DANIEL FRIEDRICH ABADEER WAGNER v. THE HONG KONG ADVENTIST HOSPITAL AND ANOTHER

HCPI 981/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 981 OF 1998

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J U D G M E N T

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1. On 31 December 1991, Mrs Abadeer Wagner gave birth to Daniel Wagner, the Plaintiff of this case, at the Hong Kong Adventist Hospital. The 2nd Defendant, Dr Albert Miao, an obstetrician, was responsible for Mrs Wagner's antenatal treatment and he also attended at the foetal delivery of Daniel Wagner.

2. The present claim is brought by Daniel Wagner, with his father as next friend, against the 1st and 2nd Defendants for medical negligence. It is alleged in the claim that as a result of the negligence of the 1st and 2nd Defendants, the infant had suffered severe mental and physical disability.

3. On 29 December 1994, a generally endorsed writ was issued in High Court Action No.13104/94 with the 1st and 2nd Defendants and three others as Defendants ("the 1st Action"). The writ of the 1st Action was, however, not served on any of the five Defendants. No application was made by the Plaintiffs to renew the writ.

4. On 22 September 1998, the Writ in the present action was issued and was served on the 2nd Defendant on 8 October 1998.

5. On 7 December 1998, the Plaintiff applied before a Master to discontinue the 1st Action. On 12 of the same month, Notice of Discontinuance of the 1st Action was filed.

6. There are two summonses before this Court. The first is the 2nd Defendant's summons to strike out the Writ and Statement of Claim in respect of this action. There is also a summons taken out by the Plaintiff to strike out paragraphs 1 and 2 of the Defence of the 2nd Defendant.

7. There are two grounds relied upon by the 2nd Defendant to strike out the Writ and Statement of Claim in this action. The first ground is that the Plaintiff's causes of action against the 2nd Defendant were time-barred by virtue of s.22(2) of the Limitation Ordinance at the time of the issue of the Writ on 22 September 1998. The second ground is that the present action is an abuse of the process of the Court in that the causes of action relied upon against the 2nd Defendant were the same as that of the former action which has been discontinued.

The Time Bar Point

8. It is submitted on behalf of the 2nd Defendant that by virtue of s.22(1) of the Limitation Ordinance, the three-year limitation period from the date of the Plaintiff's birth on 31 December 1991 has expired on 30 December 1994. Section 22(1) of the Ordinance reads :

"(1) If on the date when any right of action accrued for which a period of limitation is prescribed by this ordinance, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years from the date when the person ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period of limitation has expired: provided that

(a) this section shall not affect any case where the right of action first accrued to some person (not under a disability) through whom the person under a disability claims ...

.....

(2) If the action is to which section 27 or 28(3) applies, subsection (1) shall have effect as if for the words 'six years' there were substituted the words 'three years'."

The proviso in paragraph (a) of s.22(1) above, it was submitted, is that the Plaintiff does not need an extension of the limitation period on account of his disability because the father, who was not himself under a disability, was in a position to bring the action on behalf of the infant.

9. Mr Ismail, on behalf of the 2nd Defendant contended that since the Plaintiff did not have an existence independent of his mother at the time, he must have derived his claim against the 2nd Defendant only from his mother. It was so because his injuries were sustained as a result of the alleged negligence and/or breach of contract of the 2nd Defendant in treating the mother when she gave birth to the infant. Since the infant did not receive any direct treatment from the 2nd Defendant, the cause of action had only accrued to the mother who is not herself under any disability through whom the Plaintiff is deemed to claim. The Plaintiff does not have independent cause of action against the 2nd Defendant. In support of his argument, Mr Ismail relied on the wording of s.2(2) of the Ordinance which provides :

"A person should be deemed to claim through another person, if he became entitled by, through, under, or by the act of that other person to the right claimed ..."

10. The line of argument advanced on behalf of the 2nd Defendant was clearly made without a proper understanding of s.22B of the Law Amendment and Reform (Consolidation) Ordinance, Cap.23. Subsection (1) of the section reads :

"(1) If a child is born disabled as a result of such an occurrence before its birth as is mentioned in subsection (2) and a person (other than a child's own mother) is under this section answerable to the child in respect of the occurrence, the child's disabilities are to be regarded as damage resulting from the wrongful act of that person and actionable accordingly at the suit of the child. (emphasis added)

(2) An occurrence to which section applies is one which -

(a) ...

(b) affected the mother during her pregnancy or affected her or the child in the course of its birth so that the child is born with disabilities which would not otherwise have been present."

11. The wording of this section is blatantly inconsistent with Counsel's submission that the Plaintiff's claim is deemed to arise through his mother. Subsection (1) provides the child with an independent cause of action at his own suit upon achieving independent existence for disabilities suffered at the hands of the persons at the time when he did not have an independent existence. That being the case, the Plaintiff cannot be under the constraint of the parents' limitation period and the present action cannot be time-barred. As the Plaintiff is still under a disability, his action may be brought at any time before the expiration of three years from the date when he ceases to be under a disability or dies.

12. The present action is clearly brought within the limitation period and the time bar point is therefore misconceived. The 2nd Defendant's application under this limb must be dismissed.

Abuse of process

13. I would now deal with the 2nd limb relied upon by the 2nd Defendant to strike out the Statement of Claim.

14. The writ in the 1st Action was issued on 29 December 1994, almost three years after the Plaintiff's birth in December 1991. The writ in that action was, however, never served on the Defendants. Mr Ismail submitted that the Plaintiff's failure to serve the writ was deliberate and without good reason. Such inexcusable failure should be equated, on the strength of both Hong Kong and English authorities, with the Plaintiff wilfully disobeying a peremptory order of the Court. If the 1st Action could have been dismissed for failure to comply with a peremptory order of the Court, the 2nd Action should be struck out as an abuse of process on account of the conduct or inactivity of the Plaintiff in the 1st Action. Mr Ismail relied on the case of Janov v. Morris [1981] 1 WLR 1389.

15. The flaw in Mr Ismail's argument appears to lie in the fact that he had attempted to equate failure to serve the writ of the 1st Action by the Plaintiff to that of the Plaintiff's failure to comply with a peremptory order of the Court. Suffice for me to say that there has never been any peremptory order in the 1st Action and likewise in the present action. In Janov v. Morris(supra), the plaintiff's action was struck out as an abuse of the process of the Court where there had been a failure by the plaintiff to comply with an unless order to serve a summons for direction by a specific date in a previous action. On the basis of the absence of any peremptory orders, the English Court of Appeal decision is clearly distinguishable from the facts of the present case.

Delay

16. The 2nd Defendant's application also relies on the Plaintiff's inordinate delay in prosecuting the 1st Action. Any such delay, in my view, was due to the lack of funding and the repeated refusal of the Legal Aid Department to grant a certificate to the infant Plaintiff. Such delay could not have been attributed to either the Plaintiff or to their legal advisors nor could that be labelled as either inordinate or inexcusable.

17. One other point which calls for consideration is that it is entirely within the Plaintiff's statutory entitlement to commence the present action and it has never been the 2nd Defendant's case that he had been unfairly prejudiced in any way by this action.

18. For the above reasons, the 2nd Defendant's summons must be dismissed. For the same reasons, I would allow the Plaintiff's application to strike out paragraphs 1 and 2 of the 2nd Defendant's Defence which seeks to set up a defence of limitation and abuse of process.

19. I would make the following costs order nisi :

1) The Defendants' summons dated 4 January 1999 is dismissed with costs.

2) The Plaintiff's summons dated 13 January 1999 is allowed with costs.

3) Certificate for two counsel.