WONG HOI TANG ALEXANDER v. HOSPITAL AUTHORITY

FAMV No. 9 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 9 OF 2001 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACV NO. 202 OF 2000)

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DETERMINATION

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Mr Justice Chan PJ :

1. In July 1993, the applicant who was then aged 31 was given an overdose of medication by the staff of the Queen Mary Hospital. As a result, he was left in a permanent vegetative state and has been lying in bed at the Tung Wah Hospital for more than 7 years. His retired parents have been helping to take care of him.

2. In this action for damages, the defendant, the Hospital Authority, admitted liability and consented to judgment in June 1996. It has also offered to provide all necessary medical care and attendance to the applicant in the Tung Wah Hospital or a public hospital free of charge for the rest of his life. By agreement of the parties, the assessment of damages was to be decided in two stages. The first stage of the assessment was to decide whether the applicant is to stay in the Tung Wah Hospital or be transferred to a private hospital.

3. Shortly before the assessment which was originally scheduled to be heard in July 2000, counsel for the applicant applied to the judge seeking discovery from the Hospital Authority of documents required to show a detailed costing of the care regimen provided by the Hospital Authority for the applicant. This was said to be necessary to provide a comparison with the costs of the regimen to be provided by a private hospital so as to enable the court to decide the first issue.

4. The application was refused by the judge and the appeal to the Court of Appeal was dismissed. Leave to appeal to the Court of Final Appeal was also refused. The applicant now applies to this Committee.

5. The order of the Court of Appeal not being a final order, the applicant has to satisfy s.22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 by showing that the appeal involves a question of great general or public importance or that there is otherwise a reason for granting leave.

6. Having heard counsel's submission, we are unable to see any question of great general or public importance or any reason to grant leave to appeal. In his Notice of Motion, the applicant has not set out any question said to be of great general or public importance. During his submission and when asked, counsel adopted the questions formulated and put forward before the Court of Appeal. But the application before the judge was only an application for discovery. The principles on discovery of documents and disclosure of information applicable here are well settled. Discovery will not be ordered unless the documents or information are relevant to the question in issue and are necessary for disposing fairly of the cause or matter or for saving costs. Counsel for the applicant has not advanced any other principle. He is simply saying that the judge and the Court of Appeal were wrong in holding that the discovery sought was irrelevant.

7. As both the judge and the Court of Appeal held, the discovery sought is clearly irrelevant. The court is not concerned with a comparison of the costs to the Tung Wah Hospital and to a private hospital. The purpose of assessment of damages is to compensate the applicant for his loss and damage as a result of his injury and insofar as future medical expenses are concerned, this involves an assessment of what he needs and how much he should be compensated in order to pay to meet those needs. The test for any award of damages or any arrangement to be made for him must be one of reasonableness. The assessment does not involve how much it would cost the tortfeasor, the Hospital Authority in this case, to provide such services. This is totally irrelevant to the issue before the trial judge. There is no need for a comparison between the costs to the Hospital Authority to maintain the applicant and to take care of him and the costs to a private hospital to do so. The judge and the Court of Appeal had rightly rejected counsel's submissions.

8. We cannot accept the submission that the refusal to order the discovery sought would be a departure from the principles on discovery or the principles regarding assessment of damages.

9. We take the view that the application is without merit and we dismiss it with costs.

10. As a result of the interlocutory application and appeal, the assessment of damages has been regrettably delayed for at least nine months. We take the view that the assessment should be proceeded with as expeditiously as possible. In the circumstances of this case, it is not surprising that the judge was genuinely concerned with how the proceedings on behalf of the applicant were conducted. He was considering whether to order the Official Solicitor to take over these proceedings in place of the applicant's mother as his next friend. However, the judge has so far not made any order yet. The representative of the Official Solicitor is present today in court at the request of the judge. In these circumstances, this question, in our view, should be left entirely to the judge.