WONG KIM YING v. HOSPITAL AUTHORITY

HCPI 265/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.265 OF 2004

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D E C I S I O N

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1. This is an application by the plaintiff for an order that the proceedings herein was brought within the 3-year limitation period, alternatively for the court to exercise its discretion pursuant to section 30 of the Limitation Ordinance to disapply the 3-year limitation period.

2. The present action is a claim by the plaintiff against the Hospital Authority for medical negligence arising from an operation performed by Dr W.S. Chan on 5 December 1996 at the Prince of Wales Hospital (“PWH”), Dr W.S. Chan being the servant or agent of PWH, a hospital managed and run by the defendant.

Background

3. On 16 May 1994, the plaintiff had an industrial mishap and sustained injury to his leg and back while at work.  For that industrial injury, he received treatment at PWH for some two years but still suffered from pain in the lower back and numbness to his right leg.

4. In early 1996, Dr W.S. Chan of PWH recommended the plaintiff to undergo an operation to his spine due to the fact that the ongoing pain and numbness still persisted.  That recommendation was accepted by the plaintiff in November 1996.

5. The operation was performed on 5 December 1996 at PWH by Dr W.S. Chan assisted by two assistants.

6. In the course of that operation performed by Dr W.S. Chan, there occurred an accidental tear of the dural sac with a nerve root sucked out accidentally but which was immediately repaired (during the course of the operation).

7. After the operation, the plaintiff began to experience pain and numbness over his left leg, buttock and genitals as well as suffering from bowel and urinary incontinence and also sexual dysfunction.

8. On 16 December 1996, the plaintiff was transferred to Shatin Hospital for rehabilitation and later discharged.  After discharge he continued to receive follow up treatment from Dr W.S. Chan at PWH.

9. In 1999, at one of the follow-up consultation, the plaintiff was advised by another doctor to consult Dr Arthur Yau of the Canossa Hospital which he did on 28 June 1999.  Dr Yau told the plaintiff that the earlier operation in December 1996 had not been performed well and recommended a further operation which recommendation the plaintiff did not take up.

10. In September 1999, the plaintiff was referred to the Duchess of Kent Children’s Hospital (“DKCH”) and was in fact admitted to DKCH from 21 October 1999 until 3 November 1999. The plaintiff was again re-admitted to DKCH on 17 January 2000.

11. During his stay at DKCH, the plaintiff was told there that the nerves in his spine were injured and the risk of a further operation was high.  This confirmed his decision not to have a further operation.

12. On 21 January 2000, the plaintiff had a meeting with Dr W.S. Chan at which meeting the plaintiff says that Dr W.S. Chan “apologized to me and said the operation had not been performed well” indicating also to him that he could return to PWH for further follow-up treatment.

13. On 3 July 2002, the plaintiff was referred by DKCH to the Urology and Proctology Division of Queen Mary Hospital (“QMH”). There he was advised by a Dr Chu that further treatment or operation would not improve his condition.  Moreover Dr Chu was of the opinion that it was likely the nerves of his spine were injured during the operation in December 1996 and the injury to the nerves may have led to his present problems of incontinence and sexual dysfunction.  Dr Chu also told him that he could sue the doctor who performed the operation in 1996 for his resultant injuries.

14. As a result the plaintiff approached the Legal Aid Department for assistance.  Upon Legal Aid being granted to the plaintiff, the Legal Aid Department wrote to PWH by letter dated 15 November 2002 in respect of the potential claim by the plaintiff against it.

15. On 20 October 2003, Legal Aid Department instructed Dr Chun Siu Yeung to give an expert opinion relating to the operation carried out by Dr W.S. Chan on 5 December 1996.  That expert report was prepared by Dr Chun and dated 2 November 2003.

16. The Writ in this matter was then issued by the Legal Aid Department acting for the plaintiff on 23 March 2004.

Plaintiff’s application

17. In making this application, it is the plaintiff’s primary case that he did not have the requisite knowledge under section 27 of the Limitation Ordinance that his double incontinence and sexual dysfunction was attributable to the operation carried out by Dr W.S. Chan on 5 December 1996 until he had received the opinion contained in the expert report of Dr Chun Siu Yeung dated 2 November 2003.

18. On that footing the plaintiff says that the 3-year limitation period only started to run as from 2 November 2003 in which case the Writ was not issued outside the period of limitation.

19. His fallback position is that if the court comes to a finding that the Writ was issued outside the 3 years’ limitation period, then he prays in aid section 30 of the Limitation Ordinance and that in all the circumstances of this case, the discretion of the court ought to be exercised so as to allow his claim to proceed notwithstanding that the Writ was issued beyond the 3 years’ limitation period prescribed by statute.

Defendant’s contention

20. On the other hand, the defendant submits that on all the available evidence, it is quite clear that the plaintiff had all the requisite knowledge under section 27 of the Limitation Ordinance by the latest, 21 January 2000 when he had the meeting with Dr W.S. Chan and therefore the 3-year limitation period would have expired by 20 January 2003.  The Writ was therefore issued out of time.

21. Moreover, the defendant contends that in this case, the court should not exercise its discretion to allow this claim to proceed mainly because of the prejudice caused to the defendant by the long delay such that there cannot be a fair trial now for the defendant to have to defend this claim.

22. The defendant also seek reliance on the fact that it had been documented by doctors in DKCH that the plaintiff had indicated to them that he had decided not to sue either Dr W.S. Chan or PWH in April and December 2000, both of those occasions being after he had the meeting with Dr W.S. Chan on 21 January 2000 when the plaintiff would have become aware of the full picture.

Knowledge under section 27 of Limitation Ordinance

23. In so far as legal principles are concerned, a number of cases were cited in submission by counsel, from which the following principles, relevant to the present dispute, can be distilled.

24. By section 27(6) of the Limitation Ordinance, the references to a person’s date of knowledge are references to the date on which he first had knowledge of, inter alia, the following facts :

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

(b)     that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence …

25. The relevant principles relating to actual knowledge in this respect was succinctly set out by Brooke LJ in North Essex District Health Authority v. Spargo [1997] 8 Med LR 125 at 129-130 where he said :

“(1) The knowledge required to satisfy section 14(1)(b) is a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable;

(2)   ‘Attributable’ in this context means ‘capable of being attributed to’, in the sense of being a real possibility;

(3)   A plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate whether or not she has a case against the defendant.  Another way of putting this is to say that she will have such knowledge if she so firmly believes that her condition is capable of being attributed to an act or omission which she cannot identify (in broad terms) that she goes to a solicitor to seek advice about making a claim for compensation;

(4)   On the other hand she will not have the requisite knowledge if she thinks she knows the acts or omissions she should investigate but in fact is barking up the wrong tree; or if her knowledge of what the defendant did or did not do is so vague or general that she cannot fairly be expected to know what she should investigate; or if her state of mind is such that she thinks her condition is capable of being attributed to the act or omission alleged to constitute negligence, but she is not sure about this, and would need to check with an expert before she could be properly said to know that it was.”

26. These principles were adopted by Deputy Judge Kwan (as she then was) in her judgment in the case of Wong Hung Yuen v. John Fang (HCA11795/1999, unreported).  At page 21 of her judgment, Deputy Judge Kwan went on to say :

“It is pertinent to bear in mind the following:

(1)   Knowledge that any act or omission did or did not, as a matter of law, involve negligence is irrelevant, see section 31(6).

(2)   A plaintiff did not need to know that the defendant’s act or omission was capable of being attributable to some fault on the defendant’s part.  The only function of the words ‘alleged to constitute negligence’ in section 31 (5) (b) is to ‘point to the relevant act or omission to which the [damage] was attributable’ or to ‘identify the facts of which the plaintiff must have knowledge without implying that he should know that they constitute a breach of a rule, whether of law or some other code of behaviour’.  (Broadley v Guy Clapham & Co. [1993] 4 Med LR 328 at 333 per Leggatt and Hoffmann LJJ.)

(3)   The level of knowledge required is a low one.  It is the policy of the legislature to give a plaintiff who has the requisite low level of knowledge three years in which to establish by inquiry whether the identified damage was indeed probably caused by the identified act or omission and whether the act or omission amounted to actionable negligence (Spargo, supra at 131).

(4)   ‘Attributable’ in this context is a much less rigorous test as compared to the test of the proof of causation.  All that it means is ‘capable of being attributed to’ in the sense of being a real possibility (Spargo, supra at 131).  It should also be noted that under section 31(5)(b), the knowledge required is that the damage was attributable in whole ‘or in part’ to the act or omission which is alleged to constitute negligence.”

Evidence relied on by the defendant

27. The defendant relies on the following evidence to show that the plaintiff knew that his injury (including the double incontinence and sexual dysfunction) were attributable to the operation.

28. Firstly, it is the plaintiff’s case that prior to the operation, the plaintiff was neurologically normal.

29. In the plaintiff’s first affirmation it is stated by him :

“However, after the operation, started to have pain and numbness over my left leg, buttock and genitals”

“Apart from the pain over my back, left leg, buttock and genitals, in the days following the operation I had difficulty in passing urine and faeces and in late December 1996, I started to experience urge frequency and incontinence of both bowel and urinary functions. At the same time, I realized that I had sexual dysfunction ...”

“Prior to the operation in 1996, I did not suffer from incontinence or sexual dysfunction and had no left sided symptoms.”

30. It is also stated by the plaintiff in paragraph 13 of his first affirmation that on 28 June 1999, he consulted Dr Arthur Yau who was of the view that the operation had not been performed well.

31. The defendant further relies on a handwritten letter of the plaintiff submitted to DKCH dated 9 August 1999, the translation of which states :

“The lumbar spinal operation at the Prince of Wales Hospital at the end of 1996 was unsuccessful, and as a result lower part of my body (including left scrotum, left side of the penis) is numb and painful all the day …

According to the [MRI] examination report of mid-June 1999 by Guangzhou Military Zone Chief Hospital, L3-4-5 was narrowed after the spinal operation, thereby compressing nerve roots, which causes pain in the lower part of [my] left body, which is becoming more and more painful. Incontinence is also brought about by compression of nerve roots …

Now apart from the inconvenience in life, movement [including loss of normal sex life], (the pain) really cause extreme pain to my mind and body.”

32. Moreover, in paragraph 14 of the plaintiff’s first affirmation, the plaintiff states that in September 1999 he was told by the doctors of DKCH that the nerves in his spine were injured and the risk involved in a further operation were high, therefore he decided not to have further surgery.

33. On 21 January 2000, a meeting was arranged between the plaintiff and Dr W.S. Chan of PWH.

34. In paragraph 15 of the plaintiff’s affidavit, it was stated by the plaintiff that during that meeting (on 21 January 2000) Dr W.S. Chan of PWH apologized to the plaintiff and said to him that the operation had not been performed well and indicated to the plaintiff that he could return to PWH for further follow-up treatment.

35. It should also be stated here that the defendant also relies on a number of entries made in the Progress Note or the Patient Progress Record of DKCH in early 2000 when the plaintiff was in DKCH as well the contents of an entry in the Out-Patient Progress Sheet made by Dr W.S. Chan of PWH being notes by him as to what took place at the meeting on 21 January 2000 when he saw and spoke to the plaintiff.

36. However, there is no evidence before me that the contents of the Progress Notes or Patient Progress Record relied on by the defendant had been made known to the plaintiff at the time those entries were made.  Moreover, there are factual disputes between the parties as to what had been said between the plaintiff and Dr W.S. Chan at their meeting on 21 January 2000.

Decision

37. In order to properly rule on the application before me, it would be necessary to make finding of facts in order to determine when it was that the plaintiff had the requisite knowledge.  That has to be done to pinpoint the time from which the limitation period stated to run, assuming it is a question of the relevant knowledge of the plaintiff (therefore the limitation period did not start to run as from the date of the accident).  That same finding of fact would also be necessary for deciding the application under section 30 for the court to disapply the limitation period since it would be necessary to know the period of delay.

38. It would not be satisfactory to confine the evidence to only what had either been stated by the plaintiff in his affidavit or contained in his own handwritten letter, i.e. matters either admitted by the plaintiff or cannot be disputed by him.

39. The difficulty which I face here is that while there is some evidence which can favour the defendant’s case that the plaintiff had the requisite knowledge in January 2000, that finding, because of the factual dispute between the parties, can only be made after hearing the evidence and cross-examination.  It is not a finding which can or should be made only on the affidavit evidence alone without the benefit of cross-examination.

40. Ultimately, therefore, I have come to the conclusion that, although it would be of benefit to all concerned if the limitation issue can be determined once and for all before the trial, it would undoubtedly save much legal costs for both parties concerned.  However, given the circumstances of this case, that is not possible due to the factual disputes between the parties which prevent me from making a specific finding on the disputed facts at this stage.

41. The upshot of all this therefore leads me to the conclusion that the limitation issue cannot be determined or resolved at this stage, but will have to be dealt with at the trial of this matter as a defence raised by the defendant, when all the factual disputes can be heard and determined by the trial judge.

42. Given that my decision is as stated above, I will need to hear from both parties as to the Order which I should make on this summons and costs.