WONG YING GRACE v. DR. HO WING CHIU CLEMENT AND ANOTHER

HCPI 804/2017

[2022] HKCFI 3109

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 804 OF 2017

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DECISION

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BACKGROUND AND THIS APPLICATION

1.  This is a medical negligence claim, in which the plaintiff, who is a specialist medical doctor with a registered specialty in Obstetrics and Gynaecology, sues the defendants for, inter alia, having exposed her to unnecessary and wrongful reproductive treatments and failed to advise her on the risks thereof.  The total amount of damages which she had pleaded in her Revised Statement of Damages is nearly $24 million, and approximately 97% of which (around $23.2 million) is her claim for pre-trial loss of earnings.

2.  By a summons filed on 7 February 2022 (“the Summons”), the defendants apply for:

(1)  Specific discovery of 10 items of documents;

(2)  An order that the plaintiff do file and serve her answer to the defendants’ interrogatories without order dated 27 September 2021, in which three questions were raised.

3.  Because of some developments since the filing of the Summons, the defendants no longer pursue their specific discovery application herein.  This Court has also been informed by Mr Wong for the defendants that out of the three questions raised in the defendants’ interrogatories, one of those (Question 2) is no longer necessary.  However, this Court is still required to consider those items and question which are not pursued herein for the purpose of costs, which I will deal with in the last part of this Decision. 

THE INTERROGATORIES

Applicable legal principles

4.  The applicable legal principles are trite.  As far as this application is concerned, the relevant principles are as follows:

(1)  Interrogatories must relate to a matter in question between the parties.  They must be necessary either (a) for disposing fairly of the cause or matter, or (b) for saving costs.  They must not be fishing, and must not be oppressive.  They must not be prolix, but should be precise.  They must not be questions which go to the evidence the opposing party intends to adduce, nor questions which require an answer which is a matter of opinion. Interrogatories must not be effectively asking for documents or discovery: Wang Pengying (suing on behalf of herself and all other shreholders in Convoy Global Holdings Limited and Convoy Finance Limited) v Ng Wing Fai & Others [2019] HKCFI 2430, at [15];

(2)  In the exercise of its discretion, the Court must bear in mind that interrogatories will be ordered only where they are necessary either for disposing fairly of the cause or matter, or for saving costs.  This is the key consideration going to the exercise of discretion: Kao Lee & Yip (a firm) v. Donald Koo Hoi-Yan & Others (HCA 8847/1993, unreported, 26 February 2002), at [7(3)];

(3)  Necessity is a stringent test.  It cannot be necessary to interrogate to obtain information or admissions which are or are likely to be obtained in pleadings, medical reports, discoverable documents or witness statements unless, exceptionally, a clear litigious purpose will be served by obtaining such information or admissions on affidavit: Hall v Sevalco Limited [1996] P.I.Q.R. P344 at p.349;

(4)  Requests for information ascertainable by cross-examination at the trial are inappropriate unless the party questioning can establish that it is essential for the proper preparation of his case that such information is made available to him before trial, in the sense that if the matter is left until cross-examination at the trial that party will, or probably will, be irremediably prejudiced in his conduct of the trial or the trial may be unduly interrupted or otherwise disorganised by the late emergence of the information: Det Danske Hedeselskabet v. KDM International plc [1994] 2 Lloyds 534 at page 537.

5.  Pursuant to Order 26 rule 3(1) of the Rules of the High Court (“RHC”), interrogatories may be served twice without order.  If the party on whom interrogatories without order is served considers it appropriate, it may apply to the Court within 14 days of the service of the interrogatories for such interrogatories to be varied or withdrawn pursuant to Order 26 rule 3(2) of the RHC.  That indeed is the course of action which the plaintiff should have taken herein, given her stance on the defendants’ present application. 

6.  However, she did not do so. 

7.  Rather, it was the defendants who took out the Summons and asked for an order that the plaintiff should answer the interrogatories.

8.  Even though the plaintiff has not made any application under the said rule 3(2), this Court still has a discretion to decide whether to allow the interrogatories to be administered: Law Mei Sing, the Administrator of the estate of Lui Kam Fung, deceased v. ING Bank N.V. & Another (HCA 544/2010, unreported, 21 August 2013), at [14] to [22]. 

Question 1

9.  Since the key consideration in this application is “necessity”, it is important to understand what are and what are not the issues concerning the plaintiff’s claim for pre-trial loss of earnings.  For this purpose, reference should be made to the following parts of the plaintiff’s Revised Statement of Damages and the defendants’ Answer to Revised Statement of Damages:

Revised Statement of Damages

“29. Before the wrongful treatments, her earnings in private practice from 2010 to 2013 discernible from the Assessment Demanding Final Salaries Tax issued by the Inland Revenue Department were as follows:

Year (From 1st April to 31st March)	Annual Earnings	Monthly Earnings
(1) 2010/11	HK$8,667,371	HK$722,280.92
(2) 2011/12	HK$9,551,465	HK$795,955.42
(3) 2012/13	HK$15,937,391	HK$1,328,115.92
Average:	HK$11,385,409	HK$948,784.08

30. As a result of the wrong treatments, there was a clear and substantial drop in her earnings as discernible from the Assessment Demanding Final Salaries Tax issued by the Inland Revenue Department:

Year (From 1st April to 31st March)	Annual Earnings	Monthly Earnings
(1) 2013/14	HK$4,813,762	HK$401,146.83
(2) 2014/15	HK$3,580,000	HK$298,333.33
(3) 2015/16	HK$6,589,500	HK$549,125
(4) 2016/17	HK$7,620,000	HK$635,000
(5) 2017/18	HK$7,167,000	HK$597,250
(6) 2018/19	HK$10,212,165	HK$851,013.75
Average:	HK$6,663,737.83	HK$555,311.49

31. It is averred that the various reductions in earnings were as a result of decreased performance at work as manifestation of the distress or impairment in functioning associated with the Adjustment Disorder with Mixed Anxiety and Depressed Mood:

(1)  An equivalent of triple reductions in annual earnings from HK$15,937,391 in year 2012/13 to HK$4,813,762 in year 2013/14 was predominantly as a result of the interruptions to her medical practice and/or distress caused by the wrongful treatments […];

(2)  The lowest annual earnings at HK$3,580,000 in year 2014/15 was largely as a result of the discovery of undergoing Intracytoplasmic Sperm Injection (ICSI) on 19^th August 2014 such that the Plaintiff’s psychiatric injury severely worsened requiring regular treatment;

(3)  In discharge of her duty to mitigate losses, the Plaintiff engaged two locum doctors also specialised in Obstetrics & Gynaecology:

(a)  From 22^nd April 2014 to 31^st July 2016: Dr. Kwan Wing-Yan (who attained her fellowship in 2011);

(b)  From 3^rd June 2014 to 31^st August 2016: Dr. Lam Lap-Po (who attained her fellowship in 2012);

(4)  Although the Plaintiff was entitled to approximately 50 percent of their fees under the engagement, given the two locum doctors were relatively junior specialists, her annual earnings were only able to return to HK$6,589,500 in year 2015/16 and HK$7,620,000 in year 2016/17;

(5)  After the end of the engagement from August 2016 to the last psychiatric treatment on 18^th May 2018, the Plaintiff continued her medical practice alone with gradual improvement in her psychiatric injury earning HK$10,212,165 in year 2018/19.

32. In the premises, the loss of average monthly earnings should be assessed as follows:

HK$948,784.08 [Pre-incidents] – HK$555,311.49 [Post-incidents]

= HK$393,472.6

33. Accordingly, the Plaintiff claims pre-trial loss of earnings for approximately 59 months from the commencement of the wrongful treatments on 10^th June 2013 to the last psychiatric treatment on 18^th May 2018 as follows:

HK$393,472.6 per month [Monthly loss] x 59 months =

HK$23,214,883.24”

Answer to Revised Statement of Damages

“25. Save it is denied that the Plaintiff received any wrongful treatments from the Defendants, as alleged or otherwise, paragraph 29 is admitted to the extent that it correctly recites contents of the relevant Assessment Demanding Final Salaries Tax issued by the Inland Revenue Department. The Defendants repeat their Amended Defence herein.

26. Save as admitted or denied as follows, paragraph 30 is not admitted save to the extent that it correctly recites contents of the relevant Assessment Demanding Final Salaries Tax issued by the Inland Revenue Department:-

26.1 It is denied that the Plaintiff received any wrongful treatments from the Defendants, as alleged or otherwise;

26.2 It is denied that as a result there was any change in the Plaintiff’s earnings (which is not admitted).

The Defendants repeat their Amended Defence herein and will rely on the expert opinion of Dr. Shum Ping-Shiu as stated in the 1^st Joint Expert Report and the 2^nd Joint Expert Report.

27. Paragraphs 31 to 33 are not admitted save it is admitted that there was a reduction in the Plaintiff’s incomes to the extent as reflected by the tax documents. The Defendants deny that any such reduction was caused or contributed by the psychiatric illness suffered by the Plaintiff as a result of the Defendants’ negligence as alleged.

28. The Defendants further aver the following :-

28.1 The Plaintiff did not suffer from any physical and/or mental injuries during her pregnancy of the 1^st daughter, i.e. from 11 November 2013 to 10 July 2014;

28.2 According to the Plaintiff’s complaint, the first emergence of mental condition in 2014 was in August 2014;

28.3 As such, the Plaintiff is not entitled to claim any change in earnings during the above period, if any;

28.4 Changes in the Plaintiff’s earnings since 1 January 2013, if any, were attributable, at least partly, to the ‘zero-quota’ policy for doubly non-permanent resident childbirth in Hong Kong; the Defendants reserve their rights to plead further pending further discovery and/or interrogatory in this action;

28.5 Changes in the Plaintiff’s earnings since 14 July 2015, if any, were attributable, at least partly, to the Plaintiff’s pregnancy of her 2^nd daughter and the need to take care of her expanded family after her birth; the Defendants reserve their rights to plead further pending further discovery and/or interrogatory in this action.” (emphasis added)

10.  With the above in mind, I now turn to consider Question 1.

11.  Question 1 comprises five parts. Each part covers a specific financial year (from 2014/15 to 2018/19 respectively), and the same set of six sub-questions have been raised under each part, except that there are two further sub-questions for the financial year 2018/19.   

12.  Mr Wong explained that this question arose from a clear problem in comparing supposedly correlated figures in Transaction Reports (i.e. the total gross receipt of the plaintiff’s Clinic) and the Revised Statement of Damages/the plaintiff’s Tax Returns.  He had prepared a table which demonstrated the differences in the said figures.  He submitted in his skeleton submissions that the differences cannot be explained simply by netting out the operational costs/expenses of the plaintiff’s Clinic, and therefore the defendants’ proper understanding of how those figures are arrived at is “critical”.

13.  Therefore, for example, for financial year 2014/15, the defendants submitted initially that it is necessary for the following sub-questions to be asked:

(1)  why was there a difference between the figure of $3,580,000 (as per the Individual Tax Return and the Revised Statement of Damages) and $3,574,951 (as per the Transaction Report);

(2)  how the plaintiff’s director’s fee of $3,580,000 was calculated;

(3)  whether the sum of $3,580,000 included the plaintiff’s income/receipt(s) from private hospital(s);

(4)  whether the sum of $3,580,000 included the plaintiff’s income/receipt(s) for the performance of laboratory tests for her patients;

(5)  whether the sum of $3,580,000 included the plaintiff’s income/receipt(s) in relation to cord blood fees and medical reports for her patients; and

(6)  whether the sum of $3,580,000 included the plaintiff’s sharing of fees of the two locum doctors.

14.  It must be borne in mind that the figure of $3,580,000 was pleaded as the “annual earnings” in paragraph 30 of the Revised Statement of Damages.  In paragraph 31 thereof, it was further pleaded, among other things, that:

(1)  The plaintiff’s reduction in earning was the result of decreased performance at work as manifestation of the distress or impairment in functioning associated with the Adjustment Disorder with Mixed Anxiety and Depressed Mood;

(2)  The lowest annual earnings at $3,580,000 in year 2014/15 was largely as a result of the plaintiff’s severely worsened psychiatric condition at the material time which required regular treatment;

(3)  In mitigation of her loss, the plaintiff had engaged two locum doctors from April 2014 to August 2016, but even so, her annual earnings were only able to return to $6,589,500 in year 2015/16 and $7,620,000 in year 2016/17;

(4)  The plaintiff continued her medical practice alone subsequently and had a gradual rise in her earnings to $10,212,165 in 2018/19.

15.  On the basis of the figures of annual earnings pleaded in paragraph 30 of the Revised Statement of Damages, the plaintiff calculated her alleged loss of average monthly earnings in paragraph 32 thereof and her total pre-trial loss of earnings in paragraph 33 thereof.

16.  Crucially, the defendants pleaded in paragraph 27 of their Answer to the Revised Statement of Damages that:

“Paragraphs 31 to 33 are not admitted save it is admitted that there was a reduction in the Plaintiff’s incomes to the extent as reflected by the tax documents. The Defendants deny that any such reduction was caused or contributed by the psychiatric illness suffered by the Plaintiff as a result of the Defendants’ negligence as alleged.” (emphasis added)

17.  I therefore pointed out to Mr Wong at the hearing that, given the defendants’ admission by pleading that there had been a reduction in the plaintiff’s income to the extent as reflected by the tax documents, there is no longer any live issue concerning the actual earnings of the plaintiff in the financial years from 2013/14 to 2018/19.   For the purpose of ascertaining the amount of earnings of the plaintiff during the said period of time, there is no need to look beyond the “Assessments Demanding Final Salaries Tax”.    Indeed, Mr Wong has fairly confirmed that the figures of “annual earnings” are all supported by the said Assessments. 

18.  I also drew Mr Wong’s attention to the fact that since the plaintiff has disclosed all the relevant Audited Accounts of her Clinic, the defendants could ascertain the answer of most of the sub-questions therefrom. 

19.  Upon reflection on the matter, Mr Wong sensibly abandoned most of the sub-questions, apart from the sub-question on the calculation of director’s fees.

20.  On this sub-question, he submitted that while it is accepted that the plaintiff had had a reduction of her directors’ fees after 2012/13, the reason thereof is not entirely clear, and it might well be because of the Clinic’s decision to cut down the payment of directors’ fees for reason(s) unrelated to the defendants’ negligence (such as accounting treatment).  Therefore, this question is crucial in proving “causation” of the plaintiff’s alleged loss. 

21.  With greatest respect to Mr Wong, I cannot accept his submission.

22.  Firstly, the state of the pleadings plainly does not entitle him to raise the aforesaid query.  If the defendants have any positive case that the Clinic should have paid the plaintiff larger amount of director’s fees, they should have pleaded this.  Indeed, under paragraph 28 of the defendants’ Answer to the Revised Statement of Damages, the defendants had pleaded various factors which they said were the reason attributing to the plaintiff’s reduction in income. However, the “accounting treatment adopted by the plaintiff’s Clinic” was not one of them.

23.  Insofar as the defendants are saying that they are unable to plead such a matter without getting an answer to the interrogatories from the plaintiff, in my view, it is equivalent to saying that the defendants are minded to get more information from the plaintiff first for the purpose of considering whether the defendants could make anything out of it.  It is, with respect, a fishing exercise.

24.  Secondly, I do not think the form of the sub-question (“how the reported director’s fee was calculated”) could achieve the purpose now relied on by Mr Wong.  It does not assist the defendants at all by knowing, for example, the percentage of the net profit earned by the plaintiff’s Clinic adopted in calculating the director’s fee.

25.  Hence, it is not necessary either for disposing fairly of the cause or matter, or for saving costs, to order the plaintiff to answer the aforesaid sub-question.

26.  Mr Wong further submitted in paragraph 37 of his skeleton submissions that:

“Further, in so far as P seeks to answer the 2^nd Interrogatories by relying on Ying Healthcare Ltd’s financial statements for years 2014/15 to 2018/19, the following further and better particulars are necessary to enable Ds to understand P’s quantum case and in turn prepare its case in response…”

27.  Since it is my ruling that Question 1 should not be allowed, the defendants are not entitled to request for “further and better particulars” as such.

28.  Moreover, insofar as the defendants are relying on Order 26 rule 5(3) of the RHC in support of their requests for further and better particulars, such an argument is misconceived, because the procedure under the said paragraph (3) is only available to the defendants if the plaintiff had served any answers to the interrogatories served.  In the present case, the plaintiff has plainly not served any answer as such.

Question 3

29.  There are two sub-questions under this question, which are related to the plaintiff’s plea that she had had a reduction in earnings from 2013/14 to 2018/19 by reason of her “decreased performance at work as manifestation of the distress or impairment in functioning associated with the Adjustment Disorder with Mixed Anxiety and Depressed Mood”.  The defendants asked the plaintiff to state the number of days each month during the aforesaid period that:

(1)  she was absent from work as a result of the alleged Adjustment Disorder with Mixed Anxiety and Depressed Mood;

(2)  she otherwise experienced decreased performance at work as a result of the alleged Adjustment Disorder with Mixed Anxiety and Depressed Mood.

30.  Mr Wong for the defendants submitted that during the period between 2013/14 to 2018/19, the plaintiff had gone through two pregnancies, and had maternal duties and needs since she had given birth to two babies.  It is therefore asserted that it is necessary for the defendants to know the exact impact of the alleged mental injuries on the plaintiff’s income, and separate the same from the plaintiff’s aforesaid other life events which were unrelated to the alleged negligence.

31.  As mentioned above, requests for information ascertainable by cross-examination at the trial are inappropriate unless the defendants can establish that it is essential for the proper preparation of their case that such information is made available to them before trial, in the sense that if the matter is left until cross-examination at the trial that party will, or probably will, be irremediably prejudiced in their conduct of the trial.

32.  On my part, I cannot see why the defendants cannot wait until the trial to raise the aforesaid questions.  Mr Wong submitted that leaving this exploration only at trial would be prejudicial to both sides as the trial would not take place soon, and the plaintiff’s recollection would not improve with passage of time.  I am afraid this cannot be a valid basis for interrogatories to be administered.

33.  There is therefore no need for Question 3 to be answered.

CONCLUSION

34.  For reasons of the aforesaid, the Summons is dismissed.

COSTS

35.  Mr Leung SC submitted that the plaintiff’s costs should be taxed on indemnity basis because the defendants had persisted in proceeding with the Summons despite the fact that (i) they knew full well the plaintiff’s position all along, and (ii) the plaintiff had invited the defendants to withdraw the Summons with “costs in the cause” on more than one occasion, and the plaintiff even went as far as to postpone the delivery of brief to counsel in the hope that the defendants would accede to the plaintiff’s proposal at last minute.  However, the defendants had rejected all those offers.

36.  Mr Leung SC also advocated that certificate for two counsel should be granted in the present case because:

(1)  The plaintiff’s claim is large;

(2)  The making of the defendants’ application hinted that the plaintiff had not been frank in the conduct of her case;

(3)  Ample opportunity had been given to the defendants to withdraw the Summons; and

(4)  The defendants had threatened that they would seek indemnity costs against the plaintiff.

37.  On the other hand, while Mr Wong accepted that his clients should bear the plaintiff’s costs in relation to Questions 1 and 3 of the interrogatories, the costs of Question 2 and of the specific discovery application should be in the cause because:

(1)  The plaintiff had disclosed documents in a “piece-meal” manner before the Summons was taken out;

(2)  In relation to the 10 items of documents requested under the Summons:

(a)  the plaintiff only provided the defendants with three of those items after the Summons was taken out;

(b)  the plaintiff only informed the defendants that the other 7 items were either not in existence or not available after the Summons was taken out;

(3)  Question 2 of the defendants’ interrogatories is a justified interrogatory.  However, the plaintiff did not disclose the relevant information about the composition of her income for the year 2012/13 until 3 May 2022 (by letter) and 16 June 2022 (by way of the plaintiff’s Affirmation in opposition).

38.  With greatest respect, I reject all the above submissions on costs made on behalf of the parties.

39.  First of all, I am of the view that the defendants should bear the plaintiff’s costs of the Summons for the following reasons:

(1)  The Summons has been dismissed;

(2)  The specific discovery application would have been dismissed anyway because the documents were requested for the purpose of assisting in the defendants’ “understanding of the composition of the clinic’s revenue and its actual correlation to the plaintiff’s earnings in turn”[1].  As aforesaid, given the defendants’ admission in their pleadings, the amount of the plaintiff’s earnings is not a live issue at all;

(3)  Question 2 of the defendants’ interrogatories[2] would have been disallowed anyway because I do not accept that it is necessary.  I cannot see what useful purpose could be achieved by knowing the number of “old” patients whom the plaintiff had brought from the private hospital which she previously worked for.

40.  Be that as it may, in my view:

(1)  this is just another case in which an applicant’s interlocutory application is dismissed;

(2)  while the defendants had proceeded with an application which is now ruled to be without merits, I do not think it can be said that the defendants’ conduct in persisting with the Summons is unreasonable to a high degree;

(3)  I do not agree that the matters relied on by the plaintiff amount to special or unusual feature which would justify the imposition of an order of indemnity costs;

(4)  Neither do I think there is any abuse of the court’s process as such. 

41.  I therefore do not think that an indemnity costs order should be made herein.

42.  On the plaintiff’s application for certificate for two counsel, while I am very grateful to Mr Leung SC for his able assistance, having struck a balance between the advantages of more efficient preparation of the plaintiff’s case and the extra expenses involved in instructing leading counsel, I do not think this is an application in which leading counsel is required.  After all, this is a straight forward application.

43.  I therefore order the defendants to bear the plaintiff’s costs of the Summons, without certificate for two counsel.

44.  The plaintiff’s costs is summarily assessed at $525,000 and shall be paid by the defendants on or before 19 October 2022.