XCHRX WONG PUI YUEN v. YEUNG CHAK CHEUNG AND ANOTHER

HCPI 178/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 178 OF 1999

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J U D G M E N T

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1. This is an appeal against the decision of Ms. Registrar Carlye Chu where, upon the second Defendant's application, she dismissed the Plaintiff's action for want of prosecution, on 10th May 1999.

2. A chronology prepared on the Second Defendant's behalf sets out the material events. In March 1990 - now 9 1/2 years ago, the Plaintiff consulted the Second Defendant, a consultant obstetrician, as a consequence of which she was advised to undergo a laparoscopy. The facts are slightly complicated by reason of the fact that she also claimed against another consultant obstetrician, the first Defendant, arising out of a laparotomy performed by him in 1986, over 13 years ago. This is also a complicating factor in the case in negligence against the second Defendant.

3. The Writ in her action against both Defendants was not issued until March 1993 almost three years after her consultation with the second Defendant, the actual operation being carried out by the second Defendant in May 1990. The Writ was not served for a further year even though the second Defendant had been asked for and had supplied all relevant medical records in his possession and control. The Statement of Claim was served a few days later. In April 1994 the second Defendant filed and served his Defence as did the first Defendant. That was the last procedural step involving these parties.

4. On 12th October 1995 the Plaintiff's claim against the first Defendant was dismissed by consent. The second Defendant was not a party to this although represented by the same firm. A little over three years later the Plaintiff's solicitors gave notice of intention to proceed with the action against the second Defendant, and in the following month, November 1998, a notice of change of solicitors for the Plaintiff was filed (this was a change of name only). A further notice of intention to proceed was given in the same month. The second Defendant's solicitors then took out the summons to dismiss the Plaintiff's claim.

5. There is an Affirmation by the second Defendant which sets out a number of highly relevant points. The Plaintiff took no procedural steps involving him between mid-April 1994 and October 1998 when notice of intention to proceed was served - a period of 41/2 years. The action has been hanging over him as a professional man for 51/2 years as of today. Although he has his contemporaneous notes, his memory of any discussions or conversations with her will have been dimmed by time, to the extent that such notes do not record them. To me it is clear that he would have to start gathering expert medical opinion to assist him against this background of delay. No medical reports going to the issue of alleged negligence and causation were served upon him, the only ones being disclosed are dated in or about January 1994 and were filed with the Statement of Claim. The one from Dr. Sung is undated and that of Dr. Hui, dated 20th January 1994 is in fact a letter of referral to a Dr. Talley at the Mayo Clinic in Rochester, Minnesota, U.S.A. No medical report from him has been disclosed. Shortly before the original hearing date of the appeal before me, the 16th July 1999, the Plaintiff's solicitors disclosed a report from Professor M.R.B. Keighley of the Queen Elizabeth Hospital in Birmingham, England dated April 1999, which is not a report in support of a case of medical negligence on the part of the second Defendant, although the supplementary report of 30th June 1999 in answer to a number of questions raised by the Plaintiff's solicitor, does contain some opinion in support of the Plaintiff's case. I declined to allow that evidence to be introduced for the purpose of this appeal although I have had regard to it to see if there is any part of it which would account for the delay which formed the basis of the Defendant's application. I have concluded that there is none.

6. The Plaintiff has filed two affirmations in answer to the second Defendant's, which are a catalogue of her treatment, pain and discomfort over the years since 1995. Whilst one must have every sympathy for her no content of either gives any explanation as to why the action "went to sleep". I note she refers to a medical report being received in October 1998. This appears from Mr. Ho's affirmation to be Professor Keighley's. This first report has of course not been disclosed. It is not however a point which affects the current appeal.

7. A further affirmation was filed on behalf of the Plaintiff by her solicitor shortly after I was asked to adjourn the appeal from the 16th July. Mr. Ho Chun Yan took over the Plaintiff's action on the 12th May 1995 (or thereabouts). A few months later the action was discontinued against the first Defendant.

8. From his affirmation it is clear that there was negligible contact between him and the Plaintiff between October 1995 and mid-1998. His understanding of the Plaintiff's state during that period was derived from other sources. The only activity in the conduct of the case was the obtaining of the undisclosed report from Professor Keighley in October 1998. Nothing in Mr. Ho's affirmation assists the Plaintiff's case on appeal, and in saying that I do not presume to imply any criticism of Mr. Ho. That is not my function.

9. There was a late start to this action in any event. It is the Plaintiff's duty in such a circumstance to proceed with "all due speed and a pace which might have been excusable if the action had been started sooner may be inexcusable in the light of the time that has already passed before the writ was issued." - per Lord Diplock in Birkett v. James 1978 A.C. (at p.322 F-H), one of a number of authorities which I recently considered in the judgment in the appeal of the Defendants in Gallagher v. Mass Transit Railway Corporation, Kumagai Gumi Company Limited and Another H.C.P.I 986 of 1998 [14th July 1999]. The principle enunciated was restated by Lord Denning in Biss v. Lambeth, Southwark and Lewisham Health Authority 1978 1 W.L.R. 382 and by Cumming-Bruce L.J. in Rosen v. Marston (unreported - C. of A. Transcript) 15th March 1984; by Stuart Smith L.J. in Benoit v. London Borough of Hackney (unreported C. of A. transcript) 11th February 1991; and by Neill L.J. in Trill v. Sacher 1993 1 W.L.R. 1379 which I also referred to in the judgment in Gallagher's case, (pp. 14-17) - see in particular pages 1398-1399 of Neill L.J.'s judgment.

10. The Plaintiff's counsel, Mr. Paul Harris, sensibly concedes that there has been inordinate delay in the prosecution of this action, but he argues that it is excusable. I regret to have to say that that cannot be so. Whilst I accept that her troubles have persisted over the years, she has not been under a disability within the meaning of the Mental Health Ordinance or Order 80 rule 1 of the Rules of High Court. She has been capable of giving instructions, and she has been capable of receiving advice as to the risks involved in not pursuing an action expeditiously. The delay is, regrettably, inexcusable. Nothing took place in relation to her action against the Second Defendant between April 1994 and October 1998. Nothing in her Affirmation even suggests that she was incapable of giving instructions. It would appear however that she was never warned of the consequences of delay.

11. Mr. Harris argues that there can be no prejudice to the second Defendant because he says the issues at trial will turn on matters of expert evidence as to good medical practice and not on issues of fact, the Plaintiff abandoning the allegation of negligent advice. But by the time of trial (late 2000 at the earliest) ten years will have elapsed since the alleged cause of action and operation. There will, after this lapse of time, of necessity be a consideration of the decisions taken and surgical procedure followed in accordance with proper medical practice in 1990 in Hong Kong. The position therefore is far from being the simplistic one propounded by Mr. Harris, however clear the Second Defendant's notes may be. There is furthermore, of necessity, a consideration of the sequelae of the operation in 1986 as they presented themselves to the second Defendant in May 1990.

12. The prejudice to the Defendant is not simply in the form of the delay in resolving imputations against his professional ability though that in itself is significant, even if by itself, it may not be sufficient to justify a dismissal of the action. [see Biss v. Lambeth Southwark & Lewisham Health Authority (ibid) and Gascoine v. Haringey Health Authority 1992 PIQR 416] But this prejudice is more than minimal.

13. It lies in the fact that a court will be asked to put his actions under a microscope to be examined in the context of a decade ago. Although the allegations were made in some detail 5 1/2 years ago, and some are now abandoned, in order to rebut the implications in an expert's report provided nine years after the event, he would have to instruct experts to examine the position, again from a distant standpoint. The court would then be asked to make a decision between such experts with the considerable risk of hindsight colouring the situation.

14. I note from a draft Amended Statement of Claim that the allegations relating to a failure to advise the Plaintiff having been struck out, there remain but a general allegation of failing to take all reasonable case and skill (stated twice) and of perforating the colon in the course of the laparoscopy. This is far from being a clearly pleaded comprehensive case against the second Defendant. There is bound to be, if the case were to proceed, a request for particulars.

15. Mr. Harris has also argued that the case against the Defendant, as contained in Professor Keighley's supplementary report, is very clear and strong. Despite the submission out of time of this report (and the original report) it is far from meeting that description. I do not understand why the report of October 1998 from Professor Keighley has not been disclosed. Nor do I understand why the report of Professor Keighley was not before the Learned Registrar when she made her decision. It would of course have made no difference to her conclusions just as it makes no difference to mine but it shows at the very least strange handling of this aspect. Again, it is of no relevance in this hearing, but the very format of Professor Keighley's reports is strange. Perhaps the explanation for that lies in the decision not to disclose his report of October 1998.

16. Finally there is the question of abuse of process to be considered. Courts have progressively been concerned with the need for actions to be progressed promptly and in compliance with the rules. Sometimes a case is so difficult, witnesses are so elusive, documentation is seemingly unavailable and expert witnesses are short on experience that despite all efforts it cannot progress within the desirable timescale. But this is not such a case. This action metaphorically 'went to sleep'. It is obvious no efforts were made to obtain expert evidence until, at the earliest June 1998. The Rules of High Court have been ignored and it would not be right to allow this action to proceed. It is not possible to have a fair trial. Accordingly this appeal is dismissed with costs to the Defendant.

17. In passing I have to say that one is bound to have sympathy with the Plaintiff. She instructs and relies on lawyers to commence and pursue her action. She is wholly dependent upon them for advice. The skill, considerations and judgment of a lawyer are not to be imputed to her. If she ignores or rejects advice that is a matter for her, but if she has not been acquainted with the risks of delaying an action in categorical terms, with warnings of the consequences, then the fault is not hers. I was told by Mr. Harris that her lawyers consider she has a good claim. In that case her avenue for compensation is clear enough and the expectation is that she will be advised to consult another firm of solicitors.