X v. Dr Hung Cheung Tsui and Another

HCPI 67/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 67 OF 2014

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D E C I S I O N

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INTRODUCTION

1.I have before me the 1^st and 2^nd defendants’ appeal against an order made by Master Roy Yu on 13 April 2016 refusing to grant leave to them to adduce the expert report of Dr Ng Kwok Fu, a specialist in anaesthesiology, dated 31 March 2016 in this personal injuries action.

BASIC FACTS

2.The 1^st defendant is a specialist in gastroenterology & hepatology, and was employed by the 2^nd defendant, the owner or operator of a private hospital in Hong Kong, as a consultant physician at the material time.

3.The plaintiff, a spinster for her entire life, was aged 67 in 2011 and 73 now.  As stated in the statement of claim, she is a well-educated, conservative, elderly lady, comes from a respectable, traditional, Chinese family, and attaches an extremely high degree of importance to physical modesty, propriety, and personal dignity.

4.The plaintiff was a patient of the 1^st defendant, and underwent a colonoscopy at the 2^nd defendant’s hospital on 27 January 2011.  In brief terms, her complaint against the defendants is that without her consent, they allowed persons not connected with her operation (including male persons) to be present in the operation room when she was in a state of partial undress both during the preparatory stage and, quite possibly, the actual examination, as a result of which she now suffers from a psychiatric condition known as “adjustment disorder”.

5.The primary facts as to what happened before, during and after the colonoscopy are in dispute.  Amongst other matters, it is the respective cases of the 1^st and 2^nd defendants that there was no other male person (apart from the 1^st defendant) in the operation room at the material time.

6.In support of her case, the plaintiff relies on her own recollection of the events, including hearing the voices of some male persons in the operation room and the heavy footsteps of a number of persons walking up and down at the front of her bed prior to her losing consciousness as a result of certain sedatives (namely, 5 mg of Dormicum, also known as Midazolam, and 50 mg of Pethidine) being administered to her for the purpose of carrying out the colonoscopy.  She also relies on a number of admissions, or alleged admissions, made by the 2^nd defendant (through its staff) on different occasions and to different parties, the details of which it is not necessary to set out in this decision.

7.It is the defendants’ case that the plaintiff’s evidence that there were other male persons in the operation room at the material time is unreliable because, amongst other things, her perception and memory of what happened were likely to have been affected by the sedatives received by her.  For this purpose, they propose to adduce the expert report of Dr Ng on the possible effect of the sedatives.

8.In his report, Dr Ng says that Midazolam affects memory and is well known to cause amnesia.  Sometimes it causes distortion of the memory rather than total loss of it.  Also, it impairs the insight of the subjects receiving Midazolam. So the subjects not only do not remember, they are also unaware of the memory impairing effect of Midazolam.  In so far as Pethidine is concerned, although in itself it would not cause any impairment or distortion of memory, its combination with Midazolam has been implicated in a series of false sexual accusations against a plastic surgeon.  Dr Ng concludes that “[i]t is likely that X’s memory and perception of what happened on 27 Jan 2011 had been distorted due to the pharmacological effect of midazolam and pethidine.”

PRINCIPLES FOR ADMISSION OF EXPERT EVIDENCE

9.The principles applicable for leave to adduce expert evidence are well established and not in dispute.  They are conveniently summarised by Bharwaney J in Fung Chun Man v Hospital Authority, HCPI 1113 of 2006 (24 June 2011), as follows:-

“9. The enactment of the CJR did not result in a change to O.38, r.36 of the Rules of the High Court (‘RHC’). However, after the enactment of the CJR, it is clear that the court’s discretion, whether or not to grant leave to a party to adduce expert evidence, is to be exercised within the ambit of the court’s management powers. Those powers must be exercised in the light of the underlying objectives of the CJR, including the need to ensure the cost effectiveness of the proceedings; to ensure that the case is dealt with expeditiously; to ensure reasonable proportionality having regard to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party; to ensure procedural economy in the conduct of the proceedings; and to ensure fairness between the parties.

11. The expert evidence can only be adduced with leave of the court and, in deciding whether or not to grant leave, the court must ensure that such evidence is admitted only if it is likely to be of real assistance to the determination of the issues, and that it is adduced in the most effective and economic way consistent with the objectives of the CJR.

12. In this regard, I echo the observations of Evans-Lombe J in Barings PLC v Coopers & Lybrand (No.2) [2001] Lloyds Report Bank 85:

‘45. Expert evidence is admissible …. in any case where the court accepts there exists a recognised expertise governed by recognised standards and rules of conduct capable of influencing the court’s decision on any of the issues which it has to decide and the witness to be called satisfies the court that he has a sufficient familiarity with and knowledge of the expertise in question to render his opinion potentially of value in resolving any of those issues. Evidence meeting this test can still be excluded by the court if the court takes the view that calling it will not be helpful to the court in resolving any issue in the case justly. Such evidence will not be helpful where the issue to be decided is one of law or is otherwise one on which the court is able to come to a fully informed decision without hearing such evidence.’

13. The Court of Appeal in Mann v Messrs. Chetty & Patel (a firm) [2000] EWCA CIV 267 proposed 3 questions that ought to be asked before deciding to allow expert evidence :

‘(a) how cogent the proposed expert evidence will be;

(b) how helpful it will be in resolving any of the issues in the case; and

(c) how much it will cost and the relationship of that cost to the sums at stake.’

14. Chu J, as she then was, referred to Barings PLC v Coopers & Lybrand and concluded, in Wong Hoi Fung v. American Assurance Co. (Bermuda) Ltd. [2002] 3 HKLRD 507, that the expert evidence must be reasonably required to resolve the issues before the court before leave would be granted to adduce it.

15. In summary, the expert evidence must be in a recognised discipline, reasonably required to enable the court to resolve the issues in dispute, and proportionate.

16.  However, even if a prima facie case is made out for the admission of expert evidence, in every case, the court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant in cases where a late application is made for expert evidence to be adduced.  These matters have to be considered and weighed in the light of and against the underlying objectives of the CJR: to ensure cost effectiveness and economy, expedition, proportionality, and fairness between the parties.  Ultimately, the court strives to do justice between the parties and, in cases where the court permits the parties to call expert evidence, the court strives to ensure a level playing field with fair access to proper experts for all parties.”

PRINCIPLES FOR APPEAL AGAINST A MASTER’S CASE MANAGEMENT DECISION

10.Generally speaking, an appeal against a master’s decision is by way of a re-hearing, or a hearing de novo.  However, in relation to an appeal against a case management decision made by a master, it has been said that a judge should not “lightly interfere” with the decision of the master and should only do so for “good reason” (see Ng Wing Man v Everbest Port Services Ltd, HCPI 780/2012, 21 March 2013, at paragraph 8 per Bharwaney J).

DISCUSSION

11.The evidence of Dr Ng sought to be adduced in the present case is, prima facie, admissible as expert evidence in that it is in a recognized discipline and is relevant to the issue of the reliability of the plaintiff’s evidence on what happened shortly prior to the actual examination, which is a critical factual issue in this case.

12.A number of matters are relied upon by Ms Remedios in support of Master Roy Yu’s decision refusing to grant the defendants leave to adduce the expert report of Dr Ng.

13.First, Ms Remedios submits that the contents of Dr Ng’s are adversarial and usurp the court’s fact-finding function, and he has gone beyond his field of expertise.  There is, I consider, some force in Mr Remedios’ submission. It would not, however, be right to make any adverse finding against an expert well known in his professional field without giving him an opportunity to defend his expert report.  Since, as will be seen below, I have come to the conclusion that I ought to admit the report of Dr Ng, it would not be appropriate for me to further analyse Mr Remedios’ criticisms of Dr Ng’s report in this decision.

14.Second, Ms Remedios points out that the defendants have delayed in the production of the report and in seeking expert directions from the court.  The 1^st defendant was first made aware of the plaintiff’s complaint in January 2013.  In paragraph 19 of the 1^st defendant’s statement dated 2 October 2015, he alluded to the fact that some patients developed hypnagogic and hypnopompic hallucinations and confusion after being administered with Dormicum.  Nevertheless, Dr Ng’s report was not obtained until 31 March 2016, and was not disclosed until 6 April 2016.  Ms Remedios further points out that the 1^st defendant is a doctor and the 2^nd defendant is (or operates) a hospital, and they could not have failed to appreciate the significance of an expert in the field of anaesthesiology.

15.I accept that there has been delay on the part of the defendants in producing the expert report of Dr Ng and in seeking expert directions from the court. That much cannot seriously be disputed.  To be fair to the defendants, the delay should be viewed in its proper context.  The incident complained of by the plaintiff took place on 27 January 2011, but the writ was issued on 24 January 2014 and was not served until 5 February 2015, some 4 years after the event.

16.In my view, I should approach the issue of delay not as a strict matter of timing or chronology.  A more important consideration is whether the delay will result in a prolongation of this action which may have an adverse impact on the plaintiff’s mental health condition.  It is relevant that the scope of the proposed expert evidence is very narrow.  On the basis that the court should now grant leave to the plaintiff to set the action down for trial (it being common ground that this case is now ready to be set down), having regard to the court’s diary and the estimated length of the trial (the plaintiff’s estimate being 5 days without taking into account the new expert evidence), I believe that there should be sufficient time for the plaintiff to find a suitable expert and produce an expert report in reply well in advance of the trial.  I consider that granting the defendants leave to adduce the expert report of Dr Ng now should not result in any further delay, or significant delay, in the resolution of this claim.  The time which has been taken for this appeal to be heard is regrettable, but that is not a matter for which the defendants should be held responsible.  As will be seen below, in order to avoid any further delay in this case, I shall give directions for trial dates to be fixed, with a view to the trial being heard within this year.

17.There is some suggestion that the raising of a new allegation that the plaintiff might have been suffering from hallucination will add to the stressors aggravating the plaintiff’s psychiatric condition.  That, however, is inherent in the nature of the allegation, and cannot be a good reason in itself to refuse leave being granted for the admission of Dr Ng’s expert report. The court can take this matter into account in the assessment of damages should the plaintiff ultimately succeed on the issue of liability at the trial.

18.Third, Mr Remedios argues that even if expert evidence on the possible effect of the sedatives received by the plaintiff should be admitted, the defendants ought to have offered to adduce a single joint expert report/joint expert report, and not their own single report.  My attention has been drawn to paragraph 70 of Practice Directions 18.1, which states as follows:-

“A party who obtains expert evidence before obtaining leave, other than from a single joint expert or pursuant to joint examination and joint expert report with the expert(s) of the other party or parties, does so at his own risk as to costs and/or eventual refusal of leave to adduce such expert evidence.”

19.For my part, I consider that there is much to be said for the adoption of a general approach that a single joint expert report, or at least a joint approach with respect to expert evidence, should be the norm or default position, which may however be departed from on good reasons being shown.  The advantages of having a single joint expert, or a joint approach with respect to expert evidence, are obvious and do not require much elaboration.  However, in the area of personal injuries actions, the question of joint approach with respect to expert evidence on liability was expressly considered by Bharwaney J in his recent judgment in Lau Kwai Yin v Tack Hsin Restaurant (London) Ltd [2016] 1 HKLRD 831.  At paragraph 40, the learned Judge stated as follows:-

“I have thought long and hard on whether or not I should direct a change of the current practice and require parties from now on to adopt a joint approach with expert evidence on liability. However, I have come to the view that the implications of losing direct access to one’s liability expert require greater consideration and consultation. On the other hand, I have little difficult in reviewing my decision in Tang Tak Ping v Kai Shing Construction Co. I had concluded there that, whilst there might be exceptional cases where a joint approach might be warranted, it was generally clearly right that the parties, and their legal representatives, should enjoy continuous private access to their respective nominated experts on liability. I have now come to the view that a case need not be exceptional for a joint approach to be adopted. Likewise, a case need not exceptional for a party to apply for leave of court before engaging his expert on liability. The great benefit of an early application to court for leave to engage and adduce evidence from an expert on liability is that it avoids the risk of costs being wasted, which would occur if the court refuses to grant leave to adduce the expert evidence on liability that the party has obtained without leave of court. The involvement of the court at an early stage may also assist the parties to engage experts of the right discipline and to identify the issues on which they are to be instructed to render their opinion. A substantial amount of costs may thus be saved by involving the court at an early stage. In granting leave for the nominated experts to deal with specific issues on liability, the court may permit each party to instruct their own expert thus preserving their right to enjoy continuous private access with their expert. However, there may be cases where the court considers that there are good reasons for a joint approach to be adopted with experts on liability. In such cases, the court may make directions that are similar to the directions given in respect of quantum experts, with which practitioners are now very familiar. Of course, a joint approach is mandatory when a single joint expert on liability is to be engaged.”

20.When the learned Judge referred to “joint approach”, he was not restricting it to the situation where a single joint expert was to be engaged.  There could, of course, also be a joint approach involving the experts nominated by each party conducting a joint examination (where appropriate) and preparing a joint report.  The point to make here is that the Judge in charge of the Personal Injuries List has expressed the view that, although a case need not be exceptional for a joint approach to be adopted, it is still generally the position that the parties should be permitted to engage their own experts on liability in view of the implications of losing direct access to one’s liability experts.  The implications of requiring the parties to appoint a single joint expert would obviously be even greater.  Whatever may be my own view on the general desirability of a single joint expert or a joint approach with respect to expert evidence, it would plainly not be right for me to attempt to change the current practice in the area of personal injuries actions.  I shall leave further consideration of whether the court should generally adopt a joint approach/single joint expert approach in other types of cases when the appropriate occasion arises.

21.In the present case, the evidence of Dr Ng is relevant to the issue of liability, although not as in an ordinary sense where the expert evidence would go to the issue of breach of duty.  The scope of the proposed evidence is narrow, and no question of joint examination arises.  Bearing in mind also what was said by Bharwaney J in Lau Kwai Yin as quoted above, I do not consider that a joint approach, or the appointment of a single joint expert, should be required.

22.Fourth, Mr Remedios points out that one of the matters which Master Roy Yu took into account in refusing to grant the defendants leave to adduce the expert report of Dr Ng is the fact that they previously objected to the plaintiff’s application for admission of expert evidence on liability. However, I understand from Mr Lam that the earlier application did not concern expert evidence on the effect of the sedatives.  It seems to me that each application must be judged on its own merits.  The fact that the defendants previously objected to the plaintiff’s application for admission of some other expert evidence cannot be a good reason to deny the defendants’ current application.

23.Fifth, Ms Remedios relies on certain admissions made, or alleged to have been made, by the 2^nd defendant.  I do not, however, consider this to be an appropriate occasion to get into the merits of the case.

24.In all the circumstances of this case, I consider that the potential significance of the proposed expert evidence outweighs the other considerations raised on behalf of the plaintiff.  I would therefore grant leave to the defendants to adduce the expert report of Dr Ng.

CHECKING REVIEW HEARING

25.Pursuant to the paragraph 4 of order of Master Roy Yu dated 13 April 2016 and the further direction given by Bharwaney J on 4 May 2016, the further Checklist Review Hearing also came before me on 11 May 2017.  At the hearing, I was informed by the parties that the outstanding interrogatories had been resolved by agreement and the action was ready to be set down for trial.

26.Ms Remedios applied for a direction to the effect that the joint psychiatric report of Dr Wong Chung Kwong and Dr Lo Chun Wai dated 18 January 2016 be admitted without the makers thereof being called to give evidence at the trial.  By letters dated 12 May 2017 and 16 May 2017 respectively, the 2^nd and 1^st defendants informed the court that they were agreeable to the direction sought by the plaintiff.

27.Apart from the issue of expert evidence, neither party sought any further direction from the court.

28.I do not see that any further direction is required to be given, save those relating to the filing and service of trial bundles, opening submissions, etc, which can be dealt with at the Pre-Trial Review Hearing.

29.In view of the plaintiff’s age and her psychiatric condition, I consider that the trial of this action ought to take place as soon as practicable.  I am minded to fix the trial dates, with 6 days reserved, during the periods from 13 to 24 November 2017 or from 11 to 22 December 2017.  For this purpose, the parties shall inform the court in writing within 7 days of the availability of their counsel during the aforesaid periods.  The court will take into account counsel’s diaries but will not be bound by the same when fixing the trial dates.

DISPOSITION

30.I allow the 1^st and 2^nd defendants’ appeal against the order of Master Roy Yu refusing to grant leave to them to adduce the expert report of Dr Ng, and set aside paragraph 1 of Master Roy Yu’s order dated 13 April 2016.  I also give the following directions:-

(1)   leave be granted to the defendants to adduce the expert report of Dr Ng dated 31 March 2016 in this action;

(2)   leave be granted to the plaintiff to file and serve an expert report on the possible effect of the sedatives received by the plaintiff during the colonoscopy on 27 January 2011 within 4 months;

(3)   the joint psychiatric report of Dr Wong Chung Kwong and Dr Lo Chun Wai dated 18 January 2016 be admitted without the necessity of calling the makers thereof to give evidence at the trial;

(4)   leave be granted to the plaintiff to set this action down for trial;

(5)   the parties shall within 7 days write to the court to indicate the availability of their counsel to attend a 6-day trial during the periods from 13 to 24 November 2017 and from 11 to 22 December 2017;

(6)   a Pre-Trial Review Hearing be fixed not less than 8 weeks before the commencement of the trial; and

(7)   liberty to apply.

31.In so far as costs are concerned, in view of the defendants’ delay in making the application, I am not minded to disturb the costs order made by Master Roy Yu in paragraph 7 of his order dated 13 April 2016.  The plaintiff shall pay the defendants’ costs of the appeal (to be taxed if not agreed, with certificate for counsel), while the costs of the Checklist Review Hearing (with certificate for counsel) shall be in the cause of this action.  For the benefit of the taxing master, I shall apportion 80% of the costs of the hearing on 11 May 2017 to the defendants’ appeal.  The costs order made in this paragraph are made on a nisi basis.  Any application to vary the order nisi pursuant to the Rules of the High Court shall be dealt with at the trial.

32.Lastly, it remains for me to thank counsel for their assistance rendered to the court.

Ms Corinne Remedios, instructed by Keith Lam Lau & Chan, for the plaintiff

Mr Paul Lam, SC, instructed by Mayer Brown JSM, for the 1^st defendant

Mr Paul Lam, SC, instructed by Howse Williams Bowers, for the 2^nd defendant