CHEUNG TAI FUNG, THE ADMINISTRATRIX OF THE ESTATE OF YEUNG SHEK, DECEASED v. HOSPITAL AUTHORITY

HCMP 3396/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 3396 OF 2013

(on an intended appeal from DCPI No. 1606 of 2010)

____________

____________

____________

____________

Hon Yuen JA (giving the judgment of the court):

1.  This is the plaintiff’s application for leave to appeal from an order of Deputy District Judge D Ho given on 12 December 2013 dismissing the plaintiff’s appeal from an “unless” order made by Master J Chow on 25 October 2013.

2.  The plaintiff applied to the learned judge for leave to appeal and for a stay of the order, but both applications were dismissed on 12 December 2013. 

Plaintiff’s application for leave to appeal and for interim stay

3.  On 19 December 2013 the plaintiff issued a summons in this court for leave to appeal, as well as a summons for interim stay of the “unless” order pending the court’s determination of the application for leave to appeal.

Lam VP’s disposal of the application for interim stay

4.1 In respect of the application for interim stay, Lam V-P gave an interim stay from 19 December to 23 December 2013 pending the plaintiff’s production of a draft Notice of Appeal.

4.2   A proposed Notice of Appeal was supplied to the Court on 23 December 2013.

4.3   On the same day Lam VP notified the plaintiff that having read the draft Notice of Appeal and the plaintiff’s submissions, he was not persuaded that there should be any further interim stay.  Brief reasons were given, and directions were made for the application for leave to appeal to be dealt with on paper in the usual manner pursuant to Order 59 Rule 2A.

5.  After Lam VP’s decision, the plaintiff submitted a revised draft Notice of Appeal which will be discussed below.  

Proceedings

6.  The proceedings arose from the death of Yeung Shek (“the deceased”) whilst a patient at Alice Ho Miu Ling Nethersole Hospital (“AHNH”).  The plaintiff is the deceased’s widow and the writ claims damages for negligence.

Chronology

7.  A brief chronology of the relevant facts is set out below:

4.10.2007 The deceased developed a fever and cough and was treated at AHNH.

5-8.10.2007 The deceased was admitted to AHNH and treated for parainfluenza type 1.  However he developed abdominal pain and his condition deteriorated.  Arrangements were made to transfer him to North District Hospital.  His condition deteriorated just before departure in the ambulance, and he was returned to the Critical Care Unit of AHNH.

8.10.2007 The deceased died.

15.10.2007 Autopsy was performed on Coroner’s direction.

24.10.2007 Plaintiff (“P”) requested for medical report and discharge slip.

3.12.2007 Autopsy report. 

31.1.2008 Defendant (“D”) supplied P with medical report and discharge slip.

8.4.2009 P lodged complaint with D.

3.7.2009 D replied to complaint.

27.9.2010 P issued writ in DCPI 1606/2010 (“the PI action”).

8.10.2010 Third anniversary of deceased’s death.

30.6.2011 Master Lui’s order extending validity of writ to 27.12.2011 (1^st extension).

2.12.2011 Master Yip’s order extending validity of writ to 27.6.2012 (2^nd extension).

30.5.2012 Master Yip’s order extending validity of writ to 27.9.2012 (3^rd extension).

18.9.2012 Master Yip’s order extending validity of writ to 27.12.2012 (4^th extension).

20.12.2012 Master Yip’s order extending validity of writ to 26.6.2013 (5^th extension).

20.6.2013 Master Chow refused further extension.

26.6.2013 Writ in the PI action served on D.

21.6.2013 Coroner informed P that he has directed police to investigate deceased’s death and to submit report to him.

22.7.2013 Deadline for P to serve Statement of Claim (extended by consent).

26.8.3013 Extended deadline for P to serve Statement of Claim (not done).

4.10.2013 D’s summons applying to dismiss the PI action.

25.10.2013 Check List Review - Master Chow made “unless” order requiring P to serve the Statement of Claim by 19 December 2013 or have action dismissed.  

12.12.2013 Ho Dep DJ dismissed the P’s appeal from Master Chow’s “unless” order.

8. It will be seen from the items in bold type above that when the judgment was delivered, it had been

-   more than 6 years since the deceased’s death,

-   6 years since the autopsy report,

-   nearly 5 years since the plaintiff received the deceased’s medical report and

-   more than 3 years since the writ was served. 

Reason for the plaintiff’s delay

9.  The only reason the plaintiff has put forward for her delay is that she is seeking a stay of proceedings pending police investigations, the Coroner’s decision whether to hold an inquest thereafter, and (in the event that he decided to hold an inquest) the conclusion of the inquest.  It was said on her behalf that statements would be taken during the investigations, and if the Coroner ordered an inquest, the medical staff would be called as witnesses and independent medical experts would be called to give their opinions.  These would enable the plaintiff to assess the merits of her case.  On the other hand, if the plaintiff were required to proceed with her case before the conclusion of investigations and the Coroner’s decision (and possible inquest), that may result in a waste of costs.

10.  The defendant objected to any further delay.  Apart from the usual grounds for objecting to a further extension, such as  fading memories and other factors detrimental to a fair trial, the defendant pointed out that 2 medical reports had been obtained on the plaintiff’s behalf.  Therefore the plaintiff must know by now what (if any) allegations of negligence she could make against the defendant’s staff.  The defendant contended that a statement of claim should be filed so that it could know the case against the staff involved, investigate the facts in a timely way and prepare a proper defence.

The judge’s decision

11.1 The judge described the arguments before him in the following way: “I am in fact being asked to weigh the forensic advantage [to the plaintiff] of awaiting police investigation (with or without a death inquest) against the disadvantage [to the defendant] that has already surfaced” (para. 46).

11.2 The judge noted that the police investigation would necessarily be conducted at large, without any pre-determined scope of inquiry.  Further the investigation would be aimed for the use of the Coroner, and it has been held that in coronial proceedings, the purpose of the inquiry as to “how ... the person came by his death” in s.27 Coroner’s Ordinance refers to a limited factual question, with the concept of “neglect” bearing a technically restricted meaning (Dr Gilbert Tien v William Lam Esq, Coroner [2004] 2 HKLRD 719).  Accordingly the judge concluded that the investigations and inquest (if the Coroner decided to hold one) would have little bearing on the resolution of the PI action.

11.3 The judge also held that he saw real prejudice to the defendant in not knowing the case against it, as set out above.

11.4 Having weighed both sides’ arguments, the judge concluded that on balance he was against a stay of the proceedings.   

Application for leave to appeal

12.  It is well-established that leave to appeal should only be given if the proposed appeal has a reasonable prospect of success, in other words, that the prospect is more than fanciful, though it need not be probable.  

Exercise of discretion

13.  It is clear that the judge’s decision was made in the exercise of his discretion. An appeal from an exercise of discretion can only succeed if the proposed appellant can show that the judge had erred in law or had misapprehended material facts, or had failed to take a relevant matter into consideration or had taken an irrelevant matter into consideration, or that his exercise of discretion was “plainly wrong”.

14.  In the plaintiff’s revised draft Notice of Appeal, the grounds of appeal were that the judge was “plainly wrong” or had erred in

-   not taking into account the fact that witness statements and possibly expert medical opinions generated from police investigations (and the inquest, if the Coroner orders one) would be primary evidence which the plaintiff could not obtain on her own;

-   taking into account the difference in roles between the police investigators and the defendant’s lawyers and finding that there would not be any saving in costs for the defendant to await police investigations;

-   not taking into account that a refusal of stay would have costs consequences to the plaintiff, who is a litigant in person;  

-   taking into account the prejudice that might be suffered by the defendant when there was no basis for the view that it might fail to take measures to protect its position;

-   not taking into account that an “unless” order should not be made without the plaintiff being given a further extension of time first. 

Discussion 

15.  Taking the last point first, whilst it is correct that “unless” orders should normally only be used as a last resort, in reality this consideration would not have impacted on the present case.  The plaintiff had already had 5 extensions for service of the writ and 1 extension by consent for the service of the Statement of Claim.  She was not seeking a further extension to any specific date so that she could prepare or finalize a draft statement of claim; she was seeking an open-ended stay pending the police investigations, to be followed by the Coroner’s decision whether to hold an inquest, and possibly to be followed further by the conclusion of the inquest.  In those circumstances it would have been meaningless to give the plaintiff a further extension of say, 14 or 21 days, before making an “unless” order.  In fact Master Chow gave the plaintiff 56 days to file a Statement of Claim.   

16.  The crux of the matter is whether the plaintiff should have an open-ended stay pending investigations to be undertaken for the Coroner and (if ordered) an inquest. 

17.1 To put it bluntly, the plaintiff is hoping, through that route, to “fish” for evidence so that she could decide whether or not to advance her claim for medical negligence. 

17.2   Whilst we extend our sympathies to the plaintiff for her bereavement, we cannot ignore the fact that she has had –  for some considerable time – relevant materials on which an informed decision could be made whether or not to pursue a claim against the defendant for medical negligence. 

17.2.1   First, the plaintiff was in constant communication with the deceased through the telephone after his admission to hospital, as shown in the statement she gave to the police on 14 June 2013.  She was therefore personally aware of his condition and symptoms and when they occurred. 

17.2.2   Second, the plaintiff had the autopsy report dated 3 December 2007.  The report is detailed and stated that the causes of death were haemoperitoneum and soft tissue haemorrhage which could be attributed to rupture of malformed blood vessels.  The report also stated that samples from around the bleeding site showed conglomerates of complex branching and malformed vessels of medium and large size.  Features were consistent with arterio-venous malformation which were prone to rupture.   

17.2.3   Third, the plaintiff received AHNH’s medical report on 31 January 2008.  This showed that when the deceased complained of abdominal pain on 8 October 2007, he was examined and a clinical diagnosis was made of bowel colic possibly due to viral illness.  When his condition deteriorated later that day and he was found to have acute abdomen pain, surgeons at the North District Hospital were consulted and arrangements were made to transfer him there.  However he became unconscious and hypotensive just before departure in the ambulance and he was returned to AHNH where he was resuscitated and then admitted to the Critical Care Unit.  He eventually developed cardiac arrest and died the same day.

17.3   The above materials encapsulated the deceased’s complaints, the causes of his death, and his diagnosis and treatment at AHNH.  The plaintiff is therefore aware of the crucial information on which a decision whether or not to pursue a case of medical negligence on the part of the defendant’s staff could be made. Two medical reports had been obtained on the plaintiff’s behalf, and she has also had the benefit of pro bono legal assistance.

18.  In these circumstances, if the plaintiff (with the benefit of medical and legal advice) has the courage of her convictions that there has been negligence on the part of the defendant’s staff, she should proceed to file a Statement of Claim.  In seeking a stay so that she could fish for evidence from the police investigations and have a “dry run” in an inquest, she is indeed, as the judge put it, seeking a forensic advantage over the defendant.   

19.  Secondly, the court must look at the case from both sides.  This includes taking into account costs consequences for the defendant.  It also includes taking into account the more important fact that the doctors and nurses who attended the deceased have had this litigation hanging over their heads for years due to the plaintiff’s inactivity.  If they had been negligent, the defendant should be made liable.  But if they had not been negligent, they should be vindicated at trial (if the plaintiff proceeds) or have the action dismissed (if the plaintiff does not proceed), rather than be stuck in limbo for a further period if the court were to grant a stay.   

20.  Finally, the fact that the plaintiff is a litigant in person is of course a factor to be taken into account, but it is not the be-all and end-all.  In the present case, as noted above, the plaintiff is in possession of crucial information relating to the deceased’s symptoms and condition, the exact causes of his death, and the diagnosis and treatment he received.  She has had two medical reports prepared on her behalf, and although she has been declined legal aid, she has had the benefit of pro bono advice from experienced lawyers.  In our view, it was not unfair and was completely in compliance with the Civil Justice Reform objectives for the court to require her to file a Statement of Claim, so that the matter can proceed or terminate, more than 3 years after service of the writ and 6 years after the alleged cause of action occurred.

21.  In the circumstances, we see no errors in the matters that the judge took into account, or did not take into account, nor are we persuaded that his exercise of discretion was “plainly wrong”.

Order

22.  The application for leave to appeal must therefore be dismissed.  Pursuant to Order 59 rule 2A(8) RHC, it is ordered that no party may request this determination to be reconsidered at an oral hearing inter partes.  We make an order nisi that there be no order as to costs.