YAM YUEN LAI v. BOARD OF GOVERNORS OF THE PRINCE PHILIP DENTAL HOSPITAL AND ANOTHER

HCPI 218/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 218 OF 2010

____________

_____________

D E C I S I O N

_____________

Introduction

1. In these proceedings the Master dismissed an application by the Board of Governors of the Prince Philip Dental Hospital (PPDH) to strike out the proceedings as being statute barred by limitation, and allowed Madam Yam to amend the statement of claim to join the University of Hong Kong (UHK) as a defendant in the proceedings. 

2. Now, both PPDH and UHK appeal against that decision.

The facts

3. Although there is some dispute as to the facts, the following facts are not in dispute. 

4. Madam Yam became a patient at PPDH on 3 June 1999.  PPDH operates a dental hospital in which there are facilities for dental treatment.  The administration of the hospital is provided by PPDH, as are the nursing staff.  The dental surgeons who provide the dental care to the patients are employed by UHK. 

5. Between 17 June 1999 and 4 September 2000, Madam Yam attended 16 dental appointments at PPDH.  On 13 of those appointments she was treated by Dr John Lo who was then a registered dentist and a postgraduate student at UHK.  It is not suggested that UHK would not be vicariously responsible for Dr Lo’s treatment of patients at PPDH.

6. At the last appointment attended by Madam Yam, on 4 September 2000, Dr Lo told her that a magnetic resonance imaging scan (MRI) would be required to assist him in diagnosing a painful condition she had been suffering in her mouth.  PPDH itself does not have facilities to undertake an MRI scan.  Those facilities are at Queen Mary Hospital (QMH). 

7. Madam Yam was accordingly referred to QMH.  The procedures there require that she be formally admitted as a patient of the dental ward, B1, but that she is then immediately discharged without ever occupying a bed.  The purpose of the formal admission is to put her into the hospital system for arrangements to be made for the MRI.  As I understand it, the procedure is that PPDH sends the patient’s medical file to QMH to enable the admission, and the file is returned to PPDH, by QMH when arrangements are made for the MRI.  Under normal circumstances, in due course, the MRI report will be forwarded by the radiology department at QMH to the dental ward, B1, from where it will be sent to PPDH.

8. On 3 October 2000, Madam Yam underwent the MRI procedure.  On an unknown date between then and 13 September 2001, a copy of the MRI report was sent to the dental ward, B1 at QMH.  The evidence establishes that a copy of the report in respect of the MRI was printed on 11 October 2000.  The evidence does not establish who printed the report or the reason for that printing.

9. There is no evidence to suggest that an appointment was made, by either Dr Lo or the nursing or administrative staff at PPDH, for Madam Yam to return to PPDH to discuss the MRI report with Dr Lo.  PPDH says that Madam Yam was told by PPDH that QMH would send the MRI to PPDH, and that PPDH would contact her to follow up if the MRI revealed any abnormality.  There is no evidence to suggest that between 3 October 2000 and 13 September 2001, either Dr Lo or PPDH had received the MRI report.  There is no evidence to suggest that during that period, any contact was made by PPDH with Madam Yam.

10. The MRI in fact did reveal a potential abnormality.  On 26 October 2001, an appointment was made by the receptionist at PPDH for Madam Yam to attend PPDH but she did not attend that appointment.  A further appointment was made on 1 November 2001, and again, she did not attend the appointment. 

11. Prior to those appointments, Madam Yam had attended a night consultation at the Violet Peel General Outpatient Clinic, and had been referred to the Ear Nose and Throat Department (ENT) of QMH.  There, on 23 October 2001, the attending doctor located the MRI report.  Madam Yam then learned of the MRI report and the fact that there had been “cell changes”.  The attending doctor told her, she says, that he was appalled that PPDH had not contacted her for follow-up for a whole year.  Madam Yam knew that cell changes were serious as her mother had had breast cancer at about the same age as Madam Yam then was, and had died of cancer three years later.  On at least one, possibly two, occasions in late 2001, Madam Yam telephoned PPDH to complain about the failure to follow up on the MRI.  She had not attended the two appointments arranged, because she was frightened of the potential consequences that the MRI might disclose, and she was angry at the delay.

12. A biopsy was undertaken which did not yield a positive result.  A second biopsy confirmed stage IV cancer of the tongue.  At the time of the MRI the cancer had not yet been diagnosed and may not have even yet reached stage I.  The plain inference arises that had Madam Yam being promptly followed up and treated the cancer may well not have reached stage IV.

The cause of action

13. There is little doubt that any cause of action arising from the failure of those attending Madam Yam to inform her promptly of the results of the MRI, arose at the time of the failure, that is in October 2000. It is clear that Madam Yam did not learn of that failure until her attendance at the ENT Department of QMH on 23 October 2001.  There is no dispute that time began to run against Madam Yam to bring proceedings, at the latest, on or about 23 October 2001, when she first learned of the content of the MRI, and the failure of PPDH to have followed up the report.

14. The limitation period prescribed by s 27(4)(a) & (b) Limitation Ordinance Cap 347, (LO) consequently expired on or about 23 October 2004.

15. Between 18 December 2001 and 19 May 2002, Madam Yam was hospitalised and had to attend intensive and lengthy treatments of chemotherapy and radiotherapy.  It was necessary, following her discharge in May 2002, for her to attend regular follow-ups with various clinics and departments.  She became depressed, and in May 2004, was, for a short period of time, hospitalised in the psychiatric ward at QMH.  

16. It is not suggested by counsel for Madam Yam that Madam Yam was unaware of her rights to claim.  That was sensible.  There had been the statement that had been made to Madam Yam by the doctor at QMH ENT, and her own complaint to PPDH. Notwithstanding that situation, Madam Yam took no steps at all to investigate the possibility of proceedings against either PPDH or UHK as a result of the failure to notify her of the condition from which she suffered.

17. In May 2007, Madam Yam saw a sign posted by a District Councillor in the street offering free legal advice.  She attended his office for advice, and in December 2007, or January 2008, went to the Legal Aid Department (LAD).  In March 2008, the LAD was sent Madam Yam’s medical records and reports, it seems by PPDH.  Further inquiries were made by LAD into the circumstances of her condition and the treatment that had taken place.  Legal aid was granted on 7 April 2009. Solicitors were instructed.  At their request, a psychiatric report on Madam Yam was obtained in July 2009. 

18. The writ was issued on 5 May 2010.  The writ was not immediately served.  An expert oncology report was obtained in July 2010.  A letter before action was sent to PPDH on 14 August 2010. On 7 January 2011, the writ, statement of claim, and expert reports were served on PPDH.

19. PPDH responded on 10 March 2011, by issuing a summons to strike out the proceedings.  The affidavit in support demonstrated that two factual circumstances were relied upon.  First it was argued that the proceedings were statute barred as having been commenced outside the limitation period.  Second it was contended that PPDH merely provided facilities for the training of dentists by the Faculty of Dentistry at UHK, and had accordingly not “treated” Madam Yam.

20. Those advising Madam Yam say that this was the first time at which they or Madam Yam learned of the involvement of UHK.  On 17 March 2011, a letter before action was sent to UHK and on 9 June 2011, Madam Yam’s solicitors issued a summons to join UHK as the 2^nd defendant in the proceedings.

The applications before the Master

21. On 5 March 2012, the Master dismissed PPDH’s strike out summons, holding that there was an arguable cause of action that PPDH had a duty of care to, and had treated, Madam Yam. 

22. The Master further held that in the whole of the circumstances of the case, it being acknowledged by Madam Yam that the claim was statute barred, the discretion available under s 30 Limitation Ordinance Cap 347, (LO) should be exercised in Madam Yam’s favour, and that the time limit should not apply to Madam Yam’s claim against PPDH. 

23. UHK was added as a defendant, the Master determining that Madam Yam did not learn of a cause of action against UHK until March 2011, when PPDH applied to strike out the proceedings.  Consequently time did not run against UHK until then, and so the joinder of UHK was in time.

24. From these decisions both defendants appeal.

The services provided by PPDH

25. The contention that there is no cause of action against PPDH because it merely provides facilities, and did not treat Madam Yam, may be dealt with shortly.  In the course of argument I asked Mr Fung if his contention was that PPDH was no different to say, the owner of the Lippo Centre, who leased premises to solicitors.  In that situation it could not at all be argued that the owner of the Lippo Centre, as the landlord, was in any way responsible for any professional negligence on the part of the solicitors in the conduct of their affairs.  Mr Fung said that the analogy was appropriate. 

26. A closer examination of the available evidence showed however that that was simply not so.  PPDH does provide the premises upon which UHK undertakes dental surgery.  But PPDH does much more.  It provides the whole of the administration of the facility, which includes appointment making arrangements.  PPDH provides the nurses who attend patients with UHK doctors. 

27. It must be arguable that where a procedure such as an MRI is to be undertaken, a proper system of patient management requires that at the time arrangements are made for the MRI, a follow-up appointment is made to review the report with the patient, whether the report is adverse or favourable.  Equally, it must be arguable that the responsibility to establish and manage a system that requires that there be such a follow-up appointment lies not only with the doctor who requires the procedure which would result in the report, but also with any nurse who attends the patient at the time the procedure is required, and the facility administrators through whom communication with the hospital which is to undertake the MRI will be made, and to whom the report will be sent. 

28. That is the basis upon which the statement of claim pleads liability against PPDH and UHK.

29. Having regard to the available evidence Mr Fung was quite wrong to have accepted my analogy and I should have been immediately corrected by him.

30. I have no doubt at all that Madam Yam has an arguable cause of action against PPDH.  That conclusion is sufficient to dispose of PPDH’s contention that the Statement of Claim discloses no reasonable course of action, is scandalous, frivolous, or vexatious, or may prejudice, embarrass or delay the fair trial of the action. 

31. The real issue that is properly raised by PPDH is the limitation issue.

Limitation in personal injury actions

32. The time limit to bring a personal injury action is three years from the date on which the cause of action accrued; or the date (if later) of the plaintiff’s knowledge; s 27(4)(a) & (b) LO.  The question of knowledge is dealt with in s 27(6) LO.  By s 30 LO, the court has power to override the time limit in certain circumstances.

33. Counsel for Madam Yam, properly in my view, concedes that the three-year limitation period against PPDH has expired.  She relies on the provisions of s 30, and seeks the exercise of the discretion to override the time limit.

34. The opening words of s 30 are important:

“If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which-

(a) the provisions of section 27 or 28 prejudice the plaintiff or any person whom he represents; and

(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents,

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.”

To apply the time limit will operate to the prejudice of a plaintiff who thereby loses the right to bring an otherwise meritorious claim.  To override the time limit will operate to the prejudice of the defendant who thereby loses the right to a limitation defence which he otherwise has by law.  Necessarily, by requiring the court to have regard to the degree of prejudice to both a plaintiff and defendant, there is an element of balancing the prejudice in determining whether or not to override the time limit.

35. Under s 30(3), the court is required to have regard to all of the circumstances of the case, and in particular to six prescribed factors.  I propose to address each of the relevant factors individually.

36. It is not in dispute that in the consideration of the discretion not to apply the limitation period, the fundamental question is whether, the end of the day, a fair trial is possible: see Leung Tai Sang v Hospital Authority, (unreported HCPI 481/2004, 30 June 2006, per Poon J).

37. It is accepted that the burden is on the plaintiff to satisfy the court that it is equitable to disapply the limitation period.  I accept the submission of counsel for Madam Yam that the suggestion that a plaintiff carries a heavy burden is no longer good law.  The court has an unfettered discretion to do what is fair.

38. It is necessary to consider the two claims, against PPDH first, and UHK second, separately when determining whether or not to exercise the discretion in favour of Madam Yam.

PPDH:

 The delay, s 30(3)(a)

39. It is accepted by Madam Yam, and both defendants, that the cause of action arose, at the latest, in October 2001, when Madam Yam attended QMH ENT and learned of the adverse terms of the report.  Madam Yam acknowledges in her affidavit that after learning of the extent of the condition she suffered, she telephoned PPDH to demand an explanation of the delay, because she was so angry.  It is plain that she was aware of the fault upon which she now relies.

40. The claim became statute barred in October 2004.  It was not until May 2007, that Madam Yam sought the advice of the District Councillor on seeing an advertisement for free legal advice.  But it was not until, at the earliest, December 2007, at the latest about January 2008, that she applied for legal aid. 

41. It took 16 months for the LAD to make inquiries into the circumstances, and it was not until 7 April 2009, that legal aid was granted and solicitors instructed.  A further 13 months elapsed before the writ was issued on 5 May 2010.  The total delay from Madam Yam consulting the LAD to the issue of the writ was 2 years and 5 months.

42. The total delay from the expiry of the limitation period is consequently 6 years and 5 months.  That is, in any terms, a long delay.

43. Madam Yam is obliged to acknowledge that she must have been aware of the circumstances giving rise to a right to claim in October 2001, when she was told by the doctor at QMH ENT that he was “appalled” at the delay on the part of PPDH in notifying her of the results of the MRI.  He was quite right to be appalled.  During this time of delay Madam Yam’s condition had worsened from, probably, pre-cancerous, to stage IV cancer.  Madam Yam acknowledges that the reason that she did not attend follow-up appointments made PPDH in November 2001, was that she was frightened of the consequences of her condition.

44. Madam Yam offers as an explanation for her failure to seek advice between November 2001 and May 2007, the fact of her treatment, her reaction to her treatment, and her consequent psychiatric condition.  There is no doubt that Madam Yam did not react well to the diagnosis of cancer of the tongue.  That is not a surprise.  It is an extremely serious, painful and potentially disfiguring condition which would be frightening in prospect for any person facing the diagnosis.  Madam Yam’s immediate reaction to the diagnosis presented to her, was to reject treatment and to say that it would be better to die.  Ultimately she was persuaded to undertake treatment.  It is not at all surprising that she became depressed and suffered psychiatrically in consequence of the condition and treatment.

45. That same explanation is offered for the delay between May 2007, when she attended the district councillor and the end of 2007, when she attended the LAD and sought legal aid. 

46. It was open to the LAD, on receiving the application for legal aid in January 2008, to take steps to protect Madam Yam’s position and issue a protective writ.  No explanation is offered as to why the LAD delayed from the application for legal aid in January 2008, some 2 years and 4 months, before instructing solicitors to issue the writ.  I am bound to say that I am surprised and concerned at the delay on the part of both the LAD and solicitors, between Madam Yam first consulting the LAD, and the issue of the writ. 

47. There is no need to write letters before action before filing a writ when time is about to expire in respect of a claim, or time has expired.  It is no answer for the LAD or the solicitors to say that it was necessary for them to make inquiries.  There is no explanation of the very long delay that those inquiries took.  Even if inquiries did have to be made the writ could have been issued much more expeditiously.

48. Because the claim was already out of time when Madam Yam consulted the LAD, the question of any negligence on the part of either the LAD or the solicitors does not directly arise.

49. There is no doubt that the delay is long.  It must be, that the longer the delay, the more likely it will be that there will be prejudice to a defendant.  Consequently, the more likely it is that the balance of prejudice will swing against disapplication: KR v Bryn Alwyn Community Holdings Ltd [1992] 2 All ER 213 at §80.

50. I accept the submission of counsel for Madam Yam that when considering the reasons offered by a plaintiff for delay the test is subjective.  While it is clear that Madam Yam was aware of circumstances which would give her a right to bring proceedings, having regard to the nature of her illness, the treatment that she was required to undergo and her subsequent psychiatric condition, her delay until the time at which she consulted the district councillor is, I find, understandable.  I am satisfied that the delay on the part of the LAD and the solicitors should not count against Madam Yam personally: see Adam v Ali [2006] EWCA Civ 91 at §37 and Das v Ganju [1999] PIQR 260, [1999] Lloyd’s Rep Med 198.

The effect of the delay on the cogency of the evidence, s 30(3)(b)

51. In determining the effect of the delay on the cogency of the evidence it is necessary to look at the nature of the claim and the negligence alleged.  Here, the complaint is not as to clinical conduct, but in respect of the systems in place at PPDH.  It is not in dispute that no appointment was made for Madam Yam to return to PPDH for follow-up after the MRI report was received.  There is no suggestion on the part of PPDH that any system was in place, required to be undertaken by any particular person, in respect of such follow-up appointments.

52. On this analysis of the case, Madam Yam has a strong claim and cogent evidence to support that claim. 

53. Where the complaint of negligence is in respect of a system, and not dependant on the particular conduct of a particular person, and there is no suggestion of any dispute as to the existence or absence or nature of the system, then it must be that the delay will be less likely to affect the cogency of the evidence.  It is not suggested that any documentation involved in the matter is no longer available to PPDH.  It is not suggested that any instructions or directions in respect of any system are no longer available.

54. Although PPDH would be forced to face a stale claim if I exercise her discretion in favour of Madam Yam, it cannot be said that PPDH is prejudiced by being unable to locate relevant medical records or witnesses or by issues of fading memories.  In this respect the matters dealt with in §§61-64 below, are directly relevant.

The conduct of the defendant, s 30(3)(c)

55. Counsel for Madam Yam does not complain as to any delay or obstruction on the part of PPDH in responding to any inquiry made by the LAD or Madam Yam’s solicitors which might adversely affect Madam Yam’s position.  This factor carries no weight.

Disability of the plaintiff, s 30(3)(d)

56. The disability referred to in this provision is that of infancy or mental illness and is inapplicable in this case.

The extent to which the plaintiff acted after knowledge, s 30(3)(e)

57. Madam Yam had the appropriate knowledge to have sought advice about an action against PPDH in October 2001.  It must have been obvious to her then that had she been timeously informed of the results of the MRI, and appropriate steps taken the cancer may well not have advanced to stage IV.

58. It cannot but be said that this was a long delay.

The steps taken by Madam Yam to obtain expert advice, s 30(3)(f)

59. There is a clear overlap between this factor and that in s 30(3)(e).  At the end of the day it will be the consequences of any delay that is important and the extent of the prejudice against the defendant.  For the reasons to be later stated in this decision in §§61-64, I am satisfied that no forensic prejudice arises against PPDH, from Madam Yam’s delay.  For the same reasons, no forensic prejudice arises against PPDH from the delay of the LAD or Madam Yam’s solicitors in issuing the writ.

All circumstances of the case

60. While it is necessary to look at each of the six s 30(3) factors individually, the court must have regard to all the circumstances of the case.  Circumstances can be infinitely variable and it is not possible to establish principles in advance, or the weight to be given to any particular matter.  In any event, there is likely to be a substantial overlap between the circumstances of the case and the six factors.

61. At the forefront of the submissions of counsel for Madam Yam was the clear prejudice that she would suffer were her claim statute barred.  On the information before me Madam Yam has a strong claim.  The stronger the claim, the greater the prejudice if that claim is denied.

62. At the forefront of the submissions of counsel for PPDH was that forensic prejudice would be suffered by PPDH if the claim was allowed to be brought out of time.  However, as I have indicated, this is a system claim, and not a claim that is dependent upon particular individuals. Although a defendant is prejudiced in losing the limitation defence, that prejudice is greatly reduced where he suffers no forensic prejudice in answering case to be brought against him.

63. It is right that it is not now known who the particular nurse might have been, who attended Madam Yam with Dr Lo when the MRI was first ordered.  Nor is it known who the particular nurses or administrative staff might have been, whose task it could have been to make a follow-up appointment.  But the identity of those persons is irrelevant to the claim.  What is relevant is the nature of the system in place at the time in order to make follow-up appointments.  There is no suggestion in the evidence from PPDH that evidence of that system is not available.

64. Endorsed upon the MRI report, printed on 11 October 2000 at 4:54 PM, are the words, in handwriting: “please file”, and a set of undecipherable initials.  It is right that it is not known who made that note, and whether that person was employed by QMH or PPDH.  But again the identity of the maker of that note is irrelevant to the operation of the system upon which Madam Yam relies in bringing proceedings against PPDH.  PPDH does not assert a right to join QMH into the proceedings.

Conclusion

65. Weighing the whole of these factors I am satisfied that this is an appropriate case in which the discretion under s 30 LO should be exercised.  I am satisfied that the prejudice suffered by Madam Yam outweighs that suffered by PPDH, and that PPDH does not suffer sufficient forensic prejudice that a fair trial would not be possible.  While there has been a long delay, I am satisfied that the delay has been satisfactorily and reasonably explained.

66. There will be a direction that the limitation provisions of s 27 LO shall not apply to Madam Yam’s cause of action against PPDH.

UHK

Is Madam Yam in time against UHK?

67. It is convenient to consider this factor first when dealing with UHK, because central to the argument made was the contention by counsel for Madam Yam that the first that Madam Yam or her advisers knew of the involvement of UHK was the application by PPDH to join UHK in the proceedings.  It is appropriate to set out the provisions of s 27(8) LO, which deals with the question of knowledge:

“(8) For the purposes of this section and section 28 a person’s knowledge includes knowledge which he might reasonably have been expected to acquire-

(a) from facts observable or ascertainable by him; or

(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek,

but a person shall not be fixed under this subsection with knowledge of the fact ascertainable only with the help of expert advice so long as he is taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.”

68. Mr Sakhrani for UHK makes two arguments.  First he says a “Notice to Patients” given to patients attending PPDH makes it clear that PPDH does not provide dental services and clinical staff are members of the Faculty of Dentistry, UHK.  This he says is clear notice to a patient of the involvement of UHK.

69. The only document produced does not assist.  It is dated 19 November 2010.  If the argument was to be made I should have been shown the document in use between June 1999 and September 2000, when Madam Yam was attending PPDH.

70. Second, he says that it is clear from a medical report given to the LAD on 16 June 2008, that the Faculty of Dentistry at UHK was involved in the treatment of Madam Yam.  I agree that it is absolutely plain that that is so.  The report is on University letterhead, it identifies the Faculty of Dentistry of UHK, it is signed by the Chair Professor in Oral and Maxillofacial Surgery.  It is right that the address is given as PPDH, but it should not have escaped the attention of the LAD, or the solicitors, that the treatment was being undertaken by the Faculty of Dentistry of UHK.

71. In fact that was plain as early as 15 March 2008, when, although not on University letterhead, the Chair Professor of the Faculty of Dentistry at UHK provided the LAD with a medical report in respect of Madam Yam’s treatment at PPDH.  The knowledge of the involvement of UHK came from facts ascertained by Madam Yam through the expert advice of the LAD.

72. I am accordingly satisfied that the LAD were in constructive possession of sufficient facts on 15 March 2008, to constitute knowledge of the involvement of UHK in the treatment of Madam Yam, and consequently potential liability for negligence in that treatment.  Madam Yam’s solicitors were in constructive possession of that knowledge upon receiving instructions from LAD, a date which has not been disclosed.

73. It cannot be said, but in this case, having regard to the length of the delay, that Madam Yam has taken all reasonable steps to obtain the advice that would have been necessary for her to learn of the involvement of UHK.  Had she consulted solicitors in time, and they had sought, as they would, a medical report from PPDH, the involvement of UHK would have then been revealed.  Consequently, Madam Yam cannot avail herself of the proviso to s 27(8), and is fixed with constructive knowledge of the involvement of UHK.

74. On the assumption that Madam Yam had left instructing solicitors until just prior to October 2004, (as she would have been entitled), time must have started to run against UHK at that time.  On the best case for Madam Yam, the limitation period against UHK expired in October 2007.  The writ was issued on 5 May 2010 by which time the limitation period against UHK had expired.

75. The application by PPDH to strike out the proceedings, supported by an affidavit indicating the involvement of UHK was filed on 10 March 2011.  On 9 June 2011, Madam Yam’s solicitors made application to join UHK as a defendant in the proceedings.  Accordingly, the starting point for any consideration of the position of UHK, must be that, at the time Madam Yam sought to join UHK, her claim against UHK was statute barred. 

76. It is thus necessary to consider the various factors under s 30(3) to determine whether or not the discretion should be exercised in favour of Madam Yam to be permitted to bring proceedings against UHK.

The delay, s 30(3)(a)

77. The delay against UHK is 3 years 7 months.  That is not an insignificant delay.  To some extent, the responsibility for the delay must lie with Madam Yam’s advisers, at least since she consulted the LAD in January 2008.  Had LAD acted with appropriate promptitude, the delay would have been as little as three months.  However, for the reasons given, I am satisfied that the delay of the legal advisers should not be held against Madam Yam.

The effect of the delay on the cogency of the evidence, s 30(3)(b)

78. Mr Sakhrani mounted the same argument as to cogency of evidence is that advanced by Mr Fung.  His position is weaker.  Dr John Lo, at the time of his treatment of Madam Yam, was a postgraduate medical student at UHK.  He is still with UHK and is available to give evidence.  There is no suggestion that he is not able to give evidence of any system that might have been in place at the relevant time.

79. I have carefully considered the very old cases cited by Mr Sakhrani; Perionowsky v Freeman (1886) 4 F & F 977, and Morris v Winsbury-White [1937]4 All ER 494.  The cases are not helpful.  Neither was a case on a claim relating to a system, as this case is.  Both were cases of clinical error on the part of nursing staff following surgical treatment, in which the surgeon was found, in the particular circumstances of each case, not to be vicariously liable for the acts of the nursing staff.

80. For the reasons set out in §§27-28, I am satisfied that there is an arguable cause of action against UHK, as being vicariously liable for the actions of Dr John Lo in relation to the arrangements for the MRI.

The conduct of UHK, s 30(3)(c)

81. Again, it is not suggested that there has been any delay or obstruction on the part of UHK that might have adversely affected the situation.  The factor carries no weight.

The extent to which Madam Yam acted after knowledge, s 30(3)(e)

82. The delay against UHK is shorter than that against PPDH.  The shorter delay must mean that this factor carries less weight against Madam Yam.

The steps taken by Madam Yam to obtain expert advice, s 30(3)(f)

83. For the reasons set out above, this being a system claim and not a claim based upon the particular acts of a particular individual who is not available, I am satisfied that there is no forensic prejudice against UHK.

All the circumstances of the case

84. Mr Sakhrani properly emphasised the forensic prejudice he contended was faced by UHK.  The availability of Dr Lo, and the absence of any suggestion that he would not be able to give appropriate evidence puts paid to the suggestion of forensic prejudice.

Conclusion

85. Again, having regard to the whole of the circumstances of the case, and considering each of the relevant factors, I am satisfied that this is an appropriate case in which the discretion under s 30 LO should be exercised.  Again, I am satisfied that the prejudice suffered by Madam Yam outweighs that suffered by UHK, and that UHK does not suffer sufficient forensic prejudice that a fair trial would not be possible.  While there has been a delay, I am satisfied that that delay has been satisfactorily and reasonably explained.

86. There will be a direction that the limitation provisions of s 28 LO shall not apply to Madam Yam’s cause of action against UHK.  It follows that I find the joinder of UHK by the Master to have been correct.

Costs

87. Madam Yam has succeeded in resisting the appeals.  She is entitled to her costs both here and before the Master on a party and party basis.  Her own costs will be taxed on Legal Aid Regulations.

Stay of proceedings

88. The Master stayed the proceedings pending the outcome of the appeal.  The stay will end upon handing down of this decision.