Cheung Tai Fung v. Hospital Authority

DCPI 1606/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1606 OF 2010

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DECISION

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1.This is anappeal from the unlessorder of the PI Master dated 25 October 2013 requiring the plaintiff to serve her statement of claim and statement of damages within 56 days (by 19 December 2013) failing which the plaintiff’s claim will be struck out with costs to the defendant.

2.The plaintiff seeks to set aside the unless order and in substitution therefor an interim stay of these proceedings pending the decision of the Coroner as to whether to hold an inquest (and in the event of an inquest being held, pending the conclusion of the inquest).

3.The action arose from the demise of the deceased while under the care of a public hospital during the period between 5 October 2007 and 8 October 2007.

4.A protective generally endorsed writ was filed by the Director of Legal Aid on the plaintiff’s behalf on 27 September 2010, close to the expiry of the 3-year limitation period.  It is averred in the endorsement of claim that the death of the deceased was caused by the negligence of the Defendant, its servants or agents in treating the deceased at the public hospital during the aforesaid period. The plaintiff’s legal aid certificate was however discharged on 6 January 2011.  The plaintiff’s subsequent applications for legal aid were all refused.

5.The writ was not served and the validity thereof was extended 5 times from 30 June 2011 to 4 June 2013, mostly sought on grounds of the plaintiff’s need to await the result of her repeated legal aid application or appeal from refusal of legal aid.

6.Between 11 September 2012 and 10 June 2013, the plaintiff was once represented by a law firm but has since 10 June 2013 been acting in person.

7.On 21 June 2013, the Coroner’s Court informed the plaintiff that the Coroner had directed the police to investigate the death of the deceased, which would normally take 9 to 12 months, and that the plaintiff would be advised of the investigation result and informed if there would be a death inquest.

8.On 20 June 2013, the learned Master refused to further extend the validity of the writ.  On the same day, the writ was served on the defendant who acknowledged service on 8 July 2013.

9.Under Order 18, rule 1 of the Rules of the District Court, the plaintiff should have served her statement of claim and statement of damages by 22 July 2013.  The defendant gave her up to 26 August 2013 to serve the documents but the latter failed to do so.  The defendant therefore took out a summons for dismissal of the action which came before the learned Master at the Check List Review on 25 October 2013.  Instead of dismissing the action right away, the learned Master saw fit to make the unless order, effectively granting further indulgence to the litigant in person.

10.On 25 October 2013, with leave from the learned Master, Mr. Eric Cheung addressed the court on behalf of the plaintiff, he having previously advised the plaintiff under the Clinical Legal Education Programme of the Faculty of Law, University of Hong Kong (“Programme”) and agreed to assist the latter on a pro bono basis. In so doing, however, Mr. Cheung was not formally acting as the plaintiff’s legal representative.

11.On that occasion, Mr. Cheung had sought to apply for an interim stay pending police investigation as aforesaid.  In the absence of a formal application, the learned Master declined Mr. Cheung’s invitation to exercise discretion to deal with the stay application there and then.  In any event, the learned Master observed that it was unclear if there ever would be a death inquest while these proceedings had been hanging over the defendant’s head for 6 years.  In the circumstances, she did not find it fair to the defendant to stay the proceedings.

12.An appeal from any judgment, decision or order of a master is conducted by way of rehearing as though it came before the court for the first time.  See para. 58/1/2, Hong Kong Civil Procedure 2013. 

13.Order 58, rule 4 of the Rules of the District Court, Cap.336H, provides that no further evidence (other than evidence as to matters which have occurred after the date on which the judgment, order or decision was given or made) may be received on the hearing of an appeal under this rule except on special grounds.  The phrase “special grounds” here requires the conditions laid down in Ladd v. Marshall [1954] 1 W.L.R. 1489 to be satisfied.  See para. 58/1/3, Hong Kong Civil Procedure 2013.

14.At the Check List Review, the learned Master was only called upon to deal with the defendant’s dismissal application.  His request for the plaintiff’s stay application to be heard on the same occasion having been declined, Mr. Cheung was unable to adduce the documentary evidence exhibited to his affidavit filed for the purpose of the present appeal.  Nor was the defendant obliged to file any affidavit evidence in opposition.  In light of the special circumstances in which Mr. Cheung came to the plaintiff’s assistance, I am prepared to find exceptional circumstances here for admitting the affidavit evidence filed by both parties for the purpose of the present appeal. 

15.I should also record the fact that Messrs. ONC Lawyers, Solicitors, of which Mr. Cheung is a part-time consultant, have since filed a notice to act so that Mr. Cheung can formally act for the plaintiff, again on a pro bono basis and purely for the current appeal.  The good deed of Mr. Cheung and the law students who have assisted the plaintiff under the Programme is hereby acknowledged.

Whether there should be a stay pending Police investigation/Coroner’s Court’s decision as to whether to hold a death inquest

16.In his written submission, Mr. Cheung described the issue as a dichotomy between allowing the plaintiff to withhold the action pending the outcome of the Coroner’s investigation/inquest and compelling the plaintiff to proceed with her action now or abandon it.

17.He drew attention to the Underlying Objectives set out in Order 1A, Rule 1 of the Rules of the District Court and the primary aim of the court in exercising its powers, namely, to secure the just resolution of disputes in accordance with the substantive rights of the parties.

18.While acknowledging that the purpose of a Coroner’s inquest is not to determine the parties’ civil liability, Mr. Cheung submitted that during police investigation, witness statements from the medical staff concerned as well as independent medical expert’s opinion would be obtained and analysed with the addition of oral testimonies of such witnesses should a death inquest be held. Cost-effectiveness would therefore be enhanced as duplication of efforts could be avoided by putting these proceedings on hold pending the Coroner’s investigation/inquest. On the other hand, if the plaintiff is required to proceed without the benefit of the evidence and documents generated from the Coroner’s investigation/inquest, more time would eventually be taken in unnecessary interlocutory applications and even appeals together with (possible) duplication of efforts. 

19.Mr. Cheung submitted that the plaintiff should be entitled to know more about what exactly happened during the deceased’s stay at the hospital and whether his life could have been saved by early diagnosis/treatment through the Coroner’s investigation/inquest and to preserve her right to claim against the defendant pending the same.

20.He further highlighted the difficulty for the plaintiff, if compelled to proceed with her claim now, to comply with all the complicated procedural rules and requirements without legal representation and she would likely be held liable for huge legal costs of the defendant in interlocutory applications (and appeals) because of procedural default on her part and her claim might be eventually be struck out for non-compliance or she be made bankrupt.  He described the eventuality of such a scenario as a windfall advantage on the defendant’s part.

21.On the other hand, Mr. Cheung continued, there would not be any real prejudice to the defendant if the current action is put on hold as the relevant medical records would not be destroyed and the medical staff concerned would inevitably be asked by the police to provide witness statements to assist in the investigation, hence the absence of any forensic disadvantage to the defendant.

22.He further submitted that the evidence and documents to be generated from the Coroner investigation/inquest would either promote a settlement of the present dispute or otherwise save the court’s resources by dispensing with unnecessary interlocutory applications and by enabling the plaintiff to be more organized in presenting her case or even by enabling the plaintiff to decide to abandon her claim in light of such evidence and documents.

23.Emphasizing the primary aim of the court to secure the just resolution of disputes in accordance with the substantive rights of the parties, Mr. Cheung concluded that there would likely be no adjudication of the plaintiff’s claim on merits in accordance with the parties’ substantive rights should the plaintiff be compelled by the unless order to proceed with her claim without the evidence and documents to be generated from the Coroner investigation/inquest.

24.In his oral submission, Mr. Cheung laid heavy emphasis on the fact that the Coroner has ordered a police investigation and the benefit that might be generated from the evidence and documents that might come to light during such investigation.  He frankly admitted that whether or not the Coroner would hold a death inquest was not a key question to him. 

25.On the forensic benefit of police investigation, Mr. Cheung attached a lot of importance to the ability of the police to solicit evidence from the medical staff concerned which might not otherwise be obtained by the plaintiff in these proceedings by reason of her lack of power to compel the medical staff to speak up and her lack of means. 

26.Mr. Cheung also emphasized that it would be cost-effective to await the police investigation which might save the costs of investigation in these proceedings.  He quoted as an example the normal practice for victims in traffic accidents to await the result of parallel criminal prosecution before mounting a civil claim.  He added that upon completion of the police investigation report, the plaintiff could then seek an order in these proceedings for disclosure of the police investigation report by way of third party discovery.

27.He stressed time and again that it would be unfair to compel the plaintiff to comply with the unless order.  Even if she managed to serve her statement of claim and statement of damages now, she would still have difficulty in complying with the subsequent procedures.

28.On the other hand, Mr. Cheung submitted, there should be no real prejudice to require the defendant to wait a few more months (which I take Mr. Cheung to mean when the police investigation report would be made available) when the medical staff concerned would during the police investigation be compelled to think back so that there should be no memory loss and it would make no significant difference for the present action to hang above their head for another few months.  In this regard, Mr. Cheung relied on Mok Lai Fong v Ng Po Sui [2011] 3 HKLRD 67 at 82 on how the court should exercise discretion to disapply the 3-year limitation period.  Mr. Cheung highlighted the importance of finding any “forensic prejudice” to a defendant and the fact that a general allegation of impairment of memory is normally insufficient.

29.Miss Li for the defendant opposed the appeal and sought to uphold the learned Master’s decision. She drew my attention to the fact that an autopsy of the deceased was performed a week after his demise and the cause of death was ascertained.  She highlighted the fact that two medical reports appeared to have been obtained on the plaintiff’s behalf and wondered why the plaintiff would be unable to serve her statement of claim and frame her case against the defendant. 

30.Miss Li further highlighted the fact that the generally endorsed writ does not reveal the true nature of the plaintiff’s case.  Without knowing the plaintiff’s case, the defendant’s lawyer team would be forced to either make no preparation for defending the plaintiff’s claim or go all the way to in conduct an internal investigation into each and every possibility of fault being found on the part of its medical staff thereby incurring huge costs.  She stressed the difference between police investigation and the work of the defendant’s lawyers.

31.As to the eventual police investigation report the disclosure of which the plaintiff might wish to seek by way of third party discovery, Miss Li saw no reason why the discovery process herein should be put on hold.  On the other hand, to allow the plaintiff to await the police report to better ascertain her chance to win would be to endorse a fishing exercise and is therefore unfair to the defendant, particularly when the plaintiff has in her possession two medical expert reports which should have enabled her to assess her litigation risk.

Discussion

32.As rightly pointed out by Mr. Cheung, a Coroner’s inquest is not to determine the parties’ civil liability.  In this connection, I find it instructive to refer to the discussion of Hartmann J (as he then was) in Dr. Gilbert Tien v William Lam Esq., Coroner[2004] 2 HKLRD 719:

“ Inquests under the Ordinance

12. The Ordinance provides for the holding of inquests which may be held with a jury of five persons. S.27 of the Ordinance states that the purpose of an inquest shall be—

“ … to inquire into the cause of and the circumstances connected with the death [of a person] and, for that purpose, the proceedings and evidence at the inquest shall be directed to ascertaining the following matters in so far as they may be ascertained—

(a) the identity of the persons;

(b) how, when and where the person came by his death;

(c) the particulars for the time being required by the Births and Deaths Registration Ordinance (Cap.174) to be registered concerning the death; and

(d) the conclusion of—

(i) where the inquest was held without a jury, the coroner who held the inquest;

(ii) in any other case, the jury concerned, as to the death.”

13.     In respect of the obligation detailed in s.27(b) of the Ordinance to ascertain ‘how … the person came by his death’ I am satisfied that…the question to be decided is a limited factual question of the means by which the person came by his death and not in what broad circumstances he did so.  As Sir Thomas Bingham M.R. observed in R v. H.M. Coroner for North Humberside and Scunthorpe, ex parte Jamieson [1994] WLR 82, at 99 :

“ It is noteworthy that the task is not to ascertain how the deceased died, which might raise general and far‑reaching issues, but ‘how … the deceased came by his death,’ a more limited question directed to the means by which the deceased came by his death.”

14.     It was not previously, nor is it now, the function of an inquest to determine matters of civil liability, for example, who, if anybody, may have been negligent.  S.44(1) of the Ordinance states that —

“Neither a coroner nor a jury at an inquest shall—

(a) frame a finding in such a way as to appear to determine any question of civil liability;

(b) subject to subsection (2), express an opinion on any matter other than a matter referred to in section 27. [supra]”

15.     The Ordinance states that at the conclusion of the inquest the findings of the coroner or the jury shall be recorded in a prescribed form.  In this regard, s.43(1) of the Ordinance is to the following effect :

“ At the conclusion of an inquest the coroner shall record in the prescribed form his findings or the findings of the jury and in a case where there is a jury each juror shall sign the findings.”

16.     S.53 of the Ordinance empowers the Chief Justice to make rules inter alia prescribing the forms to be used under the Ordinance…Form 12 is the form prescribed for recording the findings of the coroner or the jury at the conclusion of an inquest.

17.     Form 12 contains various notes.  Paragraph 4(a) of these notes says that in the case of a death from natural causes or from an occupational disease, want of attention at birth, or dependence on, or non‑dependent abuse of, drugs, it is suggested that one of the following phrases should be employed; namely—

“The deceased died from natural causes.

The deceased died from the occupational disease of …………………….

The deceased died from dependence on drugs/non‑dependent abuse of drugs.

The deceased died from want of attention at birth.”

The paragraph continues by saying :

“(In any of the above cases, it is suggested that the following words may, where appropriate, be added—‘to which neglect contributed’).” ”

33.Having canvassed the legislative history of the amendment of the Coroners Ordinance whereby the word “neglect” substituted the phrase “lack of care” and having considered the relevant authorities on the proper interpretation of the same expressions, the learned judge concluded that:

“ The meaning of the phrase

31. ‘Neglect’ was defined in Jamieson, that definition being approved by the Hong Kong Court of Appeal in China Light & Power. That being so, the meaning of the phrase ‘to which neglect contributed’ is itself to be found in Jamieson. ‘Neglect’, in the context of the phrase, is not therefore, as the coroner directed the jury in the present case, any omission which it is found contributed to the death of a person. ‘Neglect’ in coronial proceedings bears a restricted, technical meaning. It is the obverse of self‑neglect; namely, the abandoning of oneself so that one no longer takes measures to secure the fundamental necessities that keep body and soul together. ‘Neglect’, in the context of the phrase, is therefore (to cite Jamieson) ‘a gross failure to provide adequate nourishment or liquid, or to provide or procure basic medical attention or shelter or warmth for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for himself’.

…

34. In Hospital Authority v. Rodney Venning Esq., Coroner [1995] 1 HKC, in considering a verdict of death by natural causes ‘aggravated by lack of care’ in respect of the death in hospital of a new born child, Barnett J made the following observations :

“I suppose if a person is admitted to hospital but left without the attention even of a nurse, that might amount to an insufficiency of medical treatment amounting to lack of care.  Once a person is in hospital, however, and under management, as was [the mother of the child], almost by definition there can be no lack of care.  The quality of the medical treatment might, as here, be called in question but that gives rise to very different considerations from lack of care.  [The mother] was attended by midwives and from time to time by a doctor.  There simply was no lack of care in the sense in which it is now understood in coronial proceedings.”

I consider those observations to be entirely apposite to the present case.”

(Emphasis added)

34.Mr Cheung drew my attention to the judgment of Reyes J in Sony Rai v Coroner [2011] 2 HKLRD 245 at 254 where the learned judge commented that the construction of the word “how” in s.27(b) of the Coroners Ordinance by Hartmann J (which was followed by Fok J in Secretary for Justice v Coroner [2001] 1 HKLRD 283) was too narrow and could not be justified in light of article 28 of the Basic Law or article 2(1) of the Hong Kong Bill of Rights.  However, Mr. Cheung accepted that the proper construction of the word “neglect” was not discussed in or otherwise affected by Reyes J’s ruling in Sony Rai (supra).

35.It is immediately clear from the discussion above that any death inquiry into the demise of the deceased would have very little bearing on the resolution of the present claim.  And I need not repeat the uncertainty as to whether a death inquiry would be held at all.  What is guaranteed is only the precedent police investigation.

36.In my view, Mr. Cheung has placed too much emphasis on the forensic benefit that might be generated from police investigation and too little regard to the huge difference between the respective roles of police investigators and the defendant’s legal representatives. 

37.For one thing, police investigation in the present context would necessarily be conducted at large without any pre-determined scope of inquiry.  In contrast, a defendant is by law entitled to first know the case against him before he starts off to investigate and decide whether to defend at all, and if defending, how. 

38.The analogy Mr. Cheung drew with the decision of a victim in a traffic accident to await the result of impending criminal prosecution is to me inappropriate.  Any criminal conviction can only lend some forensic assistance to the victim in his subsequent civil claim and any evidence canvassed in the criminal process would not absolve the civil court’s duty to make a finding on civil liability independently.

39.Nor do I see any meaningful saving of costs for the defendant to await the police investigation before conducting his own.  Again by reason of the different nature of the investigations, even if what is eventually generated from the police investigation can be of some use to the defendant, the same would necessarily have to be tailored to suit the purpose of the present proceedings.  One cannot rule out the possibility of this exercise being more costly than the normal exercise of a lawyer in taking instructions from a witness and preparing his witness statement specifically for the purpose of civil proceedings.

40.I also find too much emphasis being placed on the plaintiff’s lack of means and her inability to comply with procedural rules.  A very high proportion of civil suits before the court are being conducted by litigants in person with no real difficulty. Whether or not this action is put on hold or not, and even if eventually the plaintiff might enjoy any forensic benefit from the police investigation or even a death inquest, her difficulty as a litigant in person would nonetheless remain.  Nor do I find it fair to describe any consequence of procedural default on the plaintiff’s part as “windfall advantage” to the defendant.   

41.It seems the real concern on the plaintiff’s part is the likely costs consequence for her to proceed right away.  Indeed, Mr. Cheung fairly admitted that the possibility of the Director of Legal Aid changing his mind and granting legal aid to the plaintiff in light of the new development in the coming months was an important consideration.  However, litigation risk and the associated costs consequence are always something a litigant has to face, whether or not he is legally represented.   They cannot without more be a factor of any weight in the balancing exercise with which I am tasked. 

42.In my view, the perceived difficulty of the plaintiff to proceed with her claim appears to have been overrated.  I agree with Miss Li’s observation that with the benefit of the medical expert reports already obtained on her behalf, the plaintiff should at least know her case or is even able to assess her litigation risk.  Without in any way pre-empting what the plaintiff’s case might eventually feature in her statement of claim, it appears her case is primarily built on a possible delay of the medical staff in attending to the deceased resulting in their inability to bring the latter back to life when his condition suddenly became critical.  On the basis of what she already has, she should have no difficulty in framing her case now, subject to any amendment that she may be advised to make in the course of these proceedings.

43.On the other side of the scale is any prejudice that may be caused to the defendant if this matter is put on hold for yet another 6 months or even more.  While accepting Mr. Cheung’s observation that forensically the defendant may not necessarily be prejudiced by waiting further, I must not ignore the fact that the incident took place over 6 years ago but the defendant was not served with the protective writ until very recently.  Even if the plaintiff has previously filed a complaint with the defendant through the assistance of a district councilor so that the defendant should have been alerted to the possibility of litigation, any preparation for the eventuality of litigation or preservation of evidence would be elementary and may not cover all crucial matters in the context of a civil claim. 

44.As said, the defendant is entitled to know the case against it.  Up till now, however, it remains unclear as to the basis of the plaintiff’s claim of negligence against the institution and the extent to which the defendant’s eventual investigation would have to extend.  It is in this respect that I see some real prejudice to the defendant in making them wait any further without allowing it first to know the case against it and without it being able to effect any meaningful investigation or otherwise take rightful measures to protect its position that could inadvertently be prejudiced in the course of the parallel police investigation.

45.As to Mok Lai Fong (supra), the balancing exercise before the court there was very different from the one here in that the court there had to weigh any possible injustice to the plaintiff by barring her from suing at all against any possible prejudice to the defendant in disapplying the limitation period. Here there is no such consideration. 

46.As it turns out, I am in fact being asked to weigh the forensic advantage of awaiting police investigation (with or without a death inquest) against the disadvantage to the defendant that has already surfaced.  On balance, I am against any stay of these proceedings.

47.Nor do I gain much assistance from Allson Classic Hotel (H.K.) Ltd v Abundance Assets Ltd [1994] 2 HKC 154 also relied on by Mr. Cheung.  There the court was faced with two sets of pending proceedings, one in Hong Kong by way of protective writ and the other in Hawaii which was actively pursued, and the court saw a good reason to put on hold the Hong Kong action pending the parallel one in Hawaii.  Here we only have one action sought to be put on hold to await a chance of gaining some forensic advantage that may or may not come by.

48.In conclusion, I see no good reason for granting any stay of these proceedings and would uphold the order under appeal.  The appeal is therefore dismissed.

(Discussion on Costs)

49.Miss Li asked for costs of the appeal.  I see no reason why costs should not follow the event. By way of gross sum assessment, I award to the applicant a sum of HK$12,000. 

Mr. Eric Cheung of ONC Lawyers, Solicitors for the plaintiff

Miss Li Wai Shan of Mayer Brown JSM, Solicitors for the defendant

Please refer to HCMP3396/2013 for the relevant appeal(s) to the Court of Appeal.