Chan Yuet Chun v. Hospital Authority
Read the full judgment text of DCPI 1749/2020 on BabelCite. This District Court judgment was delivered on 2 December 2024.
1. By a summons filed on 24 May 2024 (“ Summons ”), the Defendant (“ D ”) seeks to strike out substantial parts of the Plaintiff’s witness statement filed on 15 December 2023 (“ P’s WS ”) under Order 1A r 1, O 1B r 1(2)(l), O 20 r 8, O 38 r 2A(8) of the Rules of the District Court, Cap 336H (“ RDC ”) and inherent jurisdiction of the court.
Cited by 1 case · Cites 7 cases
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DCPI 1749/2020 [2024] HKDC 1991 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO 1749 OF 2020 _____________________ BETWEEN
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_____________________ DECISION _____________________ THE SUMMONS 1.By a summons filed on 24 May 2024 (“Summons”), the Defendant (“D”) seeks to strike out substantial parts of the Plaintiff’s witness statement filed on 15 December 2023 (“P’s WS”) under Order 1A r 1, O 1B r 1(2)(l), O 20 r 8, O 38 r 2A(8) of the Rules of the District Court, Cap 336H (“RDC”) and inherent jurisdiction of the court. 2.In support of the Summons, D, represented by Messrs Howse Williams, filed an affidavit of Fung Ka Man Carmen dated 2 July 2024 (“F’s Aff”) [A/262-266]. 3.The legally aided Plaintiff (“P”), represented by Messrs Burke & Company, opposes the Summons, but has not filed an affidavit in opposition. BACKGROUND 4.In their report letter dated 13 May 2024 to the Director of Legal Aid (“DLA”), P’s solicitors state, “…This is a simple medical negligence claim of a small value; a cost-effective approach should be adopted” – this Court entirely agrees. 5.P, a lady now aged 77, underwent a diagnostic procedure of oesophagogastroduodenoscopy (OGD) at Queen Elizabeth Hospital (“QEH”) on 22 June 2017 (“the OGD”) during which she suffered an oesophageal perforation (“Incident”). She claims in this action against D who had the administration, management, and control of QEH damages for personal injuries sustained as a result of the Incident. 6.Successful emergency surgical repair was performed at QEH on the evening of the OGD. Medical evidence shows that by 10 July 2017 (about 2 to 3 weeks after the Incident) the perforation wound had healed, leaving a scar at the neck. 7.In this action, P filed the Statement of Claim (“SOC”) on 21 October 2022 and D the Defence on 19 December 2022. Pleadings were closed following the filing of P’s Reply on 2 March 2023. 8.As pleaded in the Statement of Damages (“SOD”) filed together with the SOC, the issues on quantum are relatively simple. P’s claim is for a total sum of $688,307, plus future medical expenses (if any, subject to medical expert evidence) and interest. The item of PSLA, pleaded at $500,000, comprises a major part of the claim, other than the modest claims of loss of earnings for 3 months ($18,900), loss of earning capacity ($50,000) and miscellaneous expenses, mostly for tonic food ($119,407), incurred and paid. 9.The Particulars of Negligence against D as pleaded in the SOC can be summarised as follows:
10.As pointed out by Ms C Fung of D’s solicitors, and accepted by this Court, the issues in dispute as to liability in this action are relatively simple and well defined in the pleadings as follows:- ([A/5,6] SOC §21; [A/27,28] Defence §§8,9)
11.Liability medical expert reports, a total of 6 in number, from specialists in Surgery have been obtained by P and D over a period of 3 years as follows:
12.In the 6 medical expert reports, Dr Teoh and Dr Leung have dealt with and addressed all issues outlined above and given their opinions on the following:
13.It is noted that P’s expert Dr Teoh in his report dated 8 January 2020 states that apart from the presence of physical scars after the operation, there appears to be no permanent damage to P. There is no evidence on indication or need for future medical treatment from both experts. 14.Discovery was completed in November 2023. Parties exchanged witness statements on 15 December 2023. D’S OBJECTIONS 15.P’s WS contains 117 paras in 50 pages. There are also 5 exhibits spanning nearly another 50 pages. ([A/263] F’s Aff, §8) 16.D’s main ground of objection is that substantial parts of P’s WS contain inadmissible evidence which should be expunged. D argues that most parts of P’s WS (i) are irrelevant to the issues in dispute; (ii) are overelaborated and disproportionate to the claim; and (iii) contain extensive reference and recitation of medical records – these are inadmissible and should be struck out. 17.P disagrees and argues that D’s objections are “technical” matters which may only go to costs at the end of the litigation. ([A/264, 279-296] F’s Aff §§9-11) 18.Parties exchanged correspondence and argued on redaction of substantial parts of P’s WS between 31 January 2024 and 30 April 2024. P’s solicitors agreed that only sub-paras 60(2) and 70(2) may be redacted. This resulted in issue of D’s Summons on 24 May 2024. 19.By the Summons, D raises objections and seeks to expunge wholly or partially 79 paras of the 117 paras in P’s WS. 20.D further points out that it is unnecessary to annex to P’s WS the 5 exhibits which should more properly be, and some of which have already been, discovered by way of P’s List of Documents filed on 8 November 2023 and adduced in evidence. 21.Parties liaised further. P’s first major concession on redaction was not made until 20 September 2024. By the time of and during the course of the hearing before this Court, P agrees to expunge 28 paras in whole and 16 paras partially from P’s WS. Minor concessions are made by D. No agreement could be reached in respect of 47 disputed paras. 22.During the hearing, P also concedes to expunge Exhibit 1 (Consent Form in Chinese, with English translation) and Exhibit 2 (Information Sheet in Chinese, with English translation), spanning a total of 27 pages. 23.Exhibit 1 and Exhibit 2 are contained in P’s List of Documents and have been discovered and adduced in evidence. This Court has no doubt that it is wholly unnecessary for these documents to be duplicated and exhibited in P’s WS. 24.D’s solicitors have helpfully prepared a table appended to their letter dated 10 October 2024 setting out all 117 paras and 5 exhibits of P’s WS, denoting the agreements on redactions and the remaining disagreements/disputed paras [C/378-391] which require this Court’s adjudication. LEGAL PRINCIPLES ON STRIKING OUT WITNESS STATEMENTS 25.Parties are agreed on the legal principles governing witness statements as summarised in D’s Submissions dated 14 October 2024. 26.O 38 r 2A of the RDC provides that:-
27.It is incumbent on a party preparing a witness statement to ensure that the statement contains no inadmissible evidence. (Hong Kong Civil Procedure 2024 (“HKCP”) at 38/2A/15, Sunni International Limited v Kao Wai Ho Francis & Ors [2021] HKCFI 2418 §8, Kong Sau Hing Alice v Yip Yuen Yee Pamela [2022] HKDC 216 §§39-41) 28.The court has a wide discretion to expunge witness statement or parts thereof on the grounds that such statement evidence is inadmissible because it contains information and belief (even if the grounds and reasons thereof are given), or any expression of opinion, or that it is irrelevant, scandalous, oppressive and/or embarrassing. (O 38 r 2A(8) RDC, HKCP at 38/2A/6) 29.The real issues in dispute in a litigation are defined by the pleadings. (HKCP at 18/0/3) Witness statements are to identify and prove the real issues and eliminate unnecessary issues so that both the parties and the trial judge may concentrate on the real matters in controversy and hence achieving a fair and expeditious disposal of proceedings and saving of costs. (HKCP at 38/2A/2(1), (5) and (10), Ho Wai Tung v Ho Fung [2020] HKCFI 1787 §§29-30) 30.A witness statement is the equivalent of the oral evidence that a witness will give at trial. It must contain only such material facts as the witness is able to prove of his own knowledge. Inadmissible evidence incorporated in a witness statement will not be made admissible. (O 38 r 2A(8) RDC, HKCP at 38/2A/6, Ho Wai Tung (supra) §36) 31.It is not the function of a witness statement to provide a commentary on the documents in the trial bundle or to set out quotations from such documents. (Sunni International Limited (supra) §7 citing JD Wetherspoon plc v Harris [2013] 1 WLR 3296 §39) 32.It is also not the function of a witness statement to engage in matters of argument or to deal with other matters which may arise in the course of trial. A witness statement therefore must not argue a party's case, or argue with opposing witnesses, or answer questions that may be put in cross-examination, or to anticipate, contradict or deal with the evidence of the opposite party. (HKCP at 38/2A/6, JD Wetherspoon (supra) §39, Ho Wai Tung (supra) §§42, 57) 33.A witness statement which contains inadmissible evidence, such as expression of mere opinion, scandalous or irrelevant or otherwise oppressive materials, is liable to be struck out by the court, and unnecessary details may also be susceptible to be struck out, (see eg Blake v Albion Assurance Society (1846) 45 LJCP 663, also in the context of striking out of pleadings), as otherwise it will lead to embarrassment, unnecessary confusion and a waste of time and effort for the opposite party to respond to it. (HKCP at 38/2A/15, Lau Tat Wa v CLP Power Hong Kong Limited & Ors [2023] HKCFI 1036 §§4, 5) 34.Evidence that is inconsistent with a party’s own pleadings should also be struck out; relevance is decided with reference to the pleadings. (Talent Weaving Dyeing & Printing Ltd v Able Billion Textiles Ltd [2013] 2 HKLRD 479 §5, Lau Tat Wa (supra) §4) 35.Superimposed on the requirements under O 38 r 2A of the RDC and the above trite legal principles is the additional requirement, since the advent of the Civil Justice Reform, of the need to look closely at costs implications and proportionality, and advance the underlying objectives under O 1A rr 2 & 3 of the RDC. 36.Parties should exercise discipline in preparing witness statements and in the discovery process, and not to include unnecessary, irrelevant, trivial and/or petty materials in their witness statements, which are “unduly excessive and completely disproportionate to the size of the claim…or the defence”, and for a “totally over the top” and “elaborated and wasteful” discovery process with a lot of unnecessary and irrelevant documents discovered. (HKCP at 1A/3/4; Kong Sau Hing Alice (supra) §§38-41) THE DISAGREEMENTS 37.I have considered the submissions and arguments of Mr Patrick Burke of P’s solicitors and Ms C Fung of D’s solicitors. 38.D’s grounds for striking out substantial parts of P’s WS can be summarised as follows:-
39.The reply from Mr Burke of P’s solicitors to the above, broadly speaking, is that:-
THIS COURT’S RULING 40.With respect to Mr Burke, this is a wholly wrong approach and defies the legal principles on witness statements set out above. 41.The proposed conduct of P’s solicitors in attempting to reopen and fish for further issues by way of a joint meeting with the medical experts and amend the SOC to plead further issues based on P’s WS after 6 medical expert reports have been obtained by the parties over a period of over 3 years, and 2 years after service of the SOC, is wholly inappropriate and should not be allowed. This is not the function of witness statements. 42.P’s present solicitors are trying to reopen the issues and amend the SOC after close of pleadings and obtaining of medical expert evidence, following the re-assignment of P’s case by DLA to them in place of the former assigned solicitors. 43.It is noted that DLA had in his letter dated 28 May 2024 to P’s solicitors (copy lodged with the court) expressed serious concerns with P’s proposed conduct of further extensive discovery against D and amendment of the SOC. Whilst P’s solicitors had already undertaken some of the work, DLA warned that such work was not covered by legal aid for which P’s solicitors will not get paid and would put the legally aided P at risks on costs. I will come back to this when considering costs towards the close of this Decision. 44.The issues are defined by the pleadings based on the material facts pleaded, to be supported and proved by evidence including witness statements. In proposing to amend the SOC based on P’s WS filed, P’s solicitors are putting the cart before the horse. 45.The real issues in this medical negligence case are related to the administration and post-op management of the OGD performed by D on P on 22 June 2017. Given there is no issue on P’s suitability to undergo OGD procedure in view of her pre-existing medical conditions, and the evidence that she had had experience of other OGDs before and after the Incident, D’s objections set out in sub-paras 38 (1) and (2) above are justified and accepted. 46.D’s other objections set out in sub-paras 38 (3) to (7) above accord with the well recognised legal principles, and are accepted. 47.Bearing the relevant principles in mind, I now turn to the disputed paras in P’s WS, which D seeks to expunge in whole or partially but P argues that they should be kept. I set out briefly the contents in dispute, the agreements and disagreements, and my rulings in the table below:-
CONCLUSION 48.To recap, D by the Summons seeks to expunge 79 out of 117 paras and all 5 exhibits of P’s WS. 49.At the hearing of the Summons, agreement was reached for P to expunge about half of the disputed paras wholly or partially, leaving 47 disputed paras that require this Court’s adjudication. 50.This Court considers that most of the disputed paras of P’s WS contain unnecessary over-elaborations, extensive recitation of records, and matters and circumstances not relevant to the issues in dispute in this case. 51.Of the 79 paras and 5 exhibits sought to be expunged wholly or partially by D in the Summons, D has successfully challenged and caused to be expunged 75 paras wholly or partially and 3 exhibits (spanning 38 pages) by agreement or through adjudication. Only 4 short whole paras (paras 80, 110, 111 and 112) and 2 exhibits of photographs are allowed to remain in P’s WS. 52.The expunged parts are substantial and make up more than half of the contents of P's WS. COSTS Costs of the Summons 53.The expunged contents amount to more than 90% of the disputed parts of P’s WS sought to be expunged by D. D is substantially the winning party of the Summons. Costs should follow the event. It is appropriate to award costs of the Summons to D, payable by P, to be taxed if not agreed, and I so order. 54.The above order nisi shall become absolute in the absence of application to vary within 14 days from the date hereof. 55.It is unfortunate that the costs lost by P to D in respect of the Summons, which will unlikely be insubstantial, will likely eat into the damages P may subsequently be awarded. Given the modest claim involved, these costs may even have to be funded by public funds of Legal Aid ultimately. 56.In view of the matters stated in paras 41 to 43 in this Decision in particular DLA’s previous warning given to P’s solicitors regarding costs consequences, P’s solicitors are shown to be taking matters in their own hands in defiance of the legal principles and their duty owed to DLA. This has made it difficult if not impossible to achieve the underlying objectives of the CJR set out in O 1A r 1 of the RDC, and to carry out the court’s duty under O 1A r 2 of the RDC with respect to time efficient and economic case management. 57.The circumstances in this case cry out for consideration of costs sanctions such that P’s solicitors should be asked to show cause as required by O 62 r 8 of the RDC as to why those costs of the Summons adjudged payable to D should not be borne by them personally. P’s Own Costs 58.Substantial costs have also been wasted in preparing P’s WS, of which substantial parts are proved to contain inadmissible evidence and struck out. I am of the view that the preparation of P’s WS was done in an unreasonable, unsatisfactory, frivolous and cost-disproportionate manner in blatant disregard of the rules under O 38 r 2A of the RDC and the legal principles. 59.Consideration will have to be made whether to grant legal aid taxation in respect of preparation of P’s WS and of the Summons. Wasted Costs Order 60.Under O 62 r 8A of the RDC, the court is empowered to make, whether on its own motion or on application, a wasted costs order against a legal representative if, as provided in O 62 r 8(1) :-
61.O 62 r 8B of the RDC provides:-
62.I am satisfied that there is evidence justifying wasted costs proceedings in the present case (the first stage). I will further consider the matter in the second stage following the directions below. Further Directions / Hearing 63.For reasons stated in paras 53 to 59 above and in accordance with O 62 r 8A of the RDC and Practice Directions 14.5, I give directions as follows:-
64.I further direct that a copy of this Decision be forwarded for the attention of DLA who is invited to make representation at the hearing and submit and serve on P skeleton submissions 7 days before the hearing.
Mr Patrick Burke, of Messrs Burke & Company, assigned by the Legal Aid Department, for the Plaintiff Ms C Fung, of Messrs Howse Williams, for the Defendant | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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