Poon Catherine and Another v. The Hospital Authority

HCPI 381/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 381 OF 2011

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BETWEEN

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Before: Hon Bharwaney J

Date of Application: 13 June 2014

Date of Written Submissions: 23 June 2014

Date of Written Submissions in Reply: 2 July 2014

Date of Decision: 25 August 2014

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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 into evidence the expert report of Professor Fenella Kirkham, a paediatric neurologist, dated 15 May 2014, and further reports to be obtained from her on the issue of the life expectancy of the infant plaintiff, Catherine Poon. Upon sight of the application, I directed the parties to exchange written submissions and written submissions in reply. Having perused the same, I am satisfied that I can deal with this application without the need to receive further oral submissions.

2.I have reminded myself of the principles relevant to late applications to adduce additional expert evidence in personal injury cases, and I have carefully considered the written submissions of the parties.

3.I am very much alive to the need to ensure a just resolution of the case, which can only be achieved by providing the court with the best available evidence, and expert evidence, on the issues in dispute; and, in the context of this application, to provide the court with the best available expert evidence on the infant’s life expectancy so as to ensure a fair and just determination of that issue.

4.There are other considerations, which have been identified and elaborated upon in counsels’ written submissions, and which I have also taken into account in the exercise of my discretion to admit expert evidence, and of my case management powers over the case.

5.After applying the relevant principles to this case and after taking all relevant matters into account, I have come to the conclusion that I am unable to accede to the application to adduce additional expert evidence on the issue of life expectancy at this late stage in the proceedings.  Notwithstanding my refusal to grant leave to adduce into evidence the expert report of Dr Kirkham, and any further reports to be obtained from her, I direct that the medical literature on the issue of life expectancy that she has identified in paragraphs 21 to 40 of her report dated 15 May 2014 be made available to Drs Alfred Tam and Philomena Tse, and be considered by them for the purpose of their joint supplemental report to be produced on or before 19 September 2014.

6.I also take this opportunity to alert the parties that I would wish to receive submissions in due course on the powers of the court, if any, to make periodical payment orders, notwithstanding the absence in Hong Kong of legislation similar to the English Damages Act.

7.I make a costs order nisi as follows.  50% of the costs of the report of Dr Kirkham be costs in the cause of the assessment.  The costs of this application be to the defendant in any event, with certificate for 2 counsel.  The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

(Mohan Bharwaney) Judge of the Court of First Instance High Court

Mr Michael Ozorio S.C. and Mr Ashok Sakhrani, instructed by Ip, Kwan & Co., for the plaintiff

Mr Kumar Ramanathan S.C. and Mr Vincent Lung, instructed by T.S. Tong & Co., for the defendant