Chau Tack v. Marriott Hong Kong Ltd and Another

HCPI 805/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 805 OF 2008

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BETWEEN

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Coram : Before Master Marlene Ng in Chambers (open to the public)

Date of Hearing :   14April 2010

Date of Decision :   14 April 2010

Date of Handing Down Reasons for Decision :   20 April 2010

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REASONS FOR DECISION

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I. BACKGROUND

1.The 1^st and/or 2^nd Defendantsoperated a hotel in Queensway, Hong Kong (“Hotel”) and employed the Plaintiff as head houseman. A shower facility (“Facility”) was provided for staff (including the Plaintiff) in the staff changing room at the Hotel.

2.On 9 November 2005 the Plaintiff developed fever and right leg pain. When he attended the accident and emergency department (“AED”) of the United Christian Hospital (“UCH”), there was erythematic swelling and tenderness of the right leg. There was a wound over the anterior aspect of the right legand a wound over the plantar (ie sole) aspect of the right foot. Wound swab grew streptococcus pyogenes or “fleshing eating bacteria”. The diagnosis was necrotising fasciitis. Above right knee amputation was performed on 11 November 2005, but the infection was not controlled. Hip disarticulation of the right lower limb was performed on 17 November 2005.

II. PLAINTIFF’S CLAIM

3.The Plaintiff’s case was that at about 2:30am on 8 November 2005 he finished work and took a shower at the Facility. As he was getting out of the shower cubicle, he stepped on the kerb and sustained a cut to the sole of his right foot (“Cut”) (“Accident”). The Plaintiff claimed that the streptococcalinfection entered hisbody through the Cutat the time of or shortly after the Accident, and that the Accident was caused by the default of the 1^st and/or 2^nd Defendants.

III. 1^ST AND 2^ND DEFENDANTS’ DEFENCE

4.The 1^st and 2^nd Defendants denied that the Plaintiff sustained the Cutas alleged. They claimedthat neither the Plaintiff nor other users of the Facility reported any breakdown, roughness or sharp edge of the kerb of the shower cubicle prior to 8 November 2005. The Plaintiff’s Answer to Interrogatories filed on 18 February 2010 stated that when he finished work in the early morning of 8 November 2005 he was on regular day off and participated in other activities, eg attending follow up treatment at the Jockey Club Clinic on 9 November 2005.

5.Alternatively, the 1^st and 2^nd Defendants claimed that if the Plaintiff sustained the Cut (which was denied), it was not under the circumstances of the alleged Accident. They averred that the alleged Cut was caused by the Plaintiff’s own negligence (eg scratching his leg), and that he contracted necrotising fasciitis in anunknown manner.

6.Further alternatively, if the Cutwas sustained during the Accident as alleged, the 1^st and 2^nd Defendants averred it was not the origin area infected bythe bacterium. They claimed the right ankle region was the first area to demonstrate features of infection, which suggested it was the centre or origin of infection, and which contradicted the Plaintiff’s allegation that the wound caused by the Cut at the plantar aspect of the right footwas the origin area infected with streptococcus pyogenes leading to necrotising fasciitis. Still further, the Plaintiff had his own hygiene problemas operation findings on 9 November 2005 revealed poor foot hygiene with macerated toe webs.

IV. APPLICATION

7.By a summons filed on 8 September 2009 (“Summons”), the Plaintiff applied for leave to adduce expert medical evidence from 1clinical microbiological expert for each party and for mutual exchange of written reports within 28 days. The Plaintiff filed the supporting affidavit of his solicitor Mr Au Siu Hong Tony (“Mr Au”) on the same day. On 23 December 2009, the 1^st and 2^nd Defendants filed the affirmation of their solicitor Ms Mak Yan Yan Winnie (“Ms Mak”) in opposition.

8.The Plaintiff was given leave to file and serve affirmation in reply within 21 days of Ms Mak’s affirmation, but Mr Au’s 2^nd affidavit was filed and served out of time on 12 February 2010 without leave. Since Master Roy Yu on 27 November 2009 directed that no further or additional affirmation shall be filed or served without leave of the court, the Plaintiff issued a summons on 25 March 2010 for leave to rely on Mr Au’s 2^nd affidavit for the purpose of the Summons.

9.After hearing arguments, I granted leave for the Plaintiff to rely on the 2^nd affidavit of Mr Au for the purpose of the Summons. Reasons for such decision were given separately at the hearing.

10.Further, for the purpose of the Summons, the following expert reports were placed before me for consideration: (a) the orthopaedic expert reports of Dr Lee Po Chin (“Dr Lee”) and Dr Lam Yan Kit (“Dr Lam”) respectively dated 9 May 2007 and 31 May 2008 (“Lee and Lam Reports”) on behalf of the 1^st and 2^nd Defendants, (b) the orthopaedic expert report of Dr Chan Chi King (“Dr Chan”) dated 5 March 2008 (“Chan Report”) on behalf of the Plaintiff, and (c) the preliminary clinical microbiological expert report of Dr Geoffrey M S Scott (“Dr Scott”) dated 7 October 2009 (“Scott Report”) on behalf of the Plaintiff.

11.The Checklist Review hearing had been adjourned pending the disposal of the Summons, so the court had not considered or granted any expert directions on the issues of liability and/or quantum as yet. Since it would be more useful to consider the wider issue of expert evidence on liability and causation in its totality rather than just to adjudicate on the more limited issue of expert opinion on clinical microbiology, I invited Mr Lim, counsel for the Plaintiff, and Ms Mak, solicitor for the 1^st and 2^nd Defendants, to address the court on the wider issue.

12.In the course of the hearing, Mr Lim conceded that orthopaedic expert evidence would be relevant to the issues of liability and causation, and Ms Mak conceded that the 1^st and 2^nd Defendants should be entitled to adduce orthopaedic expert opinion from only 1 and not 2 experts, namely Dr Lam. Thus, the remaining issue before me was whether clinical microbiological expert evidence would be relevant, necessary and of probative value on the issues of liability and causation.

13.After hearing arguments at the hearing, I granted leave for the parties to adduce expert evidence on the issues of liability and causation from 1 clinical microbiological and 1 orthopaedic expert for each party. I have reserved my reasons for decision, which I now hand down.

V. INJURIES AND TREATMENT

14.The Plaintiff attended UCH’s AED at 7:56am on 9 November 2005 for right ankle pain, right leg swelling, chills and fever. No trauma history was recorded. Physical examination showed grossly swollen right ankle with limited range of movement as well as tenderness, redness and swelling over right leg. Distal circulation and right toe movements were good at the time of consultation. X-ray right foot and ankle was unremarkable. The clinical diagnosis was right ankle arthritis with need to rule out septic arthritis.

15.There wasa tiny wound over dorsal aspect of right foot and an old abrasion wound over right sole (see medical report by UCH’s AED dated 22 March 2007). The triage assessment notes of UCH’s AED on 9 November 2005 stated “® foot pain x 1 day”. There was “wound over anterior side of right leg (because scratching secondary to itchiness) and plantar side of foot for several days”. The diagram in the AED notes showed an old abrasion at the medial side of the right sole at the forefoot to mid-foot region.

16.The Plaintiff was then admitted to UCH’s orthopaedic ward for further management. According to the history sheet of UCH’s department of orthopaedics and traumatology (“DOT”) for 9 November 2005, the Plaintiff was admitted with sudden onset of right leg swelling and pain the previous night. There were also chills and rigors. There was wound over anterior side of the right leg and plantar side of right foot “x several days (Q scratching 2^nd to itchiness ? tinea pedis)”. Examination showed superficial wound (over anterior aspect of leg and dorsum of foot according to the drawing) with no discharge. According to the drawing, there was right leg “swelling +, tender +, erythema + up to mid calf ↑ skin temperature”. Ankle movement was restricted by pain and swelling, but for toe movement passive range of motion was adequate.

17.The wounds were variously described in the medical reports of UCH’s DOT as follows:

(a)  “small wound over shin region” but “no documented history of injury” (see medical report for employee’s compensation dated 17 February 2006 which did not mention the plantar region);

(b)  “superficial wound over his right leg with surrounding skin erythema, there was no history of trauma” (see medical report dated 23 September 2006);

(c)  “small abrasion wound over his plantar aspect of right foot as well, the cause of it was unknown” (see medical report dated 27 November 2006);

(d)  “according to our record, the plantar abrasion wound was a new one” (see medical report dated 11 March 2007);

(e)  “[abrasion] wounds over right leg and plantar aspect of right foot” (see medical report dated 13 July 2007);

(f)  the abrasion wound over the Plaintiff’s right foot plantar aspect“probably had several days history” (see medical report dated 29 December 2008);

(g)  the Plaintiff noted wound over anterior right leg and plantar aspect of right foot for several days before the admission (see discharge summary dated 22 November 2008 referred to in the Lee Report).

18.The diagnosis was cellulites or gouty attack. Later assessment at 11:00am on the same day in the progress sheet of UCH’s DOT recorded admission for right leg pain and swelling for 1 day. It was further recorded that the Plaintiff drank alcohol the previous night, had chills and rigors, and redness of right leg. He was unable to bear weight. Physical examination showed right ankle/leg erythema and swelling (which according to the diagram were mainly in the ankle and leg region), “calf soft” and “no crepitus”. Dorsal pedis pulse was positive and right ankle movement was full. The drawing in the notes referred to 2 wounds: (a) superficial wound, ie a self-scratched wound at the lower part of the leg, and (b) plantar wound of unknown aetiology.

19.Further entry for 11:00am on 9 November 2005 in the progress sheet of UCH’s DOT recorded the following: right calf and ankle pain, erythema at medial calf and ankle, calf soft and no crepitus, mild tenderness at medial calf and ankle with no focal tender spot, ankle active range decreased but non-tender, toe movement “ü”, dorsal pedis pulse intact, and tinea pedis positive.

20.The entry noted the presence of 2 wounds (ie anterior aspect of right leg and plantar aspect of right foot),but these were labelled as abrasions in the drawing. Diagnostic tap performed on the medial calf showed serous fluid. Subsequent grand round at 5:30pm raised suspicion of necrotising fasciitis. However, the Plaintiff refused amputation.

21.On 9 November 2005, emergency exploration and debridement of right lower limb was performed with findings of “erythema and edema of R leg up to knee …… healthy looking deep fascia, normal resistence to finger dissection superficial to deep fascia, healthy muscle, 5 x 3 mm scab ant ankle, 3 x 3 mm ulcer sole of 1^st MT neck; both superficial with clean base, poor foot hygiene with macerated toe webs”. On 10 November 2005, wound debridement was performed.

22.Deep wound swab “taken from the most suspicious site, i.e. right leg region instead of plantar aspect of his foot due to more representative and avoid false negative result” grew streptococcus pyogenes (see medical reports from UCH’s DOT dated 23 September 2006, 27 November 2006 and 11 March 2007). The diagnosis was necrotising fasciitis.

23.Due to uncontrolled infection of the right leg, above right knee amputation of the right lower limb was performed on 11 November 2005. The infection was still not controlled and wound condition was not satisfactory. Wound debridement was performed on 12-16 November 2005. The entry in UCH’s progress sheet at 6:40 pm on 14 November 2005 stated that the Plaintiff’s wife and brother claimed the wound on the dorsum was due to scratching “and now they claimed that the wound at the foot (plantar aspect) was an injury while having a shower at work on 8 November 2005”.

24.On 17 November 2005, hip disarticulation of the right lower limb was performed, and the right lower limb was ablated totally. Further wound debridement was performed on 18 and 21 November 2005. According to the Lam Report, the entry for 22 November 2005 in UCH’s records noted that the Plaintiff’s wife informed the hospital the plantar wound was due to injury during bathing.

25.According to the Lam Report, a medical report dated 15 June 2006 from UCH’s DOT stated that the possible cause of the Plaintiff’s necrotising fasciitis could be contamination of minor abrasion wound or unknown cause. It was further opined that the Plaintiff’s necrotising fasciitis could be related to the alleged Cut “if it did occur”.

26.The medical reports dated 3 April 207 by UCH’s DOT stated that “[after] reviewing the medical record of [the Plaintiff], it is difficult to comment whether [the Plaintiff’s] necrotising fasciitis was related to the contamination of his right anterior leg wound or his right plantar abrasion wound. The causation of his necrotising fasciitis and contamination of his alleged right plantar abrasion wound resulted from his alleged accident on 8 Nov 2006 could not be ruled out completely”.

VI. EXPERT MEDICAL REPORTS

(a)  Dr Lee

27.Dr Lee opined that “[the] cause of necrotising fasciitis is the introduction of the bacterium into the body and subsequent infection of the fascia and the muscles. The infection can occur through blood-borne spread from a focus in the body that harboured the organism or it could be due to direct inoculation locally though a wound of the skin. It could be an obvious wound or a very inconspicuous wound.”

28.Dr Lee went on to say that whether the necrotising fasciitis was work-related would depend on whether the Plaintiff had wounds in the anterior aspect of the right leg and the plantar aspect of the right foot for several days before admission due to scratching or whether such wounds were from injury at work. He was of the view that the medical notes and records suggested that the infection was probably not work-related. Both UCH’s AED and DOT did not record any injury, and the Plaintiff gave history that he had wounds in the right leg for several days due to scratching. By 9 November 2005, the Plaintiff already had advanced infection. Dr Lee opined that the short duration between the alleged injury and the state of advanced infection made the possibility of infection due to introduction of the bacterium on the night of 8 November 2005 less likely. “However, for bacterial infection, unusual circumstances can occur.”

(b)  Dr Lam

29.Dr Lam stated that surgery and trauma were common aetiologies for necrotising fasciitis, but in some cases the cause remained uncertain. Studies showed that sometimes there was no identifiable antecedent trauma. The paucity of cutaneous findings early in the course of the disease made early diagnosis difficult.

30.As regards the wound at the plantar aspect of the right foot, Dr Lam said that from a medical point of view the documented characteristics of such wound could not tell the time of injury. But judging from the size and depth of the wound, it should be caused by a very minor trauma that either caused minimal pain or be passed without notice. “Therefore there is an equal chance for the wound to be caused by the injury described by [the Plaintiff’s] relatives on 14 November 2005 or the wound had been there for several days but of unknown cause as reported by [the Plaintiff] on 9 November 2005.”

31.As regards the time of introduction of the bacterium, Dr Lam noted the medical records suggested that the Plaintiff developed symptoms at around the evening of 8 November 2005. “It is very difficult to determine accurately how long it takes for the patient to be symptomatic after the initial trauma. The duration depends on the amount of the bacteria gets into the body and the patient’s body immune response.” Dr Lam said medical literature suggested that the shortest period for the patient to develop erythema and pain could be within 14 hours. “Hence it is possible for an injury roughly any time in the morning of 8 November 2005, including the alleged injury at 2:30 am, to cause symptom in the evening of 8 November 2005.”

32.As regards the bacterium’s portal of entry, Dr Lam noted that early examination finding showed the swelling and erythema was at ankle region and the ankle movement was limited by pain. On the other hand, there was no swelling or tenderness noted in the forefoot or mid-foot plantar aspect. Moreover, normal passive toe movements were noted, ie the toe muscles and fascia were not tender on stretching. If the bacterium was introduced through the plantar wound, Dr Lam opined that the infection should spread from forefoot to ankle and then to the calf, however the records showed that the ankle region was the first region to demonstrate features of infection, thus suggesting that region to be the centre of the infection. Dr Lam concluded that judging from the early clinical signs and symptoms, the bacterium’s portal of entry was very unlikely to be from the healed abrasion or wound noted at the plantar surface of the foot, and the wound over the right ankle was more likely to be the portal of entry.

(c)  Dr Scott

33.The Scott Report stated that necrotising fasciitis was almost exclusively caused by streptococcus pyogenes which was a commensal of the throat in healthy humans. New acquisition of the organism could cause acute sore throat or tonsillitis, and some strains produced toxins that could give rise to scarlet fever or toxic shock syndrome. If the organism was inoculated into the skin, then it could cause local inflammation. In rare cases, deep seated inoculation of the organism could cause fatalities. The fascia would be inflamed and then died. The disease would spread rapidly. Often the muscles were spared. The most common presenting feature of this condition was severe pain supported by observation of duskiness of the limb in the early stages. Later as the inflammation moved up the limb, the skin developed more defined bruising and blisters. Streptococcus pyogenes could be isolated from these blisters and from surgical specimens. The treatment was urgent surgery as the disease could not be stopped by antibiotics alone.

34.Dr Scott opined that the bacterium entered “[through] a break in the skin: this may be as trivial as an insect bite or a fungal infection of the toe webs. Alternatively there may be an obvious traumatic injury”. The organism had to come from a person’s throat, so outbreaks could occur in nurseries and recruitment camps. However, the organism could survive on contaminated fomites, so a person was at risk of cellulitesby walking barefoot around the ward. “There have been outbreaks of streptococcal infections associated with showers in hospitals. (For example, I remember one outbreak in a post-delivery ward with shared hygiene facilities.)” The organism might be inoculated directly from a patient’s own normal flora into the skin by scratching with fingers contaminated with oral secretions, and this might be the main source of cellulites associated with insect bites.

35.Dr Scott noted that the Plaintiff claimed he sustained the Cut and it became inflamed within 24 hours. He opined that:

“…… this is classical for a Streptococcus pyogenes infection acquired at the time of or very near to the time of injury.  Because the injury was sustained in a communal changing area it is far more likely that the organism arose from the environment that if he had suffered the injury in his own bathroom.  However, that matter is not proved and the wound may have been inoculated with the organism subsequently, for example by [the Plaintiff] himself or another actually tending the wound. In most cases the source of an infection is not known. ……  The question of liability for the injury itself is a wholly different matter.  Although it could be argued that there were previous injuries to the foot, on the balance of probabilities, the subsequent streptococcal infection was most likely to have been acquired through the injury proposed, because of the short incubation period of this disease.”

(d)  Dr Chan

36.There was no need for me to refer to the Chan Report in any detail since it was essentially an orthopaedic expert report on the issue of quantum.

VII. LEGAL PRINCIPLES

37.Mr Lim and Ms Mak had no dispute over the applicable legal principles on admissibility of expert evidence on liability. In brief, expert evidence must be relevant, necessary and of probative value. On the requirement of “relevance”, Chu J in Wong Hoi Fung v American International Assurance Co (Bermuda) Limited & anor HCA4576/2001 (unreported, 8^th October 2002) at para.12 said that expert evidence must be relevant in the sense that it is helpful to the court in arriving at its decision on one or more issues to be resolved. The learned judge cited Baring plc (in Liquidation) & anor v Coopers and Lybrand & ors Lexis Transcript, 9^th February 2001, paras.44-45 where Evans-Lombe J said the court can exclude expert evidence if it is of the view that calling such evidence will not be helpful to the court in resolving any issue in the case justly, eg where the issue to be decided is one on which the court can come to an informed decision without such expert evidence.

38.In Chung Tin Kau v Fong Shun Tak DCPI 1055/2006 (unreported, 16 March 2006), I said at para.87 as follows:

“Where expert medical evidence is both necessary and desirable, it is the duty of the expert, as succinctly expressed by Lord President Cooper in Davie v Edinburgh Magistrates [1953] SC 34, 40, “to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence”.  Proper discharge of such duty facilitates the judge in interpreting the factual evidence on the basis of the expert’s special skill and experience not possessed by ordinary laymen.  In Davie, the court rejected the proposition that a judge or jury was bound to adopt the views of even an un-contradicted expert, and held it was ultimately a matter for decision by a judicial tribunal.”

VIII. DISCUSSION

39.Mr Lim and Ms Mak agreed that the 2 main issues on liability and causation concerning expert medical evidence were:

(a)  whether the Plaintiff suffered the Cut during the Accident as alleged; and

(b)  if so, whether the wound at the plantar aspect of his right foot was the origin or initiating area attacked by streptococcal infection, or to put it in another way, whether such wound was the portal or at least one of the portals of entry by the bacterium.

40.Issue (a) went to the primary factual foundation on the issue of liability and would be a question of fact for determination by the trial judge. If the Plaintiff were unable to establish the Cut and/or the Accident on the balance of liabilities, Mr Lim fairly acknowledged the Plaintiff would have difficulty in suggesting any causal connection between the streptococcal infection and the 1^st and/or 2^nd Defendants even if it could be shown that the infection was introduced through the wound at the plantar aspect of his right foot.

41.Ms Mak submitted there were inconsistencies in the description of the circumstances between the contemporaneous medical notes and the assertions by the Plaintiff to the insurer of the 1^st and/or 2^nd Defendants on one hand and the assertions by the Plaintiff’s family members to the doctors at UCH in November 2005 on the other hand. Ms Mak contended that the medical notes and records did not support the Plaintiff’s contentions since they showed that the wounds at the anterior aspect of the right leg and at the plantar aspect of the right foot were respectively a scratched wound and a wound of unknown aetiology. Ms Mak further argued that both wounds were said to be “old” abrasions of “several days” and hence probably unrelated to the Hotel. Ms Mak also questioned the reliability of the Plaintiff’s account given his late report of the alleged “injury at work” on 14 November 2005.

42.Issue (b) was essentially an the issue on causation. Mr Lim submitted that it would not have mattered when and under what circumstances the Plaintiff acquired the bacterium (ie it could have been at the same time or shortly after the Accident). It was argued that so long as the Plaintiff were able to establish (i) the Cut was caused the Accident, (ii) the Accident was due to the “default” of the 1^st and/or 2^nd Defendants, and (iii) the wound at the plantar aspect of the right foot caused by the Cut was the portal or one of the portals for the bacterium to enter into the Plaintiff’s body, subsequent acquisition of streptococcal infection outside the Facility would not have diminished or extinguished liability on the part of the 1^st and/or 2^nd Defendants. Mr Lim also submitted that (i)-(iii) above would have afforded an answer to the negative results for bacterial tests administered at the Hotel’s staff changing room on different days after the Accident, and to the suggestion that there was less chance of introduction and establishment of organism in the wound sustained during a shower due to constant irrigation of the wound by running water. In my view, there was still a question of reasonable foreseeability, but I need not deal with this issue for the purpose of the Summons.

43.I agree that clinical microbiologists cannot address the ultimate question for the court under issue (a), ie make finding of fact as to whether the Plaintiff sustained the Cut, and if so, under what circumstances (ie whether in the course of the Accident) he suffered such injury. I also agree with Ms Mak that clinical microbiologists would not be able to say whether there was streptococcus pyogenes or not at the place where the Plaintiff sustained such injury.

44.But I disagree with Ms Mak’s submissions that by reason of the matters in the above paragraph expert opinion from clinical microbiologists would not be relevant or of probative value. On the contrary, I believe that such expert opinion was not only relevant and of probative value it was also necessary. I say so because of the paucity of identifiable objective evidence (eg sample or culture from the Facility or culture from any wound swab from the abrasion or wound at the plantar aspect of the Plaintiff’s right foot) that would assist the trial judge in assessing the reliability or otherwise of the parties’ factual assertions.

45.Clinical microbiology dealt with the study of micro-organisms (including bacteria, fungi etc) which were of medical importance and which were capable of causing diseases in human beings, and also of microbial pathogenesis (including the origin and chain of events leading to bacterial infection). The clinical microbiologist provided clinical consultation on the investigation, diagnosis and treatment of patients suffering from infections, and was often regarded as competent to determine the nature and extent of infections and their etiological agents.

46.In the circumstances, clinical microbiologists would be best placed to address the question as to where streptococcus pyogenes could normally or even unusually be found. The answer to this question would, in my view, assist the trial judge in determining whether the nature of streptococcus pyrogenes as a pathogen was compatible with the environment of a communal shower facility (see paragraphs 34-35 above).

47.Ms Mak in her submissions implicitly recognised the significance of expert medical evidence in this regard when she argued that the opinion expressed in the medical report by UCH’s DOT dated 23 September 2009 (ie “streptoccocus pyogenes is not an uncommon organism and can be found in sea water”) undermined the Plaintiff’s allegation that the Cut and/or infection were sustained whilst having a shower using fresh and not sea water. The Scott Report added to the debate by saying that the organism had to come from a person’s throat and was prone to be found in communal settings. In my view, expert medical opinion on the subject would help the adjudicating tribunal assess whether the normal source of streptococcus pyogenes was compatible with the Plaintiff’s account of the events and/or his medical history as described in the medical notes and records.

48.There seemed to be no doubt that the bacterium could be transmitted through a break in the skin (Scott Report and Lee Report) or an open wound (medical report by UCH’s DOT dated 23 September 2006). According to Dr Scott and Dr Lee, a trivial break in the skin could be a sufficient portal for entry by the bacterium. The introduction of the bacterium could be inoculated directly from the person’s own normal flora into the skin by scratching (Scott Report), and there was evidence that the Plaintiff’s wound at the anterior aspect of the right leg was a scratched wound. Dr Scott also said the break in the skin could be a fungal infection in the toe webs, and it should not be forgotten that the Plaintiff was found to have poor foot hygiene with macerated toe webs as well as tinea pedis (a kind of fungal infection). Dr Lee also said that the infection could occur through blood-borne spread from a focus in the body that harboured the organism.

49.In my view, it would be useful for the trial judge to be educated via expert medical evidence on the ways a person could be infected by streptococcus pyogenes to assist him in assessing the particular condition and circumstances of the Plaintiff and the probable route of bacterial entry into his body on the balance of probabilities.

50.A further issue would be the incubation period of the bacterial infection before manifestation. Dr Lee suggested that the short duration between the Accident that allegedly occurred on 8 November 2005 and the state of advanced infection on 9 November 2005 rendered it unlikely that the infection was due to bacterium introduced on 8 November 2005. But Dr Lee also acknowledged that for bacterial infection unusual circumstances could occur. On the other hand, Dr Scott opined that the short duration between the alleged injury and the fulminant presentation of the disease was in line with the short incubation period of necrotising fasciitis. For Dr Lam, he acknowledged that it was possible for bacterial infection to set in following an injury at 2:30am on 8 November 2005 to cause infection in the evening of the same day (see paragraph 31 above).

51.In my view, the abovewould be another matter which would benefit from expert medical opinion by clinical microbiologists and which would be relevant in helping the court decide whether the Cut that allegedly occurred in the early morning of 8 November 2005 was the probable source of infection or whether such cause could be medically excluded.

52.Still further, the clinical microbiologist would be able to describe the usual or possiblyeven the unusual form of manifestation of necrotising fasciitis, eg whether the relevant wound would necessarily appear to be infected and whether pain necessarily would be at the site of injury or whether the manifestation could occur in the region or limb of the body close to the site of injury. Dr Lam was of the view that if the bacterium was introduced through the plantar wound, the infection would have spread from the forefoot to ankle and then to calf, but the medical records did not show inflammation of the forefoot (see paragraph 32 above). However, Dr Scott in the Scott Report (which was a preliminary report only) mentioned that there would be local inflammation (see paragraph 33 above). This would require further clarification from the clinical microbiologists.

53.On all the above issues, I believe that the trial judge will be assisted by expert medical opinion from clinical microbiologists.

54.Ms Mak suggested that orthopaedic experts could have addressed the above matters as well since the Plaintiff was all along treated by orthopaedic doctors and microbiologists were not involved. I have no doubt that orthopaedic surgeons would be doctors of choice for therapeutic treatment purpose since the relevant procedures included wound exploration and debridement, limb amputation and hip disarticulation. However, for the purpose of the present litigation, there was little debate over the medical treatment received by the Plaintiff. Rather the forensic contest was over the nature and course of the bacterial infection and how the Plaintiff’s factual assertions or the Defendant’s defence contentions would be compatible or not with the medical pathogenesis of the bacterial infection, and on this, I must say, that clinical microbiology would be a most relevant medical discipline.

55.I accept that orthopaedic specialists are experts in the branch of medicine concerned with diseases, injuries and conditions of the human musculoskeletal system, so they are in a position to assist the court on how a mode of injury will impact on an individual’s musculoskeletal structure. Thus, they may be able to describe and explain about the manifestation and development of the necrotising fasciitis since they have to make clinical treatment decisions. But whilst orthopaedic experts may well give opinion on causation of injuries to the musculoskeletal system where appropriate, eg blunt injury, clinical microbiologists must be the preferred experts on the pathogenesis of bacterial infection and disease.

56.I bear in mind that the court has a duty to restrict expert evidence to what is reasonably required for proper adjudication and also the remarks by Seagroatt J in Wong Hin Pui v Mok Ying Kit & anor [2000] 1 HKLRD 856, 874-875 against proliferation of expert medical evidence which are not essential. But having carefully considered the matter, I am persuaded that clinical microbiological expert evidence on liability and causation is relevant, necessary and of probative value.

IX. DIRECTIONS

57.I consequently granted the following directions at the hearing:

(a)  Expert medical evidence on liability and causation be limited to 1 orthopaedic expert and 1 clinical microbiological expert for each party.

(b)  Parties do within 28 days from the date thereof write to the PI Master on the following :

(i)  the names of the parties’ respective experts in orthopaedics and clinical microbiology;

(ii)  confirmation that the parties have agreed on the index of documents and the agreed issues/questions to be put to their respective experts in clinical microbiology;

(iii)  proposed directions for obtaining and/or exchanging expert medical reports on orthopaedics and clinical microbiology;

(iv)  confirmation whether the Checklist Review hearing scheduled on 4 June 2010 could still be maintained;

(v)  all other necessary and appropriate proposed case management directions.

(c)  The Plaintiff do within 28 days from the date thereof serve his own witness statement as to fact accompanied by its statement of truth. Where appropriate, he should diagram or sketch to illustrate the locus in quo.

(d)  The 1^st and 2^nd Defendants do within 28 days from the date tthereof serve their witness statement(s) as to fact accompanied by their respective statement(s) of truth.

(e)  The 1^st and 2^nd Defendants do within 14 days from the date hereof write to the PI Master (with copy to the Plaintiff) to state the name(s) of their witness(es) as to fact.

(f)  Costs of the Summons be costs in the cause with certificate for counsel.

(g)  The Plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.

58.In respect of the directions in (b) above, I urged the parties to consider whether joint report by the parties’ respective experts would be appropriate. After all, it is most unlikely that the medical experts on liability and causation would require any physical examination of the Plaintiff given the amputation of the right leg or any site inspection of the Facility given that it was renovated after the Accident. More likely than not, the medical experts would review the available medical notes and records and the witness statements as to fact and give opinion based on such review and their expert skill and knowledge.

59.In those circumstances, the medical experts might benefit from joint conference to discuss the matters they agree and disagree and to set out their reasons for disagreement (see paragraph 87 of PD18.1). After all, even if separate reports were prepared, joint conferencing and a joint supplemental report may well be required (see Order 38 rule 38 of the Rules of the High Court). I appreciate that the Plaintiff intended to appoint Dr Scott as his expert in clinical microbiology. Although Dr Scott is resident in the United Kingdom, there is no reason why in this modern age of telecommunications by fax, email, telephone and video-conferencing that the joint approach should not be explored and/or adopted. The Plaintiff’s solicitors should also clarify with Dr Scott whether he is willing to participate in such pre-trial measures and/or to attend trial whether in person or through electronic means before committing to engage him as expert.

60.As regards costs, the Summons only asked for costs in the cause. Mr Lim fairly indicated he would not seek costs in favour of the Plaintiff even though he succeeded in persuading me to allow clinical microbiological expert evidence on liability and causation. Indeed, some time was spent at the hearing to canvass the broader issue of expert evidence on liability and causation as well as directions for the general conduct of the case. Notwithstanding their different stance on the issue of clinical microbiological expert evidence, Mr Lim and Ms Mak have respectively adopted a reasonably proportionate approach to the dispute for which I am grateful. The costs order made was a fair one for the parties.

Representation:

Mr Patrick Lim instructed by Messrs Tony Au & Partners for the Plaintiff.

Ms Winnie Mak of Messrs Winnie Mak, Chan & Yeung for the 1^stand 2^ndDefendants.