KWOK YUEN YING v. THE HONG KONG JOCKEY CLUB

HCPI 495/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 495 OF 2008

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DECISION

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1. I have before me a summons issued on 29 December 2008 to strike out paragraph 14 of the defence on the ground that it is scandalous, frivolous or vexatious and/or it may prejudice, embarrass or delay the fair trial and/or it is otherwise an abuse of court process.

2. The summons is taken out in this action for damages for personal injury in which the plaintiff was a recreation assistant employed by the defendant to work at the defendant’s clubhouse.  She alleges that in August 2005, as she bent down to pick up a bundle of towels, she sprained her neck.  She received a few months of conservative treatment and then underwent two spinal operations on 8 December 2005 and 5 January 2006.  The first surgery was complicated by quadriplegia, and a recovery of function was not complete even after the second corrective surgery.  Both surgeries were performed by Dr Louis Hsu.

3. Paragraph 14 of the defence pleads as follows:

“Further or alternatively, the defendant avers that the plaintiff’s present medical condition was caused by a novus actus interveniens, namely the surgery she underwent on 8 December 2005 at Canossa Hospital performed by Dr Louis C S Hsu.”

4. At a checklist hearing before Master Kwan on 25 November 2008, the defendant informed Master Kwan that it had not obtained any expert opinion as to whether or not there was a proper case of novus actus interveniens, and on that day Master Kwan made an order that:

“Within 21 days the defendant shall obtain from his orthopaedic expert, Dr Chun Tsu-yuen, his opinion in writing that there may have been a novus actus interveniens when the plaintiff was operated on by Dr Louis Hsu on 8 December 2005.”

5. The order also stated that the defendant should also obtain his opinion in writing, identifying the existence of documents arising from the two operations performed by Dr Hsu on 8 December 2005 and 5 January 2006, and the classes of documents to be described with sufficient particularity.

6. This part of the order must have been made when solicitors for the defendant informed Master Kwan that they needed the medical records for Dr Chun to prepare his report.  In any event, that order was made, and on 2 December 2008, Dr Chun prepared a report in which he very frankly stated that as he did not have full medical records, including the anaesthetic record, he was not in a position to give any opinion on a fair basis, and he then went on to state that for this kind of operation, the medical records which must exist include the operation record, the doctor’s progress notes, the anaesthetic records, the temperature charts, nursing records, blood pressure charts, and therapist records, for example, physiotherapist, occupational therapist, and he asked for these records to help him form a better view of the plaintiff’s condition during surgery and to enable him to consider whether there was any human error during the surgery.  He ended his report by a request that all the patient’s medical records and notes from Canossa Hospital, where the surgery was performed, should also be obtained.

7. Notwithstanding this clear and very understandable request by Dr Chun for these records, the plaintiff decided on 29 December 2008 to issue the summons to strike out.  The summons was technically correct at that point in time because of course as at 29 December 2008, there still was not any expert opinion to support the plea of novus actus interveniens.

8. After the summons was issued, the matter returned to Master Kwan, who made an order on 5 January 2009 that this particular summons and two other summonses be fixed to be heard before the PI judge, and she gave directions for the filing of affirmations in support and in opposition.

9. Thereafter, on 12 January, substantial discovery of the medical records sought by Dr Chun was made when the plaintiff disclosed the same to the defendant, apparently on a without prejudice basis.  Obviously this is not an easy matter to report upon, and Dr Chun Tse Yuen took some time to deal with these instructions, but on 21 March 2009, he prepared a very substantial report on quantum, and on 22 March 2009 he prepared another equally, if not more substantial, report on the issue of the two surgeries and their relevance to the plaintiff’s condition.

10. The summary of that latter report clearly records Dr Chun’s opinion that Dr Hsu’s diagnosis of C1/C2 rotatory subluxation was correct, and so also was his advice of C1/C2 fusion.  However, he went on to state that the choice of surgery of passing the wire loop through two levels, C1 and C2, was less desirable, although acceptable.  The surgery itself was a difficult one with very high risks involved.  He then noted that the wire was not tightened adequately, thus causing a bulge at the time of the first operation and which he described as a technical error of surgery, and then he went on to identify over two pages the measures which would have helped to reduce the risks and improve outcome of the surgery.

11. At page 674 of his report, he stated:

“I would have difficulty to accept that CT scan of the C1-2 region was not done on that day or the next day after the patient had returned to the ward so that earlier remedial surgery could have been done much earlier.  In all the circumstances, Dr Hsu’s actions which I have described above would not have been ones that a reasonable orthopaedic surgeon who specialises in spinal surgery would have undertaken.”

12. He then went on to state:

“But for the technical error of the surgery and the poor case management thereafter which resulted in the corrective surgery not taking place until 28 days had elapsed after the first surgery, the permanent damage caused to Madam Kwok would have been less than what she now suffers or even non-existent.”

13. Going back in time somewhat, I note that on 27 November 2008, the plaintiff requested further and better particulars of paragraph 14 of the defence, and in particular requested in what ways the surgery has become a novus actus interveniens, to identify any positive acts committed by Dr Hsu before, during or after the surgery, to identify any omissions by Dr Hsu before, during or after the surgery, and any other conduct of Dr Hsu leading to novus actus interveniens.

14. It is quite clear that the defendant was at all times willing to answer this request once they had obtained the medical reports and records relevant to the matter and once they had obtained a report from Dr Chun.

15. It seems to me to be quite clear from the summary of Dr Chun’s report that really the main complaint that he makes which leads to his conclusion that this is a case of medical negligence was the great delay of 28 days to correct the bulge, and he said that had the corrective surgery taken place within a day or two, then the substantial permanent damage that occurred could have been avoided.

16. One would have thought that after receipt of this very substantial report with very full particulars — the report itself is some 30 pages in length — that the strike-out matter and this request for further and better particulars would fall away and the parties would get on with the case.  Unfortunately, that did not happen, and I have heard submissions from Miss So this morning to the effect that I should even now strike out paragraph 14 of the defence.

17. I see no basis whatsoever for her to maintain her application to strike out paragraph 14 of the defence.  Not only is paragraph 14 obviously sustainable, but there seems to me to be, of course without expressing any view which may — and I certainly do not want to influence the trial judge finally determining this case — but it seems to me that there is a cogent basis for the assertions in Dr Chun’s report.

18. For these reasons, it seems to me that today’s application to strike out should not have been maintained after that report was served at the end of March this year.  That was a month ago, but we are still being troubled in court by this matter.

19. In any event, that is the application I have before me, and for these reasons I dismiss the application to strike out which is made in paragraph 1 of the plaintiff’s summons.

20. It is putting the boot on the wrong foot to assert that the defendant should have provided the further and better particulars.  The plaintiffs themselves should have withdrawn paragraph 1 of the summons to strike out the moment they received Dr Chun’s report.  They have not done so, but have insisted on coming to court and maintaining their application to strike out, so not only do I dismiss paragraph 1 of the summons; I also order the costs of the strike-out application to be paid to the defendant in any event.

21. Once the strike out application is dealt with, the alternative prayer kicks in.  The alternative prayer is in these terms:

“Alternatively, if paragraph 14 of the defence on its existing wording is not struck out under paragraph 1 herein, leave to the defendant/the plaintiff to join Dr Hsu as the 2nd defendant, the necessity of which arises from paragraph 14 of the defence.”

22. It is very clear that the defendant is not applying to join Dr Hsu, and obviously the plaintiff cannot force the defendant to do so, and on that basis, Miss So made an application before me for the plaintiff to join Dr Hsu.

23. I made it quite clear that the proper way to proceed in this matter is to take another action against Dr Hsu which would allow him to plead a limitation defence if he has any.  If I were to join Dr Hsu in these proceedings, I would be depriving him of a limitation defence.  Miss So appeared to see the good sense of that.  I also indicated that those proceedings against Dr Hsu could be heard together with these proceedings, and the matter continued on that basis; and, if necessary, the defendant could at a future time third party Dr Hsu in these proceedings.

24. Alternatively, if Dr Hsu did not run a limitation defence, then he might himself consent to being joined in these proceedings.  I think Miss So appeared to see the good sense in that, and, as I understand it, she is no longer maintaining an application to join Dr Hsu.

25. That then takes me to the third prayer of relief, which is in these terms:

“If paragraph 14 of the defence on its existing wording is not struck out pursuant to paragraph 1 herein, leave for the defendant within 14 days to answer the plaintiff’s request for further and better particulars on paragraph 14 of the defence as produced in exhibit.”

26. That is the request for further and better particulars which I have already read out.  It is clear from this that the prayer for an order for further and better particulars was only to be made if the strike-out application failed.

27. It is for that reason that Ms Lee in her written submissions for the defendant stated that particulars have not been provided pending the outcome of the striking out summons.

28. It seems to me in any event that it must be obvious to the plaintiff reading Dr Chun’s report what those particulars would be what I have already identified above, namely the long delay in undergoing the corrective surgery, which of course would be the main thrust of the complaint being made.

29. There is no real contest on the provision of these further and better particulars, and I make an order that the defendant do answer the request for further and better particulars within 14 days hereof.  As there is no real contest on this matter, I propose to make an order that the costs of the application for further and better particulars be in the cause.

[Submissions on application for specific discovery]

30. It seems to me that the costly exercise of obtaining these medical reports from the third parties concerned, namely Canossa Hospital and Dr Hsu, should be costs in the cause of this action.

31. The narrow point that I have to decide is whether or not the defendant should get the costs of the summons for specific discovery which, it would appear to me, would not generate a large amount of costs.

32. In the light of the exchange of correspondence that I have seen, I am satisfied that I should order that the costs of the summons be to the defendant in any event.  But of course that will be a small amount of costs as compared to the actual costs of obtaining all the documents, which of course, as I have said, should be costs in the cause.

33. I do not propose to make any order for costs for the time taken this morning on this argument.

[Submissions on application for further and better list of documents]

34. I order that the costs of the plaintiff’s summons be to the plaintiff in any event.

35. However, I would issue a rider and a direction that the taxing master should critically examine the correspondence and acts including filing of affidavits, etc., after the discovery was made pursuant to the plaintiff’s summons, to see whether or not the parties have been embarking on pursuit of documents which are irrelevant to the issues in question, and to ensure that costs are not awarded or allowed in respect of unnecessary correspondence chasing irrelevancies.

36. I do not make any order for costs for this morning’s argument on this summons.

37. I order certificate for counsel on the striking out application out of an abundance of caution.

[Submissions on further orders]

38. Just to clarify, I have made no order, and no order as to costs in relation to paragraph 2 of the striking out summons.