LEUNG TAI SANG v. HOSPITAL AUTHORITY

HCPI 481/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.481 OF 2004

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J U D G M E N T

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1. This is the trial of the following preliminary issues arising from the plaintiff’s application by summons dated 9 September 2004 :

(1)	Whether the plaintiff’s claim against the defendant is time-barred pursuant to section 27(3) of the Limitation Ordinance (“the Ordinance”) (“the 1st Issue”); and if so
(2)	Whether the court should disapply section 27 pursuant to section 30 of the Ordinance (“the 2nd Issue”).

2. The background circumstances leading to the plaintiff’s application may be summarized as follows.

Admission to Fanling Hospital

3. On 17 July 1997, the plaintiff underwent a surgery at Prince of Wales Hospital (“PWH”) to excise the benign right acoustic neuroma.  After the operation, he was transferred to Fanling Hospital for rehabilitation on 22 July 1997.  According to the Nursing Kardex (B) of the same date, he was upon admission to Fanling Hospital walking with frame.  He was able to walk to the toilet with the frame.  (The author of the Kardex cannot be located now.)

4. On 23 July 197, the plaintiff was examined by a physiotherapist.  He complained to the physiotherapist of dizziness and dizziness over walking.

5. On 27 July 1997, the plaintiff’s stitches were removed.

The Accident

6. The plaintiff was at all material times staying at bed no.20 in Ward B.  He alleged that at about noon on 1 August 1997, he wanted to go to toilet.  He summoned the hospital staff for assistance by pressing the call bell for 15 minutes.  Nobody came.  Without any walking aid, he tried to limp towards the toilet but was tripped over by the protruding leg of a big chair near the end of his bed.  He fell down.  The fall caused him a blackout.  He remained “conscious or half-conscious”.  When the hospital staff came, he told them that he felt dizzy because of the fall. 

7. Two contemporaneous records of the same date were available.  The first is the Nursing Kardes (B), which recorded that the plaintiff complained of dizziness and fell on the floor with front head injury with laceration and bleeding.  He was conscious.  Dr Ngan was informed.  The second is a treatment sheet which recorded that the plaintiff had a sudden blackout.  He sustained head injuries with laceration at forehead and scalp haematoma.  Nowhere in these documents was it recorded that the plaintiff complained that he fell because he tripped over the protruding of a chair.  (None of the authors of these documents nor Dr Ngan referred to can be located now.)

8. The plaintiff was then transferred to PWH for treatment.  He suffered serious injuries and had since become tetraplegic.  He had since been hospitalized in PWH, Fanling Hospital and other medical institutions.  In 2002 he was transferred to Tai Po Hospital and has since been staying there to date.

The Report

9. After the accident, Registered Nurse Lee Man-ying prepared an incident report dated 1 September 1997 (“the Report”).  She stated in the Report that the plaintiff said that he felt dizziness while walking and suddenly blacked out, then fell on the floor immediately.  Nurse Lee has no independent recollection of the incident now.

Nursing assessment

10. On 3 July 1999, the plaintiff was transferred from North District Hospital to Fanling Hospital.  According to the nursing assessment form of the same date, the plaintiff complained of “slip and fell on 97-8-1.”  (The author of the form cannot be located now.)

Closing down of Fanling Hospital

11. In 1998, Fanling Hospital began the process of closing down.  The Accident & Emergency Department was closed in August 1998.  In 1999, the A to D wards that were mainly used for convalescent wards started closing gradually.  In 2001, all convalescent services were transferred to Tai Po Hospital.  On 2 October 2002, the general outpatient service came to an end.

12. In December 2002, the entire hospital building was taken over by Social Welfare Department.  It was later converted into Hong Chi Fanling Integrative Rehabilitation Center to provide day care and hostel facilities for mentally handicapped patients.  As a result of the redecoration and refurbishment of the building, the wards are no longer in its original size, layout or condition.  The furniture had been changed as well.  The old furniture, including the chair in question, is no longer available.

The plaintiff’s first written complaint in 1999

13. On 6 July 1999, the plaintiff complained in writing to the defendant about unfair treatment (“the Letter”).  He did not mention the accident at all.

14. By letter dated 23 July 1999, Dr Lai King Kwong, the Hospital Chief Executive of North District Hospital responded to the plaintiff’s complaint.  Thereafter the plaintiff did not make any further complaint in writing until 2002.

The plaintiff’s complaint in 2002 and thereafter

15. In August 2002, the plaintiff complained to Oriental Daily News and the Apple Daily about the accident on 1 August 1997 and how he had allegedly tripped over the protruding leg of a chair in the ward.  It was the first written complaint and it took place five years after the accident.

16. In September 2002, the plaintiff took the matter to the Ombudsman.  He alleged, inter alia, that many big chairs were put in the major passageways of the ward; that his wife complained about the accident but was told that it was just an accident and it was all out of his carelessness; and that he complained to the defendant but only got vague denial of responsibility.

17. In November 2002, Dr Choy Khai Ming, for the Chief Executive of the defendant, responded to Ombudsman and the two newspapers.

18. By letter dated 15 January 2003, Ombudsman advised the plaintiff that after investigation, the Ombudsman found that the plaintiff had failed to provide his complaint with substantial evidence.  The case was then closed.

19. In January 2003, the plaintiff approached a legislative councilor for assistance.  In March 2003, that legislative councilor complained on behalf of the plaintiff to the defendant.  In July, the defendant’s public complaints committee replied to his complaint.

Commencement of the action

20. In March 2004, the plaintiff was granted legal aid.  On 31 May 2004, he commenced the present action claiming for damages suffered as a result of negligence and/or breach of occupiers’ liability on the parts of the defendant arising from the accident.  By then, it was nearly six years nine months after the accident.

Whether the action is time-barred

21. Having set the backdrop, I turn to the 1^st Issue, namely, whether the action is time-barred.  The answer is obvious : it is hopelessly time-barred.

22. Initially, the plaintiff alleged that he did not know that he had a cause of action against the defendant.  In raising this, the plaintiff seemed to be contending that time did not start to run when the accident allegedly occurred.  This is an untenable contention : see Sunwar Bhimrai v. Le Cheong Engineering Co. & Another, unreported, HCPI 1492/2000, 20 December 2001, per Suffiad J at paragraph 30.  Not surprisingly, at trial, Mr Cheung, counsel for the plaintiff, concedes and rightly so in my opinion that the action is time-barred under section 27 of the Ordinance.

23. This disposes of the 1^st Issue.

The law on section 30

24. I next turn to the 2^nd Issue which deals with the application of section 30 of the Ordinance.  I first set out the applicable law.

25. The relevant provisions in section 30 of the Ordinance read :

“	30.	Court’s power to override time limits
		(1)	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 or 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 shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.
			…
		(3)	In acting under this section the court shall have regard to all the circumstances of the case and in particular to —
			(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.”

26. The burden rests squarely on a claimant to satisfy the court that it is equitable to disapply the limitation period and it is a heavy burden.  It is an exceptional indulgence to a claimant, to be granted only where equity between the parties demands it : K R & others v. Bryn Alyn Community (Holding) Ltd (in liquidation) and another [2003] QB 1441, per Auld LJ at paragraph 74(ii).  Section 30 is only available for special cases and it is for the claimant in any particular case to establish that his claim is one of those special cases : T v. Boys & Girls Welfare Service [2004] All ER (D) 361, per Latham LJ at paragraph 13.

27. The claimant also bears the burden to prove that the reasons for his delay are not only genuine but that they are good reasons in the sense of being sufficient to be given real or decisive weight : Buckler v. J F Finnegan Ltd & another [2005] PIQR 36, per Potter LJ at paragraph 26.

28. In considering how to exercise the discretion under section 30, the court should not reach a decision effectively concluding on the matter on the strength of any one of the circumstances specified in subsection (3), or on one of any other circumstances relevant to his decision, or without regard to all the issues in the case.  The court should conduct the balancing exercise at the end of its analysis of all the relevant circumstances and with regard to all the issues, taking them all into account : Long v. Tolchard & Sons Ltd [2001] PIQR P18, 26 per Roch LJ, quoted by Auld LJ in Bryn Alyn at paragraph 74(v).

29. Section 30 requires the court to consider the degree of prejudice to the claimant if an order is not made, and the degree of prejudice to the defendant if an order is made: Margolis v. Imperial Tobacco United & Others, unreported, 6 April 2000, per May LJ at p.3.

30. In assessing the question of prejudice, the following factors are pertinent :

(1)	Length of delay.  Any delay on the part of the claimant both before and after the expiration of the limitation period must be considered : Donovan v. Gwentoys [1990] 1 WLR 472, per Lord Oliver at p.480.  Depending on the issues and the nature of the evidence going into them, the longer the delay the more likely, and the greater, the prejudice to the defendant : Bryn Alyn, per Auld LJ at paragraph 74(iii).
(2)	Prospect of success.  It is necessary for the court to take an overall broad view of the claimant’s success.  The court should not attempt to determine the merits of the claim on the affidavit evidence : Margolis, ibid.  But the court can draw such provisional inferences from affidavit evidence as appear to be fair : Bryn Alyn, per Auld LJ at paragraph 74(iv).
(3)	Balancing the prejudice.  Where the court has assessed the likely cogency of the available evidence, that is, before finding either way on the substantive issues, it should keep in mind in balancing the respective prejudice to the parties that the more cogent the claimant’s case the greater the prejudice to the defendant in depriving him of the benefit of the limitation period : Hartley v. Birmingham City District Council [1992] 1 WLR 968, per Parker LJ at p.979, quoted by Auld LJ in Byrn Alyn at paragraph 74(viii).  On the other hand, in cases of weak claims, disapplication of the limitation provision can cause defendants considerable prejudice in putting them to the trouble and expense of successfully defending them and then not being able to recover costs against impecunious claimants : Byrn Alyn, ibid.
(4)	Whether a fair trial possible.  The fundamental question, it would appear, is whether at the end of the day a fair trial is possible : Byrn Alyn, per Auld LJ at paragraph 71; T v. Boys & Welfare Service, per Latham LJ at paragraph 12.
(5)	Remedy deprived.  The fact that a claimant is likely to be deprived of a remedy when the time limit is not disapplied carries little weight because limitation provisions do of their very nature normally deprive potential claimants of their remedy : Rowe v. Kingston-upon-hull City Council and Essex County Council [2004] PIQR 238, per Keene LJ at paragraph 39; T v. Boys & Girls Welfare Service, per Latham LJ at paragraph 14.

31. With these principles in mind, I now come to the merits of the plaintiff’s application.  I will first look at the plaintiff’s prospect of success.

Prospect of success

32. I have carefully considered all the evidence before me.  I first note that the plaintiff’s case on the accident was not recorded in any of the contemporaneous medical documents.  And according to those records, how he had fallen on the floor was simply inconsistent with the plaintiff’s case.  The plaintiff’s allegation that the hospital staff refused to put down his complaint on record is bare and unsubstantiated by concrete evidence.

33. As to the Report, the plaintiff alleged that the defendant did not show him a copy at the time.  He was only shown a copy by the Legal Aid Department when he applied for legal aid.  Before its compilation, nobody from the defendant had contacted him or made inquiry about the accident.  His allegations are tantamount to a conspiracy theory.  The hospital staff refused to acknowledge, record or act on his and his wife’s verbal complaint right after the accident.  Nurse Lee then complied the Report behind his back and grossly misrepresented the real cause of the accident.  There is simply no evidence before me, whether direct or by way of inference, to support such a serious charge against the defendant and the hospital staff concerned.

34. I next note that the Letter, the plaintiff’s own document, made no reference to the accident at all.  His wife, who prepared it or caused it to be prepared, had not explained why she did not refer to it at all.  The plaintiff alleged that he was not aware of its contents at the time.  This is quite unbelievable.  In any event, it is not an explanation why no reference was made to the accident at all and why his wife would choose to complain about less serious matters and leave aside the accident, which had caused permanent disability to the plaintiff and much hardship to the family.

35. There was no independent eye-witness of the Incident.  Much depends on the recollection of the plaintiff.  But it is his own evidence that after the accident he did not have a good memory.  He still had recollection of the accident but could not recall the full details of the Incident : see paragraph 11 of his 2^nd affirmation and paragraph 18 of his 1^st affirmation.  Despite his effort to impress the court, it is more likely than not that his memory fades with the passage of time.  There is therefore a reasonable question mark on his recollection of the accident.

36. Mr Ismail, appearing for the defendant, submits that on 23 July 1997, that is, eight days before the accident, the plaintiff was still suffering form vertigo and experienced dizziness.  He also complained of mild headache and dizziness.  According to the Report, he complained of mild dizziness in the morning of 1 August 1997 to his wife but she did not notify the hospital staff.  The plaintiff’s denial that he made such complaint to his wife was unbelievable.  Given these facts, it is a fair inference that the plaintiff felt dizzy while walking, suddenly blacked out and fell down.  In my view, there is considerable force in Mr Ismail’s submissions.

37. Mr Ismail further submits that the mere tripping over a chair does not necessarily support a case of negligence.  The other evidence pertaining to negligence is missing.  Since the closing down of Fanling Hospital, the ward in question no longer existed.  The old furniture including the chair in question is no longer available.  The medical staff at the time of the Incident, other than Nurse Lee, cannot be located.  And Nurse Lee does not have any independent recollection other than what had been contained in the Incident Report.  Thus there is no evidence, other than that of the plaintiff’s imperfect recollection, as to the exact layout of the ward, whether there was a chair, its size, shape and location, how long it had been there and put it there.  Again, there is considerable force in his submissions.

38. Mr Ismail submits that the plaintiff’s allegation is not provided with a walking aid is contradicted by the nursing kardex on 23 July 1997 and is therefore unbelievable.  This is a valid point.

39. Mr Ismail finally submits that even on the plaintiff’s own case, there is a degree of contributory negligence, which may result in any recovery that he is able to make being greatly reduced : Magolis, supra, at p.4.  This is also a valid point.

40. Having taken a very board overall view, I am unable to accept the submission of Mr Cheung, appearing for the plaintiff, that the plaintiff’s prospect of success is strong.  Quite to the contrary, it is, in my opinion, by no means self-evident.  It is slim indeed.

41. I now turn to the matters listed in section 30(3) of the Ordinance.

Length of delay — section 30(3)(a)

42. The cause of action allegedly arose on 1 August 1997.  It was after six years and nine months that the plaintiff commenced the present action.  And the limitation period had already expired for about 45 months.  The delay, both before and after the expiry of the limitation period, is not insignificant.  And as will be seen below, it considerably affects the defendant’s ability to properly defend his claim, rendering a fair trial impossible.

Reasons for delay — section 30(3)(a)

43. The plaintiff’s explanation for the delay can be found in paragraphs 18 to 30 of his first affirmation filed on 9 September 2004.  He said :

“	18.	As a result of the accident, my whole body became almost paralysed (i.e. tetraplegic).  I was confined to my bed and my blood pressure was low.  I felt very weak and did not have a good memory.  I could not recall full details of the accident.  I was in a depressed mood and was not able to do anything but had to rely on complete medical care.  At the hospital I could not use the telephone to communicate with other people.  Moreover, I could not afford to buy a mobile telephone and paid for the monthly charge.
	19.	Before the surgery, my family members and I lived together in the same dwelling (i.e. wife, son and mother).  My son worried about the School Certificate Examination and the examination result was bad.  He had to repeat fifth form studying.
	20.	Soon after the accident my wife and I made an oral complaint to the Hospital Authority.  However, the hospital’s staff denied the responsibility for the accident and rejected our complaint alleging that it was an ‘accident’ and that it was my own fault.
	21.	Since the accident my wife had quitted her job in the Welcome Supermarket.  We had financial problem and applied for social security assistance.  My wife had to take care of my mother (aged 79).  She also had to come to the hospital and took care of me.  Therefore, she was exhausted and was in a bad mood.  No matter how hard I tried, I could not get my wife to change her mind and to assist me in making complaints against the Hospital Authority again.  Consequently, I argued with my wife many times.  I became a heavy burden to the family and the whole family members did not support me.  Therefore, I became helpless.
	22.	In or about the end of 1998, I was hospitalised in the Cheshire Home, Shatin and met another patient called Mr. Fong (‘Fong’) there.  I told Fong about the accident.  Fong tried to persuade my wife to make another complaint but she did not change her mind.
	23.	Later in the same year on one Tuesday’s afternoon at the Cheshire Home, the hospital’s staff, e.g. Dr. Suen (孫主任), social worker Ms. Lin (連姑娘),ward manager Ms Luk (陸姑娘), together with the physiotherapist and occupational therapist suggest me leaving the hospital and returning home.  I requested them to assist me in making complaints about the accident.  However, the Hospital’s staff refused my request because they were afraid of being terminated by the Hospital Authority.
	24.	In or about July 1999 during my staying at the North District Hospital and at the Fanling Hospital, the hospital’s staff did not treat me well.  My wife felt very angry and could not tolerate any more.  She made a complaint about the bad treatment (without my prior knowledge).  The Fanling Hospital arranged me to meet a Medical Executive (醫務總監) to deal with the complaint of bad treatment but still denied the responsibility for the accident.  Afterwards, the hospital’s staff improved their manner towards me.
	25.	When I was transferred back to the Fanling Hospital in 1999, I recalled the position of my bed, the chairs and the television set.  Moreover, a hospital staff, Madam Wong (醫務助理黃姑娘) told me that I was found lying on the floor near bed No. 18 on 1 August 1997.  Then I asked my wife to make another complaint about the accident but she still refused to do so.  Later in the same year, the costs of mobile telephone decreased.  My wife could afford to buy a mobile telephone.  I was given an electrical wheelchair by a voluntary agency.
	26.	In or about October 1999 the tumour became larger.  I later underwent the radiosurgery.  My health began to improve a little bit in 2002.  I could sit for quite some time, e.g. about 6 to 7 hours a day without feeling dizzy.  My children became independent and went out to work.  My wife then changed her mind gradually; she was willing to assist me in making complaints about the accident.  We asked Fong how to do it.  Fong told us writing letters of complaint to the newspapers first.  If the letters did not work, then we might try to write a letter to the Ombudsman.  We followed Fong’s opinion and made the complaints accordingly.  I asked my son to type the letters for me.  There is now produced and shown to me marked ‘LTS-3’, copies of the letters of complaint.
	27.	In replies, the Hospital Authority denied their negligence and alleged that it was my own fault that caused the accident.  There is now produced and shown to me marked ‘LTS-4’, copies of the replies to the newspapers.  I disagree with the replies.  In fact I did not feel dizzy that morning (1-8-1997).  I denied that my wife and I had told the hospital’s staff that I felt dizzy that morning and that the fall was due to my sudden dizziness as alleged or at all.
	28.	In or about January 2003, I was told that a member of Legislative Council Mr. Cheng Kar Foo (‘Cheng’) had an office at the Tai Wo Estate, Tai Po.  Once I knew that Cheng might assist me, I gave a telephone call to Cheng and told him about the accident.  Cheng assisted me in making a complaint against the Hospital Authority and advised me to apply for legal aid.  There is now produced and shown to me marked ‘LTS-5’, a copy of the letter of complaint.  The Hospital Authority rejected my complaint again; there is now produced and shown to me marked ‘LTS-6’, a copy of the letter of reply.  I disagree with the reply.
	29.	I was not a well-educated person.  My wife is a housewife; she received primary education.  I did not know how to make my complaint properly and effectively until Cheng came to assist me and gave advice about my legal rights.  Legal aid was refused at the beginning but was finally granted to me in or about March 2004.  I always want to make a complaint against the Hospital Authority about the accident but I am incapable to do so.  Unless someone comes to assist me, I cannot do anything at all.
	30.	Since the Hospital Authority has rejected all my complaints unreasonably and blamed that it was my own fault, I commence legal proceedings as a last resort.  I was told that the Fanling Hospital had closed.  I do not know whether the Hospital Authority had conducted an investigation into the accident and make a report but they did not come and ask me about the accident ever since.  The Hospital Authority have complete medical records upon me through the said period but they do not provide me the medical records soon after the accident and let me look at those records.”

44. In his second affirmation filed on 9 March 2005, the plaintiff referred to the Letter and had this to say :

“

7.

In reply to paragraphs 16 to 18 of Mr. Lo’s affidavit, my wife did write a letter of complaint to the Defendant on 6 July 1999 about the bad treatment.  She asked my son to type the letter of complaint without my prior knowledge.  Later, I was arranged to meet a Medical Executive (醫務總監), I recalled her surname was ‘Leung’).  I mentioned about the bad treatment at the Fanling Hospital and at the North District Hospital.  When I further mentioned about the lack of self care, walking aid and the accident at Fanling Hospital happened in August 1997, she interrupted me and asked me to concentrate on the present complaint happened in July 1999.  The Defendant has exhibited the letters as ‘LCK-8’ and ‘LCK-9’.”

45. In a short affirmation filed on 9 September 2004, the plaintiff’s wife said that the plaintiff was not responsible for the delay and that she did not assist him in making complaints until 2002.

46. When assessing their evidence, I have already taken into account the personal background of the plaintiff and his wife as revealed in their affirmations.  A number of points arise from their evidence.

47. First, the plaintiff is vague on the oral complaint that they made soon after the accident.  When, under what circumstances and the identify of the officer(s) to whom they made the complaints and who denied responsibility are all lacking.

48. Second, the accident must have caused much hardship to the plaintiff, his wife and the whole family.  When the defendant repeatedly denied liability, it was rubbing salt into the wound.  They must have felt extremely aggrieved.  I fail to see how his wife and his family members would have refused to make further complaint.  His wife might have felt exhausted and was in bad mood in taking care of the plaintiff.  The plaintiff might well have become a heavy burden to the family.  But I am unable to accept that his wife and the whole family would have simply refused to assist him as alleged.

49. Third, the Letter is most telling.  His wife sought fit to raise complaints about unfair treatment in July 1999, which were much less serious than the accident.  Why did she choose not to complain about the accident?  She has not offered any explanation at all.  The plaintiff attempts to distance himself from the Letter.  He said that he was not aware of the contents at the time.  But that is not an answer why his wife decided not to assist him to make a complaint about the accident and the defendant’s subsequent denial of responsibility.

50. Fourth, his wife started to change her mind gradually in 2002.  But why?  Neither the plaintiff nor his wife has offered any credible explanation or at all.

51. Fifth, the plaintiff complained to the newspaper in August 2002 and to the Ombudsman in September 2002.  In January 2003, the plaintiff was advised by the legislative councilor to apply for legal aid.  It is not clear from the evidence when he first applied for legal aid and if there is any delay the reasons thereof.  Even assuming that he had applied for legal aid forthwith and the progress of the matter had been halted because legal aid was refused initially, it is not an answer for the delay before 2002.

52. I do not find the plaintiff’s reasons for delay convincing.  I agree with the submission of Mr Ismail that his reasons are neither genuine nor good.

Cogency of evidence — section 30(3)(b)

53. Mr Cheung submits that the delay does not affect the cogency of the evidence materially and that a fair trial has not been rendered impossible by passage of time.  He takes a number of points.

54. First, the plaintiff is the only eye-witness and has made his best endeavours to recall the Incident.  But as I have observed above, there is a reasonable question mark as to his recollection and hence reliability of his evidence on the accident.

55. Second, the defendant has complete medical records and reports in their favour.  Any misfortunate arising from missing witnesses is the defendant’s own making.  It should have conducted inquiry when the plaintiff first raised his complaint after the accident.  In my view, the relevant documents are only one category of evidence that the defendant may rely on.  While the plaintiff was delaying the matter, Fanling Hospital had closed down.  On the unchallenged evidence before me, the wards no longer exist and all the old furniture is no longer available.  No records were kept of the precise layout of the wards and the location and arrangement of the furniture.  The defendant is unable to find out the type of chair, where it was placed, when it was placed, by whom, its size and angle in relation to its surroundings, whether it and its protruding leg was viable from a distance.  The opportunity for inspection and investigation had been lost. 

56. Third, Mr Cheung submits that the defendant had only itself to blame for having the lost opportunity to investigate or to locate the witnesses for they did not act on the plaintiff’s repeated complaints.  I am unable to accept that the bare allegation that the plaintiff had made the oral complaints before 2002 or that the defendant’s staff had refused to act on them as alleged.  I therefore reject Mr Cheung’s submission.

57. In my view, the defendant will suffer a real prejudice.  Its ability to defend properly the plaintiff’s claim is unduly hampered by the delay.  A fair trial will not be possible.

Conduct of the defendant — section 30(3)(c)

58. Mr Cheung submits that the defendant was fully aware of the accident and the plaintiff’s and his wife’s complaints.  But it did not act on the complaints, did not contact the plaintiff or make inquiry.  I have already ruled that I am unable to accept the plaintiff’s case on these matters.  On the evidence before me, I fail to see any misconduct on the part of the defendant as alleged which puts it in its present position of having to face a stale claim.

The plaintiff’s disability — section 30(3)(d)

59. The plaintiff has become tetraplegic after the accident.  Mr Cheung submits that it is quite unrealistic to expect him to pursue the complaint himself without any assistance from other people.  As a matter of proposition, I agree.  However, the plaintiff did have his wife and his family members there to assist him.  His case is essentially that they refuse to do so until his wife changed her mind in 2002.  I am unable to accept this bare allegation.

The promptness and reasonableness of the plaintiff’s act — section 30(3)(d)

60. Mr Cheung accepts that the relevant state of knowledge is knowledge of his legal rights and the test is an objective one.  He submits that the plaintiff is not a highly educated man.  Once he had been advised by the legislative councilor that there was a cause of action, he acted promptly, reasonably and expediently to pursue his claims.

61. I fully accept that the plaintiff is not a highly educated man.  But I do not think it requires a high education to know that he could pursue his claims against the defendant arising from the injury that he suffered from the accident.  I do not find any justification of his inaction for more than five years before he sought advice from the legislative councilor, although I am prepared to accept that he had acted promptly and reasonably and expediently to pursue his claim thereafter.

Advice — section 30(3)(f)

62. In my view, the plaintiff should have taken legal advice much earlier.  On the evidence before me, there is no justification for failing to do so.

Prejudice

63. Finally, I come to the question of prejudice.

64. On the defendant’s part, there is huge prejudice if the limitation period is disapplied in that it will have to spend considerable costs and resources to meet a stale and flimsy claim of which a fair trial is impossible.

65. On the other hand, if the limitation is not disapplied, Mr Chueng submits that the plaintiff willhave no alternative remedy.  That may well be the case.  But in the cir2umstances of the present case, this carries little weight.

66. On balance, the prejudice likely to be suffered by the defendant outweighs that of the plaintiff.

Conclusion

67. Having carefully gone through all the relevant considerations and the balancing exercise, I am firmly of the view that the plaintiff has failed miserably to discharge his burden to persuade me to disapply the limitation provisions.  I will therefore dismiss his application and strike out his action.  I will also make an order nisi that the plaintiff do pay the defendant the costs of the action, including the costs of the present application, to be taxed if not agreed; and that the plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.