蕭浩義 v. 陳琼攀醫生
Read the full judgment text of DCPI 2717/2016 on BabelCite. This District Court judgment was delivered on 12 February 2019.
1. In 1981, Siu (the plaintiff) had surgery (“ Surgery ”) performed on him by Dr Chan King Pan (“ Dr Chan ”), an orthopaedic surgeon, in the Baptist Hospital. The Surgery is surgically known as “osteotomy of the greater trochanter of both femurs. [1] ”.
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DCPI 2717/2016 [2019] HKDC 127 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO 2717 OF 2016 ---------------------------
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-------------------------- DECISION -------------------------- A. INTRODUCTION 1.In 1981, Siu (the plaintiff) had surgery (“Surgery”) performed on him by Dr Chan King Pan (“Dr Chan”), an orthopaedic surgeon, in the Baptist Hospital. The Surgery is surgically known as “osteotomy of the greater trochanter of both femurs.[1]”. 2.On 23 December 2016, Siu issued a home-made writ in person against Dr Chan in relation to the Surgery. Later, on 20 September 2017, Siu obtained legal aid, and became legally represented since. 3.On 14 December 2017, the writ was served on Dr Chan. 4.On 31 January 2018, Siu filed a statement of claim (“SOC”) alleging trespass to the person and negligence, together with a statement of damages and a bundle of medical reports, including a liability expert report (“Expert Report”) dated 22 January 2018 prepared by Dr David Cheng (“Dr Cheng”). 5.The brief chronology above shows that this claim is admittedly statute-barred under s 27 of the Limitation Ordinance (“Ordinance”). The dates mentioned above should be borne in mind as they will be featured prominently in this decision. 6.On 12 April 2018, Dr Chan filed a defence as well as a summons together with a supporting affidavit of Dr Chan’s solicitor, Tin Natasha (“Tin’s Affidavit”). In his defence, Dr Chan pleads a limitation defence, and in his summons pursuant to O 18 r 19 of the Rules of the District Court and s 27 of the Ordinance, he applies to strike out the writ and the SOC. 7.Siu opposed Dr Chan’s summons by filing an affirmation in opposition (“Siu’s Affirmation”). Dr Chan later filed an affidavit (“Chan’s Affidavit”) in reply. 8.According to Siu’s Affirmation as well as the written skeleton of Siu’s Legal-Aid assigned counsel, Mr Gidwani, the principal argument that Siu advanced in opposing Dr Chan’s striking-out application is the discretion a court can exercise to disapply the limitation period under s 30 of the Ordinance. Since Siu’s arguments for the disapplication of the limitation period and against Dr Chan’s striking out application are essentially the same, this court, at the hearing fixed for the striking out summons, granted leave to Siu to apply to this court for the disapplication of the limitation period. The leave was granted on the basis of the consent of Mr Jeffery Chau, counsel for Dr Chan, and the undertaking by Mr Gidwani on behalf of Siu to file, after the hearing, a cross-summons under s 30 of the Ordinance, and to rely on the same evidence already filed in relation to the striking-out summons. On 18 October 2018, Siu filed his cross-summons pursuant to s 30 for the disapplication of the limitation period. B. WHICH SUMMONS TO BE DECIDED FIRST? 9.It cannot be disputed that the striking-out summons on the ground that the claim is “frivolous or vexatious or is otherwise an abuse of the process of the Court” will fall by the wayside were Siu to succeed in his cross-summons. The cross-summons, though filed later, should therefore be determined first. 10.The medical evidence, which is in the form of medical notes and records, can hardly be disputed. The following background facts are largely taken from the evidence of the parties and the “Agreed Chronology of Events” prepared by Dr Chan’s solicitors. C. BACKGROUND C.1 The Surgery and 25 years after the Surgery 11.Siu was born in 1954. In around 1978, he consulted a number of orthopaedic surgeons including Dr Chan, and a Dr Tony Loy (“Dr Loy”) for the abnormal sensation Siu experienced from the bilateral bulging near the muscles of both thighs. 12.In 1980, Dr Loy excised Siu’s enlarged tissue masses of both thighs, which masses were to found be a lipoma (a benign tumour of fat tissue). 13.In 1981, Siu underwent the Surgery after Dr Loy’s operation did not get rid of the bulging sensation. 14.For about 25 years after the Surgery, Siu led a normal, and an almost symptom-free life as a raw opal purchaser (until 1994), which job required him to work in opal mines in different Australian deserts. There were only a few post-surgery medical consultations, including two consultations with an orthopaedic doctor, Dr Chun Siu Yeung (“Dr Chun”) in 1986 and 1988, for the pain at his right lower thigh and discomfort on his lower back. C.2 Increasing pain from 2007: consultation with Dr Chang 15.However, as from 2007, Siu started to experience increasing pain at his lower back and bilateral hips. This led to a consultation on 15 March 2007 with Dr Julian Chang (“Dr Chang”). 16.Siu avers that at the consultation, Dr Chang only told him that his symptoms were due to the degeneration of the lumber spine. He stated that he was not told of any of the comment or opinion contained in Dr Chang’s hand-written medical notes (“Dr Chang’s Notes”) dated 15 March 2007, exhibited to Tin’s Affidavit as “TN-1”[2], or Dr Chang’s report of the consultation in the form of a letter dated 12 October 2016 (“Dr Chang’s Report”)[3]. 17.Siu specifically denies having any knowledge of the remark in Dr Chang’s Notes that states: “it was a wrong decision to excise the greater trochanters”, or the opinion in Dr Chang’s Report, remarking that the “residual left hip weakness could be due to the disturbance of the attachment of the gluteus medius and minimus muscles due to the excision of the greater trochanter of the left hip”. C.3 The Surgery was “outrageous” - an alleged remark by Professor Chan 18.On 20 June 2007, Siu consulted another orthopaedic doctor, Professor Chan Kai Ming (“Professor Chan”) at the private orthopaedic clinic of Prince of Wales Hospital (“PWH”) for his bilateral hip pain. 19.Siu alleged (at Siu’s Affirmation §33) that Professor Chan, at a consultation for Siu’s complaint of lower back pain on 3 September 2008, remarked that the Surgery was outrageous (“Alleged Remark”). 20.Upon hearing the Alleged Remark, Siu stated that he “decided to consult other doctors and investigate further into this matter despite the range of movement of [his] hip was still normal and there was no significant problem with [his] lower limbs at that time”: Siu’s Affirmation, §36. Apart from seeking medical advice, Siu also went for legal advice from various lawyers (see C.6 and C.7 below). 21.There were more consultations with Professor Chan on 20 November 2008, 1 April and 6 May 2009, and 1 September 2010. Professor Chan advised Siu to undergo physiotherapy treatments and training targeted at his complaints. Siu averred that by that stage, it still had not occurred to him that his back pain was related to the Surgery. C.4 Consultations with Professor Hung 22.One of the doctors Siu sought medical advice from after the Alleged Remark was Professor Hung Leung Kim (“Professor Hung”) at the private orthopaedic clinic of PWH. In the first consultation with Professor Hung on 26 October 2010, Siu consulted Professor Hung about the possibility of the replacement of the bones removed from the Surgery. However, Professor Hung advised that that it would not have been possible[4]. Siu stated that at that stage, he had little inkling of his symptoms having been caused by the Surgery. 23.It was not until the consultation on 16 November 2010 that Siu consulted Professor Hung on the question of medical liability in respect of the Surgery[5]. Professor Hung explained to Siu that his case against Dr Chan was complex. Nonetheless, he gave Siu information about the Medical Council and the Hong Kong Medical Association (HKMA) through which Siu could proceed with his compliant. Professor Hung also told Siu that he would inquire about private orthopaedic surgeons experienced in medical negligence for giving Siu more advice. C.5 Medical treatments from November 2010 to 2017 24.Between November 2010 and 2011, in addition to the on-going consultations at the private orthopaedic clinic at PWH, Siu also consulted various physiotherapists and traditional Chinese medicine practitioners for treatment of his symptoms at the lower back and lower limbs. Mr Siu alluded to more comments of the Surgery allegedly made by doctors (Professor Chan and Dr Lau, see respectively §§25 and 26 below) in some of these medical consultations. 25.In a consultation on 6 April 2011 with Professor Chan, Siu averred that Professor Chan told Siu that the back problems were “also be related to the Surgery” (Siu’s Affirmation §41). After this consultation, Siu averred that he and his wife started “looking for any ways to remedy the damage that was caused by the Surgery” and were therefore “frantic in seeking second opinion from various orthopaedic specialists” including a neurosurgeon specialist. 26.In a consultation on 11 July 2016 with Dr Lau Pui Yau, a private orthopaedic doctor, Dr Lau remarked (according to his letter[6] dated 10 August 2016) that:-
27.Between 2012 and 2017, according to a list of attendance exhibited to Siu’s Affirmation as “SHY-12”, Siu’s treatments were intensive. Altogether he received more than 120 treatments and consultations (including physiotherapies, treatments for mood disorder and Chinese medicine doctors) in both the private and public sectors mostly locally, and occasionally overseas as well. C.6 Consultations with lawyers and requests for medical records in 2008 and 2009 28.The first legal advice that Siu sought was from a solicitor, Mr Lau Kar Wah, on 10 November 2008. Mr Lau allegedly advised Siu that his intended claim against Dr Chan had a very low chance of success due to the expiry of the three-year limitation period. 29.The second legal consultation was around November to December 2008, in which Siu consulted another solicitor, Mr Clancey. Mr Clancey had allegedly given Siu a wrong advice in stating that the limitation period of the claim would not run until his disability became significant. Siu was further advised that he would lose the claim without documentary evidence to support his legal action. 30.This was then followed by Siu’s making the first request in 2008 to the Baptist Hospital for medical notes and records of the Surgery. The staff told him that these medical documents were no longer available. 31.In 2009, Siu consulted a third solicitor, Miss Mak. He also tried asking the Baptist Hospital again for the medical records but the request yielded nil result. C.7 Legal consultations between 2010 and December 2014 32.During this period, Siu sought legal advice from:
33.Siu stated that he was told that his intended action against Dr Chan, due to the lack of documentary evidence, would be very difficult. The costs of the litigation would also be very high. C.8 Applications for Legal Aid in 2014 and 2015 34.In December 2014, Siu made his first application for legal aid after he was advised of the services of legal aid at the second consultation with Mr Lam Fung. However, Siu’s first application for legal aid failed. He shortly made a second application in February 2015, but it also failed. C.9 Availability of the report of Dr Chun in 2015 35.Siu said it was only when he obtained Dr Chun’s hand-written medical notes in mid-2015 that the situation changed. Although he had consulted Dr Chun in the 1980s (see §14 above), he had forgotten about it. It was only when Dr Lau recommended Dr Chun as one of the experts to give an expert opinion in relation to Siu’s intended action against Dr Chan that he was able to recollect the consultations, and subsequently requested Dr Chun’s medical records. 38.Referring to the notes in Dr Chun’s medical notes[7] that state, ‘“1981 excise (illegible) of bony” and “K P Chan”’, Siu said that it was “the first time I was able to obtain such evidence over the years” showing that he had undergone the Surgery Dr Chan performed involving the excision of bones : Siu’s Affirmation, §55(c). C.10 Successful appeal against the legal aid refusal: 1 February 2017 39.After he had obtained Dr Chun’s medical notes, Siu sought legal advice again from a firm of solicitors, and also from a counsel specializing in personal injuries to assist his appeal against the refusal of legal aid. 40.On 1 February 2017, the High Court allowed Siu’s appeal. On 15 September 2017, the Director of Legal Aid granted legal aid to Siu. D. THE PLAINTIFF’S CROSS-SUMMONS: ISSUES 41.Admittedly, the causes of action for both trespass to the person[8] and negligence are already statute-barred. However, the parties cannot agree as to when the limitation period started running. This is the first issue. 42.The second issue of the cross-summons is whether the court, having regarding to the circumstances provided in s 30, should exercise its power to override the time limit. 43.Before determining the first issue, I should briefly discuss the computation of the limitation periods under s 27. E. COMPUTATION OF LIMITATION PERIODS 44.Section 27(4) of the Ordinance provides two limitation periods for the institution of a personal injury claim. Sub-section (4) of that section provides as follows: -
E.1 Primary period of limitation 45.The primary period of limitation is more straight-forward, and easier to determine. It is provided for in s 27(4)(a), and is simply referred to as the date on which the “cause of action accrued”. E.2 Secondary period of limitation 46.The date of “plaintiff’s knowledge” in s 27(4)(b) is commonly known as the beginning of the secondary limitation period. As to what constitutes “knowledge” in the context of the Ordinance, the court in Lam Siu Ping v Secretary for Justice[9] has helpfully summarized the approach as follows:-
47.The “knowledge” in sub-section (4)(b) requires assessment of a number of facts, and sub-section (6) states as follows: -
48.“A person’s knowledge” that the “injury in question was significant” in sub-section (6)(a) is further provided for in sub-section (7): -
49.It is established that “significant injury” means the date when the plaintiff has knowledge (whether actual or constructive) that the injury is sufficiently serious (in terms of quantum) to justify proceedings for damages against a defendant: Dobbie v Medway Health Authority[10]. Belief or suspicion cannot amount to knowledge of “significant injury”: Stephen v Riverside Health Authority[11]. 50.Knowledge that “the injury was attributable” under s 27(6)(b), refers to knowledge that the damage was “attributable” in whole or in part to the defendant’s negligent act. A claimant’s ignorance in law that he has a cause of action against the defendant or does not understand the legal significance of the relevant facts will not prevent the limitation period from starting to run: Lam Siu Ping (supra) [59]. So time does not begin to run against a plaintiff until he knows there is a real possibility (but not necessarily a real probability) that his damage was caused by the negligent act: Lam Siu Ping (supra) [68]. 51.Actual knowledge refers to the knowledge on the part of the plaintiff of the specified matters as to the damage and other relevant parts to make it reasonable for him to investigate whether or not there is a claim against the defendant. The test is subjective and the burden is on the plaintiff to show the date of actual knowledge. However, if the defendant wants to rely on a date prior to such period, the burden is on him that the plaintiff had or ought to have had knowledge by that date: Lam Siu Ping (supra) [61]. 52.Imputed or constructive knowledge is provided for by sub-section (8) as follows: -
53.Imputed or constructive knowledge refers to knowledge that a plaintiff 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 that advice. 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. 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: Lam Siu Ping (supra) [62]-[63]. F. FIRST ISSUE: WHEN DID THE LIMITATION PERIOD EXPIRE? 54.It is not in dispute that when Siu issued his home-made writ on 23 December 2016, it was already out-of-time under both limbs of the limitation periods. 55.In the present case, the relevant date of knowledge the parties advanced is later than the date of the accrual of the cause of action. The computation of the limitation period should therefore, pursuant to s 27(4), be based on the date of knowledge rather than the date of the accrual of the cause of action. It is therefore strictly not necessary to determine the date when the primary limitation period should start to run from. 56.Nonetheless, the parties are unable to agree the time for the running of the primary limitation period. Dr Chan contended that the cause of action accrued in 1981 (when the Surgery was performed). Siu, on the other hand, asserted (Siu’s Affirmation §55) that it only accrued in 2007 when the damage became significant. 57.The question as to when a cause of action in tort accrues has been authoritatively decided in Kensland Realty Ltd v Tai, Tang & Chong (2008) 11 HKCFAR 237 at §157 per McHugh NPJ: -
58.Accordingly, the cause of action in this claim in tort accrued upon Dr Chan’s alleged trespass to the person committed shortly before and during the alleged negligent carrying out of the Surgery that has allegedly caused the alleged damage pleaded in the SOC. 59.The cause of action accrued in 1981, and the primary limitation period of this claim had expired about 32 years when the writ was issued in 2016. F.1 When did Siu have the knowledge? 60.Siu asserted that the secondary limitation period only started to run around November 2010 when his “lower limb problems appeared and worsened, and that [he] had knowledge about the casual link between the Surgery and the pains”: Siu’s Affirmation, §54(c). 61.It is thus noted that Siu, according to Siu’s Affirmation, did not seem to have treated the earlier date of 3 September 2008 which Mr Gidwani put forth in his written skeleton (§31) as the date when the secondary limitation period started to run. Siu has repeatedly stated in Siu’s Affirmation that the limitation period only expired in 2013. For example, in §66 of Siu’s Affirmation, he said: “[t]he period should had (sic) expired in 2013”. 62.Oddly, Mr Gidwani does not seem to be advancing Siu’s above position as his primary argument. For the time of November 2010 (Siu’s asserted time), Mr Gidwani only stated (see skeleton §42(h)) in passing that “there is indeed room for argument that the date of knowledge starts from November 2010. Indeed, this is the position taken by the Defendant.” 63.Dr Chan on the other hand averred that Siu “had the requisite knowledge as early as 15 March 2007 and in any event no later than 16 November 2010”: Tin’s Affidavit §12; Chan’s Affidavit §9. 64.In light of the positions of the parties, I consider that I should take November 2010 as the time Siu asserted despite Mr Gidwani’s submission. 65.Accordingly, I only need to determine whether the secondary limitation period should have run from 15 March 2007 (as Dr Chan asserted) or from 16 November 2010 (as the time Siu asserted which time is also Dr Chan’s alternative position). 66.Since the date of 15 March 2007 Dr Chan is relying on is prior to 16 November 2010, the burden is therefore on him to show that Siu had or ought to have had knowledge by 15 March 2007 (see §51 above). F.1.1 Whether Siu had or ought to have had knowledge on 15 March 2007? 67.The knowledge that Dr Chan contended was the knowledge Siu had acquired at the consultation with Dr Chang on 15 March 2007 is that Siu’s injury (his residual left hip weakness) was allegedly caused by the Surgery. The evidence Dr Chan relies on, are the respective remarks set out in Dr Chang’s Notes and Dr Chang’s Report, which remarks Siu denied Dr Chang had informed him of at the consultation (§17 above). 68.It was Mr Chau’s contention that Siu’s denial of the knowledge of Dr Chang’s remarks should be rejected as being contradicted by the Statement of Damages. 69.Contrary to Siu’s recent denial at Siu’s Affirmation that he had no knowledge of any of the comments stated in either Dr Chang’s Notes or Dr Chang’s Report, Siu, Mr Chau highlighted, was able to repeat the same concluding remark of Dr Chang’s Report stating that “his residual left hip weakness could be due to disturbance of the attachment of gluteus medius and minimus muscles as a result of the Surgery” in §5 of the Statement of Damages. 70.The credibility of Siu’s evidence in relation to his denial of knowledge essentially requires a determination by this court of a party’s credibility on affidavit evidence. I should not embark on such an exercise at an interlocutory stage unless there are exception circumstances. Mr Chau has not shown that this is a case that justifies a departure from this approach. 71.In any event, I do not agree with Mr Chau’s argument that the fact that Siu has set out the concluding comment of Dr Chang’s Report in the Statement of Damages contradicts Siu’s denial in Siu’s Affirmation. It is important to bear in mind that both of Dr Chang’s Notes and Dr Chang’s Report were not available at the time of the consultation on 15 March 2007 but years later. Dr Chang’s Report was dated 12 October 2016. Dr Chang’s Notes, albeit there being no evidence as to when Siu had access to it, it would have also likely been available at a similar time as Dr Chang’s Report. 72.The averment in the Statement of Damages to the remark in Dr Chang’s Report is plainly Siu’s (or his legal advisers’) extraction from it. In the circumstances, I do not accept Dr Chan’s contention that Dr Chang’s Notes and Dr Chang’s Report are documentary evidence that affixed Siu with the knowledge of their contents on the date of the consultation on 15 March 2007. 73.In the circumstances, I am not satisfied that Dr Chan is able to show that Siu had knowledge (whether actual or constructive) by 15 March 2007 when he consulted Dr Chang. There is no evidence after the consultation with Dr Chang, that Siu held “any reasonably firm belief or to know with sufficient confidence to warrant the taking of preliminary steps for … taking legal or other advice”: Lam Siu Ping (supra) [58]. 74.Thus, I reject Mr Chau’s primary position in stating that the limitation period started running from 15 March 2007. F.1.2 Time started to run from 16 November 2010 75.Next, I should consider the alternative date of 16 November 2010. According to the facts outlined in Section C above, I consider that the evidence supports Siu’s assertion that he only had the knowledge within the meaning of s 27(4) by 16 November 2010. 76.By 16 November 2010, according to Professor Hung’s attendance summary, Siu suffered from on-going symptoms: back pain, mild left hip weakness, lower limbs problems including tightness and pain and muscle wasting (Siu’s Affirmation, §38). By that time Siu had to resort to intensive physiotherapy treatments to relieve the symptoms of the injury. With these complaints, Siu, by that stage, would have had knowledge that his injury had become sufficiently serious to justify instituting proceedings. 77.Significantly, after the advice Professor Hung gave to Siu at the consultation on 16 November 2016, in which remedies against Dr Chan were being explored, Siu would have most likely believed that his injury was attributable by the alleged tortious acts of Dr Chan. 78.Hence, I determine that the three years’ limitation started to run from 16 November 2010, and that the secondary limitation period would have accordingly expired on 16 November 2013. 79.Hence, when the writ of summons was issued on 23 December 2016, it was already late by about 3 years and 1 month. Siu’s claim is therefore liable to be struck out unless he can satisfy this court that the three years’ time-limit should be disapplied. G. THE SECOND ISSUE: WHETHER THE TIME LIMIT SHOULD BE DISAPPLIED? G.1 Section 30 80.For Siu’s cross-summons under s 30, he is required to show that it is equitable, having regard to the prejudice he is likely to suffer, to allow his claim to proceed. Before deciding whether it would be “equitable” to disapply the limitation period, the court should perform a balancing exercise by looking at the balance of prejudice to each party, the six non-exhaustive factors contained in sub-section (3) as well as all the circumstances of the case: Lam Siu Ping (supra) at [79]. 81.In his written skeleton, Mr Gidwani’s makes no submission on the factor under sub-section 3(d) (“the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action”). Yet, Siu seems to have, in Siu’s Affirmation, alluded to this factor by asserting that he has suffered physical disability that has allegedly affected his ability to engage professional opinion. I do not think Siu can rely on his physical disability in the cross-summons. The factor under s 30 (3)(d) refers to a disability that has the same meaning of s 22, which refers to a person who is an infant or of unsound mind: Hong Kong Civil Procedure 2109, Vol.2 (“HKCP”) § F1/30/10. Mr Gidwani is right to only rely on five of the six specific factors provided in s 30 (3). 82.These five factors will now be separately discussed below but they will not be considered in isolation. G.2 The Specific Factors G.2.1 Length of and reason for the delay: s 30(3)(a) 83.The relevant period of delay in this action, as this court has determined in Section F above, is just over 3 years, which length cannot be, by any measure, be regarded as a short one. 84.In considering whether Siu is able to provide good and genuine reasons for the period of delay, this court should apply a subjective test. Apart from looking at the circumstances arising within the limitation period, this court should have regard to the circumstances between the expiry of the limitation period and the issue of the writ: HKCP, §F1/30/8, p 345. 85.The reasons for the delay during the limitation period (November 2010 and November 2013), according to Siu’s Affirmation, are that he did not have favourable legal advice nor medical documents in support of his claim against Dr Chan. 86.As for the delay for the period between the expiry of the limitation period and the issue of the writ, Siu attributed it to his unsuccessful applications for legal aid. 87.It is Mr Gidwani’s submission that Siu, unlike the plaintiff in Shek Chi Wai v Chai Jennifer [12] (in which the court found the plaintiff there had failed to provide sufficient reasons for his attempts in making applications for legal aid), has provided adequate reasons for the delay. It was submitted that, but for the inaccurate legal advice, the unavailability of the medical documents at the earlier stage, and the rejection of his legal aid applications, Siu would have brought the claim much sooner. 88.Mr Chau however contends that Siu has failed to provide good reason for the delay. First, he contends that wrong and unfavourable legal advice should not be accepted as a good explanation. It is contended that Siu has failed to explain why he did not issue a protective writ earlier but waited until 26 December 2016. 89.Secondly, as for Siu’s reason for the lack of medical evidence, Mr Chau contends that Siu failed to adduce any evidence to show what steps he had taken to obtain other medical records between 2009 (when he contacted Baptist Hospital the second time for the medical records of the Surgery) and mid-2015 (when he requested medical documents from Dr Chun). 90.Lastly, Mr Chau argues that Siu’s reliance on his legal aid applications as a reason for the delay should be rejected. Citing Lin Siu Fong Chloe v Dr Chan Fan[13], Mr Chau stated that the learned Master in a similar application to disapply the limitation period for a medical negligence case refused to discount the period of delay on account of the plaintiff’s application for legal aid. 91.The court’s exercise of discretion under s 30(3) is fact- sensitive. Thus, cases, short of providing legal principles and guidelines, on how courts in the past exercised their discretion, are of limited assistance. 92.I do not consider the cogency of the reasons for the delay can be evaluated in a vacuum. Background facts before the running of the limitation period that are relevant to Siu’s explanation for the delay should also be considered. 93.Of particular relevance is, in my view, Siu’s reaction to Professor Chan’s Alleged Remark allegedly made in 2008. According to Siu, the Alleged Remark set off his investigations of the Surgery. Irrespective of the disappointing outcome of his inquiries (unfavourable legal advice and unsuccessful attempts in obtaining medical records of the Surgery), Siu has not shown sufficiently reasonable efforts in the bringing of an action against Dr Chan. 94.I agree with Mr Chau that Siu has not adduced any evidence to explain what other inquires, apart from the two requests that he made to the Baptist Hospital in 2008 and 2009, that he had made to obtain the relevant medical documents. Evidence is clearly lacking as to why he had not contacted Dr Chan directly for the medical records after his last failed effort in 2009 to obtain the medical records from the Baptist Hospital. 95.At all material times, Siu has had knowledge of the identity of the defendant, Dr Chan. Hence, there should have been little difficulty for Siu to approach Dr Chan directly for medical records if not before, at least shortly after 2009 when it was evident that the Baptist Hospital no longer had the records of the Surgery. Granted Siu might not have known how to contact Dr Chan, but I believe that by 16 November 2010 at the latest, Siu had sufficient information as to how to contact Dr Chan or at least to obtain such information (see §23 above) from other venues after the consultation with Professor Hung. After the consultation with Professor Hung, I believe that Siu would have obtained information that could provide him access to evidence facilitating the prosecution of Siu’s claim. Siu did not seem to have promptly followed up on the information. 96.Pertinently, Siu’s injury, during the running of the limitation period, had become significantly more serious. Given the stark unfavourable advice and the lack of medical evidence due to the lapse of time Siu was clearly aware of by that stage, it is inexplicable that he only waited until 27 July 2015 to telephone Dr Chan’s private clinic for the medical records of the Surgery. The question of whether the medical records could have been available had Siu contacted Dr Chan earlier is speculative. What is important to consider is that due to Siu’s delay in making prompt contact with Dr Chan, Dr Chan only became aware of Siu’s complaint much later when he was served only on 14 December 2017 with a pre-action letter together with the writ. 97.I also accept the criticism by Mr Chau of Siu’s reason for delay for the period between the expiry of the limitation period on 16 November 2013 and the issue of the writ on 23 December 2016 being his failed applications for legal aid. When Siu made his first legal aid application in 2014, Siu had already sought numerous legal advices. From these legal consultations, Siu undisputedly would have been acutely aware of the dire consequence of delay. After his first legal aid application failed, he would have been reasonably expected to immediately issue a protective writ in person (as he had indeed done much later in this case) before his second legal application in 2015. I do not think Siu has provided good reason for prolonging the delay. 98.I am not persuaded by the explanation that the lack of medical evidence has caused the delay. 99.According to Siu’s evidence, by 2009, he had knowledge that the Baptist Hospital could not provide him with the much-needed medical records of the Surgery. Apart from Siu’s unsatisfactory absence of effort in contacting Dr Chan that I have discussed in §§95 and 96 above, I am unable to attach much significance to Siu’s explanation that it was only in mid-2015 that he recalled the consultations with Dr Chun that enabled him to request the medical notes and reports. 100.As already stated above, Siu was provided sufficient information from the consultation with Professor Hung in November 2010 to facilitate his bringing of the action, including information on medical experts. I also do not think that Dr Chun’s medical notes help Siu obtain any liability evidence. Dr Chun’s handwritten notes therefore do not appear to have much useful information for the commencement of the action. 101.The material part of Dr Chun’s notes Siu relied on is §1:
102.Not only do the matters stated in §1 of the notes not provide any useful medical evidence to Siu for the prosecution of the claim, their evidential weight is also questionable. It is not clear whether the information in the notes might have been based on Siu’s own words or on any medical reports. 103.Given the fact that Siu had already consulted many medical specialists, I do not find his alleged reason of unavailability of medical evidence valid. Even if he might have forgotten his consultations with Dr Chun earlier as alleged, Siu has not explained why he did not request from other doctors (such as Dr Chang and Dr Loy) for their medical notes and reports earlier. 104.Not only do I consider that Siu did not need Dr Chun’s notes to establish the identity of the defendant, I also believe that he did not require them to prove that the Surgery involved excision of the trochanters. As Mr Gidwani stated in his written submission (§66), Siu has retained one of the most important physical or real evidence in the form of the original X-ray films taken before and after the Surgery and the bones that were excised from the Surgery, which real evidence, coupled with Dr Loy’s report (which was prepared shortly before the Surgery) would have been able to show, Mr Gidwani suggested, the exact condition of Siu’s greater trochanters before the Surgery, and the exact extent of the excision. Thus, even without the medical notes and report from the Baptist Hospital, Siu already had, at all material times, the evidence in relation to the performance of the Surgery without Dr Chun’s medical notes that were only available in June 2015. G.2.2 Evidential prejudice against the defendant and cogency of the evidence: s 30(3)(b) 105.This claim consists of two separate causes of action- negligence and trespass to the person – the particulars of the latter cause of action overlap with that of the former. The claim of the trespass to the person is based on Siu’s allegation of the lack of informed consent. For the claim of negligence, Siu primarily alleges that Dr Chan, in breach of his duty of care, performed the Surgery without sufficient clinical indication and justification. Thus, the Surgery was allegedly unnecessary and detrimental to Siu’s health. 106.The main issues in this case are therefore whether, based on Dr Chan’s clinical judgment, the Surgery was reasonably justified; and whether Siu had given valid consent to the Surgery. 107.Dr Cheng, when opining in the concluding paragraph in the Expert Report that there might be a case of medical negligence, identified the crucial elements (that I have underlined below) required to determine the question of negligence.
108.In the concluding paragraph set out above, Dr Cheng opines that the Surgery “was highly unusual”, and that he “cannot find any clinical indications or circumstances that called for the Surgery”. When stating his opinion, Dr Cheng has also pinpointed to the fact that important records are absent, namely (a) the consultations and discussions between Siu and Dr Chan leading to the Surgery, and (b) the details of the Surgery – whether “Dr Chan might have repaired or reattached the various muscles, and then ordered some forms of post-operative rehabilitative treatment”. In the circumstances, it can be said that Dr Cheng’s opinion is based on existing evidence, which is clearly incomplete. Thus, Dr Cheng’s opinion – including the various supposedly adverse remarks by other doctors that the Surgery was unusual (Dr Lau: §26 above) or “outrageous” (the Alleged Remark) or that it was a wrong decision as stated in Dr Chang’s Medical Notes (§17 above) – can therefore be said to have been conditional upon the very crucial evidence that Dr Chan can no longer adduce due to the long lapse of time and the lost medical records. 109.Indeed, Dr Chan complained of the serious prejudice that he would suffer in defending these proceedings caused by the delay. It cannot be disputed that Dr Chan will face an uphill task in locating evidence in his defence. I accept Dr Chan’s complaint that, he, without the medical records, could not recall the matters discussed at the consultations with Siu beyond what he has set out in the defence. That, it would also be difficult, if not impossible, to locate witnesses, such as the nurses who were present at the relevant consultations. 110.Dr Chan’s said complaints, in my view, are real. It is now no longer possible for Dr Chan to adduce crucial evidence on matters relating to the advice that he gave to Siu before the Surgery, whether he had repaired or reattached the muscles, and whether he had prescribed post-operative rehabilitative treatment Dr Cheng referred to in the Expert Report. Thus, I do not accept Mr Gidwani’s suggestion (at §66) that the adverse effect on the cogency of the evidence caused by Siu’s delay in bringing the action can be militated by the availability of the real evidence (the original pre-and post-Surgery X-ray films and the bones before the excision). 111.Mr Gidwani’s proposed remedy to address the prejudice by “obtaining a valid expert opinion in [Dr Chan’s] favour” (§65) is not sound. As already stated in the Expert Report, there are crucial evidential gaps that require contemporaneous reports and factual witnesses, both of which Dr Chan has lost the chance to collate. In my view, the ability of another medical expert to render an opinion for Dr Chan will be hampered by the same pitfalls of the missing crucial evidence that Dr Cheng discussed in the Expert Report. 112.The complaints Dr Chan made in Chan’s Affidavit, in my assessment, are valid. I find that Dr Chan has adduced sufficient evidence in discharging the evidential burden requiring him to show that the evidence was less cogent and that he would be prejudiced (Burgin v Sheffield City Council [2005] EWCA Civ 482, per Clark LJ at [23]). 113.It cannot be disputed that faded memory and lost contact with potential witnesses due to Siu’s delay in pursuing his claim will invariably cause prejudice to Dr Chan. Relevantly, Siu’s inexplicable failure in giving Dr Chan’s notice of his intended claim has further compounded the prejudice. Dr Chan is deprived of the valuable opportunity that he might have had to meet the claim at the trial if he is not to be permitted to rely upon his limitation defence: see Donovan v Gwentoys Ltd [1990] 1 WLR 472 at 479 H to 480B, per Lord Oliver). 114.Had Siu given a notice of claim sooner, it might still have been possible for Dr Chan to preserve evidence. The inescapable consequence that Dr Chan now faces is that the records are lost. 115.Lastly, I do not consider Mr Gidwani’s sweeping reference to the doctrine of res ipsa loquitur in his written submission (§62) helpful. There is no plea of this doctrine in the SOC. I do not think it forms part of Siu’s pleaded case. In any event, the applicability of this doctrine is highly questionable. Were this doctrine applied, Dr Chan will be prejudiced by the delay in that he will no longer be able to adduce evidence to displace any inference of negligence in providing a plausible explanation consistent with the exercise of due care. 116.In the circumstances, I am satisfied that Dr Chan is able to show that he would be prejudiced due to the deterioration in the cogency of the evidence as a result of Siu’s unreasonable delay in the bringing of the action. G.2.3 Conduct of the defendant: s 30(3)(c) 117.This factor refers to the conduct of Dr Chan after the cause of action arose, including the extent, if any, to which he responded to requests reasonably made by Siu for information. 118.Dr Chan’s alleged failure to respond is based on Siu’s assertion of Dr Chan’s “unwillingness to cooperate”: Siu’s Affirmation, §58(c)(iv). However, as already discussed above, Siu only contacted Dr Chan once on 27 July 2015 for medical records. I cannot accept Dr Chan’s nurse informing Siu that the medical records were already inadvertently discarded as a failure to respond. Hence, Siu’s assertion is only a bare assertion. 119.I do not think that Siu is entitled to blame Dr Chan for the loss of records on the basis that he was able to obtain medical records from Dr Chun and Dr Loy. 120.I also do not find Mr Gidwani’s suggestion of ill-motive for the loss of medical records in his written skeleton (§§54 & 55) proper. It is unfortunate that the very important medical records are now no longer available, but Mr Gidwani’s suggestion that the loss of medical records was a “deliberate destruction” (§ 70) in order to hide Dr Chan’s malpractice is a very serious allegation, which should not be lightly made. Equally inappropriate is the rhetorical question Mr Gidwani asked why other treating doctors, Dr Loy and Dr Chun, were able to retrieve their contemporaneously records and make them available to Siu but not Dr Chan. Emotionally-charged language, particularly without any basis, should be avoided, and I reject these baseless submissions. 121.In the circumstances, I agree with Mr Chau that no blame should be attributed to Dr Chan. Siu’s allegation of Dr Chan’s lack of response is not valid. G.2.4 Conduct of the plaintiff: s 30(3)(e) 122.Instead of s 30(3)(e), Mr Gidwani in his written skeleton has mistakenly cited s 30(3)(d), which deals with a plaintiff’s disability. Under s 30(3)(e), a court should consider the extent to which Siu had acted promptly and reasonably once he knew whether or not the act or omission of Dr Chan, to which the injury was attributable, might be capable at that time of giving rise to an action for damages. Relevantly, I should apply an objective test in considering whether Siu has taken reasonable steps in the bringing of a claim or making a complaint once he was aware that he had a claim and that it was substantial, i.e. from the date on which he in fact appreciated the position as distinct from the date on which he had constructive knowledge: Lam Siu Ping (supra) at [117]. 123.By taking steps in seeking legal and medical advice, Siu asserted that he had acted promptly within the meaning of s 30(3)(e). 124.I disagree. 125.As I have concluded above, when assessing the length of delay, Siu failed to bring the action promptly. Despite the numerous medical consultations and the various legal advices that Siu had obtained, I do not think that Siu had taken reasonably prompt action, viewed objectively, in either making his complaint or bringing a claim against Dr Chan. 126.By November 2010, the evidence overwhelmingly shows that Siu was clearly fixated with Dr Chan’s liability for the Surgery, which he believed had led to the symptoms that he suffered since 2007. Not only had Siu never given notice to Dr Chan of his complaint, he waited another 6 years before he issued the home-made writ. Mr Gidwani’s highlighting of the reasonable expedition of Siu’s legally-aided assigned solicitors in the preparation of the case after the issuance of the legal-aid certificate, in my view, does not exonerate Siu’s dilatoriness in the pursuit of his remedy. G.2.5 Advice obtained by the plaintiff: s 30(3)(f) 127.Sub-paragraph (f) provides “the steps, if any taken by the plaintiff to obtain medical, legal or other expert advice and the nature of such advice he may have received”. “When the court has to consider the nature of the advice, it has to consider its characteristics in so far as they bear upon delay once he or she became aware of the information which might give rise to a cause of action against the defendant.”[14] When it is relevant, a court is entitled to know whether the advice is favourable to the plaintiff’s cause of action[15]. 128.As for the steps that Siu has taken, Siu relied on his numerous consultations with doctors and lawyers. Yet Siu attributed the delay only to the alleged wrong legal advice that he obtained. Such wrong legal advice, Mr Gidwani suggested, led Siu to believe that his case was devoid of merits without remedy against Dr Chan. It was submitted that it would be inequitable for Siu to be held responsible for the consequences of the wrong advice. 129.The consideration of this factor is not only confined to legal advice, but encompasses other advice and its nature. Even if it were accepted that Siu, based on the unfavorable and in some instances, alleged wrong advice that he received, was led to believe that the claim had no merit, I cannot disregard Siu’s assertion that the medical notes of Dr Chun that he obtained in mid- 2015 enabled him to look at his potential claim differently. He was then able to obtain counsel’s advice in support of his appeal against legal aid. As stated in §97 above, I am unable to find any reasonable explanation as to why Siu by that stage could not have issued the writ forthwith rather than waiting until after he was advised by the Master at the hearing of his legal aid appeal to do so (Siu’s Affirmation §55). G.3 Other relevant factors: merits of the plaintiff’s case 130.In considering the respective prejudice to the parties, the court, in appropriate cases, may have regard to the respective merits of the parties’ claim and defence. 131.It is submitted that this court, having regard to the Alleged Remark and Dr Cheng’s opinion that the Surgery was “highly unusual”, should be able to form an overall view that Siu’s claim has reasonable prospects of success. 132.Siu’s relative merits should be, Mr Gidwani states, contrasted with Dr Chan’s insubstantial defence that he has only pleaded to the defence of limitation without putting forward any substantial defence. 133.It is Mr Gidwani’s submission that Siu’s claim, on a broad assessment, is meritorious and it would be inequitable for Siu to be deprived of a cause of action. 134.It cannot be disputed that at an interlocutory stage, this court, unless there is special reason, should not embark on an exercise of determining merits on affidavit evidence. Instead, a court should take an overall view and consider whether Siu has any reasonable prospects of success: Lam Siu Ping (supra) at [123]. 135.I can quickly dispose of the merits on the cause of action on trespass to the person. By Mr Gidwani’s acknowledging in his further written submission that this claim is principally one of negligence, it can be inferred that the claim for trespass is, at the highest, marginally meritorious. 136.Regarding the strength of the negligence claim, I believe that the best starting point is by examining Siu’s SOC. In doing so, I am cognizant of the pitfalls of evaluating merits on pleadings. I bear in mind that a claim that may look weak on the pleadings may be improved on by available evidence at trial: see Lam Siu Ping (supra) at [123]. 137.In §13 of the SOC, Siu avers to altogether 14 particulars in support of his allegation of negligence. Broadly stated, these particulars can be grouped under three heads. 138.First, the nature of Surgery was unusual. It is averred that Dr Chan had performed the Surgery without clinical indication and justification. The Surgery, it is averred, was unnecessary. 139.Secondly, Dr Chan had failed to give proper advice to Siu of the nature and effect of the Surgery. It is alleged that Dr Chan failed to advise Siu that the Surgery could not treat the bulging sensation and that it would weaken the functions of Siu’s great trochanter. Siu alleged that Dr Chan had failed to advise him on alternative treatments. 140.Thirdly, the Surgery failed to effectively treat Siu’s bulging sensation. It is alleged that Dr Chan had failed to provide sufficient post-operative follow-up and rehabilitative treatments. The Surgery has caused side effects. 141.The evidence Siu relied on for all the three groups of particulars is, in the main, Professor Chan’s Alleged Remark and the opinion of Dr Cheng. 142.The Alleged Remark is only a bare assertion without any documents in support. Hence, I do not consider these allegations to have any prospect of success in proving medical negligence. 143.As for Dr Cheng’s opinion, it is, as I have stated in §108 above, based on incomplete evidence. Hence, due to the missing of a number of important strands of evidence set out in the Expert Report, Dr Cheng’s opinion is of limited value. 144.Different to a situation where evidence may be improved after discovery, Siu’s evidence has very little prospect of further improvement. It is a foregone conclusion that the crucial evidence mentioned in the concluding paragraph of the Expert Report will most unlikely be available. Given the lapse of 36 years since the Surgery, the parties can hardly be expected to have a proper recollection of the matters (such as the consultations and advice, or whether post-operation rehabilitation treatments were prescribed) that Dr Cheng mentioned in the Expert Report. 145.In conclusion, when Siu’s pleadings are considered alongside all the existing evidence, I form an overall impression that the claim does not have a good prospect of success. The chance of the strength of the claim being improved, due to the long lapse of time, is inherently slim. 146.Last but not least, I should also mention a judgment on medical negligence Mr Gidwani submitted at the hearing - Atzori v Dr Chan King Pan [1999] 3 HKLRD 77, in order to show that Dr Chan was previously found liable for medical negligence. 147.As the names of the parties indicate, Dr Chan was named as the defendant in that personal injuries case which was tried before Seagroatt J. In the judgment, the court found Dr Chan liable to pay damages to the plaintiff for an unnecessary surgery that was negligently planned. The court found that Dr Chan’s “notes were cursory and informative but indicative of undue haste and commitment to a course which did not display the proper level of care which a patient was entitled to expect.” [16] 148.Mr Gidwani’s purpose of citing this case, in my view, is to prejudice Dr Chan. I find the citation of this case unhelpful as it involves different facts. I therefore disregard it. G.4 Conclusion on the second issue 149.Apart from the factors that I have discussed above, I have also considered other minor points Mr Gidwani advanced. I have not specifically mentioned them in this decision because they add little weight to this balancing exercise. 150.It is trite that the longer the delay after the cause of action has accrued, the more likely it is that the balance of prejudice will swing against allowing the action to proceed by disapplying the limitation period. Ultimately, this court is enjoined under s 33 to consider what is just and equitable and whether a fair trial is possible. 151.After analyzing the facts and the evidence in this case, I am satisfied that a fair trial would not be possible after such a long lapse of time when the crucial forensic evidence cannot be found or re-constructed. 152.In the exercise of my discretion, this court considers that it would not be just and equitable to allow this claim to proceed by disapplying the limitation period. I acknowledge the fact that when coming to this decision, I have had due regard and deep sympathy for the pain and agony Siu seems to have been enduring. 153.For the reasons given above, I dismiss Siu’s cross-summons for disapplying the limitation period. H. THE STRIKING OUT APPLICATION 154.It is well-established that a court could, in a very clear case, strike out a claim that is time-barred on the ground that it is frivolous, vexatious and an abuse of the process of the court : Ronex Properties Ltd v John Laing (CA) [1983] 1 QB 398 at 405A, per Donaldson LJ, followed by Ho Cheung Electrical Engineering Co Ltd v Ko Wai Sun [17]. 155.In the event, I do not think that Mr Gidwani can dispute that once Siu fails on his cross-summons, his writ and the SOC are liable to be struck out. I therefore accede to Dr Chan’s striking out application. I. DISPOSITION 156.I grant the following orders: -
157.Lastly, I wish to thank both counsel for their assistance.
Mr Victor Gidwani, instructed by Szwina Pang, Edward Li & Co, assigned by the Director of Legal Aid, for the Plaintiff Mr Jeffery Chau, instructed by Howse Williams Bowers, for the Defendant [1] Hearing Bundle (“HB”) 239. [2] HB141-142. [3] HB182-183. [4] Consultation summary, HB198. [5] Consultation summary, HB144. [6] HB223-224. [7] HB226. [8] By the further written submissions of both counsel after the hearing, the parties are in agreement that s 27 of the Ordinance also applies to an action in trespass. Hence, it is also subject to the 3-year limitation period. [9] Unreported, HCPI 345/2010, Master Marlene Ng (as she then was), 19 Oct 2011 at §59. [10] [1999] 4 All ER 450 at 457g-h. [11] [1980] 1 Med LR 261. [12] HCA 6295/1993 (unrep), 28 June 1994, Yam J. [13] HCPI 506/2015, (unrep) 23 December 2016. [14] Jones v G D Searle Co Ltd [1979] 1 WLR 101 at 105G-H per Roskill L J. [15] Ibid. [16] [1999] 3 HKLRD 77 at 78 C-D. [17] DCCJ 195/2016, (unrep), 15 March 2017, Deputy District Judge Benny Lo at [33]. | ||||||||||||||||||||||||
Cases cited in this judgment