HO YUK YEE v. THE SECRETARY FOR JUSTICE for and on behalf of FOOD AND ENVIRONMENTAL HYGIENE DEPARTMENT

DCPI 1052/2018

[2021] HKDC 910

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1052 OF 2018

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DECISION

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1.  This is a decision involving the plaintiff’s failure to inform the Court of her updated medical condition which led to the unnecessary adjournment of a trial in a personal injuries (“PI”) case.

BACKGROUND

2.  This is a simple and straightforward PI claim arising out of an alleged accident at work.

3.  The case had been placed on the running list by way of a consent summons signed by the parties dated 21 April 2021.  Under the consent summons, the parties had informed one of the PI Masters that the action was ready to be set down for trial on the running list.  As a result, Master Matthew Leung had, on 26 April 2021, made an Order, inter alia, to allow the action to be set down for trial before a bilingual judge in the running list, not to be warned before 2 August 2021 with an estimated length of 3 days. 

4.  The plaintiff was also ordered to file and serve the application to set a case down for trial by 21 June 2021.  And upon filing of the application to set a case down for trial, the plaintiff’s solicitors were required to provide the listing clerk with a letter stating that all the directions have been complied with.  Further directions were given to the parties to notify the PI Master in writing within 3 days with detailed reasons if any of the directions or dates contained in that Order could not be met. 

5.  On 26 May 2021, the plaintiff’s solicitors set the case down for trial by filing an application.  In the application, it referred to Master Matthew Leung’s Order dated 26 April 2021 and certified the estimated length of trial of 3 days still hold good.  It further stated that on the plaintiff’s side, only one witness will be called to give evidence at the trial.  Judging from the only witness statement filed on behalf of the plaintiff in this case, it is clear that the witness referred to in the application would be the plaintiff herself.  The plaintiff’s solicitors also stated in the application that there were no unusual features which would likely prolong the hearing of this case. 

The Alleged Accident

6.  Without going into details of the case, the following is a brief summary of the alleged accident pleaded by the plaintiff in the statement of claim.

7.  The plaintiff who was 55 years old at the time of the alleged accident on 7 June 2015, was working as an assistant hawker control officer in the Food and Environmental Hygiene Department of the Hong Kong Government.  It is alleged that, at around 7:00 am in that morning, while in the course of employment with the defendant and before she was about to commence her work on that day, in the office of the department situated at the Yeung Uk Road Municipal Services Building, Tsuen Wan, one of her colleagues, by the name of Ng Yuk Lun, had suddenly rushed out from a changing room and abruptly turned left and thereby “collided into the plaintiff”.  It is alleged by the plaintiff that Mr Ng’s right arm had “impacted” on the plaintiff’s right side, causing the plaintiff to spin around and in the process twisted her neck. 

History of the Proceedings

8.  The plaintiff is not on legal aid and has privately engaged the plaintiff’s solicitors to act on her behalf. 

9.  The writ of summons in this case was issued on 16 May 2018, just a couple of weeks before the limitation period expired. 

10.  Resulting from the same alleged accident, employees’ compensation (“EC”) proceedings had been issued by the plaintiff against the defendant in the capacity as her employer.  That case was settled between the parties where the plaintiff received a sum of HK$630,816.00 by way of EC from the defendant. 

11.  The statement of claim and statement of damages in this case were filed on 18 September 2018. 

12.  The defence of the defendant was filed on 1 April 2019. 

13.  The case then progressed normally like any other PI cases in the District Court with checklist review (“CLR”) hearings fixed before the PI Masters. They were adjourned on a number of occasions, with extended time requested by the parties to meet the case management directions agreed amongst the parties themselves by way of consent summonses.  Those agreed directions had been made into Orders of the Court by the PI Masters on each occasion, with appropriate amendments where necessary. 

The Stroke suffered by the plaintiff in March 2019

14.  By a letter dated 27 May 2019, the plaintiff’s solicitors wrote to the PI Master, informing the Court that, they had been told by their client’s relatives on 18 May 2019 that the plaintiff had been admitted to the hospital on 25 March 2019 suffered from what medically described as “acute left putaminal haemorrhage” (or in layman’s term a “stroke”).  It was said in the letter that the plaintiff had stayed in the hospital from the date of the stroke until 2 April 2019, ie for one week.  According to the information provided by the plaintiff’s relatives at the time, due to her then situation, the plaintiff’s solicitors were unable to take any instructions from her at the time.  A “discharge slip” from Princess Margaret Hospital detailing the condition of the plaintiff, including the above diagnosis and the medications prescribed by the doctors upon discharge, was attached to the letter.  The letter also attached two other appointment slips with the medical unit of the same hospital, showing that the plaintiff required to attend follow-up treatments on her condition in July and August 2019. 

15.  On that occasion, the plaintiff’s solicitors asked for the upcoming CLR hearing scheduled on 17 June 2019 to be adjourned for 3 months in order for the plaintiff “to regain full capacity for the solicitors for the plaintiff to seek her instructions again.”  

16.  I noted that this letter was co-signed by a government counsel from the Department of Justice who was acting on behalf the defendant. 

17.  As a result of a joint application made by the parties, the CLR hearing was adjourned to 20 September 2019 by Master Peony Wong on 17 June 2019.  Then, in September 2019, about 10 days before the adjourned CLR hearing, by way of another consent summons, the parties agreed on certain case management directions for the Court to approve.  This led to the Order made by Master Peony Wong on 19 September 2019 which, inter alia, adjourned the CLR hearing to 8 January 2021 for further case management directions and leave to set down. 

18.  Significantly in the context of this case, the witness statement of the plaintiff, which was written in Chinese and signed by the plaintiff and was accompanied by a statement of truth dated 11 January 2019 (ie before she suffered from the stroke), was filed with the Court on 14 November 2019 (ie 7 months after the stroke).  This was in accordance with the directions given by Master Peony Wong in one of her Orders but without the plaintiff’s solicitors informing the PI Master of the significant and material change of circumstances of the plaintiff’s physical condition. 

19.  Further, the revised statement of damages (“the RSD”) was filed by the plaintiff’s solicitors on behalf of the plaintiff on 17 December 2019. 

20.  The answer to the RSD in turn was filed by the defendant on 14 January 2020. 

21.  Then, another consent summons was filed by the parties to ask for an interim stay of proceedings of 3 months in order for the parties to attempt mediation.  The parties requested the Court to adjourn the CLR hearing scheduled on 8 January 2021 to sometime in May 2021 for further directions. 

22.  That request was duly granted by Master Matthew Leung by an Order dated 4 January 2021 which adjourned the CLR hearing to 3 May 2021. 

23.  On 12 April 2021, which was almost 3 years after the issue of proceedings by the plaintiff and just a few weeks before the plaintiff’s solicitors filed the application to set down the case for trial, quite out of the blue, the plaintiff suddenly decided to apply for legal aid.  This is despite of fact that Master Peony Wong had in her Order dated 19 September 2019 requested the plaintiff’s solicitors to confirm in writing whether they had advised their client to do so and warned them of the consequences of any late application for legal aid.  In any event, a memorandum of a person applied for legal aid was filed by a senior legal aid counsel on behalf of the Director of Legal Aid on 13 April 2021.  Due to the late application, Master Matthew Leung had, quite rightly in my view, uplifted the automatic stay caused by the legal aid application and ordered the CLR hearing fixed on 3 May 2021 to proceed as scheduled. 

24.  To complete the picture, the plaintiff’s solicitors have filed a certificate as the estimated time for trial on 19 April 2021 and the defendant’s government counsel has filed a similar certificate on 22 April 2021. 

25.  By another joint application by way of consent summons filed on 21 April 2021, the parties asked the Court for leave to set down the case for trial in the running list.

26.  The application to set down the case for trial was filed on 26 May 2021. 

27.  I would like to stress here that at all time during the case management stage of this case, the plaintiff’s solicitors have failed to inform the Court of the updated medical condition of the plaintiff since the date she has suffered from the stroke in March 2019.  The case was proceeded based on the assumption that the plaintiff was able to give evidence in the usual manner at the trial.    

Discovery of the plaintiff’s physical condition

28.  As part of the Court’s case management powers and taking active steps to make case management orders in its own motions under Order 1B, rules 1-2 of the Rules of the District Court (“RDC”): See §1B/0/2 to §1B/05 of Hong Kong Civil Procedure 2021, the Court will, from time to time, review ongoing cases, particularly PI cases in the District Court which have been put on the running list without a prior case management conference or pre-trial review hearing before the PI judge or trial judge. This is to ensure that the cases are really ready for trial as presented by the parties and that there will be no last minute surprises or applications for adjournment for the trial, which will inevitably lead to unnecessary wasting of costs, time and judicial resources.      

29.  As part of that exercise undertaken by this Court, on 9 July 2021, upon review of the court files in this case, I found that, despite the very serious condition stated in the medical records which were provided to the Court under the cover of the plaintiff’s solicitors letter on 27 May 2019, there was no further updated medical reports or records produced to the Court showing the plaintiff’s current physical condition, in particular whether the stroke has in any way incapacitated or affected her ability to speak or communicate. Obviously, if it does, then it would seriously affect or limit her ability to give evidence in Court at the trial.

30.  As a result thereof, this Court on its own motion directed a pre-trial review (“PTR”) hearing on 14 July 2021 in order to find out the true condition of the plaintiff and whether her current condition would allow her to give evidence normally at the trial. 

PTR hearing on 14 July 2021

31.  At the PTR hearing on 14 July 2021, the plaintiff was represented by Ms Louise Wong from the plaintiff’s solicitors and the defendant was attended by the government counsel, Ms Vienne Luk. Ms Wong, who claimed to be the case handler in her firm, for the first time in these prceedings, informed the Court that the plaintiff in fact could not communicate verbally since the stroke.

32.  She also informed the Court that no further reports and/or medical records of the plaintiff have been obtained from the government hospital(s) on her current medical condition. 

33.  According to Ms Wong, in or around April 2019, her firm had received communications from the plaintiff by way of an email written in Chinese, which, according to her instructions from an associate / clerk who was sitting behind her at the PTR hearing, was the plaintiff’s usual way of communication with her firm.  Ms Wong added that her firm has certainly been receiving emails written from the plaintiff after her stroke.  Thus, to them, the plaintiff has full mental capacity to give instructions and to respond to their communications.

34.  However, on a physical level, she claimed that during their face to face conference recently held with the plaintiff, they were unable to observe that she could not communicate verbally.  Ms Wong stated that she was not personally present at the conference which took place in their office.  It was only subsequently reported to her by one of her colleagues that the plaintiff’s method of communicating her instructions was to use her left hand to write down her responses and/or instructions on a piece of paper.  Very importantly, the plaintiff could not physically use her vocal cord to communicate at all. 

35.  When pressed by the Court as to when did their firm had first found out about the plaintiff’s physical condition and in particular her inability to communicate verbally, Ms Wong became rather vague about it and put the blame on the pandemic which she said made face to face meeting with their client difficult.  She claimed that they were not able to hold any conference with the plaintiff until recently.  As to the exact date or dates, she was not able to provide them to the Court.

36.  However, one indisputable or undeniable fact is that the mediation of this case took place on 30 March 2021 where the plaintiff had attended personally.  While the mediation was not successful, there can be no doubt that the plaintiff’s handling solicitor or her colleagues would be well aware of the plaintiff’s inability to communicate verbally on that occasion.

37.  Yet, despite of that, the Court was not informed. Instead, a joint application was made by way of consent summons to the PI Master to have the case set down for trial on 21 April 2021. The PI Master was not informed of her physical condition, in particular, her inability to communicate verbally which would no doubt affect both the length as well as the mode of the trial.

38.  While Ms Wong tried to repeatedly tender her apologies to the Court, I told her unequivocally that I was not looking for an apology but an explanation as to why such important feature of the case which would have affected both the length as well as the mode of the trial was not mentioned to the PI Master in the joint application.   

39.  After frantically searching the office files with her assistant in Court for over 5 minutes, Ms Wong was not able to provide the Court with a plausible explanation.  She finally told the Court that she did not have an explanation or answer on this matter.

40.  I do not accept Ms Wong’s claim that it was only during a recent conference with their client that they were able to find out that she was not able to communicate verbally.  I cannot imagine a reasonably diligent solicitor would not talk to his/her client on the phone or having a face to face meeting with her for a period of over 2 years, which was the case with the plaintiff as she suffered the stroke in March 2019.  I also cannot imagine that a client who used to communicate with her lawyers verbally would suddenly switch to communicate in writing only without ringing any “alarm bells” in the minds of the solicitors. This is particularly in view of the fact that there was clear and unequivocal medical evidence to show that she had suffered from a severe stroke recently.    

41.  I find the fact that she was not able to communicate verbally was deliberately hidden from the Court (and the defendant) in the hope that the case could be settled without going to trial and without the plaintiff having to give evidence in Court.

42.  In any event, even if I were to give the benefit of the doubt to the plaintiff’s solicitors, at its latest, they must have been able to find out that the plaintiff is not able to communicate verbally by the date of the mediation at the end of March 2021 as it has been confirmed by Ms Wong that the plaintiff was present at the mediation.  Yet, the plaintiff’s solicitors failed to inform the PI Master or the defendant of this important matter when applied to set down the case for trial.   

43.  Another matter which I was concerned with is in relation to the very late application of the plaintiff for legal aid.  By a notice dated 12 April 2021, the Legal Aid Department has informed the Court that the plaintiff had recently applied for legal aid.  This must be seen in the context of a letter dated 28 December 2020 written by the plaintiff’s solicitors in respond to the directions made by Master Peony Wong in reminding the plaintiff to apply for legal aid in good time.  The letter purportedly explained why legal aid was not applied for by the plaintiff at the time.

44.  The plaintiff in this case is not unfamiliar with the legal aid scheme as she had commenced an unrelated disability discrimination claim against an unrelated party in which the Legal Aid Department is acting on her behalf. Thus, at least we know it will not be based on not able to meet the requirements under the means test that has prevented her from being able to successfully apply for legal aid in the present case.

45.  While I do not wish to speculate on the real reason(s) of why she has chosen to apply for legal aid at this late stage, it seems to me too much of a coincident that she would chose to do so when it was so close to the trial itself.  The late application, had the PI Master not uplifted the automatic stay, would certainly have affected the trial dates itself.

46.  I was further troubled by the fact that so far no independent counsel advice has been obtained by the plaintiff when a causal glance at the pleadings revealed that establishing liability in the present action is by no means an easy task.

47.  However, I was assured by Ms Wong at the PTR hearing that their firm would assist the plaintiff to proceed to trial in this case, whether with or without legal aid.

48.  As whether they would do so is a matter to be seen.  But the last thing the Court wants to see is at the last minute and just before the commencement of the trial, the plaintiff would find herself not being represented by any lawyers and has to act in person to conduct the trial herself. In my experience, this is not uncommon in such non-legally aided cases.

49.  To complete the picture, Ms Luk, government counsel for the defendant, told the Court that they had been kept in the dark also in so far as the plaintiff’s updated medical condition is concerned. Their main concern is the true medical condition of the plaintiff and whether she can give evidence normally at the trial.  If not, what special arrangements, if any, will have to be made and whether her condition would affect the length of the trial. 

50.  Ms Luk mentioned that they had only came to become aware of the plaintiff’s condition when they received the plaintiff’s PTR notice filed on 12 July 2021, which was just 2 days before the PTR.  While the plaintiff mentioned that “special arrangement” will have to be made in the PTR notice, they did not say what those arrangements were.  Nor have they mentioned whether any medical report has to be obtained in order to verify the present condition of the plaintiff. Despite of all these, the plaintiff’s solicitors at the end of the same PTR notice stated that there were no complex features or issues in this case which would add to its length. In my view, this is clearly wrong if not misleading.

51.  Ms Wong suggested at the PTR that the plaintiff can give evidence by writing her answers on a piece of paper as she could still use her left hand.  I agree with Ms Luk that such condition proposed by the plaintiff is most unusual and the plaintiff should be asked to provide sufficiently good reasons and medical evidence to justify this. 

52.  As this case involves rather unusual allegations of facts of how a simple “accidental bumping into another colleague” in a wide, dry and bright corridor of an office would amount to some serious breaches of duties, it is anticipated that the defendant will cross-examine the plaintiff extensively during the trial.  Hence, I agree with Ms Luk that it would be unsatisfactory not to know whether medically speaking the plaintiff could really able to communicate in writing only as now being alleged by the plaintiff’s solicitors.  Ms Luk therefore quite fairly applied to have this case to be taken out of the running list in order to allow the plaintiff to obtain medical report or reports from the government hospitals in order to verify her present condition and in particular her ability to communicate verbally.  I agree with her that, without those information, it is difficult to decide in what mode the plaintiff’s evidence can be taken and how long the trial will now likely to last.

53.  In my judgment, the failure on the part of the plaintiff’s solicitors to disclose the true updated physical condition of the plaintiff, which would clearly have a direct bearing on how the trial is to be conducted and the length of the trial, has jeopardized the trial which had been fixed on the running list, which of course are “milestone dates” under Order 25, rule 3 of the RDC.

54.  Further, in my judgment, a solicitor has a positive duty to inform the Court in a timely fashion that, due to his/her client’s physical condition, he/she can no longer able to give evidence in the usual way at the trial so that appropriate arrangements can be made and suitable adjustments to the length of trial will be provided for.

55.  As said, in this case, I do not accept the lamely excuse given by the plaintiff’s solicitors that they were not aware of the plaintiff’s physical condition 2 years after her stroke.  I simply cannot imagine that the case handler or any of the staff in the plaintiff’s firm had not spoken to the plaintiff either on the phone or face to face for over 2 years when the case was actively being pursued by them on the plaintiff’s behalf.  I find it is more likely than not that they had known about the true condition of the plaintiff but chose not to disclose it to the Court or the defendant in the hope that the case can be settled without going to trial.  When that was not happening, then the plaintiff suddenly decided to apply for legal aid “on her own accord”.

56.  I accept the defendant’s submissions that it is no longer viable to keep the case on the running list and have it warned for trial in early August.  At the very least, the plaintiff’s solicitors have to obtain update medical report(s) from the government hospitals in order for the Court to find out the present condition of the plaintiff and how that may affect her ability to communicate.    

Orders made at the PTR

57.  Hence, at the end of the PTR, I made the following orders/ directions:

(1)  Notwithstanding the Order of Master Matthew Leung dated 26 April 2021, this case will be removed from the Running List forthwith;

(2)  There will be a 2^nd Pre-trial Review hearing for this case:-

(a)  For the plaintiff to obtain a medical report or reports from the government hospital(s) in relation to the plaintiff’s present condition as a result of the acute left putaminal haemorrhage, ie stroke, she had suffered from in March 2019 and how it would affect her ability in giving evidence in court during the trial;

(b)  For the plaintiff to make proposals to the court and to the defendant as to what special arrangements, if any, have to be made in order for the plaintiff to give evidence at the trial;

(c)  For the parties to submit a revised certificate of time estimate for the trial in light of the plaintiff’s alleged inability to give her evidence orally in court.

(3)  A 2^nd Pre-trial Review hearing will be fixed before the PI Judge on Wednesday, 15 September 2021 at 2:30 pm in Court No.8 (with 2 hours reserved) for further case management directions and for fixing new trial dates on the fixture list, currently estimated to be at least 5 days; and

(4)  The costs of today’s PTR be reserved.

The Wasted Costs

58.  I reserved the costs at the PTR so that I can consider the matter more carefully. I will now deal with the matter.

59.  In my judgment, the plaintiff’s solicitors as officers of the Court have a possible duty to inform the Court of the true physical condition of a litigant they represent.  Once they have learned that their client is not in a position to give oral evidence in court, they should immediately inform the PI Master and/or the PI Judge as soon as possible so that appropriate arrangements can be made in order to decide how the witness can give evidence effectively at the trial.  Further, medical reports will have to be obtained in order to verify the update medical condition of the party so that the Court can decide whether the case needs to be adjourned or taken out of the running list.  The estimated length of the trial also needs to be revisited in order to decide whether more days will be required and whether it is more appropriate to place it on the fixture list.   

60.  In this case, I find the plaintiff’s solicitors must have known about the plaintiff’s inability to communicate verbally long time before the mediation took place on 30 March 2021.  I do not accept their explanation that they did not need to communicate with the plaintiff verbally since her stroke and that the normal mode of communication between the plaintiff’s firm with her had all along by way of e-mails only.  I find them difficult to believe in the absence of any positive evidence.  This is particularly in view of the fact that the plaintiff had suffered from the stroke since March 2019.  Although Miss Wong was the case handler, she said she had no direct contact with the plaintiff. She informed the Court that this was left with one of the legal executives/clerks in the firm to do. I find that difficult to believe also.

61.  In my view, the fact that the plaintiff has suffered from a serious stroke (as the medical records have shown), it must have raised sufficient concerns in the mind of her solicitors as to whether and how her condition might affect her ability to give evidence at trial.  It should not be left to the Court to find out about this matter upon its own review of the court files.

62.  For a period of over 2 years, I find that the plaintiff’s solicitors have either failed to find out or worse still, if they knew about it, bother to inform the Court or the defendant of the plaintiff’s inability to communicate verbally. 

63.  Either way, I find that as unacceptable conduct and a failure on the part of plaintiff’s solicitors. 

64.  In any event, it is clear that this case will certainly will take more than 3 days which was what the parties had originally estimated when they put the case on the running list for trial.  Further, given her inability to speak, it is no longer appropriate for the case to be placed on the running list. Hence, I have ordered a 2^nd pre-trial review on 15 September 2021 in order for the plaintiff to obtain further medical reports from the government hospitals in relation to the plaintiff’s current physical condition so that the Court can make a realistic estimate to the length of trial and decide on how the plaintiff may give her evidence. 

65.  In this case, a lot of costs and judicial resources have been wasted as a result of the plaintiff’s solicitors’ failure to inform the Court of the plaintiff’s updated medical condition.  The trial will inevitably be aborted had this case been put on the warned list for trial in the first week in August.  The PTR also would not have been necessary had the plaintiff’s solicitors informed the PI Master in one of the CLR applications in a timely manner.  

66.  I consider that all the costs wasted due to the failure on the part of the plaintiff’s solicitors in informing the Court of the plaintiff’s updated medical condition (which would include the costs of the PTR and the adjournment of the trial) should be borne by the plaintiff’s solicitors personally and on an indemnity basis.  I shall give the plaintiff’s solicitors a chance to explain themselves and to show cause as to why the above wasted costs should not be borne by them.  They can do so in writing within 21 days from the date of handing down of this decision, with copy to the defendant.