PANG SIU KUEN (AS ADMINISTRATRIX OF THE ESTATE OF PANG CHO TIM, DECEASED) v. HOSPITAL AUTHORITY/ PRINCE OF WALES HOSPITAL

[English Translation – 英譯本]
HCPI 566/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 566 OF 2014

_________________________

_________________________

J U D G M E N T

Background

1.  This is the plaintiff’s appeal against the decision of Master Leong of the High Court on 29 April 2015, by which the Master struck out the statement of claim and dismissed the plaintiff’s action on the ground that it is time-barred under the Limitation Ordinance.

2.  The plaintiff is the elder daughter of the deceased Pang Cho Tim (“the deceased”) and the administratrix of his estate. The deceased suffered from terminal lung cancer and had received treatment in the Oncology Department of Prince of Wales Hospital since July 2002.

3.  On 24 September 2002, the deceased was sent to the Hospital at night due to shortness of breath. He was admitted to a ward in the Oncology Department, with Dr Chan Tung Ching as the attending doctor. The deceased was diagnosed to have anaemia and blood coagulation and required blood transfusion. X-ray examination revealed that his right lung was more opacified than what the previous X-ray report showed. Dr Chan suggested performing pleural tapping on the deceased to relieve his condition and reduce his pain. The plaintiff at first refused but later accepted the suggestion. Dr Au Ka Man explained to her the risk of the pleural tapping procedure when she signed the consent form. On 26 September 2002, the deceased had shortness of breath and the defendant’s doctor performed pleural tapping on him to release effusion, but the operation could not be said to be successful as only a small amount of lung fluid was released. Subsequently, the deceased passed away on 29 September 2002. The cause of death, as filled in by the doctor on the death certificate, was lung cancer, and the case was not reported to the coroner.

4.  Three years later, i.e. in 2005, the plaintiff requested the coroner to conduct an inquest, and the police then sought independent medical expert opinion. According to Dr Au Siu Kie, Consultant of the Clinical Oncology Department of Queen Elizabeth Hospital, pleural tapping was an effective and very safe procedure at that time and the subsequent deterioration of the deceased’s condition was unlikely to be related to pleural tapping; nor could any evidence be found which suggested medical malpractice. The Coroner’s Court sent a letter to the plaintiff in 2006 stating that based on the opinion of the above independent expert, the deceased died from natural causes, and that there was no need to hold an inquest.

5.  In 2007, the plaintiff commenced proceedings in the Court of First Instance of the High Court (HCMP 717/2007), seeking a court order requiring the Coroner’s Court to hold an inquest into the cause of the deceased’s death. On 15 October 2007, Fung J refused the plaintiff’s application after a hearing. The plaintiff appealed to the Court of Appeal (CACV 361/2007). The Court of Appeal dismissed her appeal on 23 July 2008 after a hearing. On 17 October 2008, the Court of Appeal also dismissed the plaintiff’s application for leave to appeal to the Court of Final Appeal.

6.  Six years later, on 16 June 2014, the plaintiff commenced the present action in the High Court. The thrust of the statement of claim was that the defendant’s doctors had “conspired” and “deliberately deceived and misled” the deceased into receiving unnecessary pleural tapping, thereby causing him pulmonary hemorrhage, blockage of trachea by blood clots and death by asphyxiation; and that the cause of death was not lung cancer. The plaintiff also filed with the court an expert report dated 7 September 2011 and prepared by Dr Chung Shiu Shek, a specialist in cardio-thoracic surgery (“Dr Chung’s first report”).

7.  On 23 July 2014, the defendant took out a summons (which was subsequently amended by the defendant on 5 September 2014) applying to strike out the plaintiff’s statement of claim and dismiss the action, on the ground that the plaintiff no longer had a cause of action pursuant to the Limitation Ordinance. 

8.  At the hearing on 29 October 2014, Master Leong pointed out that Dr Chung’s first report did not support the plaintiff’s allegation that the doctors had “deliberately deceived and misled”, nor did it satisfy the Bolam test and causation test for establishing negligence at law. As the plaintiff was unrepresented, Master Leong specifically drew her attention to and explained to her the meaning of the Bolam test and causation test. The Master also adjourned the hearing to 20 March 2015 to enable the plaintiff to obtain a supplemental expert report. The plaintiff subsequently submitted to the court a supplemental expert report dated 17 February 2015 and prepared by Dr Chung Shiu Shek (“Dr Chung’s second report”).

9.  After a hearing on 20 March 2015, Master Leong reserved judgment.

10.  On 29 April 2015 Master Leong gave his judgment striking out the plaintiff’s statement of claim and dismissing the action on the following grounds: the plaintiff instituted her action beyond the limitation period, and she also failed to produce any expert medical report which satisfied the tests for establishing negligence at law, as a result of which the court was unable to exercise its discretion under section 30 of the Limitation Ordinance to override the time limit. The plaintiff now appeals against the judgment, raising three grounds of appeal.

Ground of appeal (1): Time limit and how it was calculated

11.  The plaintiff contends that, not having perused her statement of claim and out of sheer conjecture, Master Leong rashly took the personal injuries claim arising from the tortious act disclosed in the statement of claim to be a claim for professional negligence and made a series of mistakes in law. The plaintiff argues that the Master erroneously applied the 3-year time limit for professional negligence claims to actions founded on tort where, pursuant to section 4 of the Limitation Ordinance, the time limit applicable to actions founded on tort should be 6 years. It is also argued that, in respect of the calculation of the time limit, the Master wrongly held that time began to run from the date on which the Court of Appeal delivered judgment in CACV 361/2007 instead of the date on which the plaintiff obtained medical expert opinion as stipulated by section 27. If it was calculated according to section 27, her claim did not exceed the time limit.

12.  It is quite obvious that the grounds of appeal and submissions advanced by the plaintiff arise from her misunderstanding of the Limitation Ordinance or her deliberate misinterpretation of the statute. The legislative intent in enacting the Limitation Ordinance is to allow business transactions to proceed smoothly without being held back by the tardiness of people in exercising their legal rights. For this reason, the Ordinance imposes a time limit: if a party who suffers as a result of breach of contract or whose rights have been infringed institutes an action out of time, that party will “lose” the cause of action.

13.  Section 4 of the Limitation Ordinance provides that the limitation period for actions for breach of contract or tort is 6 years from the date on which the cause of action accrued. However, section 4 is subject to section 27. In gist, the legal effect of section 27 is that, in respect of any action for damages for negligence, nuisance or breach of duty where the damages claimed consist of or include damages for personal injuries, the time limit stipulated in section 4 does not apply and the applicable time limit is 3 years from:

(a) the date on which the cause of action accrued;

(b) the date of knowledge of the plaintiff (i.e. the victim who is still alive);

(c) the date of death of the victim; or

(d) the date of his personal representative’s knowledge, whichever is the later.

Date of knowledge means the date of knowledge of the facts specified in section 27(6). In the context of the present action, section 27(6)(b), which refers to knowledge that the deceased’s injury was attributable in whole or in part to the act or omission which was alleged to constitute negligence, is particularly relevant.

14.  The detailed provisions of section 27(1) to (6) are set out below:

“(1) This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under an Ordinance or imperial enactment or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.

(2) Section 4 shall not apply to an action to which this section applies.

(3) Subject to section 30, an action to which this section applies shall not be brought after the expiration of the period specified in subsections (4) and (5).

(4) Except where subsection (5) applies, the said period is 3 years from -

(a) the date on which the cause of action accrued; or

(b) the date (if later) of the plaintiff’s knowledge.

(5) If the person injured dies before the expiration of the period in subsection (4), the period as respects the cause of action surviving for the benefit of the estate of the deceased by virtue of section 20 of the Law Amendment and Reform (Consolidation) Ordinance (Cap 23) shall be 3 years from -

(a) the date of death; or

(b) the date of the personal representative’s knowledge,

whichever is the later.

(6) In this section, and in section 28, references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts -

(a) that the injury in question was significant; and

(b) that that injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and

(c) the identity of the defendant; and

(d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant,

and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.”

15.  Professional negligence is as much a tortious act as ordinary or general negligence and nuisance. The Limitation Ordinance has not, as alleged by the plaintiff, specifically impose a time limit of 3 years for actions for professional negligence. Therefore, pursuant to section 4, the time limit applicable to actions for professional negligence is also 6 years. However, section 27 expressly provides that where the damages claimed consist of or include damages in respect of personal injuries, the applicable time limit is 3 years. Notwithstanding the plaintiff’s contention that her claim is not founded on professional negligence but is a claim for personal injuries caused by a tortious act, such a claim is exactly one which consists of or includes damages in respect of personal injuries and hence subject to section 27, with the applicable time limit being 3 years.

16.  Mr Lung, Counsel for the defendant, pointed out that in the case of A v Hoare[1], the House of Lords held that section 11 of the Limitation Act 1980, the English equivalent of section 27 of our Limitation Ordinance, was applicable not only to actions for personal injuries arising from negligence, nuisance or breach of duty, but also to actions for personal injuries caused by intentional trespass to the person. This case was applied by Deputy High Court Judge Marlene Ng in the case of Ng Iok Kuan v Lam Yu Hang[2]. It follows that even if the present action is regarded as one arising from the tortious act of intentionally conspiring to injure the deceased, the applicable limitation period is still 3 years.

17.  The plaintiff submits that the Master miscalculated the time limit. She contends that time should run from the date on which she obtained Dr Chung’s first report, not the date on which the Court of Appeal handed down judgment in CACV 361/2007. On that basis, it is argued that the time limit did not expire until 7 September 2014 and the plaintiff’s claim was not out of time.

18.  Pursuant to section 27(5)(b) and (6) (see above), the time limit applicable to the present action ran from the date of death of the deceased or the date on which his personal representative (ie the plaintiff) first had knowledge of the facts specified in section 27(6), whichever was the later. The date of knowledge set out in section 27(6) applies to the present action. Of the four items of facts referred to in that section, the plaintiff already had knowledge of three of them. The only issue concerns the date on which the plaintiff had knowledge of the fact set out in (b), namely that the injury was attributable in whole or in part to the act or omission which was alleged to constitute negligence, nuisance or breach of duty. The plaintiff takes the date on which she obtained Dr Chung’s expert report to be the date on which she first had knowledge of the fact set out in (b).

19.  On the undisputed evidence, as early as 25 October 2004 the defendant already supplied to the plaintiff all medical records relating to the deceased. During the approximately 1½ year that followed, the two parties engaged in extensive correspondence with each other. The letters sent by the plaintiff to the defendant on 22 September and 23 December 2005 show that at that time the plaintiff already had knowledge of the facts of the case and well knew the details of the treatment which the deceased had undergone. The facts she relied on were that the deceased’s doctor had deliberately punctured the deceased’s pleural membrane, causing him difficulty in breathing, and also had deliberately punctured the deceased’s lung, causing bleeding in his lung and death from asphyxiation. These are the facts she relied on. Although at that time she had not yet obtained Dr Chung’s two reports and there was no expert medical opinion to support the allegation of medical negligence, for the purposes of section 27(6) it is irrelevant whether those acts or omissions involved negligence. She already had knowledge of the various facts specified in section 27(6)(b), in particular details of the treatment received by the deceased. Based on the above undisputed facts, time should have started to run from 23 December 2005.

20.  However, section 27(8)(b) also expressly provides that the relevant facts include “facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek”. This provision envisages that the person who intends to commence proceedings, ie the plaintiff herein, will take reasonable steps to seek medical or other appropriate expert advice to help her ascertain the facts which allegedly constituted negligence. As at 23 December 2005, she already had a grasp of the relevant essential facts, and she was under a duty to take reasonable steps within a reasonable period of time to seek medical or other appropriate expert advice to help her ascertain the facts which allegedly constituted negligence. If she failed to seek such expert advice, the court may make inferences as to the medical expert advice which might reasonably be obtained by this means. Although they are only facts within constructive knowledge, those facts are also facts within the meaning of section 27(6). Time will also start to run upon expiry of that reasonable period. Therefore, in determining the date on which time starts to run, the court is required to consider not only the date of the personal representative’s actual knowledge of the relevant facts, but also the date on which those facts could be ascertained by him with the help of medical or other appropriate expert advice which he should reasonably have been able to seek.

21.  The Master took the date on which the Court of Appeal gave its judgment in CACV 361/2007 as the date on which time began to run. Such an approach is too generous and lacks legal or factual basis. The plaintiff’s assertion that time should run from the date on which she obtained Dr Chung’s expert report is even more untenable. In my view, the court can take the date on which she had actual knowledge of the relevant basic facts and extend it to a date on which she could reasonably be expected to be reasonably able to seek medical expert advice to assist her. I consider that a period of 12 months from the date of the plaintiff’s letter, ie 23 December 2005, is more than enough time for her to consider the steps to be taken, including seeking legal advice, finding an appropriate medical expert and allowing the expert to prepare a report. Hence, I think time should run from 23 December 2006. The plaintiff had 3 years from that date to seek medical expert advice and commence proceedings to claim damages for personal injuries. However, instead of doing these, she chose to obstinately insist that a death inquest be held. On 23 July 2008, the Court of Appeal dismissed her appeal in respect of convening a death inquest. In its judgment, the Court of Appeal made repeated mention of her failure to provide any expert medical  evidence as to the cause of the deceased’s death, and expressly stated that an independent medical expert report was necessary if she sought to resolve the matter by way of legal proceedings. This notwithstanding, the plaintiff did not obtain Dr Chung’s first report until 7 September 2011, ie some 37 months later, and there was a further delay of almost 3 years before the plaintiff commenced the present action. It was a long delay indeed. The 3-year limitation period expired on 22 December 2009, and the plaintiff has lost her cause of action.

Ground of appeal (2): Inference as to the cause of death

22.  The plaintiff contends that the Master erred in accepting Dr Au’s opinion that “the post-surgery X-ray excluded the possibility of pneumothorax, and the pulse and blood pressure also ruled out any possible pulmonary hemorrhage” and ignoring Dr Chung’s opinion to the contrary, and in holding that the plaintiff had failed to prove the cause of the deceased’s death. She says that Dr Chung’s first report pointed out that X-ray “could not rule out” the possibility of pneumothorax, that the pulse and blood pressure “could not rule out” any possible pulmonary haemorrhage, and that the pleural tapping surgery was the cause of death. The report also criticized that Dr Au tended to believe in others’ opinion especially from his friends or colleagues. The plaintiff also submits that the Master erroneously ignored what Dr Chung pointed out in his second report about the cause of the death, namely bleeding into the aerodigestive tract, which supported her assertion that the surgery caused the deceased to suffocate. Put simply, the plaintiff’s ground of appeal here is that the Master ignored her medical expert Dr Chung’s opinion to the contrary and erroneously held that she had failed to prove the cause of death, and thereby erroneously refused to exercise his discretion to override the time limit.

23.  Section 30 of the Limitation Ordinance empowers the court to override time limits. This section provides that if, having regard to all the circumstances to the case and in particular to the circumstances specified in section 30(3), it appears to the court that it would be equitable to allow an action to proceed, then the court may direct that certain provisions shall not apply to the action or to any specified cause of action to which the action relates. However, before the court considers whether or not to exercise this discretion, the plaintiff is at least required to prove that her action has a prospect of success. In considering the prospect of success, the court should adopt the approach set out in Order 18 Rule 19(1) of the Rules of the High Court. Where contradictory evidence is adduced by the parties, the court will not make findings of fact based on affidavits, but will assume that the statements contained in the affidavit of the party sought to be struck out are true and, on the basis of those facts, decide whether the statement of claim should be struck out. Applying this approach to the present case, I will not consider the evidence of Dr Au for the defendant and will not assess the reliability of Dr Chung’s two reports (on which the plaintiff relies) by reference to the evidence of Dr Au. I will assess whether the plaintiff’s action has a prospect of success on the basis of the plaintiff’s evidence and Dr Chung’s two reports, i.e. whether Dr Chung’s evidence meets the standard of proof required by the Bolam test and causation test.

24.  Mr Lung has agreed, solely for the purpose of this appeal and for no other purposes, that Dr Chung’s two reports meet the standard of proof under the Bolam test. In making that concession, he reserved the defendant’s right to adduce medical expert evidence on the Bolam test at the trial proper. Hence, the remaining question to be dealt with in this appeal is whether Dr Chung’s two reports meet the standard of proof under the causation test.

25.  In his two reports, Dr Chung severely criticized the defendant’s treating doctors, stating that they were negligent and failed to keep proper records, etc. He also opined that the deceased should not have been subjected to pleural tapping, even drawing an analogy between that and shooting a terminally ill patient to death. On page 3 of his second report, Dr Chung pointed out that the final fatal event was bleeding into aerodigestive tract and that a most likely immediate cause of death was clinically massive bleeding in the digestive tract resulting in exsanguinations or aspiration of vomited blood. He suggested four possible causes of death and opined that the second cause, namely complication, was most likely.

26.  I will first discuss the other three possible causes of death. The first cause was direct injury of the lung from pleural tapping causing non-stop bleeding and blood had over-spilled to the digestive tract. However, Dr Chung commented that pleural tapping seldom led to massive bleeding, although he added that “the possibility was not non-existent”. He was unable to ascertain this possibility due to a lack of documentation. This conclusion is also consistent with that made in paragraph 2 on page 9 of Dr Chung’s first report, where he said, “pleural tapping could have done harm to the patient but it cannot be irrevocably proved with the existing information.” It is obvious that Dr Chung’s opinion is sheer conjecture which cannot constitute positive and affirmative evidence that the procedure caused the death of the deceased.  

27.  The third possible cause of death as suggested by Dr Chung was tumour bleeding into lung or spreading into gut, being a spontaneous cause. However, Dr Chung did not consider this likely.

28.  The fourth possible cause of death was gastric or duodenal ulcer bleeding, also being a spontaneous cause. Dr Chung opined that this was common but seldom fatal with blood transfusion. I believe his opinion was that this possible spontaneous cause of death was ruled out.

29.  Regarding the second possible cause of death, Dr Chung stated that it “could not be ruled out” that pleural tapping was the cause of death. The plaintiff stresses that this is sufficient evidence of the cause of death. Mr Lung takes a contrary view. Dr Chung was very careful in his choice of words. He chose not to directly accuse the defendant’s doctors of causing the death of the deceased by carrying out the procedure; instead he chose to use two negative terms “could not” and “rule out” to offset each other. It is true that this phrase might have been used in response to Dr Au’s opinion. However, on a literal reading of this phrase, the farthest his opinion could go was that pleural tapping might be, or might not be, the cause of death. Of the four possible causes of death listed by Dr Chung, two might be natural causes and the other two might or might not involve negligence. In my view, his choice of words was not coincidental; rather, the words expressed his reservations over the second possible cause of death. His views are equivocal and do not lend support to the allegation of negligence.

30.  Finally, in paragraph 3 on page 4 of his second report, Dr Chung concluded by stating that “[i]n conclusion, the exact immediate cause of death is a mystery but certainly not anticipated.” It is obvious that Dr Chung could not directly and specifically point out that pleural tapping was the cause of death. His two reports are equivocal and inconclusive on the cause of death. His opinion fails to satisfy the causation test. Even if the court did not consider the evidence of the defendant, Dr Chung’s two reports by themselves would not enable the plaintiff to discharge the requisite burden of proving negligence on the part of the defendant. This ground of appeal is without merit.

31.  After the hearing, the plaintiff wrote to me on 19 June 2015, quoting the contents of Dr Chung’s two reports and alleging that Mr Lung had incorrectly cited or translated the contents of Dr Chung’s two reports. She also alleged that the contents were fabricated by the defendant. She asked for 36 days so that she could file the Chinese translation of Dr Chung’s two reports. I do not consider it necessary to do this. Dr Chung prepared his two reports in English. Earlier on in this judgment, I quoted both the original text in English and the Chinese translation of the relevant parts of the reports, thereby confirming the accuracy of Mr Lung’s citations and translations. The plaintiff’s argument is groundless. Allowing the plaintiff to provide a Chinese translation will not assist her and will only increase her costs unnecessarily.

32.  To sum up, it can be seen from the above analysis that the plaintiff’s action has obviously exceeded the time limit and has no prospect of success at all. Moreover, the deceased passed away in September 2002, and by December 2005 the plaintiff had known all the facts relevant to the allegation of negligence. As I pointed out in paragraph 21 above, instead of commencing the present action she chose to obstinately request that a death inquest be held. On 23 July 2008 the Court of Appeal dismissed her appeal and expressly reiterated that if she wanted to resolve this matter by way of legal proceedings, an independent medical expert report would have to be obtained. This notwithstanding, the plaintiff did not obtain Dr Chung’s first report until 7 September 2011, which was some 37 months later, and she delayed for another 3 years before commencing the present action, which was 12 years after the deceased’s death. She has failed to give reasons for the delay, and her action has no prospect of success. In the circumstances, to allow her action to proceed would be abusive of the process of the court and highly prejudicial to the defendant. In light of the circumstances that have to be considered under section 30(3), in particular the fact that the action has no prospect of success, I cannot exercise the discretion conferred on the court by section 30 to override the time limit.

Ground of appeal (3): No order by the Master

33.  The plaintiff submits that at the hearings on 2 September, 23 September, 29 October 2014 and 20 March and 29 April 2015, the Master did not make any orders, and instead the court affixed its seal on the draft orders that the defendant’s legal representatives took the initiative to submit to the court. She contends that these orders were effectively made by the defendant and were unlawful. She seeks to have these orders set aside.

34.  The plaintiff’s submissions stem solely from her misunderstanding of judicial proceedings. I have reviewed the court records, and as I mentioned in the “Background” section of this judgment, at the conclusion of the hearing on 20 March 2015, the Master reserved his decision. On 23 April 2015, the Court Clerk to the Master notified both parties in writing that the judgment would be handed down on 29 April 2015. On that date, the Master handed down his judgment through his Court Clerk. The Master is not required to attend court personally to hand down the judgment. Then, in accordance with the normal procedure, the solicitors for the winning party, ie the defendant, drafted an order pursuant to the terms of the Master’s judgment and submitted it for approval by the Master’s Court Clerk and sealing by the court. There was no irregularity in the order made by the Master. At the hearing I explained to the plaintiff the above procedure and indicated that I would adopt the same procedure by reserving judgment and fixing another date for handing down the judgment. However, the plaintiff refused to accept my explanation. This ground of appeal is devoid of merit.

Conclusion

35.  For the above reasons, I find that all of the grounds of appeal advanced by the plaintiff are without merit. The plaintiff did not commence the present action until 12 years after the deceased’s death. She failed to give reasons for the delay. Nor does her action have any prospect of success. This being the case, to allow her action to proceed would be abusive of the process of the court and highly prejudicial to the defendant. I cannot exercise the discretion conferred on the court by section 30 to override the time limit so as to allow her action to proceed. Accordingly, I dismiss the plaintiff’s appeal and uphold the Master’s decision, and also order the plaintiff to pay the defendant’s costs of this appeal, to be taxed if not agreed.