CHAN SIU LAN v. UNION MEDICAL CENTRE LTD

HCPI 264/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 264 OF 2006

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R U L I N G

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1.  The plaintiff suffered SARS at the time when she worked for the defendant as a nurse.  It would appear from the pleadings and the evidence that has been adduced so far, the plaintiff has an extremely difficult case in terms of preparation for the trial.  The plaintiff is clearly unable, on her present pleadings, to really pin down a case on how she came to contract SARS shortly after the outbreak of the SARS back in the springtime of year 2003.

2.  It is not disputed that she did contract SARS and she did work for the defendant, which was a hospital, as a nurse during that particular vulnerable period.  By the nature of her work she had come into contact with numerous number of patients during this vulnerable period.

3.  According to the present pleaded case of the plaintiff, negligence is alleged against the defendant on the basis that during this vulnerable high risk SARS prone period, the defendant had failed to provide adequate protective gear while she worked for the defendant, and there were also insufficient facilities to properly guard her against the risk, such as by providing segregated toilets from the use of the public for the nursing staff.

4.  The evidence so far on liability, from what I can see, seems to be only a SARS report, which in fact was published after the SARS period as a result of the inquiry conducted by the government.  According to the report, the originator of this SARS virus was from a female patient travelling from Mainland China, who was named as “Patient X”.  It is from this originator that the virus was widely spread across Hong Kong.

5.  There was also the plaintiff’s duty roster before she contracted the virus.  In light of the difficulty the plaintiff faces in establishing how she came to contract the virus, she now seeks specific discovery of three categories of documents against the defendant.  These documents that are being sought are all in relation to the patients, the SARS patients, if I may more specifically put, to whom the plaintiff is hoping can show that she had come into contact with.  So the purpose of this expedition is to find out whether the plaintiff had come into contact with or attended to the SARS patients shortly before she contracted the SARS virus.

6.  The difficulty with this exercise is, however, as I see it, the plaintiff so far has not adduced any expert evidence establishing or explaining, analyzing the probable cause of the circumstances under which the plaintiff came to contract the virus.  We do not know whether it is likely that the plaintiff contracting the virus as a result of her coming into contact with the patients, or of the working environment, or of the lack of protective gear.  Without any evidence, the relevance of the materials sought by the plaintiff would become highly speculative.

7.  When I was considering this application I had asked myself a rhetoric question as to how such information, the plaintiff now seeks, would assist the plaintiff’s claim.  The best scenario or the best information the plaintiff is able to obtain from such information would possibly enable her to find out, as a result of the specific discovery, the identities of the SARS patients to whom she had attended.  When such information is available to her, would she be able then to plead positively that, as a result of her coming into contact or having attended to these patients, she has contracted the SARS virus?  The answer to the rhetorical question would be no – she is still not able to say that as a result of her contact with the patients she had contracted the SARS virus.  For this reason I am afraid that the plaintiff is not able to establish the relevance of this information sought, and I would therefore refuse this application in total.

8.  Having come to this view I do not need to deal with each of the categories being sought.  However, I just wish to make one or two comments about categories A and B.  For category A, I think it is framed in too wide a term, as I had observed in the course of the counsel submissions that the term surveillance report is simply not understood by anyone, even by the applicant herself.

9.  Should the plaintiff be able to satisfy the first hurdle which I have already outlined in my brief reasons above about the lack of expert evidence at the most she can only discover specific treatment records that identify the SARS patients she had come into contact with.  The plaintiff has to identify the SARS patients and to match with the defendant’s duty roster, instead of making a blanket discovery of asking the defendant to provide information of all the SARS patients.

10.  The second difficulty with this specific discovery is that – as shown from the correspondence that was exchanged between the parties’ solicitors – the defendants had been unable to accede to the palintiff’s requests of providing information about the SARS patients.  This is shown from the reply from the government’s department at page 191 of the hearing bundle.

11.  So far as the category B request is concerned, the request for the provision of the identities of the suspected SARS patients is simply, in my view, wholly irrelevant.  Assuming for argument’s sake, the identities of the suspected cases can be traced, I have reservations on how such information can assist the plaintiff.  It is because a patient with SARS symptoms are not necessarily SARS patients.  This would not help the plaintiff to necessarily establish how she came to contract SARS.

12.  So with these comments I would say that even if in the future the plaintiff is able to adduce the specific expert evidence on causation, she had to carefully refrain any future requests to make it as precise and watertight as possible.

13.  Now I come to deal with the defendant’s application for further and better particulars.  The further and better particulars arise from paragraph 4 of the statement of claim.  Paragraph 4 of the statement of claim, forms the whole basis of the plaintiff’s claim.  As I set out in the very beginning that the plaintiff presently has framed her claim in terms of negligence against the defendant of having failed to provide a safe system of work, failing to provide safety equipment to protect the plaintiff from this vulnerable period.  In my view, the plaintiff has yet to plead a cause of action.  She has not pleaded or made any reference to any particular patients from whom she said she had contracted SARS.  She had not pleaded the place at which she had contracted SARS.  Basically she had not pleaded how she contracted the SARS virus.  I do not think the defendant is entitled to ask for particulars when the plaintiff had not yet pleaded a positive case.

14.  So far as the patient is concerned, I have said that simply there is no reference to any patients at all.  So far as the place in question is concerned, clearly she has said she worked in the hospital before she contracted the virus.  This I think by itself is clear, even if she has not specifically pleaded how she contracted the disease, I think paragraph 4 has made it clear that the place being referred to is the hospital, which was where she worked.

15.  For these reasons, the defendant’s summons for further and better particulars should also be refused.  In conclusion therefore both applications will be dismissed.