Keung Shing v. Tang Lim Kwong
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HCPI 172/2002, HCPI 74/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 172 OF 2002 ----------------------------- BETWEEN
--------------------- AND PERSONAL INJURIES ACTION NO. 74 OF 2003 ----------------------------- BETWEEN
------------------------- AND PERSONAL INJURIES ACTION NO. 284 OF 2008 ----------------------------- BETWEEN
------------------------- (Heard Together) Before : Hon Suffiad J in Chambers Date of Hearing : 27 February 2009 Date of Ruling : 27 March 2009 ---------------- R U L I N G ---------------- 1.This is an application by the plaintiff for consolidation of the three actions for personal injuries where it is the same plaintiff suing in all three actions, albeit against different defendants. 2.In HCPI 172 of 2002 (“the 1st Action), the plaintiff met with a traffic accident on 19 January 2000 when she was crossing Bute Street in Mongkok and was struck by the front bumper of a car driven by the defendant (“the 1st Accident). At Kwong Wah Hospital the plaintiff was found to have tenderness to her right knee and her back with right foot drop and decreased power for planter and big toe dorsiflexion. The diagnosis was that she sustained common peroneal nerve injury and sprained back. 3.In HCPI 74 of 2003 (“the 2nd Action”) the plaintiff claims against the Hospital Authorities for medical negligence arising from the diagnosis and treatment received by her at Kwong Wah Hospital as a result of the 1st Accident. 4.In HCPI 284 of 2008 (“the 3rd Action”) the plaintiff was a passenger in a van which collided with a private car on 13 October 2001 and claims against the driver and owner of that private car (“the 2nd Accident”). In this 2nd Accident, the plaintiff suffered neck pain, chest pain and low back pain with increased numbness of right upper limb and dizziness with movement of hand and neck. Present status of the three Actions 5.In the 1st Action, the issue of liability has already been resolved between the parties by a Consent Order whereby it was agreed that the defendant in the 1st Action is 75% to blame for the 1st Accident and Interlocutory Judgment to that extent had been entered with damages to be assessed. The assessment of damages is yet to be heard. 6.In the 2nd Action, both the issue of liability as well as the issue of quantum has still to be determined between the plaintiff and the Hospital Authorities. 7.In the 3rd Action, both defendants have consented to full liability to the plaintiff and Interlocutory Judgment has been entered against them with damages to be assessed. The assessment of damages has yet to be heard. Plaintiff’s application for consolidation 8.In the application for consolidation, the plaintiff seeks for the 1st Action, 2nd Action and 3rd Action to be consolidated and to be heard together on the basis that there are common issues to be determined in all the three Actions. 9.The common issues arise in this way. 10.After MRI scan of her spine was carried out at Kwong Wah Hospital, the plaintiff was told by doctors there that the MRI showed a cystic change at ventral commissure at T7 level which was suggestive of Cystic Myelomalacia. The plaintiff then developed motor deficit over both the lower limbs, which radiated to her upper limbs as well subsequently. 11.When examined by Dr Danny Tsoi in May 2001, she was found to have, inter alia, total paralysis of both lower limbs and weakness of left upper limb with progressive deterioration. Her deterioration continued and she was wheelchair bound by the time the 2nd Accident happened. 12.There is expert evidence from two neurologists, Dr Brian Choa and Dr Yu Yuk Ling, both of whom took the view that plaintiff had no neurological lesion and her entire clinical picture was psychogenic, but that the doctors at Kwong Wah Hospital got almost everything wrong at every stage of her management and that the MRI of her spine was almost certainly misreported. Both experts opined that there was no cyst in her spine, but just a slightly more prominent than normal central canal. 13.On this issue, Dr Edmund Woo, the neurological expert for the Hospital Authorities also found that the MRI of the plaintiff’s spine only showed the prominent central canal in the T7/8 of the spinal cord. He had no doubt that it was a normal variant and carried no clinical significance. In short, Dr Woo also took the view that the plaintiff did not suffer from Cystic Myelomalacia. Dr Woo also agreed that there was misdiagnosis by the two neurologists, Dr Ko and Dr Poon, at Kwong Wah Hospital. 14.However, Dr Woo also pointed out in his report that other consultants with vast experience at Kwong Wah Hospital, the rehabilitation specialist from Kowloon Hospital as well as three specialists in the private sector also made the same error and came to the same conclusion as Dr Poon, being “deceived” by the clinical features of the plaintiff, all of whom also diagnosed an organic lesion despite discrepancies in the physical signs. 15.Therefore Dr Woo opined that while there were error of judgments on the part of Dr Ko and Dr Poon, they had not fallen below the standard expected of a reasonably competent medical practitioner and could not be said to have been negligent in their diagnosis as many of their peers committed the same error since the physical signs shown by the plaintiff could easily deceive the unwary observer. 16.As a result of that diagnosis on the plaintiff by the doctors at Kwong Wah Hospital, the plaintiff was led into believing that she would be paralysed and in time developed a Conversion Disorder leading to her becoming wheelchair bound. 17.Given the above, the plaintiff submits that a very important common issue between the 1st Action and the 2nd Action was (a) whether the plaintiff had a cyst in her spine and (b) if yes, the cause of it. 18.The defendant in the 1st Action contends that there was no cyst, alternatively, if there was it was not caused by the 1st Accident. 19.On the other hand, the stance taken by the Hospital Authorities in the 2nd Action is that there was a cyst in the plaintiff’s spinal cord, or alternatively, they deny any negligence on the part of the medical officers of Kwong Wah Hospital, therefore effectively saying that her present symptoms were not due to any negligence on their part. 20.A further common issue is whether the “cyst” if it existed was the cause of the plaintiff’s present disabilities. 21.In light of the fact that there is now medical evidence to the effect that some parts of the plaintiff’s present disabilities are psychiatric or psychological and due to stresses, those common issues spill over and affect the 3rd Action in that there will need to be determination as to the extent of the stressors from the 2nd Accident contributing to the plaintiff’s present disabilities and symptoms. 22.In this respect Dr Singer has apportioned the contributing factors of the Conversion Disorder of the plaintiff as being 45% attributable to the 1st Accident, 50% as being attributable to the plaintiff being told by doctors at Kwong Wah Hospital of her spinal pathology which would cause permanent paraplegia to her and 5% being attributable to the 2nd Accident. 23.The psychiatric expert engaged by the defendants in the 3rd Action, Dr Law Wun Tong agreed with Dr Singer that the plaintiff suffered from Conversion Disorder, but disagreed with Dr Singer that any part of the Conversion Disorder was due to the 2nd Accident. 24.On the other hand, the psychiatric expert instructed by the defendant in the 1st Accident disagreed that the plaintiff suffered from Conversion Disorder, but came to the conclusion that the plaintiff was malingering. 25.A large part of the plaintiff’s claim therefore relate to her psychiatric condition and impairment with those issues common and important to all three actions. 26.On that basis, the plaintiff seeks consolidation of the three actions to be heard together. Stance taken by the defendant in 1st Action 27.The defendant in the 1st Action basically agrees with the plaintiff’s application for consolidation of all three actions. 28.Mr Ozorio SC, who appears for the defendant in the 1st Action, submits that the acts of the doctors at Kwong Wah Hospital in giving the wrong diagnosis or advice to the plaintiff leading to her Conversion Disorder constitute novus actus internveniens which break the chain of causation in so far as the plaintiff’s injuries and her present condition are concerned from the minor injury caused to the plaintiff in the 1st Accident. 29.Therefore the defendant in the 1st Action point their finger at the Hospital Authorities to say that the Hospital Authorities should be responsible for the plaintiff’s present condition, or at least a large part of it. Stance taken by the Hospital Authorities 30.Mr Ismail who appears for the Hospital Authorities submits that firstly, because the defendant in the 1st Action has consented to 75% liability to the plaintiff and Interlocutory Judgement having been entered accordingly, it is no longer open to them to re-open the issue of the 1st Driver’s liability to the plaintiff by raising novus actus interveniens. 31.Mr Ismail further submits that the issue of liability between the plaintiff and the Hospital Authorities is based on negligence. However, for the defendant in the 1st Action to say that the chain of causation has been broken by the acts of the treating doctors who treated the plaintiff for the injuries to her from the 1st Accident, it will be necessary for the defendant in the 1st Action to show gross negligence (as opposed to negligence) on the part of the treating doctors, but that is not the basis on which the plaintiff’s claim against the Hospital Authorities are put. 32.Mr Ismail therefore submits that there should not be consolidation at this stage. If on the liability issue between the plaintiff and the Hospital Authorities, the matter is decided in favour of the Hospital Authorities and it is found not to be liable to the plaintiff, then the Hospital Authorities drop out of the picture and the court can go ahead to deal with quantum in the other two actions. 33.If, on the other hand, the Hospital Authorities are found to be negligent and liable to the plaintiff, then the three cases may be consolidated to deal with the issue of quantum and/or contribution as between the different defendants when all the issues relating to causation of the injuries to the plaintiff can be dealt with effectively as they will have a bearing on the question of contribution. 34.Mr Ismail therefore suggests that the proper course to be adopted at this stage is for the issue of liability to be split from the issue of quantum in the 2nd Action and for that liability issue to be determined first as between the plaintiff and the Hospital Authorities, instead of immediately ordering consolidation of the three actions as suggested by the plaintiff and the defendant in the 1st Action. 35.If the Hospital Authorities are found liable to the plaintiff for negligence, then and only then would the court consolidate the three actions to deal with quantum and contribution. Stance taken by the defendants in the 3rd Action 36.Mr C.K. Wong who appears for the defendants in the 3rd Action submits that when the 2nd Accident happened on 13 October 2001, the plaintiff was already suffering from most if not all of the condition she now complains of including her psychiatric condition and the Conversion Disorder and was already wheelchair bound. 37.Mr Wong further makes the point that although there are no Statement of Claim and no Statement of Damages in the 3rd Action (which had been transferred from the District Court to the High Court to be consolidated with the 1st Action and the 2nd Action), it can be seen from paragraph 23 of the Statement of Claim in the 2nd Action that the plaintiff only suffered very minor injuries from the 2nd Accident. 38.Therefore says Mr Wong, it would be quite unfair for his clients to be trawled through a long and cumbersome medical negligence case on liability issue when his client has already admitted their liability to the plaintiff for the 2nd Accident if the 3rd Action were to be consolidated with the 1st Action and 2nd Action at this stage. The legal costs which his client would have to incur would be enormous and prohibitive. Moreover, his clients have no interest at all in a long trial on liability concerning the Hospital Authorities in the 2nd Action. 39.Therefore Mr Wong opposes any order for consolidation at this stage when the liability of the Hospital Authorities is still an outstanding issue. 40.Mr Wong accepts that on the issue of quantum and when it comes to assessment there may be common issues to be determined as between the different defendants in the three actions. He therefore suggests that the liability of the Hospital Authorities in the 2nd Action should be decided first, and then, if necessary, an order for consolidation can be made to deal with quantum, assessment and/or contribution. Decision 41.The only outstanding liability issue pertaining to the three actions sought to be consolidated is that between the Hospital Authorities and the plaintiff in the 2nd Action. 42.The issue of liability in the 1st Action and in the 3rd Action has already been resolved. 43.The issue of quantum are still to be determined in all three actions. 44.Admittedly, there are common issues which run through all the three actions, but these common issues all relate to causation of the plaintiff’s injuries or condition, in particular her Conversion Disorder. 45.Whilst the defendant in the 1st Action will seek to raise novus actus interveniens, that can only be done by him in the context of contribution, i.e. on the quantum issue. Liability between the defendant in the 1st Action and the plaintiff having been agreed between them and Interlocutory Judgment entered, the issue of liability cannot be reopened without setting aside the Consent Order, which for present purpose is binding upon the plaintiff and the defendant in the 1st Action. 46.As for the issue of liability between the Hospital Authorities and the plaintiff in the 2nd Action, the lis is only as between the plaintiff and the Hospital Authorities. There is no lis on that issue of liability between the defendant in the 1st Action and the Hospital Authorities. It cannot be proper for the defendant in the 1st Action to join in on the liability issue as between the plaintiff and the Hospital Authorities in the 2nd Action. 47.The defendants in the 3rd Action say they have no interest in the issue of liability as between the plaintiff and the Hospital Authorities which must be right. 48.Given these circumstances, I am of the view that the issue of liability in the 2nd Action should be split from the issue of quantum, and that issue of liability be determined first. 49.If the Hospital Authorities are found liable to the plaintiff in negligence, then all three actions can be consolidated for the assessment hearing on quantum when the common issues of causation of the plaintiff’s condition or her injuries can be dealt with as well as any question of contribution as between the various defendants. 50.If the Hospital Authorities are not liable to the plaintiff, they drop out of the picture and the 1st Action may, if necessary, be consolidated with the 3rd Action to deal with assessment and contribution. 51.The fear that there may be conflicting findings of the court can be overcome by the same judge dealing with both the trial on liability in the 2nd Action as well as the consolidated assessment hearing later. Order 52.For the reasons given, there will accordingly be the following order:
Costs 53.The parties are to lodge written submissions on costs (in the light of the ruling above) within 14 days from the handing down of this ruling.
Mr Ambrose Ho, S.C., leading Mr Joeson Wong, instructed by Messrs Chan & Chan, for the Plaintiffs in HCPI 172/2002 and HCPI 74/2003 Mr Wong Yiu Wah of Messrs Chan & Chan, for the Plaintiff in HCPI 284/2008 Mr Michael Ozorio, S.C., leading Mr Ashok Sakhrani, instructed by Messrs Tsang, Chan & Wong, for the Defendant in HCPI 172/2002 Mr Anthony Ismail, instructed by Messrs P.C. Woo & Co., for the Defendant in HCPI 74/2003 Mr Wong Chi Kwong, instructed by Messrs Tsang, Chan & Woo, for the 1st and 2nd Defendants in HCPI 284/2008 |
Further hearings and rulings under HCPI 172/2002