IP MING YEUNG v. DR. LO NI BOON, PETER AND ANOTHER

HCPI 1093/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURY ACTION NO. 1093 OF 2004

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J U D G M E N T

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1.  This is the plaintiff’s appeal against the order of the Master made on 14 April 2005, directing, inter alia, the plaintiff to serve his expert report on liability and causation by 26 May 2005.  The appeal raises issues as to the validity of paragraph 5.2(v) of Practice Direction 18.1 on the Personal Injuries List (“PD 18.1”) and the court’s jurisdiction to order disclosure of expert reports under it.

Background

2.  The plaintiff is an 11 years old child with cerebral palsy, resulting in physical and mental disabilities.

3.  On 2 December 2004, the plaintiff issued the Writ herein, which was amended on 19 January 2005 to add the 2^nd defendant.  The Statement of Claim was served on 20 January 2005, together with the plaintiff’s medical reports on injuries and Schedule of Damages.

4.  The plaintiff’s claim is for damages in negligence against both defendants in respect of birth management and treatments they provided to the plaintiff’s mother before and at the time of the plaintiff’s birth.  The principal complaints of the plaintiff relate to: (1) the mode of delivery in view of the size of the foetus and the mother’s condition, and (2) the administration of syntocinon or oxytocinon to induce labour.

5.  The 1^st and 2^nd defendants filed their Defences on 28 February and 10 March 2005 respectively.

6.  The case came up for checklist review hearing before the Master on 14 April 2005.  Apart from filing his checklist, the plaintiff had served a Notice of directions that he would seek at the hearing.  The directions sought relate to, inter alia, further and better particulars of the 1^st defendant’s Defence, discovery and mutual exchange of witness statements and expert reports.  The 2^nd defendant in its checklist also applied for directions on discovery, exchange of witness statements and sequential service of expert reports as well as an order for split trial on liability and quantum.

7.  After hearing the parties, the Master ordered the plaintiff to file and serve his expert reports on liability and causation by 26 May 2005 and listed the case for a pre-trial review before the Judge in charge of Personal Injury List on 27 June 2005.  The Master made no direction for the defendants to serve expert reports on causation and liability, although the plaintiff had raised this at the hearing.

8.  On 26 April 2005, the plaintiff filed the Notice of Appeal, seeking to set aside the part of the Order requiring the plaintiff to serve his expert report on liability and causation, and for directions be made for discovery and mutual exchange of the witness statements and expert reports as set out in the Notice of Appeal.  As explained by Mr Millar, the plaintiff’s appeal is directed at the decision: (1) to order the plaintiff to serve expert report, and (2) not to direct the defendants to file their expert reports.

Issues

9.  Broadly speaking, there are three issues in this appeal.  They are:

(1)	Whether paragraph 5.2(v) of PD 18.1 is void and of no effect,  being ultra vires Order 25 rule 8 of Rules of the High Court (“RHC”).
(2)	Whether the court should in exercise of its discretion, order the plaintiff to serve his expert report instead of ordering a simultaneous exchange of the expert reports.
(3)	If the order of the Master were to stand, whether the defendants should be ordered to serve their expert reports on causation and liability.

Validity of paragraph 5.2(v) of PD 18.1

10.  Paragraph 5.2 of PD 18.1 provides as follows:

“In order to avoid unnecessary delay and costs, the Plaintiff(s) should additionally serve together with the Writ and Statement of Claim and documents set out under 5.1 the following documents, if they are available and in so far as this is practicable:

i)   A copy of any Statement of Facts and finding of guilt, or otherwise, arising out of any prosecution of any party in respect of the incident in which the Plaintiff was injured or the deceased was killed, together with a sketch plan prepared by and photographs prepared by and taken by and/or on behalf of any investigating or prosecuting authority, and any statements made by any witnesses, including where available a Police Investigation Report or a report by the Occupational Safety Officer.

ii)   Where the Plaintiff has returned to work other than with his pre-accident employer, a statement obtained from his employer of the nature of his employment and earnings received from such employer, if such employer is not a Defendant in the action.

iii)   A record of earnings and allowances received by the Plaintiff for the six month period prior to the relevant accident, obtained from his employers, if other than a defendant in the action, together with a copy of the last tax assessment from the Inland Revenue and any document relating to his payments to and benefits from the Mandatory Provident Fund.

iv)   Copy of any statements by the Plaintiff and any other person who was an eyewitness to the accident in question as to the circumstances of the accident, upon which the Plaintiff relies in support of his pleaded case to the extent that this has not been fulfilled by (i) above.

v)   In all medical negligence cases, a copy of any expert medical report relied upon as to liability and causation.

Failure to comply with this Direction may result in applications for disclosure with consequent orders for costs.” 

11.  Order 25 rule 8(1) of RHC provides as follows:

“8.   Automatic directions in personal injury actions

(1) When the pleadings in any action to which this rule applies are deemed to be closed the following directions shall take effect automatically --

(a) there shall be discovery of documents within 14 days in accordance with Order 24, rule 2, and inspection within 7 days thereafter, save that where liability is admitted, or where the action arises out of a road accident, discovery shall be limited to disclosure by the plaintiff of any documents relating to special damages;

(b) subject to paragraph (2), where any party intends to place reliance at the trial on expert evidence, he shall, within 6 weeks, disclose the substance of that evidence to the other parties in the form of a written report, which shall be agreed if possible;

(c) unless such reports are agreed, the parties shall be at liberty to call as expert witnesses those witnesses the substance of whose evidence has been disclosed in accordance with the preceding sub-paragraph, except that the number of expert witnesses shall be limited in any case to two medical experts and one expert of any other kind;

(d) photographs, a sketch plan and the contents of any police accident report shall be receivable in evidence at the trial and shall be agreed if possible;

(dd) the record of any proceedings in any court or tribunal shall be receivable in evidence upon production of a copy thereof certified as a true copy by the clerk or other appropriate officer of the court or tribunal”.

12.  Order 25 rule 8(5) further provides that:

“(5)  This rule applies to any action for personal injuries except-

(a)  any Admiralty action; and

(b)  any action where the pleadings contain an allegation of a negligent act or omission in the course of medical treatment.”

13.  The plaintiff’s arguments that paragraph 5.2 is ultra vires Order 25 rule 8 run as follows.  Firstly, under the Rule, the time for disclosure of expert reports is after close of pleadings.  Paragraph 5.2(i) covers the same subject matter as Rule 8(1)(d).   Therefore, in advancing the time for disclosure from after close of pleadings to the time when a statement of claim is served, paragraph 5.2 is in direct conflict with Order 25 rule 8(1).  Secondly, Order 25 rule 8(5) expressly excludes medical negligence cases from the rule.  The effect of paragraph 5.2 is to impose directions on medical negligence cases.  It is therefore in conflict with Order 25 rule 8(5).  Thirdly, it is said that the requirement of serving an expert report on liability and causation together with the statement is contrary to judicial authorities.  

14.  Practice Directions are issued by the Chief Justice to regulate judicial proceedings.  It is an instance of the court exercising its inherent jurisdiction to regulate its own proceedings.   A Practice Direction, however, cannot be in conflict with a statutory provision.  If it is, then it is void and of no effect.  An illustration of this can be found in the case of Jones Lang Wootton Limited v. The Sun Plastic Supplies Limited (unreported) HCA 10878 of 1993, Kaplan J.   

15.  In my view, Order 25 rule 8 and paragraphs 5.1 and 5.2 are dealing with two different regimes.  Order 25 rule 8 provides for automatic discovery and disclosure of documents and reports to take place after close of pleadings, without the need to have an order of the court.  The objective is to dispense with summons for direction in personal injuries cases, thereby saving time and costs.  The rule does not have the effect of preventing earlier discovery and disclosure, such as pre-action discovery or disclosure. 

16.  The point is best illustrated by reference to Order 18 rule 12(1A), RHC.  Under Order 18 rule 12(1A), a plaintiff in an action for personal injuries is required to serve with his statement of claim: (a) a medical report, and (b) a statement of the special damages claimed.  The plaintiff’s medical report is an expert report and may come within Order 25 rule 8(1)(b).  Notwithstanding this and notwithstanding that Order 25 rule 8(2) provides for mutual exchange of expert reports, Order 18 rule 12(1A) requires a plaintiff to serve his medical report together with his statement of claim, the purpose of which is to better inform the defendant of the case against him.  The two rules are therefore to complement each other.  It also shows that Order 25 rule 8 does not prohibit discovery or disclosure before close of pleadings.

17.  Paragraph 5.1 of PD 18.1 sets out the documents that must be served with a statement of claim or counterclaim (in the case of a defendant claiming damages arising out of death or personal injury by way of counterclaim) in compliance with Order 18 Rule 12(1A).   Paragraph 5.2 provides for additional documents to be served together with a statement of claim for the purpose of “avoiding unnecessary delay and costs” and only to the extent that the documents “are available and in so far as it is practicable” to do so.  Paragraphs 5.1 and 5.2 are therefore to complement the operation and to better serve the purpose of Order 18 rule 12(1A).    

18.  Thus viewed, there is no inherent conflict between paragraphs 5.1 and 5.2 of PD 18.1 and Order 25 rule 8 of RHC.  In personal injuries actions other than medical negligence claims, Order 25 rule 8 will apply to documents and reports that had not been served together with the statement of claim as provided under paragraph 5 of PD 18.1 or together with the defence as provided by paragraph 6 of the same Practice Direction.  This point is made plain by paragraph 7 of PD 18.1 which provides, inter alia, that: “If [Order 25 rule 8] is applicable, there shall be strict compliance with it to the extent that disclosure of documents provided for under paragraphs 5.1 and 6.1 of this direction has not fulfilled the requirements of disclosure”.  

19.  The point has also been explained in the Guidance Notes that accompany PD 18.1, which state that: “The directions in [paragraphs 5 and 6] are not intended to override the provisions of Order 25 rule 8 and do not have such an effect. They are aimed at drawing the parties' attention to matters which are essential to the issues to be determined by the court so they can better prepare their cases at any early stage and avoid unnecessary delay and costs”.

20.  As to the exclusion of medical negligence cases from the application of Order 25 rule 8, the effect of the exclusion by Order 25 rule 8(5) means that there will be no automatic discovery and disclosure in medical negligence cases.  The exclusion is recognition that medical negligence cases do not necessarily stand in the same category as personal injuries cases.   As explained above, the exclusion does not have the effect of preventing discovery and disclosure prior to an order of the court made upon a summons for direction or at the checklist review hearing.  Neither does it mean that the court, in the exercise of its inherent jurisdiction, cannot provide for disclosure of expert report at the time a statement of claim is served so as to better inform the defendant of the plaintiff’s case and with a view to avoiding unnecessary delay and costs.  In this regard, it is important to note that paragraph 5.2(v) only applies where the plaintiff already has the expert report on causation and liability and when it is practicable to serve the report. 

21.  In the Guidance Notes to PD 18.1, it is pointed out that when a case is pleaded in medical negligence actions, there is invariably some expert evidence relied upon.  It is on this basis and for the purpose of enabling defendant doctors and hospitals to have the full materials setting out the case against them and to minimise any prejudice caused by the lateness in bringing the claim, which is often so in medical negligence claims, that paragraph 5.2(v) of PD 18 was introduced.     

22.  As pointed out by both Mr Fung and Miss Lui, there is nothing in the Rules that prohibits the service of expert report together with a statement of claim.  It cannot be said that paragraph 5.2(v) is in conflict with the Rules.   There is no basis for contending that paragraph 5.2, in particular paragraph 5.2(v), is null and of no effect.

The court’s discretion

23.  Practice Directions are not rules of law.  But they provide a code of practice and procedure that, practitioners and litigants, to the extent that they are aware of them, are expected to observe and adhere to.  Given that it is within the court’s inherent jurisdiction to regulate its own proceedings, the court may in justifiable circumstances excuse a party from strict compliance with the requirements of Practice Directions.

24.  In the present case, it is not in dispute that the plaintiff has the expert report on liability and causation.  This is evident from the pre-action correspondence between the parties.  Despite requests from the defendants before and after the commencement of the action, the plaintiff has not served the report with the statement of claim as provided for under paragraph 5.2(v) of PD 18.1. 

25.  It is the plaintiff’s case at the appeal that the court should exercise its inherent jurisdiction to depart from paragraph 5.2(v) of PD 18.1 and should direct for simultaneous exchange of expert reports by the parties, or alternatively direct the defendants to serve their expert reports after being served with the plaintiff’s expert report.   In summary, the plaintiff’s arguments are as follows:

(1)	In medical negligence cases, there cannot be a level playing field if the plaintiff has to make full disclosure of expert reports right at the beginning.  The general rule is for expert reports to be mutually exchanged.  Sequential service of expert reports is an exception to the rule.
(2)	In the pre-action correspondence, the plaintiff had already set out the basis of the plaintiff’s claim in full.  The statement of claim is also comprehensively pleaded with no reasonable ambiguity.  There has been no request for further and better particulars of the statement of claim.  The aim of paragraph 5.2(v) to avoid poorly pleaded and unintelligible claim therefore has no application.  There is also no reason why the defendants cannot independently prepare their expert reports.
(3)	If the plaintiff were to serve the expert report instead of a simultaneous exchange of reports, there is a risk of the defendants’ reports focusing only on a critique of the plaintiff’s case, and not giving an objective assessment of the defendants’ situation.

26.  In advancing these arguments, Mr Millar relies emphatically on two matters.  The first is that the plaintiff is under severe disabilities.  The second is the passages in chapters 9 and 11 of the 2^nd edition of Powers & Harris, Medical Negligence and reproduced in the 3^rd edition (which was re-titled Clinical Negligence).  It is true that the plaintiff suffers from severe disabilities and no doubt his mother and family have been put to a lot of stress in coping with his condition.  That may be relevant to quantum when liability is established.  But it is not indicative or determinative of the issue of liability, to which the expert report on liability and causation relates.       

27.  As to the passages in Powers & Harris, it has to be appreciated that the discussions on exchange of expert reports were in the context of the developments in the 1990s after the decision in Naylor v. Preston Health Authority [1987] 2 All ER 353.  Hitherto, there was no mechanism for pre-trial disclosure of witness statements and of the substance of expert liability evidence in the form of written reports.  Since then, the civil procedure in general, and personal injuries and negligence medical cases in particular, have moved on along the line of open litigation with a view to saving litigation time and costs.  The ‘cards on the table” approach to litigation applies to all parties.  In the context of Hong Kong, regards must also have had to PD 18.1 that was introduced in 2001.  

28.  I do not agree that for medical negligence cases, a general rule has developed that mandates expert reports to be simultaneously exchanged and that it is only in exceptional cases that there will be sequential service of expert reports.    Further in the light of Order 18 rule 12(1A) which applies to medical negligence cases and paragraph 5 of PD 18.1, it is for a plaintiff to demonstrate that there are special circumstances justifying the withholding of a liability and causation report on which the claim is based until the defendants are in a position to carry out a simultaneous exchange.  

29.  This brings me to Mr Millar’s point that the plaintiff’s case had been set out in full details in the pre-action correspondence and the statement of claim.  Mr Fung and Miss Lui take exception with the submission that the defendants are left with no doubt as to the plaintiff’s case on negligence, breach of contract, liability and causation.  Mr Fung points to the fact that it is not apparent from the over 50 particulars of negligence pleaded in paragraphs 36 and 37, what in essence are the issues to be tried.   Miss Lui also points out that it is, for instance, unclear from the averment that the 2^nd defendant’s nursing staff had failed to challenge the 1^st defendant’s instruction on administering syntocinon, whether the plaintiff’s case on liability is that the nursing staff is under a duty or is in a position to defy doctors’ instructions. 

30.  In my view, this is not the appropriate time to launch into an examination of the plaintiff’s pleaded case.  But to the extent that the plaintiff says that this is an apt case to depart from the requirement of paragraph 5(v) of PD 18.1 because the purposes of the Practice Direction had been fulfilled, the submissions of Mr Fung and Miss Lui become relevant.  They have made a fair point that despite the many details and particulars pleaded, the defendants have genuine and reasonable concerns about meeting the plaintiff’s case accurately, precisely and adequately.   

31.  As to the suggestion that the defendants’ experts may be tempted consciously or unconsciously to temper their opinions in response to the plaintiff’s expert report, if this is a real risk, it is one that is common to all cases of personal injuries and medical negligence to which PD 18.1 applies.  There is no basis for believing that the risk is higher in the present case.  After all, experts are expected to and should know that they are required to give their expert opinions fairly and objectively, without favour or bias.  There is no material before the court to suggest that the experts to be or already engaged by the defendants will depart from the duties and standard required of them.

32.  In my view, the plaintiff has not made out a case justifying a departure from paragraph 5.2(v) of PD 18.1.  In indicating to the parties that she knew of no set formula on whether expert reports must be simultaneously exchanged or served sequentially and that she would rather play by the ear, the Master was clearly treating the issue as a matter of discretion.  In my view, there is no ground for interfering with her exercise of discretion.  While I accept that an appeal from a master operates as a rehearing, for reasons that I have indicated, I do not see any basis for exercising the discretion differently. 

33.  As to the service of expert reports on liability and causation by the defendants, it will appear from the solicitors’ correspondence that the defendants did not have the reports.  What Messrs Johnston Stokes & Master had indicated by the letter dated 20 April 2005 is that the 1^st defendant had obtained expert assistance, but did not have with him medical expert reports on liability and causation on which he relies.   That being the case, paragraph 6.1(ix) of PD 18.1 does not apply and the defendants cannot be said to have defaulted in complying with PD 18.1.

34.  Since the parties will shortly be appearing before the PI Judge for a pre-trial review, it will be more appropriate for the questions on split trial, service of further and better particulars, and directions on discovery and witness statements be canvassed and dealt with in context at the pre-trial review.  Accordingly, I will not make any direction at this stage.

35.  Finally, as I do not find for the plaintiff on his appeal, and since there will only be two days from the handing down of this Judgment to the deadline for service of the expert report under the Master’s direction, I will enlarge the time for compliance for one week to 1 June 2005 to afford the plaintiff time to consider the outcome of the appeal.

Conclusion

36.  For the above reasons, the plaintiff’s appeal is dismissed.  The time for complying with paragraph 1 of the Order dated 14 April 2005 be extended to on or before 1 June 2005.  Costs should follow event.  I therefore make an order nisi that the plaintiff pays the defendants the costs of this appeal, to be taxed if not agreed.  The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.