LAW YIN POK BOSCO v. DR CHAN YEE SHING

HCMP 2256/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2256 OF 2012

(ON AN INTENDED APPEAL FROM HCPI NOS. 369 OF 2010 AND 62 OF 2011 (CONSOLIDATED))

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HCPI 369/2010

(Consolidated by Order of Master Roy Yu dated the 13^th day of July 2011)

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REASONS FOR JUDGMENT

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Hon Fok JA (giving the Reasons for Judgment of the Court):

1.  On 11 October 2012, Deputy High Court Judge Seagroatt refused the plaintiffs’ application to adjourn the trial of two personal injury actions, namely HCPI 369/2010 and HCPI 62/2011. Leave to appeal was sought from the Judge immediately after he gave his ruling refusing the adjournment and this was also refused, so the application to this Court was a renewed application for leave to appeal.

2.  At the conclusion of the hearing, we dismissed the application for leave to appeal indicating that we would give our reasons for doing so in due course.  These are our reasons.

The application

3.  In the first PI action, a minor sues by his mother and next friend in respect of medical negligence on the part of the defendant.  In the second PI action, the minor’s parents sue for nervous shock resulting from that medical negligence.  Liability has been admitted and, by notice dated 6 January 2012, the trial has been fixed to commence on 7 November 2012 (for 4 days) for the assessment of damages.

4.  It is said now that the plaintiffs are in a situation of crisis and are suffering severe emotional turmoil such that they are in no fit state to prepare for or attend at the trial.  This is because, by letter dated 13 September 2012 which was received on or about 17 September 2012, the Medical Council of Hong Kong informed the mother that her complaint of professional misconduct against the defendant doctor was not made out and that no further disciplinary action would be taken against the defendant.

5.  In the father’s affirmation in support of the adjournment application, he describes the receipt of this letter as having devastated his wife and him, in particular his wife who expressed thoughts of suicide and suggested this to him, albeit the father acknowledges this is irrational.  They consider that the defendant doctor misled the Medical Council and made untruthful statements in response to the plaintiffs’ complaints to the Medical Council against the defendant.

6.  Subsequent to the receipt of the Medical Council’s letter, the plaintiffs were examined by the psychologist who is currently treating them (Dr Amy S.M. Fung) and also by their treating psychiatrist (Dr Josephine G.W.S. Wong).

7.  The psychologist’s report notes that the mother is in a deeply aggrieved and emotionally unstable condition and that the recent decision of the Medical Council has brought about a significant setback in her psychological condition.  She opines that the mother’s current psychological condition is such that her psychological fitness to cope with the stresses of the scheduled court hearing in general and cross-examination in particular is in doubt.  She opines that the father also needs psychological help and support.  She asserts that it would be beneficial if the court hearing could be deferred for at least three months to allow ample time for psychological and psychiatric interventions to take effect on the couple.

8.  The psychiatrist opines that both the mother and father are reacting to an acute stress, each with a diagnosis of an adjustment disorder, with a mixed anxiety and depressive reaction for which antidepressants have been prescribed.  She opines that if the court hearing was to proceed in early November as scheduled, the stress of pre-trial preparations and the pressure associated with the court hearing would be detrimental to their mental health, leading possibly in the case of the mother to the development of a depressive episode which might require longer term treatment with an antidepressant.  She therefore supports a deferment of the court hearing for at least three months.

The relevant principles

9.  In the ordinary course of events, milestone dates such as the dates fixed for the trial of an action must, on occasion, yield to the vicissitudes of life.  The illness of a party or a necessary and important witness may, depending on the circumstances of the case, justify vacating and re-fixing the trial dates.  This is simply a manifestation of the principle recognised in Dick v Piller [1943] 1 KB 497, the headnote of which reads:

“When a witness in, or a fortiori a party to, an action in a county court is alleged to be prevented by illness from attending the court for a hearing of the case and the judge is satisfied of the fact of his illness and of the materiality and importance of his evidence and that the granting of an adjournment will not cause an injustice to the other party which cannot be reduced by costs, it is the duty of the judge to grant an adjournment, it may be on terms, and failure on his part to do so constitutes a miscarriage of justice which necessarily involves an error of law on which an appeal may be founded.”

10.  By way of example of the operation of the principle: see, as regards a material witness of fact, Fairwing Investment Limited v China and Canton (Properties) Company Limited & Anor, unrep., HCA 2137/2004, 16 June 2009; as regards an expert witness, Joyce & Anor v King, unrep., Times Law Reports, 13 July 1987; and, as regards a litigant, Teinaz v Wandsworth London Borough Council [2002] ICR 1471.

11.  However, in order for an adjournment to be granted on this basis, the court is entitled to be satisfied that the inability of the litigant to be present is genuine and the onus is on the applicant for an adjournment to prove the need for such an adjournment: Teinaz v Wandsworth London Borough Council at §21.

Analysis

12.  It was submitted on behalf of the plaintiffs that the trial should be adjourned in the interests of justice since there is no basis to criticise or doubt the adequacy of the medical evidence adduced on their behalf.  At a pre-trial review on 14 September 2012 the Judge refused the plaintiffs’ application for leave to produce updated witness statements and indicated that the updated evidence could be given orally at trial.  For this reason, it was submitted, it is all the most important that the plaintiffs are in good health and condition to be able to prepare for and testify at trial.  Since the medical evidence of the treating psychologist and treating psychiatrist is that the plaintiffs are unable to do so at this stage, it would be unfair to force them to do so.  In the event they were to follow the medical advice and not take part in the preparation for trial and the trial itself, their substantive rights and interests would be adversely affected.

13.  Thus, it was submitted that this was an appropriate case for leave to appeal to be granted and for the trial dates to be vacated.

14.  Whilst, at first blush, the plaintiffs’ application appears persuasive, it is right to step back and consider the substance and timing of the application in the wider context of the litigation as a whole. In this context, a number of factors are relevant and significant.

15.  First, it would be all too easy for plaintiffs in general to dictate the pace of personal injury litigation simply by claiming mental anxiety over the proceedings and so the court must look critically at the evidence adduced in support of an application to vacate the trial dates on this ground.  The nature of the claimed indisposition of the plaintiffs in this particular case differs in substance from the type of physical ailment with which the court was concerned in the Fairwing Investment Limited case (above) and which more obviously would lead to a conclusion that the witness was simply not up to the task of preparing for, or giving evidence at, trial. Notwithstanding the medical evidence, there is much less reason to reach that conclusion here.  It is clear from the abbreviated trial bundles placed before us on this application that the plaintiffs have given numerous factual witness statements and there would not appear to be a need for substantial pre-trial preparation. There were no particular aspects of pre-trial preparation for the plaintiffs identified in the course of argument and it is to be noted that the suggestion that the plaintiffs’ solicitor was unable to take instructions or discuss the case with the parents was not supported by evidence from the solicitor. Moreover, we are informed that a direction has already been given that the witness statements of fact stand as the witnesses’ evidence in chief.  The very nature of the plaintiffs’ claim for damages against the defendant is such that their fragile mental state is recognised, since liability has been conceded, and the trial judge will no doubt make allowances for any mental ill-health and litigation anxiety they may be suffering when he comes to assess any evidence they may give at trial.  Judges hearing trials of personal injury actions are well used to dealing with parties and witnesses under disabilities, whether physical or mental, and to making appropriate allowances for those disabilities.  It is also not uncommon for parties or witnesses to give evidence whilst on medication and, again, this is a matter which the trial judge can take into account and for which he can make such allowance as may be necessary and appropriate.

16.  Secondly, given that liability has been conceded and that the trial is simply for the purpose of assessing the quantum of damages to which the plaintiffs are entitled, the outcome of the Medical Council’s investigation is, objectively, wholly irrelevant to these proceedings. Whether the defendant is guilty of professional misconduct or not will not affect the quantum of the damages recoverable by the plaintiffs from the defendant since liability for such negligence has been conceded and the trial is proceeding simply for the purposes of quantifying the damages flowing from such negligence.  This is a matter which can and should be made clear to the plaintiffs, lest there is any misapprehension on their part that the recent communication from the Medical Council has in any way prejudiced the outcome of their damages claim. It has not done so.  Insofar as their anxiety flows from a sense that they cannot get justice as against the defendant doctor, there is some force in the point that the solution to that anxiety is for the quantification exercise to proceed to a conclusion so that the plaintiffs can feel satisfied that they have sought and recovered the appropriate monetary compensation for the harm done to them and their son.

17.  Thirdly, the evidence in Dr Amy Fung’s report exhibited in support of the application for an adjournment is to be contrasted with the joint psychological report prepared by Professor Wong Chee Wing and Professor W.H. Lee dated 6 September 2012 which indicates that the mother is showing good improvement in her emotional regulation.  The Professors note significant and positive improvement in the mother’s mood state after the course of psychological treatment.  Their opinion is that her present psychological and mental condition no longer warrants a diagnosis of depressive disorder but instead the diagnosis should be revised to adjustment disorder or chronic nature with mixed anxiety and depression in a mild intensity range. In the case of the father, their diagnosis is adjustment disorder with mixed anxiety and depression.  In short, whilst the joint psychologists’ report pre-dates the receipt of the letter from the Medical Council, there is nothing in that report to suggest any reason why, notwithstanding those diagnoses in respect of the parents, the trial could not commence as presently scheduled.  Furthermore, those diagnoses are consistent with the diagnoses contained in the psychiatric report of Dr Josephine Wong exhibited in support of the adjournment application.

18.  A court will only vary a milestone date if there are exceptional circumstances justifying the variation.  The court has a positive duty actively to manage cases with a view to furthering the underlying objectives of the rules, one of which is to ensure that cases dealt with as expeditiously as is reasonably practicable.  Of course, it remains nevertheless necessary for the court to recognise that its primary aim in the exercise of its powers is to secure the just resolution of disputes in accordance with the substantive rights of the parties.

19.  Against this background and bearing in mind what we have said above, we would make the observation that it would in future be more helpful if medical experts were made aware of the court’s concerns about varying a milestone date and, when preparing reports in support of an application for an adjournment, the relevant experts should be asked to consider what ameliorative measures could be put in place if the party or witness were to have to give evidence and to explain, if this were the case, why such ameliorative measures might not be sufficient to address the perceived difficulties.  This would assist the court in making an assessment on an informed basis as to whether an adjournment was warranted at that particular stage.  An unexplained recommendation for an adjournment, even if accompanied by a diagnosis of the condition of the patient and the proposed course of treatment, does not serve the same purpose.  Needless to say, such experts must also be prepared to come to court to give evidence to support his or her opinion if necessary, although as we observe below, it is not intended that applications of this nature become mini-trials in themselves.

20.  In the present case, it seems to us that the court must seek to arrive at a determination that is fair to both parties.  It is not right, as the plaintiffs assert, that the adjournment of the trial will cause no prejudice whatsoever to the defendant.  The defendant also has an interest and entitlement to the proceedings being brought to a conclusion as soon as reasonably and fairly practicable.  The adjournment of the trial will inevitably increase the burden of anxiety on him.  Although an adjournment of three months is suggested, it is not clear that a four-day hearing could be re-fixed in February 2013 and so the adjournment sought might result in a much longer delay than three months.

21.  It was submitted in support of the application that the Judge had erred in law by taking into account an irrelevant circumstance, namely his view, critical of the plaintiffs’ solicitors, that they should have prevented the plaintiffs from seeing the Medical Council’s letter.  The transcript of the Judge’s ruling would appear to demonstrate that he did not take this criticism into account in refusing the adjournment.

22.  It was also submitted that the Judge erred in taking the view that it was against the plaintiffs’ best interests for the trial to be adjourned since that was contrary to the medical evidence adduced in support of the adjournment.  However, as we have already noted, it is important that trial judges retain a full discretion to case-manage litigation before them.  The decision as to whether a trial should proceed due to the delicate state of a party’s or witness’ state of mind is one for the trial judge and not solely for a medical expert.  If this were not the case, there would be a real danger of the pace of litigation being dictated by a party and his medical witnesses and this would be contrary to the spirit of the Civil Justice Reform and its underlying objectives.  Furthermore, it is not right that an adjournment application should be expanded into a full-blown mini-trial at which the parties’ medical experts are required to testify and be cross-examined on the likely effect of a trial on a plaintiff.  In the present case, the Judge reached the view that, notwithstanding the medical evidence, it was possible for the trial to proceed as scheduled and we do not agree with the submission that he was in error in reaching this conclusion.

23.  It was further submitted that the Judge was wrong to observe that the outcome of the Medical Council’s investigation should not affect the plaintiff mother at all and that this showed he had failed to appreciate the severity of the situation and to take account of the actual emotional disturbance to the plaintiffs.  We do not accept that the Judge erred in this regard.  As we read it, the transcript of the ruling indicates that the Judge was making the point that any emotional disturbance caused to the plaintiff mother by the Medical Council’s letter is not objectively based and that its irrelevance to the outcome of these proceedings can be explained to her, thereby perhaps reducing or eliminating that emotional disturbance.

24.  Finally, we would add that an additional and separate basis for the adjournment application was argued before us, namely the delay in the provision of an updated joint orthopaedic report.  This was to have been based on a joint examination on 28 September 2012 with the report ready by 19 October 2012. Instead, due to the professional commitments of the defendant’s expert, the joint examination did not take place until 16 October 2012 and the report is not yet available and it was suggested that this was another reason why the trial dates should be vacated.  We do not accept this submission.  The relatively short postponement of the preparation of the updated joint report is not an exceptional circumstance justifying the variation of the date for the commencement of the trial.

25.  In the circumstances, we have concluded that the Judge was correct in reaching the view, which is implicit in his refusal of the adjournment application, that the evidence in support of the adjournment application was not sufficient to constitute an exceptional circumstance justifying the delay of the commencement of the trial.  The Judge did not accept the premise on which the medical evidence proceeded, namely that the plaintiffs could not attend to give evidence at the trial.  We do not consider that his rejection of the premise of that evidence was an error vitiating the exercise of his discretion not to vacate the trial dates and it is therefore not an exercise of discretion with which this Court is entitled to interfere.

26.  For these reasons, leave to appeal was refused.

27.  Since we saw no reason why costs should not follow the event, we ordered that the plaintiffs pay the defendant the costs of this application, to be taxed if not agreed.  The plaintiffs’ own costs are to be taxed in accordance with the Legal Aid Regulations.

28.  As we indicated when giving our decision at the conclusion of the hearing, the dismissal of this application for leave to appeal does not prevent the plaintiffs from applying to the trial judge for an adjournment of the trial or for special directions to be given in respect of their giving of evidence should the circumstances warrant.  These Reasons for Judgment will be available to the trial judge and there is no reason to doubt that he will not be alive to the plaintiffs’ vulnerable circumstances and will make such allowance as may be appropriate in the circumstances.  Hopefully, by the time the trial commences, the additional time that will have passed since the initial receipt of the Medical Council’s letter will have allowed the plaintiffs’ initial reaction to that letter to have lessened to some extent.