LIN SIU FONG CHLOE v. DR. CHAN FAN

HCPI 506/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 506 OF 2015

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D E C I S I O N

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1.  I refer to my Ruling for Decision handed down on 29 July 2016 when I ruled that the plaintiff was out of time to issue this writ. The action was statute barred unless I exercise the discretion under section 30 of the Limitation Ordinance to disapply the limitation period as stipulated in section 27.

2.  The plaintiff later took out a summons for disapplying the limitation and relied on her affirmation filed, and the original counsel submission by her counsel Mr Lam to support the application.  No further submission was filed.  The defendant relied on the affirmation filed and the original submission by his solicitor Mr Szeto who had further submitted a supplemental submission.  This was my ruling on the summons.

3.  Section 30(1) of the Limitation Ordinance provides –

(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.

4.  I had set out the legal principle on section 30 in my said Ruling and I would not repeat.  A prime concern was what would be just and equitable in the circumstances of the case.  I would start to consider the application by first considering the 6 non‑exclusive factors as listed in section 30(3) of the Limitation Ordinance.

The length of, and the reasons for, the delay on the part of the plaintiff

5.  It is the submission of Mr Szeto, solicitor for the defendant that the length of delay was significant.  The plaintiff only commenced this action in 2015, more than 12 years after the Caesarean section in issue.

6.  According to my earlier Ruling, for the secondary limitation, the plaintiff should know about the cause of the injury sometime by 2008, or alternative, not later than 2010.  Accordingly, to be within the limitation period, she had to serve the writ by 2011 and no later than 2013.  For the prime finding, the delay would be for about 3-­4 years after lapse of limitation period. For the alternate finding, the delay is for about 2 years.

7.  Mr Szeto invited me to take into account the pre‑expiry delay.  He referred to the judgment of Master Marlene Ng (as she then was) in Lam Siu Ping v The Secretary for Justice for and on behalf of Leisure and Cultural Services Department, HCPI 345 of 2010 when the learned Master commented that:

92.  Under section 30(3)(a), the test is a subjective one, and the delay refers to delay since the expiry of the limitation period.  But pre‑expiry delay can be taken into account in balancing the prejudice to the parties.

8.  I agreed with Master Ng that the pre‑expiry delay could be taken into account to assess if the discretion should be exercised.

9.  And the learned Master also commented in Lam Siu Ping’s case that 2 years and 3 months (in that action) is not a short delay.  And I also agreed with the observation of the learned Master that the length of and the reason for the delay should be looked at together.

10.  Mr Lam, counsel for the plaintiff submitted that from 2003 to 2004, the pain was localized at the lateral aspect of left hip and was mild.  The intensity of the pain was about 1 out of 10.  She was still receiving treatment from the defendant until June 2006. 

11.  From 2006 to mid 2013, Mr Lam submitted that the plaintiff was actively seeking treatment.  Mr Lam further submitted that the plaintiff was confused by the defendant, or the medical doctors referred to her by the defendant, on the cause of her pain and injuries. 

12.  The plaintiff said in paragraph 16 of her affirmation that from 2012 to today, the frequency, duration and intensity of the pain was similar to the condition in 2011 and became static.  She started to settle for the pain attack, while she was still receiving treatment from the Pain Clinic of United Christian Hospital. 

13.  The plaintiff said in her affirmation, in particular paragraph 23, that she was confused at the material times and such confusion was caused by the defendant.  She said that before she settled for the pain in 2012, she was depressed.  Her sleep was disturbed and she could not handle household chores.  She was under huge stress.  She was also seeking complete relief and was concentrating on seeking treatment before taking action.

14.  I would recall the finding in my earlier Ruling.  As for the first 2 years, from 2003 to 2004, the pain was mild and I accepted the submission of Mr Lam that the plaintiff had not been alerted that she was injured.  I could properly ignore these 2 years in my consideration of the overall delay and whether to exercise the discretion. 

15.  From 2005 to 2007, the pain increased in magnitude and frequency.  The pain worsened in subsequent years.  And in this period, the plaintiff was having treatment from medical experts referred to her by the defendant.  She also received treatment and/or examination by other medical experts/practitioners as referred to in my earlier Ruling. 

16.  Mr Szeto submitted that the defendant should not be held responsible for the confusion of the plaintiff on her condition as alleged.  It was submitted that the plaintiff was treated by Union Hospital at the material time and the confusion, if any, was not caused by the defendant.  Any suggestion that the defendant devised a plan to delay her investigation was not supported by any evidence.

17.  This issue had been considered in my Ruling and I was not prepared to take into account the allegation by the plaintiff of a plan by the defendant to delay investigation for the purpose of this decision, or to confuse her.

18.  Mr Szeto also submitted that seeking treatment was not a bar to commencing proceedings.  And he submitted that the plaintiff was not prejudiced by her psychological condition.  He referred to the report exhibited as “LFS‑1” in the affirmation of the plaintiff dated 29 January 2016.  It recorded that the plaintiff had emotional problem after a road traffic accident in 1997 reportedly resulting in post‑traumatic stress symptoms.  She received treatment from 1998 to 2000 and her mood remained settled until 2003.  In 2003, she had some depressive symptoms associated with her distress relating to family problem.  She resumed follow‑up by clinical psychologist in North District Hospital.

19.  It was the argument of Mr Szeto that the plaintiff did not report any post‑traumatic stress symptoms in 2003.  To be fair to the plaintiff, I also noted at paragraph 4 of the report which recorded that the plaintiff complained of having been suffering from the persistent pain since the birth of her daughter.  While not all the stressors were related to the pain and/or treatment by the defendant, as a number of other factors were also mentioned in the report, the psychological condition of the plaintiff was a relevant factor to be taken into account in assessing the reason for the delay in taking out proceedings.  But I doubted if the plaintiff was precluded by her psychological condition to commence legal action.

20.  It was not disputed that the plaintiff had complained to Union Hospital against the defendant in 2010, and also to the Medical Council in 2011, in which both complaints had not been entertained by the relevant Hospital and Council.  And if she had decided to take action, it would be reasonable to expect she could and should seek legal advice.  Or put it in a different way, since the plaintiff had commenced some forms of “action” against the defendant in 2010, there was no justification for delay in taking legal advice and to commence action.  When Mr Lam said the plaintiff was confused, depressed, or concentrating on treatment, these excuses could not explain her inaction when she started the “actions” against the defendant by way of complaint.

21.  Summing up the above, I noted the explanation of the plaintiff that she was affected by her psychological condition, and her subjective wish to settle her pain before taking the action.  But with her condition, she had been able to begin seeking relief by complaints to Union Hospital and the Medical Council.  Balancing the above, the delay since 2010 could not be satisfactorily explained or justified.  And the delay was further aggravated by the actual delay in taking action since the Caesarean section which would affect the issue of forensic prejudice which I would come to shortly.

22.  With the prime finding in my Ruling, she should have issued the writ in 2011.  There would be a delay of about 4 years which could not be justified or explained.  And if I use the secondary finding, there would be a delay of 2 years which could not be justified or explained.

23.  Mr Lam submitted that the plaintiff applied for Legal Aid in mid 2013. The Director of Legal Aid asked for medical records from Union Hospital in November 2013.  The defendant provided a medical report in respect of the plaintiff on 14 March 2014 and full medical records were only received by the Director of Legal Aid in June 2014.

24.  Mr Lam referred me to the case of Yam Yuen Lai v Board of Governors of the Prince Philip Dental Hospital, HCPI 218 of 2010.  In a judgment given by Mr Justice Saunders on 11 July 2012, it was noted that the Direction of Legal Aid took 2 years and 4 months to process the application.  No explanation was given.  Having taken into account the circumstances of the case, the Court was satisfied that this period of delay should not be counted against the plaintiff.  Mr Lam invited me to follow the decision of Mr Justice Saunders and disregard the processing period of the application for Legal Aid. 

25.  Each case had to be determined by its own fact.  In exercising my discretion, I agreed that I had to bear in mind that some delay was created by the administrative process of Legal Aid application which would be beyond the control of the plaintiff.  But whether such delay should be discounted would depend on the circumstances.  I had to bear in mind some additional matters here.

26.  The plaintiff had consulted her current advisors in mid 2013 on her condition.  While I did not know the advice given, it was reasonable to expect the first advice from her legal advisors was she had been out of time to issue a writ.  If she was so advised, she should have commenced action immediately.  Nothing had been done to protect her position save that she was advised to apply for Legal Aid.  By approaching the Director of Legal Aid was not a form of legal action.  The time for processing the application should not be discounted for assessing the delay in the circumstances of this case.

27.  Mr Szeto submitted that the plaintiff could obtain all her medical records from the defendant at any time from 2003 to 2013.  She did not have to wait for the Director of Legal Aid to obtain the copies.  He also submitted that the plaintiff had been handling the litigation of her daughter and should be familiar with legal proceedings.  I agreed with his submission.

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

28.  It was the submission of Mr Lam that very little prejudice, if any, would be suffered by the defendant by the delay.

29.  Mr Szeto submitted that the defendant’s memory of the events that transpired in January 2003 would be less cogent as a result of the delay.  The defendant stated in her 1^st affidavit that she could not remember the events that transpired 12 years ago.  This meant she could only rely on contemporaneously made records and her routine practice at the time.  And to make things worse, the plaintiff was challenging some of the veracity of her medical records. 

30.  Mr Szeto referred, in particular to paragraph 18(f) to (i) of the 1^st Affirmation of the plaintiff when she disputed the record on the consent form exhibited as “LSF‑3”.   It was not disputed that the plaintiff also had disagreement with some of the medical notes recording her complaint to doctor.  It was submitted that while the clinical note was in the possession of the defendant, the defendant’s ability to defend would inevitably suffer prejudice.

31.  Mr Szeto also referred to the affidavit evidence and submitted that the defendant could not seek assistance from witnesses to testify on her pre-operative advice/routines practice at the time.

32.  Mr Lam submitted that the defendant had prepared a medical report of the plaintiff dated 24 August 2010 to assist the investigation by Union Hospital into the plaintiff’s complaint.  And in response to the enquiry from the Director of Legal Aid, the defendant had prepared another report dated 14 March 2014 which set out the events related to the action.  These would be important record retained by the defendant for her defence. 

33.  Mr Lam also submitted that the plaintiff’s claim was based on the alleged wrong diagnosis of cephalopelvic disproportion.  And with reference to the Supplemental Report of Dr Shek Wan Man Noel, the comments were based on the clinic notes to assess whether the diagnosis had been correctly made.  The same set of document would be available to the experts for the defendant.  The oral evidence of the nurse would not be of relevance. He also doubted if the nurse could recall what was advised at the consultation.

34.  It would be helpful to look at the material part of the Statement of Claim to understand the claim as pleaded –

5.  ....The plaintiff was diagnosed with cephalopelvic disproportion.  The defendant opined and determined that elective Caesarean section was mandatory and the only option and should be performed as soon as possible.

9.  The diagnosis of cephalopelvic disproportion and the defendant’s medical opinion that elective Caesarean section was the only option with no alternatives, was wrong, inaccurate, or misleading and failing to act with the standards of reasonably competent medical practitioners in the circumstances.

12.  The Chronic pain was caused by the defendant’s negligence, professional misstatement or erroneous opinion as to the mode of delivery.

Particulars of Negligence

(b)  wrongly making the diagnosis of cephalopelvic disproportion;

(c)  wrongly advising mandatory elective Caesarean section;

(d)  failing to provide to the plaintiff all the information about the possible alternatives that was necessary for a reasonable patient to know in determining whether to proceed with the elective Caesarean section.

35.  I could not agree with Mr Lam that it was a matter that could rely entirely on documentary evidence.  Part of the claim was based on the advice given to the plaintiff, or information failed to be given, which would involve oral evidence. 

36.  Mr Szeto submitted that the length of delay would easily affect memory of the witnesses.  The defendant claimed that she did not have any recollection of the relevant circumstances to defend the claim.  And the defendant could not identify the nurse(s) who accompanied him during the plaintiff’s consultation to give evidence on the specific events, in particular the last pre-natal consultation.  The evidence must be of relevance to the finding.  While I did not have the details of the oral evidence of other witnesses, I could not say that they would not be of assistance to the allegation of the defendant.  And I had no reason to doubt the evidence of the defendant.

37.  As the defendant retained the medical notes, this might be of some assistance to the defence.  I also refer to 2^nd affidavit of the defendant.  She had set out in paragraph 53 some inconsistency between the case of the plaintiff and the contemporaneous note of the defendant.  These had not been challenged by Mr Lam.  The fact that the plaintiff was disputing some of the records would affect the reliability of the record kept by the defendant, and added on the prejudice to the defendant to run a proper defence.  

38.  Looking at the whole picture, I could not agree with Mr Lam that the defendant would not suffer any prejudice.  I accept the submission of Mr Szeto that the defendant did suffer prejudice in his defence.

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

39.  The defendant complained that the plaintiff had been slow to respond in the pre-action stage and refused to disclose certain documents, in particular the complaint letter to the Medical Council.  This would be taken into account. 

The duration of any disability of the plaintiff arising after the date of the accrual of the cause of action

40.  There was no submission under this head.

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

41.  The defendant complained that the plaintiff was late in taking legal action.

42.  Mr Lam submitted that the plaintiff was confused, and suffered huge stress at the material times.  He referred me in particular to paragraph 23(e) of the affirmation of the plaintiff.  I have sufficiently dealt with the argument hereinbefore.

43.  I only had to repeat that at around 2010, the plaintiff was taking action against the defendant by lodging a complaint to Union Hospital and later to the Medical Council.  While this was not a legal action, the plaintiff did take action against the defendant. There was no reason why she could not take out legal action.

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

44.  Mr Szeto submitted that the plaintiff was in contact with her solicitors since 2010 when handling a claim of her daughter.  She had experience in seeking legal advice for a personal injuries claim.  I agreed with him that this showed the plaintiff was not ignorance of legal service in Hong Kong.

45.  I refer to my first Ruling that the plaintiff had sought medical advice and treatment from the defendant, Union Hospital, and other doctors. There was no suggestion that she sought these for litigation purpose.  But there was no reason that when she should be aware the injury was caused by the Caesarean section, as I found, that she did not sought legal advice.

Discussion and Ruling

46.  It is necessary to have regard to all the circumstances of the case including the six specific factors to consider if a fair trial was still possible and if it would be equitable to allow the action to proceed.  In any event, there could be substantial overlap between the circumstances of the case and the six factors.  It would not be necessary, or indeed possible, to attach special weight to any particular matter.  I had to balance all factors.

47.  As analysed above, I would take 2011 as the time when the 3 years limitation lapsed and delay started to run.  (I would deal with the alternate finding later.)  There was delay for about 3‑4 years.  There was a further pre-expiry delay which could not be disputed, and which I should take into account. 

48.  I do not repeat my consideration of the 6 factors.  I found there was delay, and as I analysed above, the plaintiff should have taken action in 2010 or 2011 when she lodged her complaints.  There was at least a period of 3-4 years of delay after the lapse of the limitation period that could not be explained satisfactorily.  For the reason I have given above, I would not give allowance for the processing time to apply for Legal Aid.  And even with my alternate finding on her knowledge, she would have made a delay of 2 years which could not be justified.  Even 2 years was not a short period of delay, particularly with the pre-expiry delay in this action.

49.  And most important, I found that the defendant would suffer forensic prejudice.  And if I allowed the case to continue, there was a real risk that a fair trial was not possible.

50.  Weighing all the circumstances of the case, including the 6 factors, I am not satisfied that this would be an appropriate case in which the discretion under s 30 of the Limitation Ordinance should be exercised.  I appreciate the prejudice suffered by the plaintiff as she would not be about to recover her loss.  But I had to balance all the circumstances, including the prejudice to the defendant.

51.  In conclusion, I refuse to exercise my discretion. The plaintiff’s summons is dismissed.  It must follow that the summons of the defendant to strike out the Action is allowed and I so ordered. 

52.  There be an order nisi that the defendant is entitled to costs of the action including all costs reserved, the costs of the 2 summonses before me to be taxed if not agreed.  The order nisi shall become absolute within 14 days.