POON CATHERINE v. HOSPITAL AUTHORITY

HCPI 381/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 381 OF 2011

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BETWEEN

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R U L I N G S

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The application

1.  This is the hearing of the 1^st and 2^nd plaintiffs’ application for interim payment in the sum of $3 million by summons filed on 28 July 2011.

2.  At the beginning of the hearing, I suggested to counsel for the parties that as the 1^st and 2^nd plaintiffs’ respective heads of claim for damages are totally different from each other, it might be sensible to deal with their applications separately, rather than by way of a joint application.  Counsel readily accepted my suggestion and agreed to sever the joint application into two, namely: (1) the 1^st plaintiff’s application for interim payment in the sum of $2.9 million; and (2) the 2^nd plaintiff’s application for interim payment in the sum of $100,000.  Not before long, with minimal encouragement from the court, the parties reached agreement that, in order to dispose of the 2^nd plaintiff’s application, the defendant shall pay the 2^nd plaintiff an interim payment on account of the damages claimed in the sum of $100,000 within 21 days i.e. on or before 14 November 2011.  The 1^st plaintiff’s application remained in dispute.

Admissibility of the Affirmation of Cheng Wui See Henry

3.  The plaintiffs’ summons was filed together with the affirmation of Tshi Miau Sian in support on 28 July 2011.  The defendant filed the opposing affidavit of Dr Lee Shing Yan Robert on 2 September 2011 and the plaintiffs filed the 2^nd affirmation of Tshi Miau Sian in reply on 6 October 2011.  At the beginning of this hearing, the defendant produced to the court clerk the affirmation of Cheng Wui See Henry, a partner of the solicitors for the defendant.  The 1^st plaintiff opposed to its admission but was agreeable to the defendant to adduce the said affirmation de bene esse.  At the end of the hearing, after having had the opportunity of reading the said affirmation and having heard the parties’ submissions, I rejected the said affirmation.  The reasons are as follows:

(a)  The said affirmation contained, as exhibits to it, the medical notes and records of the 1^st plaintiff’s treatment received at Canossa Hospital (CH) under the care of Dr Alfred Tam during the period from 4 to 23 August 2011.

(b)  Dr Alfred Tam prepared a report dated 23 August 2011 on the 1^st plaintiff’s admission and his assessment, which was produced and exhibited to the affirmation of Tshi Miau Sian.  In his report, Dr Alfred Tam opined that the 1^st plaintiff’s condition stabilized in CH with closer nursing and better positioning.  She could go off oxygen for 5 to 8 hours when she was resting or sleeping.  The 2^nd plaintiff started to learn gastric feeding and nasal oral suction.  The amount of oral nasal secretion decreased and the 1^st plaintiff was more settled with the 2^nd plaintiff around.  The 2^nd plaintiff echoed Dr Alfred Tam’s assessment.  In her affirmation, the 2^nd plaintiff deposed that, during the short period of hospitalization in CH, the 1^st plaintiff’s condition improved noticeably by slowly weaning off nasal oxygen and reduced secretions, more than she had in two and a half years at Princess Margaret Hospital (PMH).

(c)  The contents of Dr Alfred Tam’s said report are relevant to the issue on whether it is of the interest and benefit of the 1^st plaintiff to have her discharged from hospitalisation and to go home or to reside in a nursing home.

(d)  The defendant contested that some of the notes and medical records clearly showed that the rosy picture that the 2^nd plaintiff portrayed of the hospitalization in CH was not that accurate.

(e)  The 1^st plaintiff contended that in substance the defendant was making use of the medical notes and records to launch an attack on the validity of Dr Alfred Tam’s report dated 23 August 2011.  The 1^st plaintiff’ took the position that, if the said affirmation was admitted, the 1^st plaintiff would need time to take instructions on the correct interpretation of the medical notes and records from Dr Alfred Tam and to adduce further evidence in this regard by way of affirmation.  That would mean, were the late filing of the said affirmation allowed, an adjournment for a part-heard hearing would have been necessary.

(f)  The defendant was unable to give a satisfactory explanation of the delay in the filing of the said affirmation.  In view of this, coupling with the defendant’s position and the obvious undesirability of an adjournment, I rejected the said affirmation.

Factual backgrounds

4.  This is a medical negligence claim in which by reason of the negligence of PMH (liability admitted) the 1^st plaintiff was asphyxiated on delivery on 10 December 2008 and suffered hypoxic ischaemic encephalopathy.  She is now in a vegetative state with minimal cognitive and expressive function, severely compromised hearing and vision and spastic quadriplegia.

5.  The asphyxiation of the 1^st plaintiff came as a devastating blow to her mother, the 2^nd plaintiff, who suffered from psychiatric problems as a result requiring treatment from January 2009.

6.  Since birth, the 1^st plaintiff had been under the care of the Special Care Baby Unit (SCBU) of PMH until she was transferred to CH on 23 August 2011.  She suffered from respiratory insufficiency requiring constant oxygen through nasal cannula, and copious nasal secretion, which, together with the inability to swallow, had led to the need of constant suction and therefore the need of continuous nursing care in hospital.

7.  Surgery of gastrostomy and fundoplication was performed on 24 July 2009 but unsuccessful.

8.  Dr Alfred Tam, a specialist in paediatrics and neonatology, saw the 1^st plaintiff in January 2011.  Dr Alfred Tam thought that the SCBU was not the right place for habilitation and care of an infant with neurological deficit.  He considered that the parents should be actively involved in the 1^st plaintiff’s daily care but the setting of the SCBU is restrictive for the parents to visit and not conducive towards the parents’ bonding with the 1^st plaintiff.

9.  In late June 2011, it was disclosed that the 1^st plaintiff suffered from hiatus hernia.

10.  In August 2011, the parents decided to seek second opinion and had the 1^st plaintiff transferred to CH under the care of Dr Alfred Tam.  In his assessment, Dr Alfred Tam recommended correction of the hiatus hernia and the redo-fundoplication.

11.  On 23 August 2011, the 1^st plaintiff was transferred to Queen Mary Hospital (QMH) for the redo-fundoplication.  In late August 2011, the redo-fundoplication was successfully performed under the care of Prof. Paul Tam of QMH.  After the operation, the 1^st plaintiff continued staying at QMH.

Plaintiffs’ argument

12.  The 1^st plaintiff’s argument is straightforward.  The 1^st plaintiff contended that as this was a very substantial claim and an interim payment at $3 million would pose no risk of over-payment, the court should order the interim payment sought.  The plaintiff should not be required to prove need or hardship and the court should not, when considering whether to order an interim payment, investigate how the money was to be used {see Stringman (A minor) v McArdle [1994] 1 WLR 1653, CA}.

13.  The basic provision for interim payments is contained in O 29 rr 10 & 11.  As to the circumstance in which an interim payment may be made, the court was also referred by counsel for the plaintiffs to Sun Jiangqiang v Chan Tai Kau & Another [2001] 2 HKLRD 435.

Defendant’s argument

14.  It was the defendant’s contestation that the Stringman v McArdle principle which was adopted and followed by Suffiad J in the Sun Jianqiang case should not be followed mechanistically.  It was submitted that more recent cases suggesting that in deciding whether, and if so, in what sum an interim payment should be ordered, the court should also take into account the factor of the level playing field/ possible prejudice of the defendant’s interest. {see Campbell v Mylchreest [1999] PIQR Q17, CA: Q20 (2^nd para), Q21(2^nd para), Q22(2^nd, 3^rd and 4^th para) and Q24 (Auld LJ); Tinsley v Sarkar [2004] EWCA Civ 1098 (unreported) (CA) (paras 16-19, 32-3, 48); Eeles v Cobham Hire Services Ltd [2010] 1 WLR 409 (CA) (paras 4, 30, 43-45)}.

15.  The defendant noted that one of the motives behind this application is to provide funds to facilitate the 1^st plaintiff to move to live at home or to reside in a nursing home with neuro-habitation facilities.

16.  It was submitted that applying those principles to the facts of the present case, it will be wrong in principle to grant an order for interim payment as sought.  The level playing field will be significantly altered when the future care and needs of the 1^st plaintiff are yet to be clearly addressed and the defendant’s position will be considerably prejudiced and when there is a risk of overpayment.

Analysis

17.  Having considered the defendant’s authorities, I am persuaded that where it is known that a plaintiff intends to use the money received by way of interim payment in a way which might prejudice the fair conduct of the trial, it is a relevant factor for consideration by the court in the exercise of its discretion.  It follows that, as a matter of principle, in the exercise of the court’s discretion in the present case, I should consider if, allowing the interim payment for the expenditure of the stated purpose, there is a real danger that a status quo will be established before the assessment of damages and the playing field will be rendered unlevel as stated in Campbell v Mylchreest.

18.  In the present case, the parents want the 1^st plaintiff to go home or to reside in a nursing home with facilities for neuro-habitation.  They are now looking at a flat in Tsuen Wan for $15,800 per month and awaiting rehabilitation specialist to advice on adaptations of the new flat.  The annual rents and management fees of say $2,000 per month will be not less than $213,600.  In the paragraph 50 of her affirmation, the 2^nd plaintiff further deposed that she contemplated that they would incur a lot more future expenses in setting up a permanent habitation for the 1^st plaintiff.

19.  The question is whether interim payment should/ should not be allowed for expenditures on the stated purpose.  It comes to the court to make a decision on the issue.  My considerations are as follows.

20.  The 1^st plaintiff has been under hospital care since birth.  To allow funds, at this stage, to move the 1^st plaintiff to live at home or in a nursing home will render a change in the existing status quo.  It is worthy of noting that in the paragraph 14 of her supplemental affirmation, the 2^nd plaintiff put that if the 1^st plaintiff was to be returned to PMH, the defendant would save substantial amount of damages to be paid in the present case.  In that event, I find that not only to allow funds to the intended move will change the status quo, but also a change in the status quo as such will be potentially unfair to the defendant.

21.  The finding of a potential proleptic effect on the status quo does not operate as an absolute bar to an interim payment.  It is at best a factor which the court exercising its discretion should take into account and it is for the court to decide to give how much weight to it.  Was there sufficient evidence showing that the stated purpose is desirable for the benefit of the plaintiff, the court could still allow interim payment for expenditures on the stated purpose in spite of the level playing field concern {see Campbell v Mylchreest, Q22(4^th para)}.

22.  In the circumstance, it makes sense for the court hearing the application to be asked to focus on whether the kind of expenditure proposed is reasonably necessary (see Tinsley v Sarkar, para 19).

23.  In this way, the next crucial question is whether the expenditures to be incurred for the move of the 1^st plaintiff to go home or to reside in a nursing home and setting up of a permanent habitation for the 1^st plaintiff are reasonably necessary.

24.  The parents intend to make such move because, having completely lost their trust and confidence in PMH, they are convinced by Dr Alfred Tam’s opinion that the hospital was not the right place for habilitation and care of the 1^st plaintiff.  They also relied in support of the words of the doctors of QMH that the 1^st plaintiff could “go home” after she had the redo-fundoplication performed.

25.  Apart from the usual medical and nursing, the 1^st plaintiff received regular limb physiotherapy, developmental stimulation to gross motor function, occupational therapy, sensory stimulation and play therapy under hospital care.  While it is readily understandable that, the parents desire the infant plaintiff to live at home, instead of to be brought up in hospitals and there is no doubt that the parents wish the 1^st plaintiff well with the intended home or nursing home care, it is noted that up to now the medical experts nominated by the parties to provide medical expert evidence (on both issues of liability and quantum) have not yet examined the 1^st plaintiff.  No medical expert assessment has been done on the 1^st plaintiff’s condition, future prognosis and the long term rehabilitation, or addressing the question of what her future care and attention regime should be, or the estimated costs of the same.  Still less are there any details on whether the 2^nd plaintiff working together with private nurses has the suitable knowledge, skills and experience in looking after the 1^st plaintiff, except some sketchy information about that she learnt gastric feeding and nasal oral suction during the period of the 1^st plaintiff’s hospitalization in CH.  The parents are still awaiting rehabilitation specialist to advice on adaptations of the new flat and are unable to give details as to matters like what adaptations will be necessary, how long they will take, or how much they will cost.  Side by side, notwithstanding that the 1^st plaintiff is in a vegetative state with cerebral palsy, none are there any details about her future life expectancy in the light of her serious and severe medical conditions.

26.  All these suggest that it is premature at this stage for the court to resolve the question on whether the proposal to have the 1^st plaintiff moved to go home or to reside in a nursing home is beneficial to the 1^st plaintiff.

27.  The question of what care is appropriate in future is relevant to quantum of damages.  The question of whether it is in the 1^st plaintiff’s interest or if it is reasonably necessary to alleviate her injury and diminish her disability to keep her at home or to a nursing home with facilities for neuro-habitation is going to be an issue in the assessment of damages.  If for instance the trial judge holds that the kind of expenditures to be incurred in setting up a permanent habitation for the 1^st plaintiff now being proposed is not reasonably necessary in the future, there will not be money being awarded for the expenditures proposed.  In such scenario, if the court has allowed interim payment for the said expenditures, there will be a risk of overpayment.

28.  In all, I conclude that at this stage I should not order the interim payment for the expenditures on the stated purpose of moving the 1^st plaintiff to go home, to reside in a nursing home or setting up a permanent habitation for the 1^st plaintiff.

29.  Still, in the present case, interlocutory judgment for liability, with damages to be assessed, having been entered, it is sensible to order an interim payment, which may be used to help the 1^st plaintiff’s recovery or lessen her family’s financial burden, bearing in mind that the court must not risk over paying the 1^st plaintiff.

Value of the 1^st plaintiff’s claim

30.  The 1^st plaintiff’s claim as per the statement of damages is for

(a)  PSLA in excess of $2 million

(b)  Preliminary estimate of medical expenses for immediate treatment at no less than $400,000

(c)  Future losses and expenses (rights reserved but no details provided in the statement of damages)

(d)  Care and attention by parents globally at $8,000 per month until the respiratory issue of the 1^st plaintiff is dealt with and another suitable placement and accommodation is found for her

(e)  Special damages as at date of the statement of damages at about $60,000

31.  Costs of the 1^st plaintiff’s hospitalization for the period from 4 to 23 August 2011 at Canossa Hospital were almost $200,000.

32.  The nurses at QMH have required the parents to hire their own private nurse, which is now being done in two 12-hour shifts at $4,000 per day, or about $120,000 per month.  Assuming the trial takes place in about 1 year’s time from now, only the pre-trial expenses on private nurses alone will be exceeding $1,500,000.

33.  The 2^nd plaintiff decided to hire a domestic helper to help her care for the 1^st plaintiff.  The 2^nd plaintiff estimated that including food and utilities, the costs of keeping the domestic helper would be about $7,000 per month.

34.  Additionally, there are miscellaneous expenses for the 1^st plaintiff, e.g. milk power, diapers, lotion and other sundry items at about $5,000 per month.

35.  There are also the daily travelling expenses for the 2^nd plaintiff from her residence in Tai Wu Hau, Kwai Chung to PMH/QMH every day.  The 2^nd plaintiff estimated the travelling expenses at on average about $150 per day, or about $4,500 per month.

Decision

36.  The 1^st plaintiff’s application for interim payment for expenditures to be incurred to move the plaintiff to go home or to reside in a nursing home and setting up a permanent habitation for the 1^st plaintiff is premature.  The court would not order interim payment on such expenditures at this stage.

37.  In the present case, the court will make an interim payment of such amount as it thinks just, not exceeding a reasonable proportion of the damages which in the opinion of the court are likely to be recovered by the plaintiff.  From all the facts and the contents of the medical reports which are now available, I consider that a very conservative estimate of the total damages which the plaintiff is likely to recover will not less than $4,000,000.  In arriving that figure, I have taken into account that the general damages for pain and suffering is likely to be very substantial and I have also taken note of the expenses mentioned in the above paragraphs 30 to 35.  For that part of the process, I take no regards as to what the plaintiffs intend to do with the money.

38.  For the above reasons, in the exercise of my discretion, I would make an order for interim payment for the sum of $2,000,000.  I am satisfied that this figure ensures that there is a sufficient margin to guard against any overpayment.

39.  The 1^st plaintiff being a person under disability, it is ordered that the defendant shall pay the 1^st plaintiff interim payment on account of damages claimed in the sum of $2,000,000 into court within 21 days i.e. on or before 28 November 2011.

40.  The 2^nd plaintiff’s application was disposed of by agreement reached between the parties at the beginning of this hearing.  The 1^st plaintiff is successful in obtaining an order for a very substantial amount of interim payment though it is less than the figure put forward by the plaintiffs’ legal representative.  At this juncture, I see no reason why costs should not follow the event.  I make an order nisi that costs of this application be to the 1^st and 2^nd plaintiffs, with certificate for counsel, to be taxed if not agreed, which shall become absolute unless a party has applied for variation within 14 days, i.e. on or before 21 November 2011.  The plaintiffs’ own costs are to be taxed in accordance with the Legal Aid Regulations.

41.  I am indebted to both counsel for the assistance they have rendered to the court.