 given on 5 September 2016:

“section 30(1) of the Limitation Ordinance, which provides as follows:-

‘If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which:-

(a) the provisions of section 27 and 28 prejudice the plaintiff or any person whom he represents; and

(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents,

the court may direct that those provisions should not apply to the action, or shall not apply to any specified cause of action to which the action relates.

The discretion to disapply the limitation period is entirely unfettered. The onus is on the plaintiff to show that in the particular circumstances of the case, it would be equitable to allow the claim to proceed having regard to the possible prejudice to be suffered by each party. The court is to perform a balancing exercise by looking at: -

(a) the balance of prejudice to each party;

(b) the six specific but non-exhaustive factors contained in section 30(3);

(c) all the circumstances of the case.’”

“The six factors set out in section 30(3) are-

(a) the length of, and the reasons for, the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 27 or 28, as the case may be;

(c) the conduct of the defendant after the cause of action arose, including the extent, if any, to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;

(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps, if any taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.

67.Mr Lam also referred me to a comment by Master Marlene Ng (as she then was) in MokLaiFong v NgPoSui [2011] 3 HKLRD 67, at paragraph 52:

“In Horton v Sadler [2007] 1 AC 307, 327, Lord Hoffmann said that since Thompson v Brown [1981] 1 WLR 744, the practice of the courts had been regularly to exercise the discretion in favour of the plaintiff in all cases in which the defendant could not show that he had been prejudiced by the delay, and in the absence of forensic prejudice, the statutory limitation defence was a ‘windfall of which he can properly be deprived’ (see also Chuck Wai Man v Asia Television Ltd [2008] 6 HKC 342, per Tang V-P).”

68.I further refer to a remark by Ribeiro PJ given in Kensland Realty’s case when His Lordship commented that the result of the Dobbie’s case may be different, referring to the ruling given in A v Hoare [2008] 2 All ER 1.  I appreciate the comment by Ribeiro PJ is obiter dictum and A v Hoare is a House of Lord decision.

69.In A v Hoare, Baroness Hale said she fully supported a more generous approach to the exercise of discretion, and Lord Carswell said there needed to be a more liberal approach to the exercise of the discretion. Parties might wish to address me on the case.

70.I would direct the plaintiff to lodge a supplemental submission, if so wishes, on the authority of A v Hoare and application of that ruling to the case of the plaintiff.  The submission should be lodged within 14 days from the date of summons if there were one.  The defendant had 14 days thereafter to respond (or if the plaintiff elected not to address the case, the defendant was at liberty to put in their view, if she so wished), and I would give a further ruling on the issue of section 30 application.

71.The question of costs would be reserved for the time being. 

Mr J Lam instructed by C. C. Lee & Co., for the plaintiff

Mr W L Szeto, of Mayer Brown JSM., for the defendant