Wong Ieok Hei v. Dr Kwok Kwan Ho and Another

HCPI 22/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 22 OF 2012

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BETWEEN

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Before : Master Roy Yu in Chambers

Date of Hearing : 2 July 2014 and 11 July 2014

Date of Ruling : 5 September 2014

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R U L I N G

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1.There are a number of applications before me today. 

2.The first application by the plaintiff is to join a new defendant. Before I move on to consider this application in details, I should set out some background facts which are not in dispute. 

Background facts

3.The plaintiff was a young lady of 14 in 2005.  In April 2005, she had left eye itchiness and pain.  She was living in Macau and consulted doctor there.  She was diagnosed as suffering from acute uveitis of the left eye and was treated with steroid eye drops.  At the time of the treatment, the plaintiff’s left eye vision was 1/10 of a normal person’s vision.  She had improvement after treatment.

4.On 11 May 2005, the plaintiff’s uveitis recurred.  She was admitted on 17 May 2005 to Kiang Wu Hospital in Macau to investigate her intermittent fever of one month duration, and blurred vision for 10 days.  The plaintiff was treated with steroid eye drops.  Systemic steroid administration was commenced on 20 May 2005 and the plaintiff’s fever abated.

5.Later, the plaintiff came to Hong Kong for treatment.  She was admitted to the 2^nd defendant which is and was at the material times a private hospital.  When she was admitted on 21 May 2005, according to the Statement of Claim, she was under the attention of Dr K H Chan (“Dr Chan”), a rheumatologist who investigated for the cause of the plaintiff’s panuveitis and fever.

6.As pleaded in Defence and which is not disputed, at the time when the plaintiff was admitted to the 2^nd defendant, there was another attending doctor, Dr Woo, who was an ophthalmologist.  And by about 23 May 2005, the plaintiff was referred by Dr Woo to the 1^st defendant who was also an ophthalmologist for management and treatment of uveitis, and Dr Woo was not involved in later treatment.

7.As recorded in the medical report of Dr Chan dated 16 June 2005, the uveitis started in the left eye of the plaintiff and it quickly involved her right eye as well.  Various treatments had been administered.  On 10 June 2009, the plaintiff was discharged back to Macau upon the request of her parents, and with the consent of Dr Chan.  Currently, she still suffered from serious blindness.

This Action

8.The plaintiff brought this action to recover her loss and damages. According to the first affidavit of her solicitors Mr J Clancey filed herein on 24 March 2014, the parents of the plaintiff did not suspect that there was any amiss with the plaintiff’s management at the 2^nd defendant until after the plaintiff’s twin sister developed uveitis in 2008.  In contrast, her sight was preserved by proper treatment.  After consulting expert, it is now the plaintiff’s case that the plaintiff suffers from blindness as a consequence of the negligent failure of the 1^st defendant to commence parenteral steroid administration to the plaintiff on or about 27 May 2005.  The details of the cause of action have been pleaded in Statement of Claim which I do not repeat.

9.When this action was taken out, the plaintiff brought the action only against the 1^st defendant who is the attending ophthalmologist.  The action was also brought against the 2^nd defendant on the basis of vicarious liability.  Further, additional particular of negligence on the part of the 2^nd defendant has been pleaded in paragraph 17 of the Statement of Claim which I shall come to later.  Dr Woo and Dr Chan have not been sued.

10.Mr Jones, counsel for the plaintiff, explains in court that the plaintiff has acted very reasonably in selecting the defendants.  There is no reason why they should join all the doctors/nurses who had participated in treating the plaintiff.  Since the main complaint of medical negligence is on the delay in administering parenteral steroid which is a treatment for uveitis, they have reasonably included only the 1^st defendant, the ophthalmologist treating the plaintiff at the material time.  At that stage, the plaintiff was not aware that Dr Chan was involved in making the decision of not to apply parenteral steroid until a later date.

11.In the first affidavit of Mr Clancey, he referred to various passages in the Defence.  In particular, the defendants pleaded that “Dr Chan …and the 1^st defendant were all of the opinion that infection had to be ruled out first…  Dr Chan and the 1^st defendant had the strong clinical suspicion of tuberculosis and were of the view that they must rule out tuberculosis first.  Otherwise the prescription of systemic steroid to the plaintiff could be dangerous.”  And it is pleaded in paragraph 5(u) of the Defence of the defendants that

“in deciding that systemic steroid should not be prescribed to the plaintiff on 27 May 2005, Dr Chan and the 1^st defendant also took into account the fact that

(a) ……

(b) ……

(c)     the risk of the plaintiff having tuberculosis (which makes the prescription of systemic steroid very serious and potentially fatal) was high, as opposed to the benefit of immediately giving systemic steroid to the plaintiff, which was nominal.”

12.Mr Jones submits that only upon seeing the Defence, and subsequently the witness statement of the 1^st defendant, the plaintiff was then aware of the fact that when coming to the decision of withholding administration of systemic steroid, Dr Chan was one of the decision makers, or had participated in that medical decision.  The plaintiff now applies to this Court to join Dr Chan as one of the defendants.  And for the purpose of stating the case against Dr Chan if leave was granted, the plaintiff also seeks leave to amend the Statement of Claim, which is the 2^nd application before me today.

13.Mr Chan, solicitors for the defendants, has also received instruction to appear today on behalf of the defendants and Dr Chan to oppose the application.

The Issue on Joinder Application

14.I believe it is not disputed that this court has jurisdiction under Order 15 rule 6(2) to join a new party to the proceedings.  On whether a new party should be joined, “the test is whether there is a bona fide claim and a proper question to be tried as between the plaintiff and [the intended defendant] that is necessary or just and convenient for resolution between them as well as between the plaintiff and the defendant in the present proceedings.” (per Master Marlene Ng (as she then was) in Pang Kwok Lam v Schneider Electric Asia Pacific Limited HCPI 90/2010)

15.The main objection raised by Mr Chan is the alleged claim against Dr Chan is now time barred.  As mentioned above, when the plaintiff received the treatment, she was 14, and was an infant.  Time does not run until she was an adult.  She reached 18 years of age on 13 January 2009.  The limitation period would expire on 13 January 2012.

16.It is not disputed that the primary limitation period has expired.  Mr Jones relies on section 27(4)(b) of the Limitation Ordinance which provides that the limitation period of 3 years only starts to run from the date of the plaintiff’s knowledge.  And date of knowledge is defined in section 27(6) as follows –

(6) In this section, and in section 28, references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts-

(a) that the injury in question was significant;and
(b) that that injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance orbreach of duty; and
(c) the identity of the defendant; and
(d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant,

and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.

The knowledge of the plaintiff can be actual knowledge or constructive/imputed knowledge as defined under section 27(8) of the Limitation Ordinance.

17.If the plaintiff claimed that she only had  knowledge of the negligent act of Dr Chan when she received the Defence, being in 2013, the burden rests on the defendants to show either that plaintiff have actual knowledge of the negligent act of Dr Chan before the date or that she should have constructive knowledge. Mr Chan confirms that he is not suggesting any actual knowledge.  He submits that from the history of treatment, medical reports, letters from the 2^nd defendant to the plaintiff’s father, and correspondence between solicitors before filing of the Defence, the plaintiff and/or his legal advisor shall be imputed with constructive knowledge of negligence of Dr. Chan earlier than when the Defence was filed.  

18.Section 27(8) of the Limitation Ordinance provides as follows: -

“for the purposes of this section and section 28 a person’s knowledge includes knowledge which he might reasonably have been expected to acquire

(a) from facts observable or ascertainable by him; or

(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek,

but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.”

19.The test for constructive knowledge is objective.  I refer to the judgment of Master Marlene Ng (as she then was) in Cheung Yin Heung v Hang Lung Real Estate Agency Limited HCPI 421/2009 when the learned Master said: -

“54. In my view, the test for constructive knowledge is objective. This will require the court to consider the objective situation in which the plaintiff finds himself in, including the effects of the injury itself but excluding the personal characteristics individual to the plaintiff, and then go on to consider when a person in such circumstances with comparable level of injury/disability might reasonably be expected to investigate (if necessary with expert help) and acquire knowledge of the matters set out in section 27(6) including, say, the identity of the defendant/tortfeasor.

55. What degree of certainty is required for knowledge to qualify as knowledge within section 27(8) so as to set the time running? In Halford v Brookes [1991] 1 WLR 428, 433, a case cited by Mr Pun, counsel for the plaintiff, Lord Donaldson said as follows:

“…… The word has to be construed in the context and purpose of the section, which is to determine a period of time within which a plaintiff can be required to start any proceedings. In this context “knowledge” clearly does not mean “know for certain and beyond possible contradiction.” It does, however, mean “know with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence.” Suspicion, particularly if it is vague and unsupported, will indeed not be enough, but reasonable belief will normally suffice. ……”

The above set out the principle on constructive knowledge and I would now turn to the argument. 

Defendants’ case

20.Mr Chan relies on the affirmation of Chan Wai Chung William filed herein on 11 March 2014 and submits that it should be clear in the documents available to the plaintiff well before the expiry of the limitation period that the intended defendant was involved in a treatment of the plaintiff.  Mr Chan first relies on a Chinese letter from the 2^nd defendant to the father of the plaintiff dated 22 January 2007.  He submits that the 2^nd paragraph of the said letter states clearly that the plaintiff was admitted to the 2^nd defendant for fever of unknown origin and bilateral panuveitis, and was treated by rheumatologist Dr Chan.  The 3^rd paragraph goes on to state that Dr Chan was one of the main treating doctors of the plaintiff and was an expert and have ample experience in treating such disease.  He quoted the following paragraph : -

“引起發熱及雙眼全虹膜炎是一種嚴重、可能涉及全身和眼睛的疾病。在多種情況下，儘管醫生替病人進行反覆而詳盡的全身及眼睛檢查，這種疾病的根本病因仍然不明。……再者，疾病的成因不可預測而多變，部份病人最後可能會獲得滿意的治療效果，但部份病人卻會因為這種疾病嚴重損害其健康，甚或導致死亡。此外，在治理此類疾病時，通常會處方免疫抑制劑，此可能對病人構成嚴重的副作用。診治黃小姐的主診醫生之一的陳家何醫生乃這方面的專家，對這種疾病有相當經驗。”

21.It is the case of Mr Chan that by this letter, it must be clear to the plaintiff that Dr Chan participated in the treatment of the plaintiff.  It is difficult to believe that the plaintiff had no knowledge that Dr Chan was involved in her treatment and the commencement of her parenteral steroid therapy. 

22.Further, Mr Chan also relies on a letter from his firm, acting for the 1^st defendant, to the plaintiff’s solicitors dated 8 September 2009.  It was stated in the said letter that the plaintiff was “admitted under the care of Dr Chan, a rheumatologist, primarily for management of a systemic disease.  Our client [referring to Dr Kwok, the 1^st defendant] was just one of the doctors that Dr Chan referred to for a second opinion for the eye problem”.  Mr Chan submits that there was never any concealment of Dr Chan’s role and importance.

23.He submits that it is open to the plaintiff to make further inquires about Dr Chan’s involvement.

24.Finally, Mr Chan also refers to the statement of Wong Chou Tek, father of the plaintiff, when he said “on 21 May 2005, Dr Chan went to examine the plaintiff in the hospital and gave the plaintiff oral steroids on 4 June 2005. It is submitted that the plaintiff’s father knew that Dr Chan was the one who prescribed steroids to the plaintiff.

Plaintiff’s case

25.Mr Jones submits that many of Mr Chan’s points in relation to the clinical management of the plaintiff are correct.  But they are not relevant to the negligence alleged by the plaintiff against the defendants.  The plaintiff case is that parenteral steroid should have been commenced on 27 May 2005 as treatment for the plaintiff’s panuveitis.  Mr Jones also refers to a report by Dr Chan dated 16 June 2005 and he said in his written submission : -

“The plaintiff’s case is that parenteral steroids should have been commenced on 27 May 2005. Dr Chan’s statement that [the 1^st defendant], an ophthalmologist, was in charge of the treatment of her uveitis in his report on 16 June 2005, immediately after patient discharge, clearly indicates to the ordinary reader that [the 1^st defendant] had the responsibility to treat the plaintiff’s uveitis (with parenteral steroids) during her admission to [the 2^nd defendant]. Furthermore, even the plaintiff’s expert ophthalmologist, Professor Jimmy Lai, did not conceive the possibility that Dr Chan, a rheumatologist, was managing the plaintiff’s eye condition (panuveitis), however he does note Dr Chan’s extensive investigation of the patient to “find a cause of her uveitis”.”

Discussion and Ruling

26.I believe it is not disputed that the plaintiff knew that Dr Chan is one of her treating doctors or may be the main treating doctor (主診醫生).  The question I have to ask myself is whether a reasonable man with the disability of the plaintiff and with the information as discussed above would make investigation as to the involvement of Dr Chan in the treatment of her eye condition.  And most importantly, the claim is based on a very specific complaint of whether parenteral steroids should be applied as a treatment for uveitus.  This is a complaint on the treatment of the eye problem, uveitis.  I agree with Mr Jones that a reasonable man would believe that the decision regarding treatment of the plaintiff’s eye condition must be finalized and determined by the 1^st defendant, an ophthalmologist, even when other doctors may be involved in her treatment. 

27.I believe the main argument of Mr Chan is whether the plaintiff had been provided with sufficient knowledge or information that would alert her to conduct investigation.  I come back to the report from 2^nd defendant as set out in paragraph 20 above.  It at most shows that the plaintiff was informed that Dr Chan was involved in advising the side effect of systemic steroid. But it is not clear that he made the final decision on how to treat the plaintiff, or when to administer parenteral steroid.

28.For the other correspondence between the defendant’s solicitors firm with the plaintiff’s solicitors referred to herein before, it only says that the 1^st defendant is just one of the doctors that Dr Chan referred to for a second opinion for the eye problem.  It must be clear to the plaintiff that she had been referred to 2 ophthalmologists, Dr Woo and the 1^st defendant.  And given Dr Chan had to refer the plaintiff to 2 ophthalmologists for opinion, a reasonable man would not suspect that Dr Chan would decide how the uveitus was to be treated. 

29.The correspondence and reports relied on by Mr Chan would not be information with sufficient confidence that justify investigation into whether Dr. Chan was involved in withholding systemic steroid.  The turning point must be the defence when it is pleaded Dr Chan and the 1^st defendant were of the view that infectious disease such as tuberculosis has to be ruled out before systemic steroid may be applied.  And from the defence, it becomes apparent that it is a joint decision of the 1^st defendant and Dr Chan in withholding parenteral steroids treatment until infectious disease is ruled out. 

30.I therefore conclude that the plaintiff has not possessed or been given such information at the material time that call upon a reasonable man to investigate whether Dr Chan was involved in the decision of not applying systemic steroid on 27 May 2005.  Accordingly, the limitation period of 3 years does not commence to run until the date of the Defence and when this application is taking out, the claim against Dr Chan is not time barred.

Uplifting the Limitation

31.If I am wrong on the above analysis, and the plaintiff’s claim against Dr Chan is time barred, Mr Jones invites me to exercise my discretion to allow such time barred claim to proceed under section 30(1) of the Limitation Ordinance, which provides as follows: -

“If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which: -

(a) the provisions of section 27 and 28 prejudice the plaintiff or any person whom he represents; and

(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents,

the court may direct that those provisions should not apply to the action, or shall not apply to any specified cause of action to which the action relates.”

32.The discretion to disapply the limitation period is entirely unfettered. The onus is on the plaintiff to show that in the particular circumstances of the case, it would be equitable to allow the claim to proceed having regard to the possible prejudice to be suffered by each party.  The court is to perform a balancing exercise by looking at: -

(a) the balance of prejudice to each party;

(b) the six specific but non-exhaustive factors contained in section 30(3);

(c) all the circumstances of the case.

33.The six factors set out in section 30(3) are –

(a) the length of, and the reasons for, the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 27 or 28, as the case may be;

(c) the conduct of the defendant after the cause of action arose, including the extent, if any, to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;

(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps, if any taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.

34.Mr Chan relies mainly on factor (a) and (b) and invites me not to exercise the discretion.  First, the defendants complain that the delay is for 2 years after the primary limitation period has lapsed.  And there is no valid explanation for the delay.

35.Mr Jones invites me to take into account the fact that the plaintiff is almost blind.  She has greater difficulty to understand her right and position.

36.Further, Mr Chan also submits that, it is a fact that the incident took place more than 9 years ago.  It would not be reasonable to expect Dr Chan to be able to recall the relevant circumstances of the case, let along the details.  It would create unfairness to Dr Chan.

37.In exercising my discretion, I would refer to another part of the judgment of Master Ng given in Cheung Yin Heung’s case, at paragraph 86: -

“Although each case turns on its own facts, Whiston v London Strategic Health Authority suggests that the recent hardening of the court’s attitude towards section 14(2)-(3) of the Limitation Act (ie the English equivalent of section 27(6) or section 27(8)) should result in a more flexible exercise of discretion under section 33 of the Limitation Act (ie the English equivalent of section 30). In A v Hoare, Baroness Hale said she fully supported a more generous approach to the exercise of discretion, and Lord Carswell said there needed to be a more liberal approach to the exercise of the discretion.”

38.I agree with the judgment that a more liberal approach should be adopted. 

39.I accept what Mr Chan said that the delay is for a comparably longer period.  I bear in mind the explanation offered for the delay, that the plaintiff is blind and she has greater difficulty to understand her position.  And she only turned 18 in January 2009, when she could take care of her own interest. And I bear in mind the submission of Mr. Jones that the plaintiff in selecting the defendant tries to limit to the necessary parties, which must be the correct approach.

40.On the other hand, I have to consider whether the delay would cause irreparable prejudice to the possible defence by Dr Chan.  I do not think so.  First of all, Dr Chan has been referred to in the defence.  I believe it would be a reasonable inference that instruction has been taken from him before the defence is filed.  Dr Chan would have refreshed his memory before the defence is filed.

41.But more importantly, the claim relies on a very specific claim, that is whether parenteral steroid should be applied on 27 May 2005.  There ought to be record and it is not disputed that there are medical examination and test conducted on the plaintiff.  I see no reason why Dr Chan does not have sufficient information to refresh his memory. 

42.While the defence before me is by the 1^st and 2^nd defendants, I suspect the averment that Dr Chan was one of the doctors who decided not to apply parenteral steroid would not be challenged.  And the issue would be a matter of expert evidence on whether this decision is correct.  And if this decision may be wrong, in the particular circumstances the plaintiff, whether she would have a better result had systemic steroid been applied on 27 May 2005.  Very little would turn on factual dispute. The prejudice to Dr Chan is low.

43.Balancing all the factors, I consider this is an appropriate case to exercise my discretion.  At least the discretion should be exercised to allow the plaintiff to include Dr Chan as a defendant in the complaint on the delay in applying parenteral steroid and which is exactly the case pleaded in the draft amended Statement of Claim.  Accordingly, if I have to, I am prepared to uplift the time bar to allow the plaintiff to claim the relief against Dr Chan that is now pleaded in the draft amended Statement of Claim.

44.There is no other ground of objection raised.  There must be a bona fide claim against Dr. Chan. In summary, I allow the plaintiff’s application to join Dr Chan as the 2^nd defendant and to re-name the 2^nd defendant as the 3^rd defendant.  I am given to understand by Mr Chan, if I allow Dr Chan to be acted, he would not object to the amendment.  Accordingly, I approve the amendment and direct the plaintiff to file and serve the Amended Writ of Summons, Amended Statement of Claim and Statement of Damages within 14 days.

45.I am also informed by Mr Chan that if I allow the amendment, he would not resist the 3^rd application by the plaintiff for introduction of an expert on infectious disease.  I believe the defendants would ask for leave to introduce their own expert.  Accordingly, while I approve the application in principle, I direct the plaintiff and the defendants (including Dr Chan) to have some discussion and report to me within 28 days on the agreement of the necessary directions for expert evidence.  If no agreement could be reached, the plaintiff shall come back for direction.

46.That leaves me with the final application which is the plaintiff’s application to restrict the number of experts’ reports to be adduced by the defendants.

Number of Experts

47.The defendants are jointly represented by one firm of solicitors.  They file one joint defence.  When the pleadings are closed, parties apply to me for usual directions, including exchange of expert evidence on liability. According to the consent summons filed, they ask for leave to introduce expert evidence by one ophthalmologist for the plaintiff and one ophthalmologist for the defendants.  The plaintiff has served the report by her expert and Mr Jones informs me the 1^st and 2^nd defendants each seek to adduce an expert ophthalmologist report.  The 2 reports are produced.

48.Mr Chan submits that this is the right of the defendants.  If the 1^st and 2^nd defendants are separately represented by 2 different firms of solicitors, he does not anticipate any objection that they can each adduce a report by an expert of their own choice.  Such a right should not be limited just because they are represented by the same firm of solicitors.

49.Mr Jones submits that in allowing the defendants to submit 2 expert reports from 2 ophthalmologists, this would create unfairness to the plaintiff, as the plaintiff is only allowed to present the expert report by one ophthalmologist. Taking into account the fact that the 1^st defendant is an ophthalmologist, while he is a factual witness, he would also be giving the opinion on the practice of an ophthalmologist.  There would in effect be 3 ophthalmologists on the defendants’ side.  He therefore invites me to limit the number of ophthalmologists (and the infectious disease expert) to be called by the defendants to one.

Discussion and Ruling

50.Mr Jones refers to the English Court of Appeal decision of ES v Chesterfield & North Derbyshire Royal NHS Trust [2003] EWCA Civ 1284, 25 July 2003.  In this case, the plaintiff applied to obtain a second report from an obstetrician.  Holman J in his judgment considered the “equality of footing” principle.  He is of the view that while 2 of the witnesses for the defendant who are also obstetricians, and they give evidence of fact, the reality is that they had and possessed expertise in the area.  It would be on equal footing only if the plaintiff is permitted to call one more expert.

51.Before moving to the argument of the defendants, I pause to note that this judgment is on the Civil Procedure Rules of England.  Some of the wordings are different from the Rules of High Court.  And it is clearly stated in the judgment that the 2 factual witnesses for the defendant are very respected in the area of the expert.  And I believe this may be the reason why the Court of Appeal allowed the plaintiff to adduce a second expert.  And as said by Holman J, “it is not decisive, for equality of footing is only one of the considerations in the overriding objective”.  It is clear that even in the judgment itself, it is nothing more than a factor that has been taken into consideration.  I do not find the case helpful.

52.I rather approach this complaint by the plaintiff in this way.  I ask myself, should the defendants be entitled to have their own respective experts?

53.Order 38 rule 4 of the Rules of High Court provides that: -

“The court may, at or before the trial of any action, order that the number of medical or other expert witnesses who may be called at the trial shall be limited as specified by the order.”

54.As has been commented by the learned editors to the Hong Kong Civil Procedure 2014 at paragraph 38/4/1, the court’s discretion to limit the number of expert witnesses who may be called at the trial is reinforce by order 35 rule 3A paragraph (1) (b), which states that the court may by direction limit the number of expert witnesses that a party may call on a particular issue.  And given that the court is under a duty to further the underlying objective by actively managing cases, greater judicial management of expert evidence should be expected. 

55.In fact, the submission of Mr Chan demonstrates the conflicting views between conducting a trial by adversarial model as against a case management model.  I find a very good explanation to these 2 models by Her Honour Judge Marlene Ng (as she then was) given in Ansar Mohammad v Global Legend Transportation Limited DCEC 1090/2006.  The approach of adversarial model and the disadvantage is discussed in paragraph 39 and 40 of the judgment: -

“39. If the adversarial system is given free rein, a party’s right to conduct his case effectively in his own way should not be restrained, which means he has the freedom to choose his own lay and expert witnesses and to present such lay and expert evidence in the manner as he sees fit.

40. But in relation to expert medical evidence, such approach carries the risk of inappropriate or excessive use of experts that may result in unnecessary expense/delay, increased complexity and drawn-out trials.  Additionally there is a risk that conscious or unconscious pressure (no matter how subtle) arising from partisan selection and instructions may cause the medical expert to become a “hired gun” who gives partisan opinion that is unhelpful for achieving just and fair results and/or that may impair the quality of judicial findings.  The problem may become accentuated if there is a continued relationship between the expert and the party who instructs him (eg the relevant legal representatives). Consequently, what have become known as “plaintiff’s experts” and/or “defendant’s experts” with polarised views occasionally emerge, and they are not restricted to the so-called “usual select insurance clique” of doctors referred to by Mr Carey.  The above concerns in respect of the adversarial model are summarised in Civil Justice Reform Interim Report and Consultative Paper by the Chief Justice’s Working Party on Civil Justice Reform paras.485-518 at pp.182-192.” [my emphasis]

56.This is a judgment which set out the disadvantage of having adversarial model particularly in arranging for expert evidence, which I agree.  The judgment was given before Civil Justice Reform come into operation.  With the Civil Justice Reform being effected for more than 6 years, active case management is performed with a view to ensure that the underline objective of order 1A is adhered to.  I respectfully adopt the view of the Honourable Judge.

57.The said judgment is a case where the court directed a joint medical report be prepared against the wishes of the parties.  And on case management consideration, Her Honour Judge said at paragraph 42 onward as follows: -

“42. In respect of expert medical evidence, the primary goal of case management is to encourage useful, proportionate and cost-effective expert medical evidence/reports, to reduce delay and cost, to narrow the issues and reduce the scope of the evidence, and to enable just and efficient resolution of the real issues. Close scrutiny of the preparation of expert medical reports and early adoption of effective procedural measures can help ensure that expert medical evidence in each case will be in the most appropriate form, will not stray from the identified issues and will be made available in a timely fashion for doing justice between the parties.

43. Given such objectives, an exercise of these case management powers may involve approaches that seem to depart from party-driven litigation under the adversarial model where the parties carry the primary duty of identifying the issues, adducing relevant evidence and generally advancing their own case.”

58.I agree with the observation of Her Honour Judge.  I do not rule out that there are situations when one party may be allowed to call more than one expert. But the party seeking to introduce more experts must justify it is necessary for the just and efficient resolution of the issue of the case.  And with these legal principles, I now approach the argument of Mr Chan.

59.In an adversarial system, I should not interfere with the choice of the defendants for their expert witnesses.  But with the Civil Justice Reform being introduced, the Court is taking an active role in case management.  The number of experts to be obtained must be justified. 

60.Experts have the prime duty to assist this court by giving their professional observation and opinion within their expertise.  And what is helpful to this court is not their conclusion but how they come to their conclusion.  Their investigation, their source of research and particularly (for medical expert evidence) their interpretations of clinical examination are always helpful to the trial judge in coming to a conclusion.

61.It is trite that a judge in coming to his conclusion is not affecting by the number of experts giving evidence.  It is the reason behind the conclusion that is of probative value to the judge. 

62.In the case management regime, and to save cost, the court should in the appropriate cases limit the number of experts.  I cannot agree with Mr Chan that if 2 defendants are separately represented by 2 firms of solicitors, they necessarily would be entitled as of right, to have their own experts.  This must now be read with order 38 rule 4 and the underline principle of the Civil Justice Reform, in particular Order 1A rule 1. 

63.I refer to another judgment of HH Judge Ng given in Lau Lai Shan v Hospital Authority DCEC 784/2007 which summarized the principle on case management of expert evidence, which I agree entirely –

15.  Several case management considerations conspire to put the calling of expert evidence under the court’s complete case management control.

16.  First, the court must be satisfied that the expert evidence intended to be adduced will be of assistance to the court, ie reasonably required to resolve the issues before the court (see Wong Hoi Fung v American International Assurance Co (Bermuda) Limited & anor HCA4576/2001, Chu J (unreported, 8^th October 2002) para.12 citing Barings plc (in Liquidation) & Anor v Coopers and Lybrand & Ors, Lexis transcript, 9^th February 2001, Evans-Lombe J at paras.44-45). A corollary to such proposition is that there shall be no expert evidence unless the court considers such evidencehelpful in arriving at a determination of the issues before it. This means the court has to make a judgment on the usefulness of the expert evidence to be adduced (see the English case of Baldev Singh Mann v Messrs Chetty & Patel [2000] EWCA Civ 267 (26^th October 2000) on the Civil Procedure Rules, which suggested that some of the relevant considerations included (a) how cogent the proposed expert evidence will be; (b) how helpful it will be in resolving any of the issues in the case; and (c) how much it will cost and the relationship of that cost to the sums at stake).

17.  Secondly, there is no entitlement to adduce opinion evidence from experts. A party may not adduce expert evidence at trial or put an expert report in evidence without permission by the court.

18.  Thirdly, the true function of an expert witness in civil litigation is to carry out objective fact-finding and provide impartial opinion. The expert should not be a partisan advocate who espouses the views of the party who engages him.His opinion evidence shouldbe, and should be seen to be, unbiased and impartial, and his own independent product uninfluenced by the exigencies of litigation (see Ansar Mohammad v Global Legend Transportation Limited DCEC1090/2006 (unreported, 8^th May 2007) para.37 citing Cresswell J in Ikarian Reefer [1993] Lloyd’s Rep 68). After all, the purpose of such expert evidence is to educate and inform the court on issues arising within the expert’s specific area of expertise.

19.  The above matters plainly show that the court is empowered to determine how expert medical evidence is to be obtained and presented so that it brings clarity to the schools of thought on the issues and is helpful to the court in its adjudication.

64.I see no reason why the defendants should engage 2 experts to comment on the same issue.

65.Mr Chan also argues that the claim against the defendants is not exactly the same.  He refers to certain particulars which are directed only against the 2^nd defendant.  He is referring to paragraph 11 of the statement of claim.  I do not intend to repeat all the details.  In general, the plaintiff complains that the 2^nd defendant has failed to take all reaonsable care for the safety of the plaintiff, in particular exposing the plaintiff to dangers when the 2^nd defendant knew or ought to have known that the plaintiff would be put at risk of blindness if not treated with parenteral steroids on or about 27 May 2005.

66.I do not see much difference in the particulars pleaded in this paragraph with the particulars pleaded against both defendants in paragraph 9 of the statement of claim.  But what is important is whether there is any difference in the issue that the 2 ophthalmologists are invited to address.  I have perused the two expert reports and both are commenting on whether parenteral steroid should be applied on 27 May 2005. 

67.I can image there may be need for expert opinion that related mainly to management of a hospital and/or the staff including doctors that may affect the treatment provided to the plaintiff.  But this would be expert opinion from a different area and there is no application for such evidence to be introduced.  Both experts of the defendants on liability are on how to treat the eye problem of the plaintiff.  But if the 2^nd defendant by any reason had to have an expert on a different expertise, I am open to such an application provided that Mr Chan has set out his issues for comment by another expert.

68.Mr Chan seems to suggest that later on, the defendants may be separately represented.  In such an event, new expert has to be introduced.  If that is the situation, this court would consider whether it is justified to allow the new expert to come in when the defendants are separately represented. 

69.I appreciate that the consent summons between the parties are not clear on whether they agree to have one expert for each of the defendants or just one expert for the defendants.  I believe that would not interfere with the case managing power of this court.  After all, the allowance of expert evidence is within the discretion of this court and with the above analysis, I see no good reason presented by the defendants that they require 2 ophthalmologists. Accordingly, I direct that the plaintiff may adduce expert evidence from one expert in ophthalmologist and one in infectious disease.  And the 1st and 2^nd defendants shall jointly have one expert in ophthalmologists and one expert in infectious disease.  Mr. Chan shall within 14 days inform this Court and the plaintiff which expert report is relied upon by the defendants.

70.I believe there is no reason why Dr Chan should be entitled to his own experts.  But since he has not been served with the amended writ and pleadings, I would leave it to the next Checklist Review Hearing to determine the issue, if he has to make an application. And after serving the Writ on Dr. Chan, the plaintiff should fix a Checklist Review hearing in consultation with all parties.

71.Coming to the conclusion of my ruling, Mr Jones is successful with his application and I see no reason why costs should not follow the event.  I therefore give an order nisi that the plaintiff do have costs of this application with certificate for counsel.  The plaintiff’s own costs shall be taxed according to Legal Aid Regulations.

Mr Jones instructed by Ho Tse Wai, Philip Li & Partners, for the plaintiff

Mr W. Chan, of Mayer Brown JSM., for the 1^st and 2^nd defendants and intended defendant