Yuen Hiu Tung (A Minor) By Her Grandmother and Next Friend Yip Hei Siu v. Hospital Authority

HCPI 228/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 228 OF 2010

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Before : Hon Bharwaney J in Chambers (Open to Public)

Date of Hearing : 16 October 2012

Date of Written Submissions : 18 October 2012 and 24 October 2012

Date of Decision : 29 October 2012

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D E C I S I O N

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1.This is an application for leave to adduce in evidence the witness statement of Dr Patrick Ip dated 10 October 2012 and for leave to call him to give evidence at trial, which commences on 8 November 2012.

2.If the relevance of his evidence was apparent a long time ago and a decision was made not to call him as a witness of fact at trial then, applying the principles set out in Parsad v Great Wealthy Engineering Co Ltd [2012] 3 HKLRD 705 and Subba Alvin v Houng Kee (Asia) Ltd HCPI 154 of 2010, 2 August 2012, I would have dismissed the present application.

3.However, I am persuaded, upon a cursory review of the materials at this interlocutory stage, that the defendant has made out a good case for leave to be granted to call Dr Ip to give evidence as a witness of fact, even at this very late stage.

4.The defendant submits that the Answers to Requests for Further and Better Particulars of the Statement of Claim, received from the plaintiff on 7 June 2012 and 26 July 2012, enlarged the allegations of negligence beyond the original pleading in the particulars of negligence in §23(a) of the Statement of Claim, namely, the alleged failure on the part of the doctor who performed the intubation to exercise reasonable care and skill “during the procedure to insert an endotracheal tube in the trachea of Hiu Tung, thereby causing cardiac arrest”. The wider allegation contained in these Answers is that the defendant did not exercise reasonable skill and care throughout the whole intubation process, including the equipment and personnel preparation for intubation, the administration of drugs, the insertion of the tracheal tube and the subsequent establishing of ventilation, and not merely in respect of the insertion of the endotracheal tube.  In addition, the Answers contained new allegations to the effect that the infant’s head and neck was not stabilised, that excessive pressure was applied, and that the tracheal tube induced trauma resulting in mucosal tear.

5.I granted leave to the defendant to rely on the 2^nd supplemental statement of Dr Hannah Chung dated 15 October 2012, which deals with the matters raised in the Answers provided by the plaintiff.  The application by the defendant to rely on the 2^nd supplemental statement of Dr Chung was not opposed.  Just as Dr Hannah Chung has dealt with the matters raised in the two Answers in her 2^nd supplemental statement, so Dr Ip’s witness statement of 10 October 2012 also deals with those matters in §§6 to 13 of his witness statement, and particularly in §6, 8 and 11 thereof.  There will be no disruption of the trial if Dr Ip were to be called to give evidence.  The whole day of 23 November 2012 is available for him to do so.  There will be no prejudice to the plaintiff as he will give his factual evidence prior to the plaintiff’s expert witnesses, who can deal with his evidence when they give evidence themselves.

6.Whilst the witness statement of Dr Ip ought to have been forthcoming earlier, in September 2012, rather than in October 2012, the slight delay in serving his witness statement is not a factor that would move me to exclude his relevant evidence from being adduced at trial.

7.What weight, if any, to be given to Dr Ip’s evidence can only be determined at trial.

8.I make a costs order nisi that the costs of the application for leave to rely on the witness statement of Dr Ip and to call him to give evidence at trial be costs in the cause, with certificate for senior counsel, and that the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

Mr Michael Ozorio, SC, instructed by Ho Tse Wai, Philip Li & Partners,  for the plaintiff

Mr Alfred Fung, instructed by Kennedys, for the defendant