XCHRX NGAN CHING PAI v. DOCTOR CHAN WAI LAM WILLIAM AND OTHERS

1991, No. A10002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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JUDGMENT

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1. On 1 January 1989, the deceased, who was a young married woman, consulted the first defendant at the fourth defendant's hospital about a medical condition. She was prescribed treatment. On 7 January 1989, she returned to the hospital. The first defendant ordered a procedure called an intravenous urogram. This procedure was conducted under the control of the second defendant. The injection produced an adverse reaction. The second defendant treated the deceased for this, as did the third defendant. Sadly, this was of no avail, and the deceased died. The first, second and third defendants were the employees of the fourth defendant.

2. This action was commenced by a writ issued on 31 December 1991, a few days before the action was time-barred. The writ was issued in the name of Mr Chow Chun Hung (Mr Chow), the deceased's widower, as administrator of the estate. Before this, in 1990, Mdm Ngan Ching Pai (Mdm Ngan), the deceased's mother, had applied for legal aid. This was granted, but limited to the issue of the writ. On 2 January 1992, the legal aid certificate was discharged. An appeal against this discharge was dismissed on 16 December 1992. On 30 December 1992, a statement of claim and schedule of damages was issued and served. Thereafter, the plaintiff proceeded with the prosecution of the claim at such a very leisurely pace that now, in July 1999, the matter has still not been set down for trial.

3. On 15 January 1999 and 5 February 1999, the defendants issued summonses to strike out the claim for want of prosecution. These summonses were heard by the Master and the applications to strike out were granted on 29 June 1999. The plaintiff now appeals against that order. This appeal is now before me.

4. There is no doubt that there has been inordinate delay by the plaintiff in the prosecution of this action. Mr Harris accepts this; he could hardly do otherwise. The delay is more than inordinate; it is highly extraordinary. It follows that there is no need, for this purpose, to examine the details of that delay.

5. Mr Harris says, however, that this delay is excusable. The reason for the delay is, he argues, that the plaintiff was and is impecunious so that it was unable to finance the carrying on of the action in a proper and timeous manner. Mr Harris says that legal aid was improperly refused, and, if it had not been improperly refused, the action would have been prosecuted timeously.

6. I have already mentioned Mdm Ngan's first application for legal aid. She made another application in January 1995. This was refused in February 1995, and an appeal against this was dismissed on 31 May 1995. She applied again in September 1997. This application was refused on 30 December 1997, but her appeal was upheld on 22 April 1998. A certificate was issued on 1 June 1998. On 18 September 1998, Mdm Ngan applied ex parte to be substituted for Mr Chow as representing the estate. This was granted on 9 October 1998.

7. I do not understand why Mdm Ngan made these applications. She was not a party to the proceedings in any way, not even in a representative capacity. But this point does not seem to have taken by the Legal Aid Department. Her applications were refused on the grounds that the claim was unmeritorious. The appeal was successful, I am told by Mr Harris, because the court accepted that there was merit in the claim.

8. Mr Chow also made an application for legal aid in May 1995. This was refused because Mr Chow did not meet the test of lack of means.

9. There is no evidence before me as to the financial situation of the estate, but I am told by Mr Harris that the estate could not finance the action itself. It seems to me that the application for legal aid should have been made in the name of the estate. The financial positions of Mr Chow and Mdm Ngan were not relevant. They had no obligations, as representatives or beneficiaries of the estate, to finance the action. In fact, Mr Chow did, to some extent, provide money to finance the action, but he unable to afford to finance a trial.

10. The crisp question that arises in this case is this: Is it an acceptable excuse for a failure by a plaintiff to prosecute an action with proper expedition that he was unable to afford to do so?

11. The answer to that question must be that, although a court should feel some sympathy for an impecunious plaintiff and exercise a degree of indulgence, it should not, and cannot, accept lack of means as an acceptable excuse for inordinate delay where that inordinate delay is such that the prejudice suffered by the defendant is so serious that it dictates that the indulgence should be extended no further. The authorities say that the question of whether or not a delay is excusable should be judged primarily from the defendant's point of view, or, at least, objectively. Personal difficulties faced by a plaintiff, such as an inability through illness, absence or lack of money to give instructions to his solicitor to proceed in prosecuting an action, may be given some weight, but there must be some reasonable limits on the court's right to indulge the plaintiff at the expense of the defendant.

12. I appreciate, of course, that the determination of the matters of whether or not a delay is inexcusable and whether or not there has been prejudice are usually treated by the authorities as separate steps in the consideration of the case, but where, as here, the reason advanced for the delay is a personal difficulty of the plaintiff to which the court should pay some regard and because of which the court should exercise some indulgence, the court must consider the extent to which any continued exercise of indulgence will affect the other party.

13. During the course of argument, I put to Mr Harris that, although a court might be expected to exercise some indulgence towards an impecunious plaintiff, there had to come a time when the court was bound to say - "Enough and no more" on the simple basis that litigation involves two sides, and the court was obliged to protect the interests of the defendant as well as the plaintiff. Mr Harris accepted that this must be so, but argued that this time had not come about in this case. Well, if that time has not come about in this case, one must wonder when it will come about. More than 10 years have already elapsed. How many more years must pass before the court calls a halt? If it is so, as I believe it is, that the defendant's ability to present its case effectively has already been irreparably damaged by the delay, the grant of more time becomes meaningless from the defendant's point of view.

14. It seems to me that a court must attempt to balance the interests of the plaintiff and the defendant in a case such as this. That balancing exercise, I think, must dictate that a court should no longer exercise an indulgence towards an impecunious plaintiff when the inordinate delay is so extraordinary that it is such that the prejudice to the defendant caused by that delay is so serious that the injustice to that defendant in allowing the case to go on is greater than any injustice to the plaintiff in stopping it. This, of course, cannot be ascertained on a precise, scientific basis. There must be a value judgment.

15. What is the prejudice suffered by the defendants in this case by the inordinate delay?

16. The events that would be the focus of a trial happened in January 1989. A trial would take place not before January 2000. That would be some 11 years after the events concerned. Mr Harris accepts that most of the allegations made against the defendants would involve a minute examination of what was done and what was not done on 7 January 1989, what should have been done and what should not have been done, the equipment that was available, the equipment that should have been available, the mental processes of the doctors and other staff involved, their observations of the condition of the deceased and their reactions to what they detected. The failure to do one single thing, perhaps, in the heat of the emergency, what might then appeared to have been a small thing, may become of great importance at the trial. How is it possible, after this lapse of time, for the doctor defendants to recall whether they did or did not do that thing, or even considered it? The ability of the doctors and the other medical staff to recall in detail those events of so long ago must be greatly impaired by the inordinate delay. The first three defendants have said as much. They had to say this in support of this application, although it comes as no surprise to me. This brings to the fore the dilemma faced by defendants in these applications. In order to have any chance of succeeding, a defendant must be frank about the weaknesses in his case caused by the inordinate delay. But, in doing so, by confessing the lack of strength in his case, he must perforce prejudice his case further in the event that he does not succeed in having the plaintiff's case struck out. If the doctors were to say anything in evidence in their defence that involved the exercise of memory, they could be challenged on this by it being pointed out to them that they had already confessed that their memories were not good as to the events of so long ago.

17. Two very important witnesses, Mdm Leung, a radiographer, and Mdm Lam, a nurse, left Hong Kong to live in Canada several years ago. Their present whereabouts are unknown. It may be that they could be traced, and they may be willing to return to give evidence. But there is at least a strong possibility that their evidence will not be available at a trial. Even if they were found, it is quite possible that they would be unwilling to re-live what must have been a very unpleasant experience for them.

18. And there is the prejudice suffered by all defendants of having this case involving allegations of medical negligence and lack of care hanging over their heads for so long. I do not attach as much importance to this aspect of the matter, but it is a factor that must be taken into account.

19. Mr Harris argues that, although the memories of witnesses may be of some importance in relation to many of the allegations made, this would be less so in relation to other allegations. In particular, he points of that the second defendant admits that he did not warn the deceased of the risks involved in the procedure, and the first defendant does not say that he did so warn. This, Mr Harris, is a crisp issue in respect of which the lapse of time has not prejudiced the defendants. I do not see it that way. The issue is one of informed consent. The issue is what the patient was told, not only by the doctors but also by other medical staff. Mdm Leung says in a very short medical report that she explained the procedure to the deceased. Just what Mdm Leung told the deceased, her reaction and the circumstances concerned, would be of great importance at a trial, but it is most unlikely in the circumstances I have mentioned that, after this great lapse of time, that this aspect of the matter could be satisfactorily explored in evidence.

20. So, I conclude, the prejudice suffered by the defendants arising from the inordinate delay in the prosecution of this claim is so great that they could not effectively mount a defence that would allow a fair trial of the issues. In these circumstances, it seems to me, the personal difficulty faced by the plaintiff of being unable to finance the proper prosecution of the action should not be taken as an acceptable excuse for the greatly inordinate delay in this case. I have to say that I am not happy with this outcome, but I cannot see how I can allow this case to proceed consistently with my duty to protect the interests of both sides in this litigation.

21. Accordingly, the appeal is dismissed. The plaintiff's action is struck out.

22. There seems to be no reason why costs should not follow the event. I make an order nisi that the plaintiff pay the costs of this application and the action.