XCHRX CHAN KIN HUNG AND ANOTHER v. CHEUNG SUK YEE POLLY AND ANOTHER

HCPI 1241/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO.1241 OF 2000

----------------------------

------------------------

-----------------

R U L I N G

-----------------

1. This is an application by the 1st and 2nd defendants for Futher and Better Particulars of the plaintiffs' Statement of Claim which application is opposed by the plaintiffs.

2. The plaintiffs' claim, in so far as it is outlined by the plaintiffs' counsel in his submission, is said to be a very simple one. The plaintiffs are the administrators of the estate of Kam Mo Ching, deceased, and bring this claim on behalf of the estate of the deceased for personal injuries sustained by the deceased as a result of the alleged negligence of the 1st and 2nd defendants.

3. The deceased, a female, died in February 2000 from breast cancer. The 1st and 2nd defendants are both Oncologist and/or Oncological Surgeons in private practice. The deceased was, between December 1994 until June 1998, a private patient of both the 1st and 2nd defendants and under their care for the treatment and consultation of breast cancer.

4. It is the plaintiffs' case that upon the advice of the 1st and 2nd defendants, the deceased underwent a hepatic resection (i.e. a surgical operation to remove a part of the liver) in October 1997 after it was diagnosed that the cancer had spread to her liver in December 1996.

5. The claim against the defendants, as outlined by counsel for the plaintiffs in his submission, is simply that the defendants were negligent in that they had advised the hepatic resection without fully and properly advising the deceased and/or her husband as to the effects, consequences and/or the benefit of hepatic resection; that if they had been so properly advised in that respect the deceased would not have agreed to such an operation.

6. The detailed particulars of the negligence complained of are pleaded in paragraph 7 of the Statement of Claim.

7. As a result of such negligence, it is alleged that the plaintiffs endured an unnecessary major operation from which she took three months to recover, suffered pain and discomfort, was unable to properly enjoy time spent with her husband and daughters and suffered mental depression and mental injury after learning that the hepatic resection had no effect to her metastatic breast cancer in her liver and that operation did nothing to extend her life expectancy.

8. The claim is for damages for pain suffering and loss of amenities by the deceased and also for special damages in the manner particularized.

9. In so far as counsel was outlining the plaintiffs' claim that seemed simple enough to understand what the plaintiffs' case was and what case the defendants needed to meet. However, once the Statement of Claim (which was settled by solicitors and not by counsel) is looked at against counsel's outline of the plaintiffs' case, numerous shortcomings in that pleading becomes apparent. Two major examples of which are as follows :

(a) Counsel for the plaintiffs in his submission said that the word "chemotherapy" used in the Statement of Claim and/or the earlier particulars supplied by the plaintiffs means "high dose chemotherapy and bone marrow transfer"; and

(b) It was also part of the submission of plaintiffs' counsel that the word "cure" used in the Statement of Claim does not mean cure in the sense that the ailment of the deceased could be healed completely since it is accepted by the plaintiffs that there is no cure for metastatic breast cancer. Rather it is now apparent from counsel's submission that the word "cure" in the plaintiffs' pleadings is used to mean a hope of extending the deceased's life expectancy.

10. I agree with Mr Ismail, counsel for the defendants, that it is all very well for the plaintiffs' counsel to stand up in court and say this when the defendants are asking for further and better particulars, however, the defendants can only tie down the plaintiffs to its pleaded case or on the particulars supplied and not on what counsel says in submission at a hearing for further particulars.

11. To that extent therefore, the pleadings of the plaintiffs will either have to be amended or further particulars supplied by them.

12. A further point made by the defendants' counsel is that some of the particulars already given by the plaintiffs are not supported by the contents of the expert reports of the plaintiffs already disclosed to the defendants. I do not think very much of this point for the purpose of this application for the following reason. While this may be a valid point at final submission to say that the plaintiffs have failed to prove some of the matters pleaded, at this stage, when the defendants are asking for further and better particulars, I am not concerned how the plaintiffs are going to prove the case which they plead. Indeed the defendants are not even entitled to ask for evidence. They are only entitled to ask for particulars. As long as sufficient particulars are given so that the defendants knows what is the case which they have to meet and be able to tie the plaintiffs down to its pleaded case, that would suffice.

Decision

13. Under paragraph 5(r) of the Statement of Claim, some particulars of the details of the follow-up treatment has already been given by the plaintiffs in its letter dated 7 June 2001. However, the last sentence of that answer to the defendants' request states "Any further details of treatment are better known to the 1st defendant.". This cannot be a proper answer to a request for particulars. Again in his submission counsel for the plaintiffs stated that the plaintiffs are not able to give any further particulars in so far as that request is concerned. That would be a proper answer to a request for particulars because that will sufficiently tie the plaintiffs down to their case, but that was not the answer given. To that extent I will order the further particulars sought.

14. Under paragraphs 5(s) and 5(t) of the Statement of Claim, I will order the dates of the consultations to be given as further particulars which the defendants are entitled to or the best particulars that can be given of such dates of consultations.

15. In respect of the request for further and better particulars under paragraphs 6(b), 7(b) and 7(c) of the Statement of Claim, once the defective pleadings and/or particulars relating to the use of the words "chemotherapy" and "cure" are corrected so as to properly plead the full intent of the meanings which the plaintiffs legal adviser intends to convey by the use of those words, the problem arising from those paragraphs will no longer exist. To that extent I shall hold this matter over until the plaintiffs' counsel can, within the time which I shall specify, be in a position to let counsel for the defendants have sight of the proposed amendments which will be made to the Statement of Claim.

16. Lastly, in respect of paragraph 8(5) of the Statement of Claim, I am satisfied that the particulars of the mental injury of the deceased has already been sufficiently pleaded and I shall make no order in respect of the request under that paragraph.

17. I shall further order that the plaintiffs have 28 days from the day of this order to renew their application to amend the Statement of Claim and that if, after having sight of the proposed amendments, the defendants have no dispute thereto, such amendments may be dealt with by way of Consent Summons between the parties, alternatively there be liberty to restore the Plaintiff's summons for hearing before me.

Costs

18. As already indicated above, this application for further and better particulars was necessitated by the untidy way in which the pleadings and the particulars given by the plaintiffs presented itself. Moreover this application was opposed at the hearing before me. I see no good reason why costs should not follow the event.

19. Accordingly there will be a cost order nisi that the cost of the application and the hearing for such further and better particulars be borne by the plaintiffs in any event.