Sun Ming Lok, A Minor Suing By His Mother and Next Friend, Hui Man Chong v. Choy Wing Ho and Another
Read the full judgment text of HCPI 200/2017 on BabelCite. This High Court CFI judgment was delivered on 31 March 2021.
1. The 1 st defendant (“ D1 ”) was a specialist in paediatrics employed by the 2 nd defendant (“ D2 ”). In/about March 2014, the plaintiff (“ P ”), then 2 years old, was a patient of D1 and/or D2 who were employed/engaged to provide medical care and treatment for him.
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HCPI 200/2017 [2021] HKCFI 852 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 200 OF 2017 ________________________
Before : Hon Marlene Ng J in Chambers Date of Hearing : 20 January 2021 Date of Handing Down Decision : 31 March 2021 ________________________ DECISION ________________________ I. INTRODUCTION 1.The 1st defendant (“D1”) was a specialist in paediatrics employed by the 2nd defendant (“D2”). In/about March 2014, the plaintiff (“P”), then 2 years old, was a patient of D1 and/or D2 who were employed/engaged to provide medical care and treatment for him. 2.On 24 February 2017, P commenced the present action against D1 for personal injury, loss and damages suffered as a result of medical negligence when P was under D1’s medical care and management in March 2017. On 12 June 2018, leave was granted for P to join D2 as the 2nd defendant in the present action. On 25 June 2018, P re-filed the Amended Writ of Summons that named D1 and D2 respectively as the 1st and 2nd defendants. 3.For the present purpose, it is unnecessary to go into to all details of the parties’ allegations and counter-allegations in the present action. I gratefully adopt the useful summary in the written submissions of Mr Lam SC, senior counsel for D1 and D2 (collectively, “Ds”), that set out the relevant background:
4.P claimed that during his stay at D2 on 13-17 March 2014 he suffered from gastrointestinal symptoms, and that in particular he developed abdominal distension on 15 and 17 March 2014. By a referral letter dated 18 March 2014 (“Referral Letter”), D1 sought intervention from a surgeon at QEH as follows: “In view of acute gut perforation, urgent surgical consultation for intervention is to be anticipated. Your expert management will be much appreciated”. 5.Mr Tsoi, counsel for P, submitted that for the purpose of the Appeal referred to in paragraph 27 below, “it is P’s case that …… (1) D1 failed to make timely referral to a paediatric surgeon in view of P’s gastrointestinal symptoms thereby depriving P of gaining a very substantial recovery to his pre-incident condition; (2) Earlier investigation and intervention of P’s gastrointestinal symptoms would have prevented P from suffering from intestinal obstruction and/or gut perforation”. 6.Ds disputed liability, denied any delay in diagnosis and/or delay in referral, and put P to proof of his allegations. II. PLEADINGS 7.According to the Statement of Claim filed on 9 July 2018 (“SoC”), P pleaded that “[D1] was a Specialist in Paediatrics who was employed by [D2] and provided medical and specialist services at [D2]”. This was echoed in the Defence filed on 27 November 2018 that averred “[D1] was, at all material times, employed by [D2] as a Resident Specialist in Paediatrics”. 8.On the issue of liability, P’s case of negligence and/or breach of contract against D1 and/or D2, their servants and their agents as pleaded in paragraph 23 of the SoC was premised on alleged delay in diagnosis and alleged delay in referral. P gave particulars of Ds’ wrongdoings in paragraph 23 of the SoC, and averred Ds’ alleged delay in referral inter alia as follows:
9.Ds denied liability and averred inter alia as follows:
10.On the issue of causation, P at paragraph 28 of the SoC pleaded that “[for] the avoidance of doubt, [P’s] case as to causation will be that earlier investigation and intervention of [P’s] gastrointestinal symptoms would have prevented [P] from suffering intestinal obstruction, gut perforation and/or pneumoperitoneum”. Ds in paragraph 37 of their Defence denied such averment, and reiterated the averment in paragraph 9(i) above. III. WITNESS STATEMENTS 11.P’s factual witnesses were his parents. The contents of paragraph 19 of the witness statement of P’s father dated 24 April 2019 and those of paragraph 18 of the witness statement of P’s mother dated 25 April 2019 were almost identical. For present purpose, it is sufficient for me to set out paragraph 18 of the witness statement of P’s mother as follows:
IV. PROCEDURAL HISTORY 12.By a letter dated 9 March 2018, P’s solicitors (“PSols”) informed the solicitors for D1 (who was the only defendant at that time) (“D1Sols”) that his expert on liability was Prof PT, “specialist in Paediatric Surgery” (my emphasis). By a letter dated 12 March 2018, D1Sols noted P’s liability expert was Prof PT, and asked for a copy of his expert report as soon as it was ready. 13.On 25 May 2018, P filed a summons to seek directions inter alia to join D2 as the 2nd defendant, and to file/serve “his expert report on liability and causation” (my emphasis). By a letter dated 8 June 2018, D2’s former solicitors wrote to inform PSols that D2 would consent to P’s summons subject to P paying D2’s costs of the application. By a letter dated 11 June 2018, D1Sols wrote to inform PSols D1 had no objection to the directions sought in P’s summons. By the order of Master M Lam dated 12 June 2018, P was directed to file/serve inter alia his SoC and “expert report on liability and causation prepared by [Prof PT], a paediatrist” (my emphasis). However, there was no dispute that Prof PT was a paediatric surgeon rather than a paediatrician. 14.On 9 July 2018, P filed his SoC and Prof PT’s 1st expert report dated 1 June 2018 (“PT 1st Report”). Paragraph 23 of the PT 1st Report stated inter alia that “[on] a balance of probabilities, one has to conclude that [D1] had fallen below the requisite standard of care in the ways listed in 7(a-g) in [PSols’] instructions ……” So by a letter dated 11 July 2018, D1Sols wrote to PSols, referring to paragraph 23 of the PT 1st Report and asking for copy of PSols’ instructions to Prof PT. By a letter dated 11 July 2018, PSols replied by asserting litigation privilege and refusing to disclose their instructions to Prof PT. By a letter dated 12 July 2018, D1Sols argued such instructions were not privileged, and pressed for a copy thereof in order to understand what Prof PT meant when he claimed D1 “had fallen below the requisite standard of care in the ways listed in 7(a-g) of [PSols’] instructions”. By a letter dated 20 July 2018, PSols sent to D1Sols a redacted copy of paragraph 7(a)-(g) of their letter of instructions to Prof PT:
15.The parties filed their respective PI Questionnaires (“PIQs”) for the 1st Checklist Review (“CLR”) hearing scheduled to be heard on 28 August 2018:
16.By a Consent Summons filed on 21 August 2018, the parties agreed inter alia to extension of time until 2 October 2018 for each of Ds to file/serve his/its Defence with an expert report on liability and causation (if any). By the order of Master Roy Yu dated 28 August 2018, leave was granted for P “to adduce expert evidence on liability by a paediatric surgeon, namely [Prof PT]” and for D1 “to adduce expert evidence on liability by a paediatrician” (my emphasis), but D2 elected not to adduce expert evidence on liability. 17.On 27 November 2018, D1 served the expert report dated 7 September 2018 by Dr CHB (“CHB Report”). There was no dispute that Dr CHB was a paediatrician and not a paediatric surgeon. 18.A CLR hearing was scheduled on 29 January 2019:
19.By the order of Master Roy Yu dated 29 January 2019,
20.On 2 May 2019, P filed/served Prof PT’s 2nd expert report (“PT 2nd Report”). 21.By a letter dated 3 June 2019 (“3/6/19 Letter”), Ds’ solicitors (“DSols”) wrote to PSols objecting to the admissibility of Prof PT’s expert evidence given from the perspective of a specialist in paediatric surgery. DSols complained that the PT 2nd Report never said D1’s management of P fell below the standard expected of a reasonable specialist in paediatrics, and instead it showed Prof PT gave expert opinion and criticised D1 from the perspective of a specialist in paediatric surgery, which DSols claimed was not the correct approach since D1’s management should be judged on the standard of a reasonable specialist in paediatrics. 22.By a reply letter dated 21 June 2019, PSols disagreed and enclosed Prof PT’s letter dated 14 June 2019 (“PT 1st Letter”) that explained there were overlaps, synergies and differences between the 2 specialties of paediatrics and paediatric surgery, and that in any event Prof PT possessed the relevant qualifications/training to comment on the standard of care of a paediatrician such as D1. 23.As seen above, whilst there was no dispute Prof PT and Dr CHB were the parties’ nominated experts, there was some confusion in the expert directions as to whether (a) such experts were to render expert reports on the issue of liability or on the issues of liability and causation, (b) the court-permitted expert discipline for the issue(s) of liability or liability and causation was paediatrics or paediatric surgery, and (c) Dr CHB was the nominated expert for D1 or for Ds. V. SUMMONS AND APPEAL 24.On 3 October 2019, Ds filed a summons for the following reliefs (“Summons”):
25.On 3 October and 20 December 2019, Ds filed the 1st and 2nd affidavits of their solicitor Chan Wai Chung William (“Chan”) in support of the Summons (“Chan 1st and 2nd Affs”). On 25 November 2019, P filed the affirmation of his solicitor Hui Chun (“Hui”) to oppose the Summons (“Hui Aff”). 26.On 16 January 2020, Master Roy Yu dismissed the Summons with costs to P with certificate for counsel and P’s costs to be taxed in accordance with Legal Aid Regulations (“Master Order”). The learned master also directed the parties to jointly report to the court within 28 days on (a) the admissibility of the PT 1st Letter and Prof PT’s letter dated 20 November 2019 referred to in paragraph 32 below (“PT 2nd Letter”), and (b) time extension (if required) for complying with previous case management directions. 27.On 24 January 2020, Ds filed their Notice of Appeal against the Master Order for an order that (a) the Master Order be set aside, (b) the PT 1st/2nd Reports be withdrawn and not be adduced at the trial of the present action, and (c) P to pay Ds costs of and occasioned by the Summons (including costs of the hearing before Master Roy Yu on 16 January 2020) and costs of the appeal with certificate for counsel (“Appeal”). The Appeal came before this court for hearing on 19 January 2021 (“Hearing”). VI. PARTIES’ RESPECTIVE STANCE 28.Ds claimed the PT 1st/2nd Reports ought to be withdrawn since Prof PT belonged to the wrong specialty and/or applied the wrong standard in such expert reports. On the other hand, P claimed inter alia that:
VII. PT 1ST/2ND REPORTS AND PT 1ST/2ND LETTERS 29.PT 1st Report In the PT 1st Report, Prof PT first set out his qualifications as an expert. His stated professional qualifications, work experience, academic positions, professional journal editorial board positions, and positions in medical association/society in Hong Kong and abroad for over 30 years were in paediatric surgery. Then Prof PT set out the “Medical Summary” followed by his “Expert opinion” inter alia as follows:
30.PT 2nd Report Prof PT reviewed the CHB Report and then gave the PT 2nd Report in reply as follows:
31.PT 1st Letter As a result of the 3/6/19 Letter (see paragraph 21 above), PSols sought clarification from Prof PT who gave the PT 1st Letter dated 14 June 2019 as follows:
32.PT 2nd Letter Upon review of the Chan 1st Aff, PSols sought further clarification from Prof PT who gave the PT 2nd Letter dated 20 November 2019 as follows:
VIII. CHAN 1ST AND 2ND AFFS 33.Chan said in applying the Bolam test, ie a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, one needs to refer to the standard of a reasonable specialist in the particular discipline. Here, D1 was a specialist in paediatrics, but Prof PT was a specialist in paediatric surgery. 34.Chan explained that in Hong Kong “paediatrics” and “paediatric surgery” were 2 distinct/separate medical specialties, and specialists in paediatrics and specialists in paediatric surgery were registered under different specialist registers of the Medical Council of Hong Kong(“MCHK”). Further, “paediatrics” (ie The Hong Kong College of Paediatricians) was 1 of 15 constituent colleges of the Hong Kong Academy of Medicine (“HKAM”),[1] but “paediatric surgery” was not a constituent college of HKAM and instead it was one of the specialty boards of The College of Surgeons of Hong Kong.[2] 35.Paragraph 23 of the PT 1st Report commented “[D1] had fallen below the requisite standard of care ……” and criticised various aspects of D1’s management (see paragraph 29 above), but there was no explanation as to what the “requisite standard of care” was. On the contrary, Dr CHB in the CHB Report opined on D1’s management of P, and concluded in paragraph 58 thereof it was “appropriate and did not fall below the standard expected of a Specialist in Paediatrics in Hong Kong”, ie Dr CHB expressly judged D1’s management according to the standard expected of a specialist in paediatrics in Hong Kong. 36.Prof PT prepared the PT 2nd Report in response to the CHB Report, but he did not expressly state D1’s management fell below the standard of a reasonable specialist in paediatrics. Chan claimed Prof PT viewed the present case and gave expert opinion from the perspective of a specialist in paediatric surgery as evident from paragraph 8 thereof. Chan claimed the parts of paragraph 8 of the PT 2nd Report as italicised and underlined in paragraph 30 above showed Prof PT acknowledged he and Dr CHB held different opinion over D1’s medical management of P because they were in different specialties, and in particular:
Prof PT in paragraph 9 of the PT 2nd Report also referred to the surgical consensus or standard of care (see paragraph 30 above). 37.Chan said these remarks by Prof PT “rang alarm bells for [Ds]”, which led to the 3/6/19 Letter whereby DSols raised concerns about Prof PT giving expert opinion from the perspective of a specialist in paediatric surgery (rather than that of a specialist in paediatrics) (see paragraph 21 above). In response PSols obtained the PT 1st Letter, but Chan noted such letter simply gave Prof PT’s own view that he had the necessary qualifications, training and knowledge in paediatrics to comment on D1’s management, but did not address Ds’ real concerns that Prof PT used the wrong standard of a specialist in paediatric surgery or otherwise viewed this case from the perspective of a specialist in paediatric surgery in criticising D1’s management. Indeed, Prof PT in the PT 1st Letter again described the 2 specialties differently, ie paediatrics was a “medical” specialty and paediatric surgery was a “surgical” specialty. 38.Chan claimed D1’s management should be judged against the standard of a reasonable specialist in paediatrics in Hong Kong, which was why Ds nominated Dr CHB, a specialist in paediatrics, as expert. Although Ds accepted (a) there were probably overlaps and synergies between the 2 specialities both of which concerned children (as suggested in Answer (1) of the PT 1st Letter), and (b) Prof PT had previously obtained some relevant UK qualifications in paediatrics (as suggested in Answer (3) of the PT 1st Letter), Chan claimed that having some relevant qualifications in paediatrics from the United Kingdom would not necessarily mean Prof PT had the necessary expertise to comment on the management of a specialist in paediatrics in Hong Kong. In any event, Ds’ main concern was not that Prof PT lacked necessary knowledge in paediatrics but rather he used the wrong standard to criticise D1’s management (as evident from paragraph 8 of the PT 2nd Report where he plainly adopted the standard of a specialist in paediatric surgery to explain why, in his view, D1 should have acted on the finding of abdominal distension – see paragraph 30 above). Indeed, Prof PT even implied Dr CHB held a different view because he was a paediatrician rather than a paediatric surgeon. 39.Further, Chan pointed out that a key allegation of medical negligence herein was D1’s failure to order further investigations and/or to refer P for specialist opinion when P had abdominal distension in the evening of 15 March 2014. Chan noted the Hui Aff seized on paragraph 29 of the PT 1st Report that asserted “[it] is not unreasonable for primary physicians to treat a patient for common diseases” (see paragraph 29 above) and other remarks in the PT 1st Report to argue Ds had read Prof PT’s expert opinion in the PT 1st Report out of context. But Chan said that upon careful review, paragraph 29 of the PT 1st Report explained that Prof PT’s key statement/criticism (as italicised and underlined in paragraph 29 above and as elaborated further in paragraphs 5-6 of the PT 2nd Report in paragraph 30 above after having considered the CHB Report) was due to differences between his views and those of Dr CHB because as a specialist in paediatric surgery he treated the symptom of abdominal distension as a serious clinical feature whereas Dr CHB as a specialist in paediatrics focused on the soft abdomen and presence of bowel sounds as reassuring clinical features. Chan said this again showed Prof PT wrongly applied the standard of a specialist in paediatric surgery. 40.Chan disagreed that paragraphs 16-17 of the PT 2nd Report (see paragraph 30 above) showed Prof PT based his comments on the standard of care expected of a reasonably competent paediatrician. Paragraph 16 of the PT 2nd Report merely stated it should be within a paediatrician’s expertise to recognise pneumoperitoneum on AXR or CT scan, and paragraph 17 of the PT 2nd Report merely stated P’s intellectual disabilities would not influence D1’s ability to arrange earlier abdominal x-ray, ultrasound examination or surgical consultation. Chan contended these paragraphs could not displace the message/implication in paragraph 8 of the PT 2nd Report that, in considering the issue of earlier investigations/referral, Prof PT used the perspective of a specialist in paediatric surgery. 41.Chan also noted with interest that PSols’ letter of instructions to Prof PT required him to comment on whether D1 fell below “the requisite standard of care” without informing him the requisite standard was that of a specialist in paediatrics and not that of a paediatric surgeon. 42.Answer (2) of the PT 1st Letter mentioned the current President of The Hong Kong Paediatric Society was a paediatric surgeon, but Chan noted such society was not an academic or regulatory body, and its website stated (a) “[the] Society was never meant to be an academic or regulatory body ……”, (b) the function of such society was “to organize scientific and social meetings in order to encourage the interchange of ideas and to stimulate cooperation in the various fields of Paediatrics”, and (c) membership of such society included doctors and non-doctors. Chan did not think the fact the president of such society was a specialist in paediatric surgery could displace the long established Bolam principle. Chan further noted the current president, vice president, honorary secretary, honorary treasurer, ex-officio member and members of The Hong Kong College of Paediatricians being one of HKAM’s constituent colleges were all specialists in paediatrics, and the only exception was the immediate past president who was both a fellow of the HKAM (Paediatrics) and a specialist in Paediatric Immunology. 43.Chan noted PSols obtained further clarifications from Prof PT in the form of the PT 2nd Letter dated 20 November 2019, and suggested such letter raised more problems than answers:
44.Ds’ stance was that Prof PT should not have adopted a different standard (ie the standard of a specialist in paediatric surgery) to criticise the management of D1 who was a specialist in paediatrics. Given the issues mentioned above and the danger/unfairness of Prof PT adopting a different (or “higher”) standard of care when criticising D1, Ds took the view that, in the interests of justice and fairness, the PT 1st/2nd Reports should be withdrawn from the present action. Ds would not object to P instructing a new expert in the field of paediatrics (ie a specialist in paediatrics) in place of Prof PT. IX. HUI AFF 45.The Hui Aff acknowledged one of P’s principal allegations was that Ds failed to timely refer P to a proper specialist (such as a paediatric surgeon) despite persistent abdominal distension on 15 and 17 March 2014 as evident from (a) the particulars of negligence and/or breach of contract and the averment on causation pleaded in the SoC (see paragraphs 8 and 10 above), and (b) D1’s Referral Letter dated 18 March 2014 to the surgeon at QEH’s department of paediatrics on 18 March 2014 (see paragraph 4 above). 46.Following D1Sols’ 3/6/19 Letter, PSols sought clarification from Prof PT who gave the PT 1st Letter (see paragraph 31 above). The Hui Aff placed emphasis on Answers (1)-(2) of the PT 1st Letter (see italicised and underlined parts in paragraph 31 above), but noted despite clarification in the PT 1st Letter that Prof PT provided opinion on the standard expected of a reasonable specialist in paediatrics, Ds filed the Summons to inter alia ask the parties to refrain from arranging the without prejudice meeting between Prof PT and Dr CBH pursuant to Master Roy Yu’s Order dated 29 January 2019 (see paragraph 19(b) above). 47.Hui said the Chan 1st Aff showed Ds did not dispute that the 2 specialties of paediatrics and paediatric surgery overlapped, and that Prof PT possessed relevant qualification in the field of paediatrics, but Chan alleged “having some relevant qualifications in paediatrics from the UK does not necessarily mean that [Prof PT] has the necessary expertise to comment on the management of a Specialist in Paediatric in Hong Kong” (see paragraph 38 above). Hui claimed it was inappropriate to undermine Prof PT’s qualifications, expertise and experience by saying he merely had “some relevant qualifications”. Apart from the numerous qualifications, publications and positions evident in Prof PT’s curriculum vitae, Prof PT stated in Answer (3) of the PT 1st Letter that he was an examiner of “MBChB Paediatrics (U of Liverpool), and Diploma of Child Health (UK)”, and that he interacted with paediatricians on a daily basis in his professional practice, which Hui said spoke for itself. Hui said it was difficult to envisage Prof PT could have been a university examiner of paediatrics without knowledge and experience in the field. 48.In respect of the allegation in the Chan 1st Aff that Prof PT “used the wrong standard”, Hui said the PT 1st Report should be read as a whole and not out of context (as Ds appeared to have done). He particularly referred to the references to what “competent doctor”, “physician” and/or “primary physician” should have done and when “it would be reasonable to expect a referral for a second opinion or more investigations” in paragraphs 21, 23 and 29 of the PT 1st Report (see italicised and underlined parts in paragraph 29 above). 49.Similarly, Hui claimed careful reading of the PT 2nd Report in its full context would show Prof PT was in fact commenting on the standard of care expected of a reasonably competent paediatrician, especially the references to “a paediatrician’s clinical expertise” in paragraph 16 and to “the paediatrician’s ability to arrange an earlier abdominal XR” and the argument that “the Paediatrician should have heightened awareness of disease progression and complication …… and have more urgency in arranging the investigations and consultation” in paragraph 17 of the PT 2nd Report (see italicised and underlined parts in paragraph 30 above). 50.Hui said P on 5 November 2019 sought further clarification from Prof PT who by the PT 2nd Letter dated 20 November 2019 confirmed in Answer (7) that “[the] requisite standard of care” under paragraph 23 of the PT 1st Report referred to “the standard of care expected of a reasonably competent paediatrician inthe aspect of timely referral” (see paragraph 32 above). 51.Hui said Answers (1)-(2) of the PT 2nd Letter also responded to the Chan 1st Aff that cited paragraphs 8-9 of the PT 2nd Report in support of the suggestion that Prof PT applied the wrong test (see paragraph 32 above, especially the italicised and underlined parts). Hui suggested that had Ds requested P to seek clarifications in the form of questions similar to those set out in the PT 2nd Letter, the Summons would have been wholly unnecessary. 52.In response to the references in the Chan 1st Aff to various medical organisations, P also sought guidance from Prof PT who gave Answer (6) of the PT 2nd Letter that he did not see such references to have “any relevance whatsoever to [his] expertise and ability to comment on the standard of [D1] as a reasonably competent paediatrician” (see paragraph 32 above). It was said that in any event a copy of the specialty descriptions issued by the HKAM on 3 October 2019 described the respective discipline as follows:
53.Hui said that in the present case, given the fact D1 ultimately referred P to a paediatric surgeon at QEH due to P’s surgical condition of gut perforation, expert opinion of a paediatric surgeon commenting on the diagnosis of surgical condition in accordance with the specialty description was clearly necessary, relevant and probative. 54.On the matter of causation, Hui said that pursuant to various court orders and paragraph 66(5) of Practice Direction 18.1, expert evidence of a paediatric surgeon also served the purpose of dealing with issues of causation including but not limited to:
55.Prof PT dealt with the issues of causation in paragraph 30 of the PT 1st Report (see the italicised and underlined parts in paragraph 29 above), identified the “clinical window” of opportunity in paragraph 14 of the PT 2nd Report (see the italicised and underlined parts in paragraph 30 above), and for the avoidance of doubt, Answer (8) in the PT 2nd Letter further clarified Prof PT’s expertise in providing opinion on causation (see the italicised and underlined parts in paragraph 32 above). So Hui claimed that quite irrespective of the complaint that Prof PT as a paediatric surgeon applied the wrong test in commenting on the standard of care (which Hui denied), Prof PT had the expertise to deal with issues of causation arising from delay in proper diagnosis that would lead to timely referral. 56.Hui therefore asked the court to refuse Ds’ application to revoke the order of Master Roy Yu dated 28 August 2018 (see paragraph 19 above) that was made by consent, and to permit P to rely on liability expert evidence of Prof PT in view of the procedural history of the present action, Prof PT’s expertise as a paediatric surgeon, and the necessity of expert evidence on causation arising from delayed diagnosis/ referral. X. APPROACH TO THE APPEAL 57.Extensive efforts were spent by the parties in the affidavits/affirmation filed in relation to the Summons and in counsel’s written submissions to canvass (a) the procedural history in relation to the expert directions granted in the course of case management of the present action, and (b) the nature of the Appeal (with references to parties’ correspondence and court documents). In particular, P claimed Ds by the Summons/Appeal were trying to revoke the order of Master Roy Yu dated 28 August 2018 that was made by consent (see paragraph 19 above), and Ds should not be allowed to do so when (i) they all along knew and had not objected to P’s engagement of a paediatric surgeon as his expert witness on liability (or on liability and causation) (see paragraphs 12-13 above), (ii) impliedly represented they would not take out any interlocutory application to challenge Prof PT’s expertise (see paragraphs 15 and 18 above), and (iii) the court had made 3 orders with expert directions on 12 June and 28 August 2018 and 29 January 2019 (see paragraphs 13, 16 and 19 above) without reservation of Ds’ right to object.[3] Ds agreed that they first raised objection in the 3/6/19 Letter, but explained that the problem only became apparent upon disclosure of the PT 2nd Report in late April 2019, especially in light of paragraph 8 of such report (see paragraph 30 above). 58.There was no dispute the Appeal was in principle a de novo hearing of the Summons pursuant to Order 58 rule 1 of the Rules of the High Court (“RHC”),[4] but issue arose as to whether the Master Order was a case management decision on expert directions in which the court would not lightly interfere,[5] or whether there were good reasons for the appellate court to interfere as explained by Bharwaney J in Ng Wing Man, a mentally incapacitated person by his wife and next friend, Ho Siu Fun v Everbest Port Services Limited.[6] 59.Further, whilst there was also no dispute that Order 38 rule 44 of the RHC provides that “[any] direction given under this Part of this Order may on sufficient cause being shown be revoked or varied by a subsequent direction given at or before the trial of the cause or matter”, issue arose as to whether there was “sufficient cause” (which is usually fact- and case-sensitive) to revoke or vary previous expert directions,[7] eg expert directions referred to in Part IV above. 60.But happily, through useful discussion between the bar and the bench at the Hearing, a number of matters were agreed:
XI. LEGAL PRINCIPLES (a) Medical negligence – standard of care 61.The relevant legal principles are not disputed and can be stated shortly. D1 owed P a duty to exercise reasonable care and skill. If he failed to show such care and skill, he would be negligent and would be liable for any loss caused as a result of his negligence. P contended that D2 was vicariously liable for D1’s acts and omissions. 62.According to Jackson & Powell on Professional Liability, “[a] practitioner who specializes in any particular area of medicine must be judged by the standard of skill and care of that specialty”.[8] A medical practitioner who acts in accordance with a practice accepted as proper by a responsible body of medical opinion will not be found to have failed to exercise reasonable care and skill and will not be negligent. The proper approach is set out by McNair J in Bolam v Friern Hospital Management Committee as follows:[9]
63.This was echoed by Lord Scarman in Maynard v West Midland Regional Health Authority who said as follows:[10]
Thus, in considering whether there was breach of duty, ie whether in the present case D1 was negligent in that he failed to act with reasonable care and skill in the treatment of P, the requisite standard of care would be that of the ordinary skilled person practising the medical skills in question, ie “that particular art” or “his specialty”, which in the present case was paediatric specialty. 64.In the course of time, there have been some inroads to the above principles.[11] First, where there are 2 bodies of responsible professional opinion, and a medical practitioner acts in accordance with one of the bodies of professional opinion, he will not be negligent simply because there is another body of professional opinion that would have pursued a different course of action, but if a practitioner acts in accordance with a body of professional opinion which is not capable of withstanding logical analysis, then the person is not acting in accordance with a body of “responsible” professional opinion, and may be liable in negligence. This has been explained by Lord Browne-Wilkinson in Bolitho v City and Hackney Health Authority.[12] 65.DHCJ To in Zhuang PP Holdings Limited formerly known as China United Holdings Limited & ors v Lam How Mun Peter & ors explained the other 2 inroads as follows:[13]
66.Further, a professional person is not to be judged by the wisdom of hindsight, so the breach of duty should only be judged prospectively based upon what was known or ought to have been known. (b) Determining admissibility of expert evidence 67.It was made clear in the pre-CJR authority of Wong Hoi Fung v American International Assurance Co (Bermuda) Ltd & anor that the court has an inherent power to rule on the admissibility of expert evidence at a pre-trial stage:[15]
68.The Court of Appeal in Shenzhen Futaihong Precision Industry Co Ltd & ors v BYD Co Ltd & ors[16] pointed out that paragraph 596 of the Final Report on CJR identified the following as conditions for admissibility of expert evidence (page 180):
69.But the Court of Appeal emphasised that the giving of expert directions is a matter of case management, and pointed out that after the implementation of the CJR, the courts “can also take in account of the probative value of an expert report in exercising case management power ……” (page 180):
70.In SUNeVision Holdings Ltd v Hong Kong Science and Technology Parks Corporation (Global Switch Hong Kong Limited, interested party),[19] the plaintiff in that case referred to Wong Hoi Fung and submitted that if the court is in doubt as to the relevance of proposed expert evidence, it should grant leave for it to be adduced at the trial. But G Lam J held that insofar as this submission was at variance with the approach recommended by the Court of Appeal in Shenzhen Futaihong Precision Industry Co Ltd set out in the above paragraph, it was the latter that he should (and in my view, as this court should) follow (paragraph 15). The learned judge at paragraph 16 added that “[monitoring] attempts to introduce expert evidence is not just a power of the court but its duty in exercising case management functions”. 71.Lam VP also underlined such post-CJR approach in Taching Petroleum Company, Limited v Meyer Aluminium Limited as follows:[20]
In that case, the court below regarded relevance as the key consideration in the applications concerning expert evidence, and held that certain proposed expert evidence was outside the scope of or not relevant to the pleaded issues (paragraphs 14-18), and that it was not permissible use of expert evidence to fish for evidence to formulate a case (paragraph 19). On such basis, Lam VP agreed with such case management approach “[subject] to our observation above by reference to Shenzhen Futaihong Precision Industry Co Ltd v BYD Co Ltd” (paragraph 20). 72.Mr Tsoi also referred me to Kennedy v Cordia (Services) LLP[21]where a home carer slipped and fell on an icy path during a home visit and claimed damages against her employer. Whilst this appeared to be an everyday accident, it raised question inter alia as to whether health and safety practice could properly be the subject of expert evidence. The answer was in the affirmative. It was said the evidence of the claimant’s expert on factual matters was admissible as it was necessary, it assisted the judge and the expert had the required qualifications and experience, and it provided a basis for the court to address the legal issues. The UK Supreme Court held at pages 611-614 as follows:
73.Although less robustly said than the guidance by the Court of Appeal in Shenzhen Futaihong Precision Industry Co Ltd as explained in Taching Petroleum Company, Limited, Kennedy also placed emphasis on the court’s case management powers for “policing the performance of an expert’s duties” (see below) and to encourage economy in litigation (pages 615-616), which in turn suggested that the court can rule on the admissibility of expert evidence at a pre-trial stage as a matter of case management:
74.Mr Tsoi referred me to C (by his father and litigation friend F) v North Cumbria University Hospitals NHS Trust in which Green J set out the “principles and considerations apply to the assessment of …… expert evidence ……” in the case before him:[22]
75.In Sandra Battersby v Allan,[23] the defendant neurosurgeon performed a left fronto-temporal craniectomy (ie brain tumour surgery) on the plaintiff, who alleged that the defendant negligently caused damage to her left middle cerebral artery in the course of that surgery (paragraph 10), which led her to develop a right hemiplegia with consequent significant disabilities (paragraph 12). The allegation of negligence was denied by the defendant. The plaintiff had initial difficulty in securing an expert report by a neurosurgeon, so she served an expert report by a neurologist, but she later also served an expert report by a neurosurgeon (paragraphs 14 and 19). 76.The letter of instructions sent to the consultant neurologist sought his expert opinion on inter alia the following question: “[did the defendant] exercise the care and skill one would expect from a neurosurgeon of his professional experience in performing the surgery and in particular does the thermal injury to the cerebral artery represent a departure from an acceptable level of care?” (paragraph 16). The consultant neurologist gave his opinion in his report, and stated that “[the] opinion above is that of a neurologist” and that “a neurosurgical opinion evaluating the above might be obtained” (paragraph 17). The consultant neurologist explained that the opinion given in his report was based on his training in neurology, his consultancy in neurology and his position as a fellow in neuropathy (paragraph 28), and that curriculum (which set out the training pathways for training in neurology and continuing professional development) made clear the training and skill of a neurologist included training in neuroanatomy and neuropathology, including the study of brain tumours and associated surgery, and the learning objective under “neurosurgery and vascular surgery” included inter alia indications of common neurosurgical and vascular surgery procedures (paragraphs 29-30). The court could not conclude the consultant neurologist followed the precise course of study set out in the curriculum, but was “satisfied …… he must necessarily have followed a similar course of study in order to be conferred with the Fellowship to which he referred to in his correspondence” (paragraph 32). 77.The defendant objected on the basis that the consultant neurologist lacked the necessary expertise to express at least some of the opinions in his report (paragraphs 18 and 33-37), but the plaintiff contended that the evidence established the consultant neurologist had the requisite specialised knowledge to allow him to express the opinions in his report as evident from his clarification report and the curriculum referred to above. Bellow J of the New South Wales Supreme Court held that the opinion by the consultant neurologist being one of specialised knowledge based on his training, study and experience was admissible:
78.In my view, Sandra Battersby, an authority which Mr Tsoi strongly relied, helpfully pointed out that the admissibility of expert opinion in each case turns on its own context, and the expertise of the expert in question does not necessarily turn on whether his/her specialty and/or qualifications were related to or fit precisely that of the defendant, but turns on whether his expertise (ie his/her specialty, knowledge, training, study and experience) is relevant to “the precise character of the question which expert evidence is sought to be given”. 79.In Mr Dennis Lee v Colchester Hospital University NHS Foundation Trust,[24] the trial was due to start in 2 weeks, and the defendant applied to replace one of its experts who was a “specialist” consultant radiologist (who was dismissed from his NHS employment) with a “mere” consultant radiologist (paragraph 6). Robinson J held that whether to grant permission to put in additional or alternative evidence was a case management decision, and the applicant must adduce the reason for changing expert (paragraph 17). The learned judge was satisfied there was a genuine reason for seeking to change expert because “to refuse this application would compel the defendant to call an expert over whom there is a clear question mark” (paragraphs 18-19). Hence, the defendant was permitted to rely on the report of the “mere” consultant radiologist in substitution for the “specialist” consultant radiologist. 80.In that case, the claimant was concerned that (a) his “specialist” consultant neuroradiologist was overqualified, having regard to the fact that the alleged breach of duty occurred at a District General Hospital and the responsible clinician was a consultant radiologist in practice at a District General Hospital, and (b) the consultant radiologist to be appointed by the defendant who was employed at a District General Hospital might be said to have more relevant experience (paragraph 20). But Robinson J said as follows:
However, Robinson J’s short judgment delivered shortly before trial focused on case management issues, and did not identify the “precise character of the question upon which the expert evidence is sought to be given” that would explain why a neuroradiologist would be able to give relevant opinion. Further, the concern raised did not go to the issue at hand being the suitability of the fresh expert, who was accepted to be of relevant specialty and experience, and it was just worry by the opposing party that if the defendant were to have a fresh expert of relevant expertise, his own expert might be over-qualified and hence arguably less relevant. Nevertheless, the plaintiff’s expert was still in the same specialty as the responsible clinician, ie he was a radiologist but had acquired “more relevant experience” that one who worked in a general hospital. I do not see Mr Dennis Lee to be in any way different from the guidance in Sandra Battersby. XII. EXPERTISE AND STANDARD ISSUES (a) Parties’ respective stance 81.Mr Lam SC submitted the Expertise and Standard Issues raised the question of admissibility of the PT 1st/2nd Reports on the basis that (a) Prof PT was of a different expertise/specialty (ie a paediatric surgeon and not a paediatrician), and (b) more importantly, he applied the wrong threshold (ie that of a paediatric surgeon and not that of a paediatrician) in opining on acceptable and unacceptable practice within the Bolam test. On the other hand, Mr Tsoi relying on Sandra Battersby submitted that Ds’ complaints in relation to the Expertise and Standard Issues (which P disagreed on the basis that Prof PT had the relevant expertise and applied the correct standard) would only go to the weight of the opinion evidence to be assessed by the trial judge, but would not render the PT 1st/2nd Reports inadmissible because even though Prof PT was a paediatric surgeon he was able to view the position of D1 (whose acts or omissions were being called into question) from the perspective of a paediatrician and to express a view about acceptable and unacceptable practice of paediatricians within the umbrella of the Bolam test. (b) Expertise Issue 82.The Expertise Issue raised the question whether Prof PT had the relevant expertise to opine on the expert issue before the court. Ds did not challenge Prof PT’s expertise as a specialist in paediatric surgery. The question was whether it was appropriate and admissible (ie relevant, necessary and of probative value) for him to give expert opinion on the standard of care applicable to D1 (ie specialist in paediatrics). It was for the court and not for Prof PT to determine the propriety for him to give such opinion, but what Prof PT said would be taken into consideration. 83.Mr Tsoi submitted that the question of admissibility of Prof PT’s opinion in the PT 1st/2nd Reports was not a simple matter of ascertaining whether the specialty of paediatric surgery fit precisely into D1’s specialty in paediatrics. I agree given the discussion in Part XI(b) above and the principles enunciated in Sandra Battersby in paragraphs 77-78 above. In my view, it is necessary to start with Prof PT’s expertise and then identify the “precise character of the question” on which he gave opinion in the PT 1st/2nd Reports. 84.Before I turn to such matters, it is perhaps useful to first deal with a proposition put forward by Mr Tsoi in his submissions, ie the specialty of paediatric surgery is a relevant and respectable body of opinion. Mr Tsoi submitted the law recognises there may be differences of opinion and practice in medical/other professions (see observations by Lord Scarman in Maynard in paragraph 63 above) and there may be various responsible bodies of medical opinion (see observations by McNair J in Bolam in paragraph 62 above), so even though paediatric surgeons would not fit precisely into D1’s qualifications, still the opinion of paediatric surgeons as a responsible body of opinion would be relevant if the correct standard (ie that of a reasonably competent paediatrician) was applied. 85.In my view, the above submissions reflect a misunderstanding of the Bolam test. Putting aside for the moment the inroads as explained in Part IX(a) above, the Bolam standard of reasonable care and skill is established by reference to the general practice of the relevant specialty of the responsible clinician, who is not guilty of negligence if he has acted in accordance with a practice accepted as proper by “a responsible body of medical men” “skilled in that particular art”. So if the responsible clinician is a paediatrician, whether his acts/omissions are acceptable or unacceptable will be assessed against responsible body(ies) of medical opinion in “that particular art”, ie the specialty of paediatrics. It is correct to say that if there are several responsible bodies of opinion in the “particular art” of paediatrics (ie a responsible body of paediatricians adopts one practice but another responsible body of paediatricians adopts another practice), compliance with the practice of one such responsible body of paediatricians and non-compliance with the practice of another such responsible body of paediatricians is no basis for conclusion of negligence. The fact there are responsible body(ies) of medical opinion in other arts, eg paediatric surgery, is not relevant, and indeed, this was common ground between P and Ds in the present case (see paragraph 60(b) above). 86.The true question was whether Prof PT as a paediatric surgeon had the requisite expertise to give relevant and admissible opinion evidence for establishing in the present action the practice of a responsible body of medical men “skilled in that particular art”, ie that of paediatrics and not paediatric surgery. This had to be considered on the basis of Prof PT’s specialty, training, knowledge, study and experience when viewed particularly against the issues being litigated, ie the “precise character of the question” on which Prof PT gave his opinion in the PT 1st/2nd Reports. 87.As explained in paragraph 60(a) above, D1[25] and Dr CHB[26] were paediatricians, but Prof PT was a paediatric surgeon.[27] The PT 1st Letter made the sage observation that “[illnesses] do not recognize specialties, humans do”. But in clinical negligence litigation, the court is concerned with human liability for negligent acts/omissions in the medical context. D1 was sued as a paediatrician, and his acts and omissions (if any) must be measured against the standard of skill and care of a reasonably competent specialist in paediatrics. 88.In my view, there was no doubt “paediatrics” and “paediatric surgery” were recognised by the medical profession in Hong Kong to be 2 distinct/separate specialties: (a) they were registered under different specialist registers of the MCHK (see paragraph 34 above), (b) “paediatrics” (ie The Hong Kong College of Paediatricians) was 1 of 15 constituent colleges of the HKAM whereas “paediatric surgery” was one of the specialty boards of The College of Surgeons (see paragraph 34 above), and (c) the specialty descriptions issued by the HKAM gave different descriptions for the disciplines of “paediatrics” and “paediatric surgery” (see paragraph 52 above). Although the PT 1st Letter and the Chan 1st Aff accepted “paediatrics” and “paediatric surgery” were closely related in that both concerned infants and children, and that there were overlaps and synergies between these 2 specialties (see paragraphs 31 and 38 above), Prof PT confirmed there were still “differences” between the 2 specialties, and he recognised “paediatrics” was a medical specialty and “paediatric surgery” was a surgical specialty (see Answer (1) in the PT 1st Letter in paragraph 31 above). 89.Prof PT agreed that whilst “[both] share common knowledge of physiology and pathologies of infants and children”, “the foci and depths may differ” (see sections (1)-(2) in the PT 1st Letter in paragraph 31 above). Mr Tsoi suggested the different “foci and depths” between the specialties of “paediatrics” and “paediatric surgery” went to the question of weight, but I do not agree. In my view, the different “foci and depths” went to the fact “paediatrics” and “paediatric surgery” were 2 distinct specialties. Of course, both paediatricians and paediatric surgeons would study, receive training and acquire skills on the anatomy, physiology and pathology of children, and on their growth and development from infancy to adolescence. But notwithstanding overlaps and synergies, it was the different “foci and depths” that caused paediatricians to be primarily concerned with child health and development, the prevention, management and treatment of diseases, and the management of physical, psychological, learning issues of children, and caused paediatric surgeons to be primarily concerned with the diagnosis of surgical conditions and the conduct of surgical procedures for children. Further, Prof PT’s observations in Answer (4) of the PT 2nd Letter that the training of a paediatric surgeon covered his/her professional relationship with other relevant specialties including paediatrics, and a reasonable competent paediatric surgeon should know when to refer his/her patient to a paediatrician and vice versa, showed “paediatrics” and “paediatric surgery” were distinct specialties with cross-referrals between them (see paragraph 32 above). As Mr Lam SC submitted, the need for referral in appropriate cares implied that expertise in one specialty is lacking or insufficient in the other. “They play different roles, and co-operate with each other, in the overall treatment of the patient.” 90.On such basis, Mr Lam SC submitted (and I accept) the specialties of “paediatrics” and “paediatric surgery” were distinct/ separate, which distinction/difference was not a mere matter of label. One therefore had to consider whether such distinction/difference had any material bearing on the issues on which Prof PT was called upon to his opinion. 91.Mr Lam SC submitted that generally speaking, in a professional negligence claim, expert evidence would be admitted only from a member of the specialty to which the defendant belongs, and expert evidence given by a witness from another specialty would be inadmissible. Mr Lam SC drew support from Jones, Medical Negligence which referred to the Bolam test with the proviso by Lord Diplock in Maynard (see paragraphs 62-63 above) and went on to say as follows:[28]
92.This was echoed by DHCJ To in Zhuang PP Holdings Limited formerly known as China United Holdings Limited & ors:
93.Mr Lam SC also referred to Jackson & Powell on Professional Liability which stated that in the context of medical negligence, the expert witness has 2 principal functions: (a) an explanatory or didactic function involving an explanation of the patient’s condition, treatment and its consequences, and (b) an assistance to the court in deciding whether the acts or omissions of the defendant constituted negligence.[29] In respect of (b) above, it was said as follows:
94.To state the obvious, a cardiologist or ophthalmologist would not be an appropriate expert to give opinion on the acceptable or unacceptance practice of an orthopaedist even though they are all medical doctors. But the question would become a finer one if the 2 specialties were closely related as in the case of “paediatrics” and “paediatric surgery” both of which concern children notwithstanding differences between them that justified separate/distinct specialties (see paragraphs 88-89 above). 95.The starting point is Sandra Battersby which requires the court to consider the expertise of expert in question against the precise issues on which such expert was asked to give opinion. Mr Lam SC submitted that such guidance was clearly illustrated by Sansom v Metcalfe Hambleton and Co.[33] In that case, before the plaintiffs purchased a property, they instructed the defendant to survey and report upon the structural condition. The plaintiffs alleged that the retaining wall at the property which they eventually purchased was defectively designed, and they sued the defendant (chartered surveyors) for alleged negligence in completing the survey report. Indeed, the experts who gave evidence for both parties accepted the retaining wall was not adequately designed and constructed, so the principal issue was whether there was anything in the condition of the property which ought to have indicated the retaining wall was inadequately designed and constructed. The plaintiffs relied on evidence led by an expert structural engineer rather than a chartered surveyor. It was held that “[although] there was no absolute rule that negligence by a chartered surveyor should be proved by expert evidence by chartered surveyor, there was no doubt that the general rule was that professional negligence should be proved by expert evidence given by a member of the appropriate profession. In the circumstances, the evidence led by the plaintiffs was inadequate to establish negligence by a surveyor appointed to carry out a report for a potential purchaser” (pages 88-89). 96.Bulter-Sloss LJ (with whom Hutchison LJ and Sir John Vinelott agreed) noted at page 90 that the plaintiffs claimed the defendant chartered surveyors did not draw attention to the existence of a crack in the wing wall, did not consider its significance, and did not advise further investigation which, had it been pursued, would (it was said) have led to the conclusion that the retaining wall itself was inadequate for its task and needed to be replaced. Amongst the issues before the judge was inter alia the question whether the defendant chartered surveyors, if they had seen the crack, should have regarded it as potentially significant and in particular, whether they were negligent in not advising that advice should be sought from a structural engineer. The judge found inter alia that (a) the crack in the return wall was likely to have been caused in part at least, by failure of the retaining wall, and in this regard he preferred the evidence of the plaintiffs’ expert structural engineer to the defendant’s expert chartered surveyor wherever they were in conflict, and (b) the defendant’s chartered surveyors were “negligent in not noticing the crack and in not calling a structural engineer. In reaching the latter conclusion the judge rejected the evidence of the defendant’s expert …… chartered surveyor …… preferring that of [the plaintiff’s expert] …… structural engineer”. 97.The plaintiff’s expert structural engineer gave evidence that he did not carry out structural surveys in the same way as chartered surveyors would carry out such surveys, and agreed that structural engineers were called in when there were structural problems to prepare structural engineer’s reports, but claimed that “I know things that surveyors on a day to day basis refer to me, and therefore I felt able to say that this cracking should have been pointed out” (page 91). The defendant’s counsel submitted this evidence demonstrated no more than there was a reasonable body of chartered surveyors who would have referred a similar crack to the plaintiff’s expert structural engineer for investigation, but such expert would have no knowledge whether similar cracks would not be referred to a structural engineer by other equally competent chartered surveyors (page 91). 98.Butler-Sloss LJ stated that “[the] question whether a witness has the requisite expertise to give an opinion on any relevant matter is, in my judgment, one going to admissibility, not merely to weight” (page 93). After considering a number of authorities in which the courts had to consider the expertise of a witness engaged in the same field but with different qualifications,[34] including the Bolam test in relation to medical negligence cases where “the expert evidence would be expected to come from medical practitioners appropriately qualified to give it” (pages 93-94), Butler-Sloss LJ concluded as follows:
99.In Sansom, the precise character of the question on which the expert structural engineer gave opinion was whether the defendant’s chartered surveyors, if they had seen the crack, should have regarded it as potentially significant and should have sought advice from a structural engineer (see paragraph 96 above). The relevant expertise called for by such “precise character of the question” was that of a chartered surveyor and not that of a structural engineer because even though the latter had day-to-day dealings with chartered surveyors from the receiving end, he could only be aware of the surveyors who called him in to investigate, but he would not know those who did not call him in nor whether it was reasonable or not reasonable not to do so (see paragraph 98 above). Thus, looking at the “precise character of the question” on which he gave opinion, the expert structural engineer did not have relevant and admissible evidence to give. 100.Mr Tsoi noted the learned authors in the footnote to the dicta in Sansom cited in Jackson & Powell on Professional Liability (see paragraph 93 above) stated that “[however], it is not always essential that the expert witness practises in precisely the same discipline as the professional who is said to have breached his duty”,[35] and cited as example the case of Co-operative Group Limited v John Allen Associates Limited.[36] Before I turn to Co-operative Group Limited, I should point out in fairness that the dicta of Butler-Sloss LJ in Sansom did say: “It is not an absolute rule as Sachs LJ indicated by his example but, unless it is an obvious case, in the absence of the relevant expert evidence the claim will not be proved” (page 95 and paragraph 98 above). That must be right because relevance and admissibility do not turn on matching professional discipline between expert and clinician, but on matching the particular expertise of the expert to the “precise character of the question” on which he/she is to give opinion in the particular context of the case. 101.In Co-operative Group Limited, a supermarket site was developed for the plaintiff by an independent developer. Given the difficult ground conditions the main contract provided for vibro- compacting ground improvement, and a performance specification for soil stabilisation by vibro-replacement techniques. The specification was prepared for the plaintiff by the defendant civil and structural engineers. In the course of preparing the specification, the defendant relied on specialist advice from a contractor (ie geotechnical and environmental consultants) who had expertise in vibro-replacement techniques and who had advised on the feasibility of those techniques for the subject development. Specialist subcontractors engaged by the main contractors were responsible for the design of the ground improvement scheme in accordance with the specification, but the main contractor and the defendant provided direct warranties to the plaintiff. After completion, the supermarket site was affected by differential settlement that caused sloping to the floors. The plaintiff sued the defendant for damages for breach of warranty, but the defendant contended that vibro-replacement had been a reasonable proposition, and even if it were not, there was no breach of duty to the plaintiff as the defendant relied on specialist advice. 102.It was held that professionals by merely obtaining advice or design from another party do not divest themselves of their duties in respect of that advice, and they can only discharge their duty to exercise reasonable care and skill by relying on the advice of a specialist where the professional is considered by the court to have acted reasonably in doing so. In that case, the defendant had not failed to exercise reasonable care and skill because on the expert evidence before the court, it could not be said that vibro-replacement would never have worked on the site (paragraphs 237-240). But even if it were otherwise (which Ramsey J disagreed), question would have arisen as to whether the defendant was negligent in specifying vibro-replacement, and that would depend on whether the defendant acted reasonably in relying on the advice of the contractor (ie geotechnical and environmental consultants) and others (paragraph 241). 103.The plaintiff supported their case with expert evidence from a geotechnical engineer on all engineering issues, but the defendant relied on expert evidence from a civil and structural engineer on civil and engineering issues, a geotechnical engineer on geotechnical and remediation issues, and an expert on ground treatment and improvement methods on vibro-replacement theory and techniques (paragraphs 110 and 136-139). Ramsey J referred to Sansom and the authorities cited therein, and declined to rule that the evidence of the plaintiff’s geotechnical engineering expert was irrelevant in the claim against civil and structural engineers, but found the defendant’s civil and structural engineering expert had the advantage of viewing matters from the perspective of practising in that capacity, and his evidence was preferred. In short, the learned judge held the difference in discipline did not preclude admissibility, and it went merely to analysis of the expert’s evidence and the weight to be attached to it (paragraphs 148-149). 104.However, it was evident from the judgment that the plaintiff’s geotechnical engineering expert was not called upon to address any question of referral by structural and civil engineers to geotechnical engineers but on the professional responsibilities and actions of structural and civil engineers with particular emphasis on geotechnical matters (paragraph 148). The plaintiff’s geotechnical engineering expert frankly confessed he would not be able to give expert evidence on detailed structural matters (paragraph 147), but those matters were not “the precise character of the question” for such expert. It was in the context of “the professional practice of civil and structural engineers in relation to geotechnics and what might be expected of them in relation to their approach to geotechnical issues that arise on the project”, ie the actual handling of geotechnical matters, that the plaintiff’s geotechnical engineering expert was said to “[live and breath] the same air as structural engineers and civil engineers” (paragraphs 148-149) save for the caveat that he might be said to have more skill and experience on those issues as a leading geotechnical engineer (paragraph 149). In short, both structural and civil engineers and geotechnical engineers would have to face and deal with geotechnical issues on projects, and this was what gave rise to the professional responsibilities that were put in issue. Hence, the plaintiff’s geotechnical engineering expert could give admissible evidence in light of the “precise character of the question”, and the caution over his specialised technical skill went to the weight of his opinion. Ramsay J’s analysis and conclusion were consistent with the above authorities. 105.In Hammersmith Hospitals NHS Trust & anor v Troup Bywaters & Anders,[37] the defendant consulting engineers were asked to advise the plaintiff on the replacement of the existing boilers at the hospital, and on the best way to dispose of clinical wastes which arose at the site. The defendant recommended the installation of waste incinerators which could also operate as boilers. The plaintiff wanted to be sure that the incinerators would dispose of the clinical wastes, generate sufficient heat and comply with environmental law. The defendant approached the manufacturers of the incinerators who assured them the specified requirements would be met, but did not carry out independent investigations (which might have revealed a report by the Department of Trade and Industry that the boilers did not perform adequately). The incinerators were installed and found to be inadequate. HH Judge Tomlinson QC rejected the plaintiff’s claim against defendant for professional negligence in relation to the advice given on the suitability of the incinerators and the failure to make further inquiries. It was held that the relevant standard of care was that of a general practitioner in the particular field, and on the evidence it was likely that other reputable engineers would have acted in the same manner. 106.In that case, the defendant agreed the evidence of the plaintiff’s engineering expert (who was a specialist in combustion and incineration who had undertaken detailed design and given technical advice on large incineration plants) was “generally admissible” (ie the defendant could rely on opinion by the plaintiff’s expert in favour of the defendant), but objected to such expert giving expert evidence to criticise the defendant’s performance on the ground that he was too well-qualified to pass an adverse opinion on the performance of general practitioner mechanical and engineering building services engineers (page 362). After citing the aforesaid dicta of Butler-Sloss LJ in Sansom (see paragraph 98 above), the learned judge said as follows at page 363:
107.A number of matters were of note in relation to Hammersmith Hospitals NHS Trust & anor, and I am not persuaded this authority established any principles different from those discussed above:
108.In BMG (Mansfield) Limited & anor v Galliford Try Construction Ltd & anor,[38] there was a serious fire at a shopping centre. The claimant owner alleged that as a result of inadequate fire protection in the roof space and eaves canopies of the centre, the spread of the fire and the consequent damage were far more extensive than it should have been. The defendants were (a) the design and build contractor and (b) the architects engaged by such contractor to perform its design obligations. The dispute/litigation had been ongoing for almost a decade with no sign of conclusion, and Edwards-Stuart J considered it was not surprising or unreasonable for the claimants’ elderly expert to wish to withdraw from the case given his age and the fact he could reasonably have expected the litigation to have been concluded several years earlier. The claimants were therefore granted permission to call expert evidence from a fresh expert on condition that they would disclose any documents/reports received from the retiring expert in which he had expressed opinions on the relevant matters. 109.In the course of arguments, the defendants, after citing Sansom, suggested that the fresh expert was “not in the relevant field because he is not just an architect but also an expert in fire safety” (paragraphs 40 and 42-43). The learned judge held as follows:
110.Again, a number of matters were of note:
111.Turning to the facts of the present case for the application of the aforesaid principles, I start by reiterating that in an action brought by a patient, the responsibility for deciding the content of the responsible clinician’s duty of care rests with the court to be assisted with opinion evidence from his or her professional colleagues as experts. Whether such opinion evidence is admissible to provide such assistance is again a matter for the court. 112.To properly consider the relevance and admissibility of Prof PT’s expert opinion, it is necessary to turn to the “precise character of the questions” to be addressed by the experts on liability and/or causation in the present action. The expert issues were essentially whether there had been delay in diagnosis and/or delay in referral by D1 when measured against the standard of a reasonably competent paediatrician. This was borne out by the pleadings (see paragraphs 8-9 above) and witness statements (see paragraph 11 above). Indeed, the Hui Aff acknowledged that one of P’s principal allegations was Ds’ failure to timely refer P to a proper specialist (eg a paediatric surgeon) despite relevant clinical signs (see paragraph 45 above). Mr Lam SC submitted the alleged delay in referral was the main focus in Prof PT’s opinion (see Answers (2), (4) and (7) in the PT 2nd Letter in paragraph 32 above) although Mr Tsoi submitted Prof PT also addressed the issue of delay in diagnosis. In my view, Prof PT’s opinion on the failure of earlier diagnosis of colitis was in fact more of a complaint that such failure led to delay in referral for second opinion or to a surgical specialist (see paragraphs 21-23 and 29 of the PT 1st Report in paragraph 29 above, paragraph 17 of the PT 2nd Report in paragraph 30 above and P’s pleadings in paragraph 8(a)-(c) above), and indeed the PT 2nd Report stated that “[my] main concern has been the delay in seeking extra investigations / expertise when sepsis was unresponsive to empirical treatment, when the source of sepsis was unidentified and when there were new symptoms” (see paragraphs 6 and 15-16 of the PT 2nd Report in paragraph 30 above). After all, it was not P’s case that earlier diagnosis would have obviated the need for further investigations and referral to specialist in paediatric surgery; rather it was P’s case that earlier diagnosis should lead to earlier further investigations and referral to such specialist. Thus, the “precise character” of the expert issues either directly concerned or had an underlying focus on delay in referral. 113.In my view, there could not be any dispute that the “precise character” of the above expert issues fell within the ambit of the paediatrics specialty. 114.Even on delay in diagnosis alone, the relevant expert specialty must be paediatrics. This was illustrated by Tracy Davies (by her Mother and Litigation Friend, Janet Davies) v University Hospital of North Staffordshire NHS Trust & anor.[39] This was a claim against the defendant for failure to arrange a brain scan on 2 occasions in January 2001. Subsequently, the claimant underwent a scan which revealed the presence of a tumour located in the frontal section of the brain. It was accepted that if a scan had been carried out in January 2001, that tumour would have been identified (paragraph 1), it would have been removed and the plaintiff would not have suffered the loss of vision caused by intra-cranial pressure (paragraph 65). On the question of whether or not there was a breach of the duty of care owed by the clinicians to the claimant in failing to arrange for a brain scan or failing to arrange for follow-up of the claimant on discharge from hospital with a view to a brain scan being arranged (paragraph 45), the parties adduced expert evidence from 2 respected consultant paediatricians who had extensive experience in that field and who had acted as consultants in paediatric wards and clinics with direct experience of treating children in such settings (paragraph 47). Having heard their evidence, Lewis J preferred the evidence of the 1st defendant’s expert paediatrician, and was satisfied (a) his views on the treatment represented the treatment that would be provided by a responsible body of professional opinion, and (b) that practice (as explained by such expert) did have a logical basis (paragraph 51). The learned judge concluded there was no breach of duty and no negligence (paragraph 67). 115.Of course, admissibility of opinion of the consultant paediatricians was not disputed in Tracey Davies as they were of the same specialty as that of the 1st defendant in that case. Even though it was the plaintiff’s contention in that case that earlier investigation and diagnosis might lead to earlier surgical treatment, it was unnecessary to adduce expert evidence from consultant surgeons as the 1st defendant accepted earlier surgical removal of the tumour would have led to a better outcome (paragraph 65). Nevertheless, this case illustrates that paediatrics was the relevant specialty for delay in diagnosis when the responsible clinician was a paediatrician. 116.On the more significant question of delay in referral which was the subject of P’s direct complaint and which underlined the compliant of delay in diagnosis, I need not look further than Sansom which explained why on the “precise character of the question” the relevant specialty was paediatrics (as chartered surveyor in Sansom) and not paediatric surgery (as structural engineer in Sansom). The paediatric surgeon would have been aware of paediatricians and other medical practitioners who made referrals to and/or called on him to further investigate and treat children patients, but the paediatric surgeon would not have known of those who did not make referrals to and/or call on him, nor whether it was reasonable or not reasonable not to do so. 117.In my view, this was demonstrated by (a) Prof PT’s own opinion that when the fever did not respond to empirical treatment and when there were additional (vomiting and diarrhea) and evolving (abdominal distension) symptoms, coupled with laboratory evidence of ongoing sepsis (infection), it would be reasonable to expect a referral for a second opinion or more investigations (see paragraph 29 above), but there was lack of urgency on the part of D1 in referring P to surgical consultation (see paragraph 30 above), and (b) his acknowledgment in the PT 2nd Report from his perspective as a paediatric surgeon (who was trained to manage abdominal emergencies and to be risk-averse) that abdominal distension was a serious clinical feature whereas a paediatrician would be more focused on other abdominal signs as reassuring clinical features that did not warrant further investigations or a second opinion (see paragraph 30 above). 118.More importantly, Prof PT in the PT 2nd Report stated he had a different approach from Dr CHB (paediatrician) “towards new abdominal signs and symptoms in the presence of sepsis of unknown origin which had been unresponsive to empirical treatment” (see paragraph 30 above), and in the PT 2nd Letter that “[from his] perspective as a specialist who gets referrals from medical practitioners and paediatricians for abdominal emergencies, his referral is relatively late in comparison with other referring doctors when faced with similar clinical features. Accordingly, [D1’s] actions fell below the standard of a reasonable competent paediatrician in the aspect of timely referral to a relevant specialist” (my emphasis) (see paragraph 32 above). 119.The above showed that Prof PT regarded P’s new abdominal signs and symptoms (especially abdominal distension) in the presence of sepsis of unknown origin that was unresponsive to empirical treatment as serious clinical features significant enough to warrant referral for a second opinion and further investigations, but that was because he was trained as a surgeon to manage abdominal emergencies and to be risk-averse. Obviously, in giving such opinion Prof PT was looking from the perspective of paediatric surgeons at the receiving end of such referrals. This was made clear by what Prof PT said in the above paragraph, ie that the referral by D1 was late compared with other referrals he received from other paediatricians and medical practitioners in relation to patients with similar clinical signs, and he explained that “accordingly” (ie this was the reason why) he opined D1’s “actions fell below the standard of a competent paediatrician in the aspect of timely referral to a relevant specialist”. 120.In my view, such opinion fell foul of the guidance in Sansom, that on the “precise character of the question” of timely referral to a relevant specialist, it was the views of paediatrician (or chartered surveyor) and not those of the paediatric surgeon (or structural engineer) that would be relevant and admissible because the latter would only be able to say what he knew from the receiving end and not from the requisite standard at the referring end. Indeed, Prof PT himself recognised this difference because he acknowledged the different approach between him (as a paediatric surgeon who must be at the receiving end) and Dr CHB (as a paediatrian who must be at the referring end in the context of the present case) towards new abdominal signs and symptoms (including abdominal distension) in the presence of sepsis of unknown origin that was unresponsive to empirical treatment as indications for referral. 121.Mr Tsoi submitted that notwithstanding the correct specialty was paediatrics and not paediatric surgery, Prof PT had the relevant expertise to speak on the standard of care of a paediatrician, and hence Mr Lam SC’s criticisms only went to the question of weight of Prof PT’s opinion. It was said that Prof PT was by qualification (as opposed to registration of specialties) a Fellow of Royal College of Paediatrics and Child Health (FRPCH), and he was also the “examinerof MBChB Paediatrics (U of Liverpool)”, which position was to examine the competence of paediatricians, so in the absence of contrary expert evidence it would be difficult for any lawyer (eg Chan) to undermine Prof PT’s ability to assess the conduct of D1 in the present action. 122.I reiterate the guidance in the above authorities that the suitability of an expert’s expertise is tied to the “precise character of the question” that he is required to deal with, and is not to be considered generally. The reasoning in Sansom discussed above explained why Prof PT did not have to relevant expertise to address the particular expert issues herein. Indeed, some of the reasons given by Prof PT to explain why he claimed to have “the relevant qualifications and training to comment on the standard of care of a paediatrician” were that “[he interacts] with paediatricians on a daily basis in [his] professional practice”, and that each specialty “should know sufficiently the other to be able to provide seamless care”, but such reasons lent weight to the concern that he would be speaking from the receiving end of referrals by paediatricians, which approach was rejected in Sansom in that the issue must be viewed from the perspective of a specialist in paediatrics in the same position as D1 at the relevant time to consider whether and when it would be reasonably necessary to refer P to a paediatric surgeon. 123.Further, the fact that Prof PT was a Fellow of the Royal College of Paediatrics and Child Health (FRPCH) did not show/prove he practised as a paediatrician; rather, his curriculum vitae showed that he all along practised as a paediatric surgeon. Further, although Prof PT was a university examiner of “MBChB Paediatrics (U of Liverpool)”, it was in 1988 (ie more than 30 years ago) when he was “Senior Lecturer (Paediatric Surgery) in the Institute of Child Health” (my emphasis) (see Answer (5) of the PT 2nd Letter in paragraph 32 above). Plainly, his academic experience was also focused on paediatric surgery. More importantly, the expert issues, especially in relation to the delay in referral, concerned clinical practice matters of paediatricians rather than, say, primary knowledge of relevant anatomy, physiology and treatment procedures, and I am afraid this was where Prof PT’s expertise gave rise to legal concern in the context of the present case despite his rich experience as a paediatric surgeon. Whilst I accept Prof PT’s expertise in paediatric surgery would not bar him absolutely from giving expert evidence on other expert issues where the responsible clinician is a paediatrician, I am not persuaded his opinion is relevant and/or admissible on the particular expert questions in the present case. 124.The authorities cited by Mr Tsoi would not detract from the above conclusion. Where those authorities suggest that the opinion of experts who are over-qualified goes to weight rather than admissibility of their opinion (eg medical expert with lengthy experience in the NHS as compared with one with lesser level of NHS experience in C (by his father and litigation friend F) in paragraph 74 above, the “specialist” consultant neuroradiologist as compared to “mere” radiologist in Mr Dennis Lee in paragraphs 79-80 above, the engineer with particular experience in combustion and incineration as compared with general practitioner mechanical and building services engineer in Hammersmith Hospitals NHS Trust & anor in paragraphs 105-107 above, and the architect with specialist knowledge of fire precautions as compared with architect with design obligations in BMG (Mansfield) Limited & anor in paragraphs 108-110 above), the experts were members of the same profession/specialty as the defendant in question except they might be said to be “over-qualified”. But there is no need for the expert to fit the precise skill and experience of the person against whom allegations of professional negligence are made, and such expert evidence does not fall foul of the guidance in Sansom. Any suggestion of “over-qualification” goes to the weight of such opinion evidence. 125.Where the authorities cited by Mr Tsoi suggest that the experts engaged are of different specialty/profession from the defendant, it appears that their opinion is admissible in relation to the “particular character” of the expert issue that is addressed, eg the consultant neurologist in Sandra Battersby had requisite specialised training, study and experience in the anatomy, physiology and pathology to allow him express opinion on surgical procedure to an area of the anatomy (and based in part upon matters of physiology) in which he had considerable training, study and experience (see paragraphs 75-78 above), and the geotechnical engineering expert in Co-operative Group Limited was not asked to address on structural matters (on which the expert accepted he could not give opinion) but on the professional practice of civil and structural engineers who had undertaken to handle geotechnical issues that had arisen on the project (see paragraphs 101-104 above), which in my view rendered such geotechnical engineering expert to be similar to the “over-qualified” experts discussed in the above paragraph. 126.It is therefore unsurprising for the courts in the above authorities to find such expert opinion would go to the question of weight and not to admissibility. However, the nature of expertise and “precise character” of the expert issues in those cases were a far cry from the particular circumstances of the present case, and I am not persuaded the opinion of Prof PT was admissible on the expert issues on liability in the present case. (c) Standard Issue 127.Answers (2) and (7) in the PT 2nd Letter (issued after Ds filed the Summons) claimed that the requisite standard of care adopted by Prof PT in the PT 1st Report was that expected of a reasonably competent paediatrician on the aspect of timely referral (see paragraph 32 above). However, whether Prof PT had adopted such standard was not for him to assert, but for the court to decide upon examination of the expert opinion in the PT 1st/2nd Reports as a whole. Mr Tsoi asked me to do so “against the evidence as a whole”. In this respect, whilst the PT 1st/2nd Letters would be relevant, I have to bear in mind that experts are required to reduce their opinion in writing (see Order 38 rule 37(1) of the RHC), so any observations by Hui and Chan in their affidavit evidence could not be taken too far. 128.I should start by dealing with a short point. Mr Lam SC pointed out that 1 of the 2 references Prof PT cited in the PT 2nd Report was an article published in Paediatric Surgery International 2006. Mr Tsoi noted the authors for both articles were attached to the department of paediatrics in a children’s hospital in Taiwan, so on the face of such articles the authors were not paediatric surgeons. I am not persuaded that these matters would be relevant. A contributing author to a paediatric surgery publication need not be a paediatric surgeon, and a member of the department of paediatrics in a hospital need not be merely a paediatrician. It is the opinion of Prof PT that would matter, and not the learned articles he cited to support his views. 129.Mr Tsoi submitted that Prof PT correctly applied the Bolam test by assessing the conduct of D1 against the reasonable standard expected of a reasonably competent paediatrician as opposed to the standard expected of a paediatric surgeon. Prof PT (a) opined it was not unreasonable for “primary physicians” to treat a patient for common diseases and (b) referred to the persistence of certain clinical features that should alert “a competent doctor” to underlying gastrointestinal conditions that would warrant further investigations and/or referral for a specialist opinion in paragraphs 21 and 29 of the PT 1st Report (see paragraph 29 above), and further (c) opined it should be within a “paediatrician’s clinical experience” to recognise pneumoperitoneum on AXR or CT scan, and (d) opined P’s inability to communicate would not influence “the Paediatrician’s ability” to arrange an earlier abdominal x-ray, ultrasound examination or surgical consultation, and one might argue “the Paediatrician” should have heightened awareness of disease progression and complication such as to have more urgency in arranging investigations and referrals in paragraphs 16-17 of the PT 2nd Report (see paragraph 30 above). On the other hand, Lam SC submitted that the expert opinion Prof PT gave in the PT 1st/2nd Reports showed he failed to apply the appropriate standard of care. 130.Turning first to the PT 1st Report, the matters in paragraph 129(a)-(b) above merely stated general matters which I doubt Ds would contest, eg a competent paediatrician should know when persistent underlying gastrointestinal conditions would warrant further investigations and/or referral for specialist opinion, and a primary paediatrician can treat patients for common diseases. Rather, the key question was Prof PT’s mindset and considerations when he came to address the particular questions as to when and under what circumstances D1 as paediatrician should have called for further investigations and/or referral to specialist surgeon. 131.Upon giving his views in paragraphs 21-22 and 29 of the PT 1st Report, Prof PT opined and concluded in paragraph 23 thereof that on a balance of probabilities D1 had fallen below “the requisite standard of care in the ways listed in 7(a-g) of your instructions” (see paragraph 29 above), but the letter of instructions merely asked Prof PT to opine on whether D1 had fallen below the “requisite standard of care” in the listed ways without specifying what the standard of care was (see paragraph 14 above). 132.More importantly, Prof PT gave opinion in paragraphs 21-22 and 29 of the PT 1st Report on what to make of the “underlying GI conditions”, and in paragraph 29 thereof on the need to make referral for a second opinion and more investigations when (a) the fever did not respond to empirical treatment, (b) there was additional (vomiting and diarrhea) and evolving (abdominal distension) symptoms, and (c) there was laboratory evidence of ongoing sepsis (infection) (see paragraph 29 above). As explained in the above paragraph, Prof PT in the PT 1st Report did not spell out what was the “requisite standard” he applied when he gave the aforesaid opinion,[40] but he elaborated on his approach in the PT 2nd Report. 133.In paragraph 8 of the PT 2nd Report (see paragraph 30 above), Prof PT explained the difference in approach between him (in the PT 1st Report) and Dr CHB (in the CHB Report) towards “new abdominal signs and symptoms in the presence of sepsis of unknown origin which has been unresponsive to empirical antibiotic treatment”, ie (a) “[Dr CHB] (a paediatrician)” focused more on the abdomen being soft and the presence of bowel sounds as reassuring clinical features, but (b) abdominal distension was considered a serious clinical feature by “surgeons (like [Prof PT])” who “are trained to manage abdominal emergencies and are risk-averse: even small probability of a high risk is taken seriously”. Then, paragraph 9 of the PT 2nd Report went on to note that whilst Dr CHB opined the delay in ordering ultrasound abdomen was justified,[41] Prof PT opined the “surgical consensus” would be that surgical conditions like impending gut perforation, intussusception and volvulus were surgical emergencies that could not be delayed for over 12 hours. 134.The above explanation was from Prof PT himself on how he approached the presenting gastrointestinal signs/symptoms in P’s clinical picture, which was the very basis on which he formed his opinion in the PT 1st Report. What Prof PT frankly said was that although he (as paediatric surgeon) and Dr CHB (as paediatrician) looked at the same presenting gastrointestinal signs/symptoms in P’s clinical picture, he did so from the perspective of a paediatric surgeon (receiving end) which accounted for the difference in opinion between him and Dr CHB who did so as a paediatrician (referring end) in coming to his opinion on the issue of delay in diagnosis/referral. The elaboration Prof PT gave in Answer (1) of the PT 2nd Letter that impending gut perforation, intussesception and volvulus being surgical emergencies are both “surgical consensus” and “knowledge expected of qualified medical practitioners including paediatricians” (see paragraph 32 above) does not address the precise expert issue of when, in light of the presenting clinical features, D1 as a paediatrician should refer for a second opinion or further investigations. 135.Prof PT further elaborated on this in Answer (2) of the PT 2nd Letter to the effect that “[from Prof PT’s] perspective as a specialist who gets referrals from medical practitioners and paediatricians for abdominal emergencies”, D1’s referral of P to QEH was relatively late in comparison with other referring doctors when faced with similar clinical features, “[accordingly, D1’s] actions fell below the standard of a reasonably competent paediatrician in the aspect of timely referral to a relevant specialist”. Although Prof PT claimed to have applied the standard of a reasonably competent paediatrician, he “accordingly” came to the view that D1’s conduct fell below such standard from his interaction with paediatricians and other doctors on daily basis (see Answer (3) of the PT 1st Letter and paragraph 31 above) and from his receiving referrals from padiatricians and medical practitioners for abdominal emergencies with the same clinical features, which referrals were made earlier than D1’s referral of P to QEH (see Answer (2) of the PT 2nd Letter and paragraph 32 above). Thus, Prof PT was reiterating that he was looking at the matter from the paediatric surgical receiving end rather than from the paediatric referring end. In Part XII(b) above, I have explained why this was an inappropriate and inadmissible approach. 136.Mr Tsoi’s reliance on the matters in paragraph 129(c)-(d) above again would not ameliorate my reservations over Prof PT’s opinion referred to above. Those matters were general statements, and I doubt whether Ds would dispute that paediatricians can read abdominal x-ray or CT scan to recognise pneumopertoneum and/or a child’s inability to communicate his/her complaints should not influence a paediatrician’s ability to make timely investigation or referral. Likewise, it was said in Answer (4) of the PT 2nd Letter (see paragraph 32 above) that “the training of a paediatric surgeon covers his/her professional relationship with other relevant specialties including paediatrics”, so “a reasonably competent paediatric surgeon should know when to refer his/her patient to a paediatrician and vice versa”, which again was a general statement. They were not the expert questions in issue, and did not allay concerns over Prof PT’s explanations on how he approached the “precise character” of the expert issues as outlined above. 137.In the circumstances, I find Prof PT’s frank explanations in the PT 2nd Report as to his mindset and approach more illuminating that the mere assertions in Answers (2) and (7) of the PT 2nd Letter referred to in paragraph 127 above. 138.By reason of the above matters, I am not persuaded Prof PT applied the correct standard when he expressed his opinion in the PT 1st/2nd Reports. In my view, this went directly to the question of admissibility rather than weight for the trial judge. In my view, the wrong approach undermined the fundamental pith and substance of the PT 1st/2nd Reports, and the opinion expressed therein on the issues of liability must be withdrawn. XIII. CAUSATION ISSUE 139.Both Mr Lam SC and Mr Tsoi agreed that I am only concerned with expert opinion on causation as to liability and not causation as to quantum, and both of them agreed the issues of liability and causation were intertwined. Mr Lam SC submitted that even if Prof PT had expertise to comment on causation, it would be beside the point because it was common ground that the experts on liability should deal with the issues of standard of care and causation in one go. 140.But Mr Tsoi argued that although the issues on liability and causation are intertwined, they remained as distinct issues to be addressed by expert evidence, especially when P’s case was that delayed referral for specialist treatment led to a less favourable outcome (see paragraph 10 above). Mr Tsoi submitted that the causation issue would turn on the hypothetical conduct of a third party specialist. 141.In Gouldsmith v Mid Staffordshire General Hospitals NHS Trust,[42] the plaintiff suffered loss of the digits of her left (dominant) hand due to occlusions to blood vessels during the course of treatment for problems with her left hand. She sought damages for medical negligence against the hospital. 142.The plaintiff had a history of suffering from vascular problems and had been taking anti-coagulants. There were periods of in-patient treatment and periods of improvement followed by deterioration of the condition of the left hand. The pain became worse and the possibility of amputation was discussed. At the trial on liability, the trial judge rejected the hospital’s argument that the anti-coagulant treatment had been adequate and found the hospital to be negligent, but he concluded the negligence had not caused the plaintiff’s injuries. It was the plaintiff’s case that she should have been referred to a specialist tertiary unit when problems with her left hand were encountered, and had she been so referred, appropriate surgery would have been conducted and several digits would have been saved. So she appealed. 143.The issue before the English Court of Appeal was how to approach the matter of causation in medical negligence cases where an injury arises because of failure to ensure the hypothetical intervention of a third party specialist who would have forestalled the process leading to the injury. In that case, the trial judge found the plaintiff’s symptoms were caused by an embolisation at her clavicle (rather than a thrombotic problem in her forearm as suggested by the defendant’s expert in surgery), and because of such embolisation, the responsible surgeons were found to be in breach of duty in not referring her to a specialist tertiary unit. But the trial judge noted no evidence was led as to what would have happened at a specialist tertiary unit (eg which specialist tertiary unit would have been involved, whether surgery would have been undertaken there and/or whether “every specialist exercising the proper standard of care would have operated on the [plaintiff]” – paragraph 22), so causation was not made out. 144.This was reversed by a majority of the English Court of Appeal (with Maurice Kay LJ dissenting), who concluded that the failure to refer the plaintiff to a specialist tertiary unit had been negligent and had been the cause of the injury she suffered. The 2-stage approach under the Bolam test posed 2 questions: (a) had the plaintiff been referred to a specialist tertiary unit was it likely that a vascular specialist would have carried out surgery on the lesion, and (b) if not, would the vascular specialist have been negligent in not carrying out such operation. The majority held that in respect of (a) above (being a factual question), the evidence that most specialist units would have carried out surgery was sufficient to show that a specialist tertiary unit would, on the balance of probabilities, have carried out surgery. Thus, the issue in (b) above would not arise. Maurice Kay LJ in his dissenting judgment held that in the absence of evidence (such that the identity of the specialist unit or surgeon who would have seen the plaintiff was unknown), he was unable to say on (a) above that on the balance of probability the lesion would have been operated upon by the doctors at the specialist tertiary unit, and it was just as likely that a vascular surgeon exercising the proper standard of care would have formed the view that nothing could be served by operating on the lesion. 145.Mr Tsoi drew my attention to the commentary on the case at page 374 as follows:
146.Mr Tsoi submitted it was therefore incumbent upon P to adduce clear and sufficient expert evidence to address the issue of causation in relation to the hypothetical conduct of a paediatric surgeon. He further reminded that paragraphs 66(5) and 67(10) of the Practice Direction 18.1 for the Personal Injuries List also recognised this distinction between expert evidence on liability and expert evidence on causation by requiring the parties in all medical negligence cases to serve “a copy of any expert medical report relied upon as to liability and causation” (my emphasis). 147.In my view, the issue of causation in the present case is less complicated than the one in Gouldsmith for D1 did refer P to QEH for surgical consultation, and surgery did take place. But given the alleged negligence in the present case was delay in diagnosis/referral, it is still relevant and necessary for P (who carried the burden of proof) to adduce evidence on the questions of (a) what action would have been undertaken had an earlier diagnosis and referral been made, (b) would that action have altered the course of the injury, and (c) if nothing different would have been done, or if the answer to (b) above is in the negative, was that below the standard of care that could be expected. Such evidence was especially pertinent when Ds by their Defence averred that other forms of treatment instituted in any other time frame would change the natural course of the disease was speculative as P suffered from infective colitis and was already prescribed with strong and broad spectrum antibiotics which were for serious infections (see paragraph 9(i) above). And I agree with Mr Tsoi that paediatric surgery expert evidence is that relevant specialty (it being a recognised specialty) to address these questions for establishing causation. 148.Prof PT in Answer (8) in the PT 2nd Letter said that “ ...... [as] a specialist in surgery, a paediatric surgeon has more experience in the entire spectrum of early to late diagnosis and its consequences” (my emphasis) (see paragraph 32 above). Prof PT gave opinion on causation in paragraph 30 of the PT 1st Report that “[earlier] diagnosis may result in avoidance of surgery or less extensive surgery …… Avoidance of bowel perforation by earlier surgery could also result in less short- and long-term morbidity such as future risk of intestinal adhesions” (see paragraph 29 above), and in paragraph 14 of the PT 2nd Report that “…… [the]clinical window to detect serious gut pathology (toxic megacolon)before the gut perforation was however not fully made use of: while there are mitigating factors to argue for a more lenient interpretation of the clinical events …… the clinical outcome remains unsatisfactory for the patient” (see paragraph 30 above). 149.Mr Tsoi submitted that Prof PT’s expert opinion served the dual purpose of establishing liability and causation, and the court would likely attribute more weight to the opinion of a paediatric surgeon than that of a paediatrician on the issue of causation. Mr Lam SC submitted it was common ground that the experts on liability should deal with the issues of standard of care and causation in one go, and the relevant specialty should be paediatrics and not paediatric surgery. 150.Whilst both parties prefer to have the same experts address the issues of liability and causation, they differed as to whether such experts should be paediatricians or paediatric surgeons. I have found that paediatrics is the relevant specialty to address the expert issues on liability, but the expert issues on causation as to liability should be viewed from the paediatric surgery perspective. Bearing in mind it was the common stance of both Mr Tsoi and Mr Lam SC that it was not for this court to blue-pencil the PT 1st/2nd Reports, and more importantly, given my conclusion on the Expertise and Standard Issues that the opinion in the PT 1st/2nd Reports on expert issues as to liability must be withdrawn, Prof PT’s opinion in the PT 1st/2nd Reports on expert issues as to causation that rested on his opinion on matters of liability (to be withdrawn) could no longer stand, and thus the PT 1st/2nd Reports as a whole must be withdrawn. 151.I must make clear that such conclusion does not in any way reflect on the expertise of Prof PT, who I accept is respected and has vast experience in his own specialty of paediatric surgery. My conclusion serves to identify the appropriate specialties and expertise for the particular issues in the present litigation, and it behoves the legal representatives to give clear guidance to the experts on the correct approach. XIV. CASE MANAGEMENT: FURTHER EXPERT DIRECTIONS 152.As regards the suggestion that there be medical experts for one specialty on both issues of liability and causation, whilst I accept case management is to serve the underlying objectives of cost-saving economy and efficiency, the court must also be astute to ensure the primary aim of the exercise of case management powers to secure the just resolution of disputes in accordance with the substantive rights of the parties is achieved. 153.It is therefore appropriate to grant expert directions to give effect to this decision by giving leave to the parties to adduce expert medical evidence on liability in the specialty of paediatrics and on causation in the specialty of paediatric surgery. As to whether the parties consider Prof PT and Dr CHB can have any role as experts in rendering reports on the requisite disciplines even though their own specialities did not fit precisely into those disciplines, it is for the parties to carefully consider their suitability or otherwise according to the Bolam test and their expertise in light of the particular expert issues to be addressed. I note, for example, that Prof PT opined that “[earlier] diagnosis may result in avoidance of surgery or less extensive surgery ……” was a medical knowledge expected of a reasonably competent medical practitioner, irrespective of whether he/she was a paediatric surgeon or paediatrician (see Answer (8) of the PT 2nd Letter in paragraph 32 above). But this should be revisited in light of the discussions in this decision, and the parties will also have to consider the risk of challenge to the experts’ experience and expertise at trial if they are called upon to address expert issues on matters outside (albeit related to) their own specialties. XV. CONCLUSION 154.In the circumstances, I allow the Appeal, set aside the Master Order, and order that the PT 1st/2nd Reports be withdrawn and not to be adduced at the trial of the present action. Given my conclusions above on the appropriate specialties for expert evidence on liability and on causation, and the fact that the plaintiff is legally aided such that time is required for seeking approval for nomination and/or engagement of medical experts, I direct the parties to jointly write to this court within 35 days from the date hereof to propose (a) expert directions in light of paragraph 153 above, and (b) consequential case management directions. The parties should also take this opportunity to regularise the matters in paragraph 23 above to avoid future confusion. 155.There is no reason why costs should not follow event. I therefore grant a costs order nisi that P shall pay Ds’ costs of and occasioned by the Summons and the Appeal (including all costs reserved if any) to be taxed if not agreed, and P’s own costs be taxed in accordance with Legal Aid Regulations.
Mr Eric Tsoi, instructed by Jimmy KS Wong & Partners, for the plaintiff Mr Paul Lam SC, instructed by Mayer Brown, for the 1st and 2nd defendants [1] HKAM is a statutory body formally established under the Hong Kong Academy of Medicine Ordinance Cap 419, and has statutory power to organise, monitor, assess and accredit all medical specialist training and to oversee the provision of continuing medical education [2] other specialty boards of The College of Surgeons of Hong Kong included inter alia plastic surgery, cardiothoracic surgery and neurosurgery [3] see Chan Shu Wing v The Link Management Limited & anor DCPI1883/2011, DDJ R Lai (unreported, 26 November 2013) [4] see Hong Kong Civil Procedure 2021 Vol 1 para 58/1/2 at p 1181 [5] see Shenzhen Futaihong Precision Industry Co Ltd v BYD Co Ltd & ors [2019] 2 HKC 175, 180-182 [6] HCPI780/2012, Bharwaney J (unreported, 21 March 2013) [7] see Wong Man Kin v Secretary for Justice [2017] 4 HKLRD 412, 419-420 (see also Yip Kwok Sun v Poly-Style Limited DCMP2891/2011, HHJ Andrew Li (unreported, 31 October 2013)) [8] 8th ed para 13-024 at p 1000 [9] [1957] 1 WLR 582, 596-587 [10] [1984] 1 WLR 634, 638 [11] see Zhuang PP Holdings Limited formerly known as China United Holdings Limited & ors v Lam How Mun Peter & ors HCA1589/2003, DHCJ To (unreported, 19 August 2009) paras 25-28 – case not cited by Mr Tsoi or Mr Lam SC [12] [1998] AC 323, 241 and 243 [13] HCA1589/2003, DHCJ To (unreported, 19 August 2009) paras 27-28 [14] (1987) 37 BLR 97 [15] [2002] 3 HKLRD 507, 511-512 – not cited by Mr Tsoi or Mr Lam SC [16] [2019] 2 HKC 175 [17] the Court of Appeal at p 180 cited with approval the judgment of King CJ in R v Bonython (1984) 38 SASR 45 which explained (a) as follows: “…… This first question may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court” [18] in this regard the Court of Appeal at p 180 referred to the observations of Evans-Lombe J in Barings plc v Coopers & Lybrand [2001] PNLR 22 at para 45 as follows: “...... Evidence meeting [condition (a)] 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 on which the Court is able to come to a fully informed decision without hearing such evidence” [19] HCAL1890/2018, G Lam J (unreported, 12 July 2019) – not cited by Mr Tsoi or Mr Lam SC [20] CAMP158/2020 & CAMP159/2020 (unreported, 3 December 2020) – not cited by Mr Tsoi or Mr Lam SC [21] [2016] 1 WLR 597 [22] [2014] Med LR 189, 193-195 [23] [2017] NSWSC 1724 [24] [2015] EWHC 1766 (QB) [25] in 2000 D1 became a Fellow of the Hong Kong College of Paediatricians, a Fellow of the HKAM (Paediatrics), and a registered specialist in paediatrics [26] Dr CHB was the consultant paediatrician of Hong Kong Children’s Hospital, honorary clinical associate professor of the department of paediatrics and adolescent medicine at the University of Hong Kong, clinical associate professor (honorary) of the department of paediatrics of The Chinese University of Hong Kong, chairman of the examination committee, member of the education committee and council member of the Hong Kong College of Paediatricians, and his quotable titles included FHKC Paed (Fellow of the Hong Kong College of Paediatricians) and FHKAM (Paediatrics) (Fellow of the HKAM, Paediatrics) [27] Prof PT was the Li Shu-Pui Professor in Surgery and the Chair of Paediatric Surgery of the department of surgery, Li Ka Shing Faculty of Medicine, The University of Hong Kong, Queen Mary Hospital, and a board-certified paediatric surgeon with numerous qualifications including FRCSHK (Fellow of the Royal College of Surgeons, Hong Kong), FHKAM (Surgery) (Fellow of the HKAM, Surgery) and Paediatric Surgery Board (HK) [28] 5th ed (2018) para 3-184 at p 365 [29] 8th ed (2017) paras 6-007 and 13-029 at pp 244-245 and 1001 [30] 8th ed (2017) para 13-029 at p 1001 [31] [1998] PNLR 542 (oe (1997) 57 ConLR 88) [32] 8th ed (2017) para 6-007 at pp 244-245 [33] (1997) 57 ConLR 88 [34] see Worboys v Acme Investments Ltd (1969) 4 BLR 133 (concerning architects), Investors in Industry Commercial Properties Ltd v South Bedfordshire DC (1985) 5 ConLR 1 (or [1986] 1 All ER 787) (concerning architects – little reliance to be placed on engineers as expert and only directly relevant evidence in this context was that of architect expert), and Whalley v Roberts & Roberts [1990] 1 EGLR 164 (concerning surveyors – expert architect and expert civil engineer could not speak with authority on what was to be expected of the ordinary competent surveyor, and on the issue of the duty of care owed by the defendant surveyor, relied on the evidence of 2 expert surveyors) [35] 8th ed (2017) para 6-007 at p 244 (footnote 41) [36] [2010] EWHC 2300 (TCC) [37] [2000] Env LR 343 (upheld on appeal in [2001] EWCA Civ 793) [38] [2013] EWHC 3183 (TCC) [39] [2014] EWHC 4004 (QB) – not cited by Mr Lam SC or Mr Tsoi [40] Mr Lam SC submitted this was to be contrasted to the CHB Report in which Dr CHB opined that D1’s management of P during 12-18 March 2014 was appropriate and did not fall below the standard expected of “a reasonable Specialist in Paediatrics in Hong Kong” [41] ie D1 at 6:40pm on 17 March 2014 ordered ultrasound abdomen to be done the following morning to look for possible underlying conditions and surgical conditions like intussusception or volvulus [42][2007] LS Law Medical 363 ([2007] EWCA Civ 397) |
Cases cited in this judgment