Elio Marc Lucien Cascarino By His Father and Next Friend Damien Peter Cascarino v. Dr Lau Kenneth Chi Kin and Another

HCPI 70/2024

[2026] HKCFI 1574

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 70 OF 2024

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BETWEEN

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DECISION

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1.The infant plaintiff sues by his father as next friend for alleged medical negligence of the 1^st defendant being the treating doctor and the 2^nd defendants being the corporate body operating the hospital where the treatment took place. The 2^nd defendant applies for leave to issue third party proceedings, which the master directed to be placed before this court to be considered on an inter partes basis.

BACKGROUND

2.On 6 December 2019, the then 11-year-old plaintiff (“the Infant”) was brought by his family’s domestic helper to the Hong Kong Adventist Hospital (“AH”) for vomiting and fever symptoms. The Infant was put under the care of the 1^st defendant (“Dr Lau”). As the Infant’s condition worsened and upon Dr Lau’s referral, the Infant was transferred to the Queen Mary Hospital (“QMH”) on 7 December 2019. The Infant was diagnosed to have central nervous system infection and status epilepticus with severe cerebral oedema. On 24 January 2020, the Infant was discharged from QMH and was seen to suffer from extensive neurological deficits.

3.On 2 April 2024, the father (“the Father”) as the Infant’s next friend commenced the present action against Dr Lau and the 2^nd defendant, the body corporate operating the AH, for medical negligence. For reference purpose in this decision, the 2^nd defendant is not differentiated from, but similarly defined as, AH.

4.Specifically the Father contends that Dr Lau and the nursing staff at the AH failed to consider the possibility of Invasive Pneumococcal Disease, resulting in delay in treatment of the Infant.

5.In defence, Dr Lau contends, amongst other things, that gastritis was a reasonable diagnosis, and meningitis would not be one of the top differential diagnosis at the material time. The Infant’s neurological injuries, he contends, would have occurred in any event even without the alleged delay. Apart from attributing fault to the nursing staff of the AH at the time, Dr Lau also pleaded the relevance of the care and treatment of the Infant by QMH after the latter’s transfer there.

6.Apart from denying vicarious liability for Dr Lau’s alleged negligence, AH denies fault in the care and attention to the Infant or that in keeping Dr Lau informed and carrying out Dr Lau’s orders. It contends that the antibiotics prescribed by Dr Lau was subtherapeutic and ineffective, and hence the subsequent neurological outcome of the Infant irrespective of any delay on the part of its nursing staff.

7.Pleadings closed. Medical expert reports came to be exchanged in various disciplines including paediatric, nursing, microbiology, paediatric neurology, paediatric immunology and clinical pharmacy.

8.Presumably considering the expert reports, at the checklist review hearing on 5 June 2025, the master directed Dr Lau and AH to report on or before 26 June 2025 as to whether they would be minded to bring in any third party in the present action. AH replied on 26 June 2025 confirming intention to join the Hospital Authority (“HA”), which operates QMH, as a third party while Dr Lau confirmed no such intention.

9.By the joint letter dated 8 July 2025, the Father indicated his reservation of rights to object to the intended third party proceedings. He argued that any contention between AH and HA should not involve him or Dr Lau, and would likely be irrelevant to the claim. The argument was not accepted by the master, who took the view that the contentions in the intended third party action would have bearing on the issue of causation of the Infant’s condition and therefore relevant to the claim.

10.The master directed AH to file the application for leave to issue third party notice but on an inter partes basis and returnable before the Personal Injury (“PI”) Judge. This AH did by its summons filed on 24 July 2025 in the following terms (“the AH Summons”):

(1) Leave be granted to AH to issue a third party notice to the HA as per the draft third party notice annexed;

(2) AH do file and serve its point of claim against HA within 14 days from the date hereof;

(3) HA do file and serve its defence to (2) above within 28 days thereafter;

(4) Such further and/or consequential directions as the court may deem fit; and

(5) Costs of the AH Summons be provided for.

11.On 27 August 2025, AH also served notice to Dr Lau claiming indemnity and/or contribution.

12.Affidavit evidence in support and in opposition of the AH Summons closed.

13.On 17 December 2025, the Father took out a summons (“the Father’s Summons”) for, amongst other things:

(1) the 2^nd Affidavit of Pang She Kwok Szwina[1] dated 17 December 2025 (“the Further Affidavit”) for the purpose of the hearing of the AH Summons, the service thereof be dispensed with; and

(2) the supplemental paediatric neurological expert reports of Dr Shakti Agrawal dated 14 December 2025 and 15 December 2025 (exhibited to the affidavit mentioned in (1) above) (“the Further Expert Evidence”) be adduced at the trial of this action, which shall be filed within 7 days.

14.By letters dated 23 December 2025 and 8 January 2026 respectively, the solicitors for Dr Lau confirmed to this court that he would maintain a neutral stance in respect of the AH Summons and the Father’s Summons, and would make no representation. However, they made the observation that if leave was granted to the Father to adduce the Further Expert Evidence, Dr Lau, if so advised, might propose consequential directions after the resolution of the AH Summons. Other than that, they sought to be excused from the hearing.

15.On 9 January 2026, this court issued a written direction, putting on record that the Father is taken to be seeking to adduce the Further Expert Evidence regardless of the outcome of the AH Summons. On this basis, this court acknowledged Dr Lau’s reservation of position on seeking directions (be it for general case management or specific expert evidence) consequential upon the determination of the summonses.

16.This is my decision on the AH Summons.

LEGAL PRINCIPLES

17.O16 r1(1) and (2) of the Rules of High Court, Cap 4A (“RHC”) provide that a defendant claiming contribution or indemnity against a party not already a party, ie the third party, may before serving his defence issue a third party notice stating the nature and grounds of the claim made by him or of the question or issue required to be determined. The defendant requires leave of the court to issue the third party notice after service of the defence.

18.Generally, application for leave to issue a third party notice is made ex parte returnable before the master. The court may direct a summons for leave to be issued: see O16 r2 RHC, such as where the application is made at a late stage, so as to enable the plaintiff to be heard as to any prejudice occasioned by the delay: see Hong Kong Civil Procedure 2026 at §16/2/4.

19.This is the discretion of the court. If there is a prima facie case for bringing the matter within O16 r1(1) RHC, the practice is to grant leave to issue the third party notice.

20.The court may refuse the granting of leave on the basis that the intended third party claim is frivolous: see Hong Kong Civil Procedure 2026 at §16/2/5. The relevant principles for a striking out application are applicable in determining whether a third party claim is frivolous. This is where it is plain and obvious that the claim lacks basis or is incapable of proof: see for instance Lam Kit Sing v Chungshan Commercial Association, Hong Kong, HCA 2011/2014 (29 June 2016) at §18.

21.Counsel for the Father submits that the test is not whether AH has a prima facie case in negligence against the HA but rather whether there is a “solid basis capable of proof” that any such negligence caused or contributed to the Infant’s damage – a prima facie case on causation. At the hearing, counsel also referred to the need for the intended third party claim to have substantial foundation. The precise understanding, in my judgment, is that AH must demonstrate that it has a prima facie case that the QMH (ie HA) was negligent and thereby causing or contributing to the Infant’s damage in the circumstances: see for instance So Kai Hau v YSK2 Engineering Co Ltd [2010] 5 HKLRD 278. The test of “solid basis capable of proof” or “substantial foundation”, if meant to connotes a more stringent test, does not feature for the present purpose.

22.Unless leave to issue third party notice is obviously prejudicial to the plaintiff, when an inter partes summons will be directed to be taken out as mentioned, other questions on issues and merits of the third party claim shall be considered on application for directions under O16 r4 RHC: see Hong Kong Civil Procedure 2026 (above) at §16/2/5.

THE FATHER’S SUMMONS

23.The Father’s Summons was not controversial. At the hearing, counsel for AH confirmed that the content of the Further Affidavit may be adduced on a de bene esse basis for the purpose of the hearing. He also indicated no intention to contest the Father’s Summons in respect of the Further Expert Evidence.

THE AH SUMMONS

AH’s case

24.Apart from denying liability, AH contends that the condition of the Infant was contributed to by the negligence in the treatment and the care administered by QMH after his transfer from AH.

25.Counsel for AH refers to the expert reports of Dr Daniel Ng Kwok Keung (“Dr Ng”) obtained by Dr Lau. They were dated 27 September 2024 (“Dr Ng 1^st Report”) and 3 December 2024 (“Dr Ng 2^nd Report”) respectively.

26.Dr Ng 1^st Report (§16) set out the following question and answer relating to the treatment and management of the Infant after his transfer to QMH:

“Do you consider there are any substandard management on QMH’s part that have contributed to >50% of the patient’s outcome? In particular, was there any delayed or inadequate treatment of the patient’s seizures and/or meningitis at QMH? Notably, vancomycin and cefotaxime were only started at around 09:00 on 7/12/2019?

Given the history of NPS [nasopharyngeal swab] showing S pneumoniae [streptococcus pneumoniae] and fever with seizure with no response to pain at QMH and ongoing convulsion on admission at 06:42 on 7/12/2019, he should have been admitted directly to PICU and given intravenous rocephin and anticonvulsant and intubated on admission before CT scan with EEG monitoring for seizure. It is noteworthy that the fontanelle was not noted to be tense at the Accident & Emergency Department (AED) of QMH even though later the CT scan showed severe brain swelling suggesting that the patient deteriorated significantly between examination in AED of QMH and CT scan.”

27.Dr Ng 2^nd Report specifically addressed the issues further:

“1. …

Given the referral note of Dr Lau, the AED doctor should have diagnosed infection of Central Nervous System (CNS) likely caused by pneumococci. In view of the rapid deterioration in the preceding hours, intravenous (IV) antibiotics should be immediately given. It is also important to note that the fontanelle was not bulging at 06:46 as it would become bulging later on, signifying significant deterioration after admission to QMH with an increase in intracranial pressure. If antibiotics was started in AED when the fontanelle was not bulging, the patient might not have deteriorated as rapidly as he did.

2. …

Given the drowsy state of the patient and CNS infection, he should have been admitted directly to Paediatric Intensive Care Unit (PICU) for elective intubation and ventilation before CT scan.

3. …

This mistake[2] was very important as it might have led to the decision not to give antibiotics on admission to the General Paediatric Ward.

4. …

He developed hypotension during his stay in General Paediatric Ward. This might not happen if he was given antibiotics and boluses of 20ml/kg in the General Paediatric Ward. The decrease in systemic blood pressure would lead to a decrease in perfusion of the brain resulting in brain damage that would otherwise not happen should the systemic blood pressure not drop.

5. …

The antibiotics at the correct dose was only given at 09:00 AFTER admission to PICU of QMH.

There was an 8 hours delay from 01:00, 7/12/2019 to 09:00, 7/12/2019 of giving the correct dose of antibiotics to the patient. Each hour of delay will lead to increase in severity of meningitis and increasing adverse sequelae.

If IV rocephin was given in the AED at QMH and he was admitted directly to PICU for elective intubation and ventilation and control of seizure and prevention of hypotension, his outcome would have been better. Hence, the delay in PROPER management of pneumococcal meningitis in QMH impacted significantly on the neurological outcomes of Elio. However, it is difficult to quantify the contribution to the adverse outcome for each party though it is fair to say the deterioration rate would accelerate later in the course of deterioration.

6. …

An earlier intubation and ventilator support and earlier antibiotics and prevention of hypotension might prevent the increase in intracranial pressure shown by the bulging of anterior fontanelle on admission to PICU.

7. …

I consider the management in QMH between 06:46 and 10:00 was below a reasonable standard.

8. …

3^rd delay was from around 06:46 to 09:00, i.e. around 2 hours and 14 minutes, when the patient was managed by AED and paediatric staff of QMH . . . It is important to note that the rate of deterioration is not constant and it would accelerate in the latter part of the disease course.”

28.In her expert report dated 24 February 2025, Dr Teresa Wang, specialist in clinical microbiology and infection engaged by AH, stated:

“(11) …

I agree with Dr. Ng that intravenous Rocephin® should be given on admission to QMH . . . In addition, in a febrile patient with seizure and S. pneumoniae DNA being detected from NPS, central nervous system infection should be one of the differential diagnoses. Empirical use of vancomycin with adequate dosage should be started to cover for non-susceptible S. pneumoniae before further test results are available. I would add a dose of vancomycin 200 mg stat . . .

(12) …

Concerning the part on delay in administrating intravenous antibiotics to empirically covered [sic] for central nervous system infection in a febrile baby with seizure, I agree with Dr. Ng that it was below a reasonable standard of care.

(13) …

A study shows that delay in antibiotic administration in childhood bacterial meningitis is associated with one or more long-term neurologic deficits. Proper management of pneumococcal meningitis with intravenous meningitic dose of antibiotics, together with prompt treatment to control the status epilepticus, might have led to better outcome for Elio.

…”

29.Counsel for AH acknowledges the practical difficulty in quantifying the contribution of the alleged negligence or mistakes on the part of QMH to the damage to the Infant at this stage. He submits that this will certainly be looked into by way of further medical expert evidence. That however does not undermine the sufficiency of the existing medical expert evidence in affording AH with a prima facie case for bringing HA in as the third party to the action for the issue of negligence and causation. As this court understands, counsel is referring at least to causation on quantum.

The Father’s argument

30.Counsel for the Father argues that AH’s claim against HA for medical negligence on the part of QMH lacks merit in terms of its contribution to the Infant’s damage. He questions the expertise of Dr Ng being specialist in paediatric respiratory medicine but not neurology. He also construes the opinion of Dr Ng and Dr Wang as being equivocal about the causation between QMH’s alleged medical negligence and the damage to the Infant as well as the extent.

31.The Further Expert Evidence is relied on for the purpose of pointing out that the damage to the Infant by the delay and negligent treatment by the time of his transfer to the QMH had been done, which could not have been reversed by what was or was not done at the QMH. No material difference would have been made.

Discussion

32.In line with the principles summarised above, this court should refrain from diving into the merits of the intended third party claim when it is not abundantly obvious that this is frivolous or short of a prima facie basis for the contentions: see for instance So Kai Hau (above) at §§35-39. Any concern about the merit of the intended third party claim is not expected to be less on the part of the HA, which is at the receiving end of it, than that expressed by the Father. The HA will be heard on this, if so advised, at the third party direction stage.

33.The Father’s argument in respect of the merit of the intended third party claim is taken into account as part of the balancing exercise in the context of the prejudice consideration. Counsel for the Father argues that there would be significant delay in the present action, if leave is given to issue the third party proceedings which, as he argues above, lack merit. Initiating the third party proceedings now would entail third party pleadings, discovery and medical expert evidence in the action which do not concern the claim. This will be contrary to interest of the Infant who needs the present action to be resolved as soon as possible so as to establish a regime of care to maximise his rehabilitation. The delay which counsel refers to as unwarranted is premised on his submission that pending joint meeting of the medical experts, the liability aspect of the action between the existing parties is already ready for trial. This is the prejudice projected.

34.This court understands the sentiment expressed on behalf of the Father, and has no doubt about his strive to push the resolution of the dispute in the action. However, this court would be slow in sharing the projection by counsel of the way forward. Whether or not the issue of liability should be split for trial and is ready for trial, more relevantly I do not agree that the intended third party proceedings, unless thrown out as a matter between the AH and the HA, would have no bearing on the causation of and contribution to the damage to the Infant at the material time. As discussed, no conclusion in this respect could and should be made in the present application for leave in the circumstances of this case.

35.The fact is there is as of now no consensus between the existing parties to the action about a split trial of the issue of liability and quantum. In fact, counsel for the Father suggested no more than consideration of that at the hearing. Insofar as quantum is concerned, I am far from convinced that this case is ready for trial. Credible assessment and projection of the rehabilitation regime and permanent damage to an infant, who is said to suffer from neurological damage, may entail stages of observation of its impact on his ability to cope with growing up and his development. Extent aside, that this may somehow happen in the case of the Infant, who is now 7 years old, should not be ruled out for the purpose of the present consideration.

36.Counsel for AH acknowledged during the hearing that the initiative of bringing in the HA as a third party came about only after legal advice upon consideration of the medical expert evidence. However, all matters considered, I observe that the prejudice as a result of the grant of leave to issue third party notice is at this stage an over statement. Whilst the master directed what is normally an ex parte application to be heard inter partes before the PI Judge, enabling the Father to ventilate his contentions and evidence of prejudice, the actual consideration by the court does not detract from the threshold and principles for the application for leave as mentioned above. I would therefore grant leave.

Disposition

37.I grant an order in terms of the Father’s Summons.

38.I grant leave to the AH to issue third party notice to the HA as per the draft annexed to the AH Summons (§1). Within 14 days of HA’s acknowledgment of service, AH shall take out a summons for third party directions pursuant to O16, r4 of the RHC.

39.Costs of and occasioned by the AH Summons be reserved pending determination of the application for third party directions.

40.The Father’s own costs shall be taxed in accordance with the Legal Aid Regulations.

Mr Ashok K. Sakhrani, instructed by Szwina Pang, Edward Li & Company, assigned by the Director of Legal Aid, for the plaintiff

Attendance of Kennedys, for the 1^st Defendant, was excused

Mr Samuel K.Y. Chan, instructed by Fred Kan & Co., for the 2^nd defendant