BUTT TZE LEUNG v. THE HONG KONG POLYTECHNIC UNIVERSITY, the body corporate having management and control of THE OPTOMETRY CLINIC AT THE HONG KONG POLYTECHNIC UNIVERSITY AND OTHERS

HCPI 726/2018

[2025] HKCFI 1587

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 726 OF 2018

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D E C I S I O N

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1.  This is an action for medical negligence commenced by the plaintiff (“Butt”) for treatment during a consultation at an optometry clinic in 2015. The 1^st defendant was the university (“the University”) where the optometry clinic in question was set up in its campus (“the Clinic”). The 3^rd defendant was at the time an exchange student optometrist from Australia (“Tran”) participating in the consultation while the 2^nd defendant was her supervising optometrist (“Yu”).

2.  Before this court are the following summonses taken out by Butt, as so defined by counsel for the purpose of the hearing:

(1)  against Tran, an unless order for filing her statements of truth in respect of the last 2 rounds of amendments of her defence (“the Verification Summons”);

(2)  against Tran, leave to serve interrogatories (“the Interrogatories Summons”);

(3)  against the University and Yu, setting aside of part of their recent amendments to their defence (“the Expunction Summons”[1]).

3.  After hearing, decision in respect of these summonses was reserved.

Background

4.  Briefly, Butt was at the time a contact lenses wearer. He first consulted the Clinic in 2013 for routine examination, contact lens aftercare and prescription glasses. He made an appointment with the Clinic for another examination on 28 July 2015.

5.  At the time, Tran was an exchange student from Australia in her final year of postgraduate optometry studies on placement at the Clinic. On the day in question, Yu was the optometrist on duty and had supervision over Tran.

6.  During the consultation, Yu and Tran performed on Butt procedures including ocular examinations under anaesthesia, which allegedly resulted in a whole range of acute eye symptoms. Subsequent urgent consultation with another optometrist and referral to other ophthalmologists at the Clinic did not improve his conditions. Despite subsequent intensive medical treatments both locally and overseas for almost 2 years, residual problems allegedly persisted.

7.  In 2018, Butt commenced the present action for trespass to person against the defendants. Specifically, it is contended that the medical practice of Yu and Tran at the time were unlawful. He also alleges negligence on their part. For such alleged breach, the University, which is said to have the management and control of the Clinic, is held to be liable vicariously. Butt seeks various declaratory relief, including that his consent to the treatment on the day was null and void for illegality. He also claims damages for his injuries.

8.  The pleading stage has taken some time.

9.  On 20 March 2019, Butt filed his statement of claim and statement of damages.

10.  On 15 July 2019, the University and Yu filed their defence. On 19 August 2019, Tran filed her defence. Though filed separately, the defences of the defendants were filed by Messrs Howse Williams (“HW”) acting for all of them.

11.  The defences were verified by the statements of truth of the defendants respectively.

12.  On 25 September 2019, Butt filed his amended statement of claim (“ASC”).

13.  On 6 November 2019, the defendants filed their amended defences. This took the form of a so-called amended consolidated defence of the defendants (“AD”), which was accompanied by the statements of truth of the University and Yu. The statement of truth of Tran was also filed only subsequently.

14.  Butt filed his reply on 11 December 2019, which was amended and filed on 18 December 2019.

15.  On 5 June 2020, Butt filed his re-amended statement of claim (“RASC”).

16.  On 15 June 2020, the re-amended consolidated defence of the defendants was filed (“RAD”). It was accompanied by the respective statements of truth of the University and Yu but not Tran. This prompted those acting for Butt to request for the outstanding statement of truth of Tran.

17.  In the meantime, Butt filed his re-amended reply.

18.  With leave of the court, Butt filed his re-re-amended statement of claim on 28 September 2020 (“RRASC”), which was followed by the filing of the re-re-amended consolidated defence of the defendants (“RRAD”). The RRAD was accompanied by the respective statements of truth of the University and Yu, but again without that of Tran.

19.  Upon enquiry, HW represented by letter to those acting for Butt that they were awaiting the signing of Tran’s statement of truth.

20.  Butt filed his re-re-amended reply on 6 November 2020.

21.  Those acting for Butt have since repeated their request for the outstanding verification of the recent amendments of the defence by Tran.

22.  By April 2020, statements of Tran and Yu have been disclosed.

23.  In March 2021, Messrs Clyde & Co (“CC”) became acting for the defendants in place of HW.

24.  In June 2021, those acting for Butt by letter served interrogatories on CC in respect of Tran’s witness statement.

25.  In February 2022, this court was alerted to the parties’ various disagreements. Amongst others, CC explained in the parties’ joint letter that they were taking instruction from Tran regarding her outstanding statements of truth.

26.  Not to be expected to be engaged in resolving the parties’ disagreement presented by way of correspondence, this court directed that proper applications should be taken out, if so advised.

27.  However, in March 2022, CC applied to cease to act for Tran.

28.  On 11 March 2022, interrogatories in respect of Tran’s witness statement was served on CC.

29.  On 13 April 2022, the Verification Summons and the Interrogatories Summons were filed and served on CC.

30.  On 26 April 2022, CC formally ceased to act for Tran with leave of the court.

31.  With leave of the court, Butt filed his re-re-re-amended statement of claim on 30 May 2022 (“RRRASC”).

32.  On 8 August 2022, CC filed the re-re-re-amended consolidated defence on behalf of the University and Yu (“RRRAD”), which revealed change of counsel.

33.  Soon those acting for Butt complained about the ambit and justification of the amendments in the RRRAD. Eventually on 6 April 2023, Butt filed the Expunction Summons.

34.  Cross fire between the parties continued by way of correspondence. Amongst the issues disagreed, CC acknowledged by their letter dated 5 June 2023 that the RAD and RRAD were not verified by the statements of truth of Tran, and “accordingly” those pleadings only apply to the University and Yu. As such, they argue that there would be nothing for Tran to verify.

35.  Further argument by way of correspondence between the parties aside, Butt was given leave to amend his summonses by the end of November 2023. Hence the Verification Summons and the Interrogatories Summons as amended and filed on 4 December 2023. Together with the Expunction Summons, these 3 summonses are now before this court.

36.  I now deal with the summonses one by one.

The Verification Summons

37.  By the Verification Summons, Butt seeks the following relief against Tran:

(1)  Unless Tran verifies the RAD and the RRAD within 35 days:

(a)  her defence be struck out and judgment be entered against her; or

(b)  the RAD and the RRAD be set aside, and she be debarred from adducing any evidence at the trial; or

(c)  her amendments in the RAD and the RRAD be struck out, and she be debarred from adducing any evidence at the trial; or

(d)  any other order or consequential order as the court deems just or necessary;

(2)  costs of and occasioned by the application.

38.  As mentioned, the (original) Verification Summons was first served on CC when they were on record solicitors for Tran, though application for ceasing to so act has been filed. Contrary to the suggestion on behalf of the University and Yu, nothing sinister may be suggested about this move on behalf of Butt, when it is unclear whether those acting for him was at the time aware of the ex parte application of CC to cease to act as a matter between them and Tran.

39.  The fact was that CC only formally ceased to act for Tran on 26 April 2022. Therefore, the Verification Summons is taken to have been duly served on Tran through her then solicitors.

40.  Albeit amended subsequently, the essence and terms of the relief sought in the application remain similar.

41.  Tran was absent from the present hearing. Strictly the University and Yu have no locus to be heard in opposition of the application directed at Tran. Attempt to do so under the guise of assisting the court is uncalled for. In any event, the argument advanced will be addressed below.

42.  The starting point is O18, r20A(1) of the Rules of the High Court, Cap 4A (“RHC”) which makes it mandatory for a pleading and its particulars to be verified by a statement of truth in accordance with O41A. O41A, r2(1) and (2) echo the same.

43.  O41A, r2(3) provides that the court has discretion, if it is just to do so in a particular case, to direct that verification by a statement of truth is not needed.

44.  Whilst r2(4) provides that verification by a statement of truth is not needed if so provided by a practice direction (“PD”), r2(5) qualifies that such direction to relate to a matter that is to be heard in a specialist list. No such PD exists in the personal injury list. On the contrary, PD 18.1 provides:

“63. All pleadings including any revision thereof or amendments thereto and Further and Better Particulars of any pleadings should contain a Statement of Truth in compliance with RHC, Order 41A, rules 2 and 5 and also with Practice Direction 19.3 (Practice Direction on Statement of Truth) with suitable adaptations notwithstanding that alternative facts may have been pleaded pursuant to RHC, Order 18, rule 12A.

64. Application for dispensing with the Statement of Truth under RHC, Order 41A, rule 2(3) should be made as soon as it is realized that there exists valid grounds for such application and before the expiry of time for filing of the relevant pleading. The application should be supported by affidavit setting out the grounds for the application and salient facts pertinent thereto.”

45.  PD 19.3 provides:

“1. Statement of Damages and Answer to Statement of Damages and any revision thereof are regarded as pleadings for the purpose of Order 41A and must be verified by a statement of truth.

2. If a document verified by a statement of truth is amended, the previous statement of truth in respect thereof shall not be deleted. A new statement of truth underlined in the proper colour in accordance with the version of the amendment shall be made.”

46.  The RAD and RRAD, when filed, were not respectively verified by statement of truth of Tran. Nor has there been application for dispensing with the requirement by Tran pursuant to PD 18.1, §64. This falls foul of the legal requirement.

47.  It was not that the requirement was not acknowledged. As mentioned, in answering the demand made on behalf of Butt in respect of the RAD, HW confirmed in their letter dated 23 June 2020 that they were awaiting the signing of the statement of truth by Tran, and undertook to supply the same when signed. That, contrary to such representation, never came.

48.  Then came the further amendments of the parties’ pleadings including the RRAD, which was also not verified by statement of truth of Tran. By the parties’ joint letter to the court on 8 February 2022, CC, succeeding solicitors for the defendants, represented that they were still taking instruction from Tran regarding the consecutive outstanding statements of truth.

49.  By then, the only understanding one discerns from the representations by HW and later CC was that both the RAD and the RRAD were meant to have been filed as the defence of all the defendants as before. Need for verification by Tran in compliance with the legal requirement was not denied, but those acting for Butt was requested to wait.

50.  In the circumstances, it is unfair, if not incorrect in principle and fact, for CC in their subsequent letter dated 5 June 2023:

(1)  to suggest that the complaint about the outstanding statements of truth was overtaken by the subsequent amendments initiated by Butt’s further amendments of his pleading;

(2)  to blame Butt for delay in taking out the Verification Summons only afterwards; and

(3)  to suggest that the RAD and the RRAD, being unverified by Tran, accordingly applied to the University and Yu only, and there is nothing for Tran to verify so that any confusion should stop.

51.  O41A, r6 provides that the court may by order strike out a pleading that is not verified by a statement of truth. R6 provides that the court may order a person who has failed to verify a document in accordance with O41A to verify the document. In either case, any party may apply to the court.

52.  On behalf of the University and Yu, it is argued that Butt has waived the lack of statements of truth from Tran by conduct, namely the filing of further amended reply after the RAD and RRAD. Lam Fung Ying v Ho Tung Sing [1993] 2 HKLR 187 and Delta Petroleum (Caribbean) Ltd v British Virgin Islands Electricity Corp [2021] 1 WLR 5741 are cited, but they are only references for the general principle of waiver by election.

53.  Insofar as pleading is concerned, counsel cites Chow Ching Yee v Wong Hung Kee [2020] HKCFI 2555 (applied in China Metal Recycling (Holdings) Ltd v USB AG [2022] HKCFI 2215). However, the court there was addressing the issue of waiver and estoppel in the context of the contents of the pleadings and their amendments. It does not follow that the lack of compliance with the statutory requirement of verification by statement of truth should likewise be viewed as waived.

54.  Unlike the authority cited, vis-à-vis Butt and Tran, the University and Yu have no locus to assert the alleged waiver on her behalf. Yu has not come forward to assert the alleged waiver on grounds and with evidence in support from her own perspective.

55.  The fact was that it was by the orders of the court[2], when leave was given to file the RAD and the RRAD that such amended pleadings must be accompanied by their respective statements of truth. Relevantly, both orders were made by consent of the parties. Coupled with the holding responses on behalf of the defendants by then, the act of filing his replies notwithstanding the lack of Tran’s statements of truth could not fairly be taken as conduct waiving her compliance with the statutory requirement. Tran aside, Butt was obligated to comply with the directions of the court to file his replies in response to the amended case of the University and Yu in any event.

56.  Counsel for the University and Yu also pleads for the court’s discretion to dispense with the verification. As mentioned, the court has such discretion under O41, r2(3). However, there has been no application for that pursuant to PD18.1, §64. Therefore, all that may be said is the inherent discretion of the court. For that, reference is made to 中國山水投資有限公司 v 張才奎 [2018] HKCFI 195 where the court declined to strike out the claim on the ground of failure to verify by statement of truth. However, as cited, the court explained (at §46) the various reasons in the context of that case, which hardly stand for comparison with the circumstances of the present case, let alone the lack of such contention and evidence in support from Tran herself. The difference in context also explains why the case of Sun Tian Gang v Changchun High & New Technology Industries Development Parent Co [2018] 5 HKLRD 485 does not assist Tran.

57.  Each successive amendment to pleading supersedes the previous version. Insofar as Tran is concerned, the amendments in her RAD and RRAD are not verified, and hence ineffective. Whilst superseding version would be effective only if it is verified, the previous version not effectively superseded by a verified version does not become ineffective unless re-verified. No legal authority was placed before me to suggest otherwise. As the matter now stands, the verified pleading of Tran ends at the AD insofar as that concerns her. The verified pleading of the University and Yu appears in the form of the RAD and subsequently RRAD and the RRRAD.

58.  Whether or not there is basis for legitimate concern on the part of the University and Yu about the implication of this application against Tran, the alleged draconian relief of striking out of the defence of Tran and entry of judgment against her as the prescribed consequence of default in compliance with the unless order being sought by Butt, in my decision, would be out of proportion in the circumstances of this case. That said, Butt does pray for, as an alternative, any order as this court sees fit.

59.  The situation could have been different if the repeated absence of verification of amended pleadings are part of the circumstances suggesting the lack of genuine intention to proceed with her defence, and the court is satisfied that this is clearly and obviously the case. The present application is not advanced along this line. Whether or not Butt is in position to apply for summary judgment, notwithstanding her verified AD, is a matter for him but not an issue before me for the time being either.

60.  In the event that Tran may only stand by the AD as her defence, whether or not her case under the AD therefore stands to deviate from that of the other defendants in the same respect will be a question for the parties. So will the question of whether or not the other defendants are in a position to verify the truth of the RAD and the RRAD without Tran be. That said, no assumption may be made in this respect when the matters pleaded do not have to be based on first-hand personal knowledge.

61.  Concern is raised about the state of the witness statement of Tran. The starting point is that the scope of the evidence is defined by pleadings. In the event that she has only the AD to stand by, her evidence will be defined by the parameters of such version of defence. If any part of her witness statement is liable to be expunged for having infringed such restriction, appropriate application, if so advised, may be taken out against Tran.

62.  Contrary to the argument of counsel for Butt, nothing prevents cross examination of Tran, if she appears at the trial, on the case of the other defendants simply because she did not verify the truth of the other defendants’ pleaded case. It goes without saying that if she is eventually absent from the trial, neither her statement will be received nor her pleading will stand for her purpose at all.

63.  Butt does ask pray for, as an alternative, any order as this court sees fit. Hence the order in respect of this application set out at the end of this decision.

The Interrogatories Summons

64.  By the Interrogatories Summons, Butt asks for the following relief:

(1)  leave to serve on Tran the interrogatories as per the copy annexed to the summons (“the Interrogatories”);

(2)  unless Tran answers the Interrogatories by affidavit within 35 days:

(a)  her defence be struck out, and judgment be entered against her; or

(b)  she be debarred from adducing any witness statement at the trial; or

(c)  such other order as the court may think just;

(3)  costs of and occasioned by the application.

65.  O26, r1(1) and (2) gives the court discretion to order, upon application, interrogatories to be served relating to any matter in question between the applicant and the other party in the cause or matter which are necessary either for disposing fairly of the cause or matter or for saving costs. Necessity in this context has been explained as follows:

(1)  The answers are essential for the preparation of the requesting party’s case for trial and cannot reasonably be expected to emerge from requests for further and better particulars and further discovery or witness statements, interrogatories will not normally be ordered.

(2)  Information which is relevant to matters in issue only in the sense that it may lead to further inquiry or that questions about it could be asked in cross-examination at the trial will not be essential information for the purposes of the first consideration.

(3)  Requests for information which although it may be relevant to matters in issue, can be provided only by means of detailed research or investigation which the party interrogated would not otherwise carry out for the purpose of preparing for trial will hardly ever qualify as being necessary either for disposing fairly of the cause or matter or for saving costs.

(4)  Hypothetical questions should not normally be asked.

(5)  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 by the late emergence of the information.

See Kao Lee & Yip (a Firm) v Donald Koo Hoi Yan HCA 8847/1993 (26 February 2002); Wong Ying Grace v Dr Ho Wing Chiu Clement [2022] HKCFI 3109.

66.  The Interrogatories were served on CC on 11 March 2022 when they were on record solicitors for Tran, and hence duly, notwithstanding their application to cease to act for her filed on 2 March 2022.

67.  Nothing has been heard from Tran regarding the Interrogatories duly served. Nor has there been application for withdrawal or variation of the Interrogatories by her pursuant to O26, r3(2).

68.  There is again argument as to the locus of the University and Yu to make representation in opposition of the application directed at Tran. Their stance again is that the relief sought by Butt entails the prescription of consequence of default in answering the interrogatories being striking out of the defence of Tran and entry of judgment. Such event would affect the running of their case. Hence their sufficient interest and locus to make representation.

69.  Again whether or not the University and Yu have locus to make representation on the substance of the application in the hearing, that Tran has not come forward to resist the application does not fetter the discretion of the court in determining whether and, if yes, the extent to which the application may be granted in the circumstances of the case.

70.  The Interrogatories were served in respect of Tran’s witness statement dated 1 January 2020. The stem of counsel’s argument on behalf of Butt is that the Interrogatories are justified for one or more of the following reasons:

(1)  There are aspects of the stated evidence of Tran which are ambiguous.

(2)  The answers could give rise to matters warranting investigation which should not be left only to be explored by cross examination at trial.

(3)  The answers could narrow down the focus of cross examination, and potentially shortening the length of the trial and saving costs.

71.  Applying the principles mentioned above to the circumstances of the present case, this court does not view the witness statement of Tran in isolation but in conjunction with the understanding in respect of the events and matters being questioned, which may be discernable from the pleadings and the documents disclosed including the statement of Yu dated 17 October 2016 (“Yu’s Statement”).

72.  I proceed to consider the questions:

Questions 1 & 2:

(1)  Regarding §2 of her statement, Tran is asked if the diagnosis of eye disease was the purpose of the examination administered by Tran on Butt during the consultation in question, and whether she made the diagnosis.

(2)  §4 of her statement onwards, together with Yu’s Statement, read against the pleadings and documents, including the clinical record of the consultation admittedly made by Tran, and allegedly checked by Yu, should not leave Butt with material deficiency in understanding her case or preparing his case.

(3)  These questions are not necessary.

Question 3:

(4)  Regarding §3 of her statement, Tran is asked how her optometry consultations at the Clinic was supervised by Yu during the period between 3 July 2015 and the consultation in question, specifically whether Yu was physically inside the examination room.

(5)  In my view, the picture is readily obtainable from reading the statement and Yu’s Statement. In §7 of that statement, Yu stated that she had seen Tran carry out tests including the Goldmann Applanation Tonometry (GAT), which was one of those administered in the case of Butt on the day in question. In §§11-13, Yu stated the usual practice of the Clinic whereby she as the optometrist on duty would supervise 2 exchange students at the Clinic. As such, she had to go between 2 examination rooms to supervise Tran and her classmate, and it was impossible for her to be fully present in one examination room when a student performed an eye examination for a patient. She would stand by the door to observe what Tran was doing from time to time. Tran would also inform her of the procedures before execution. Yu continued to describe how she went between the examination rooms on the day in question, and checked the work done by Tran.

(6)  Insofar as understanding Tran’s case in respect of the supervision on duty during the period is concerned, the assertions according to the witness statements, in my view, cast sufficient light. By now, Butt does not seem to have problem in this respect for the purpose of lodging his complaints before the present action and pleading his case in the action.

(7)  The question is not necessary.

Questions 4 & 5:

(8)  Regarding §4 of her statement, Tran is asked (question 4) whether it was she who checked the option of “OTC eyedrops” and wrote down “artificial tears (Artelac)” in the clinical record.

(9)  In view of her statement and Yu’s statement as well as the pleaded cases, the room for doubting that Tran was responsible for filing in the clinical record seems to be little. The above discussion refers, so that Yu also admitted responsibility and participation in cross checking the same.

(10)  Tran is asked (question 5) whether the prescription recorded was made for the “dry eyes with SPK and MGC” suffered by Butt. The ambiguity in this respect objectively may be overstated.

(11)  These questions are not necessary.

Question 6:

(12)  Regarding §7 of her statement, Tran is asked if she had done anything and, if yes, what to assess Butt’s suitability for GAT. The picture of what Tran and Yu have allegedly done before proceeding with GAT on Butt is obtainable from their pleadings and statements. If nothing further and specific has been asserted to have been done, Butt is quite entitled to proceed on that basis.

(13)  The question is not necessary.

Question 7:

(14)  With reference to the clinical records, Tran is asked whether there was any special reason why she preferred GAT to non-contact tonometry for measuring Butt’s ocular pressure. Indeed, the documents do not provide a probable answer or understanding in this respect. Counsel for the University and Yu refers to the expert opinion of Dr Jane Duffy in this respect. However, such opinion of the suitability of GAT does not really answer the question concerning whether and, if yes, what Tran considered at the time of the consultation.

(15)  This question is allowed.

Question 8:

(16)  Tran is asked if she explained to Butt the purpose and risks of GAT. Her statement and Yu’s statement, read against the clinical record of that day, should provide Butt with a sufficient picture of the defence case to meet. She was also asked of reasonable alternative to GAT was explained to Butt. In the absence of any assertion in that respect, Butt is entitled to proceed on the basis that there was none.

(17)  This question is not necessary.

Questions 9 & 10:

(18)  Tran is asked whether she knew why arcute stain appeared in the right eye of Butt though GAT was performed on both eyes. She is also asked whether she was responsible for causing such tonometry disruption and, if yes, how.

(19)  Whilst her statement describes the agents and procedure involved in GAT and the finding of the arcuate corneal stain on the right eye of Butt after the tonometry, it is indeed unclear why and how that was resulted. Counsel’s reference to the expert opinion of Dr Jane Duffy does not answer the question concerning Tran’s own knowledge at the time.

(20)  These questions are therefore allowed.

Questions 11-14:

(21)  Regarding §8 of her statement, Tran is asked whether she obtained approval from Yu to perform eyelid eversion on Butt; whether she explained the purpose, procedure and risks to Butt; and whether she actually touched Butt’s eyelashes.

(22)  The picture relating to the above questions is obtainable from her statement and Yu’s statement.

(23)  Tran is asked whether she noted down specific consent of Butt to the procedure. Where there is neither assertion to that effect nor suggestion to that effect discernable from the clinical record of that day, Butt is entitled proceed on the basis that there was none.

(24)  These questions are not necessary.

Questions 15-16:

(25)  Tran is asked what Tran was doing with the cotton bud to Butt’s eye at the moment when he complained about discomfort, and whether she knew or, if she did not, asked about what caused the discomfort feeling at the time.

(26)  The statements and documents do not cast light on such factual issues. Nor does the reference by counsel to the expert opinion of Dr Jane Duffy assist on this factual issue.

(27)  These questions are allowed.

Question 17:

(28)  Tran is asked if she informed Yu that the eyelid eversion had not been completed and, if yes, when.

(29)  Her statement, read together with Yu’s Statement, should provide the necessary understanding in respect of what is asked.

(30)  This question is not necessary.

Question 18:

(31)  Tran is asked about any experience of truncating eyelid eversion on a patient at the Clinic due to complaint about discomfort prior to Butt’s consultation.

(32)  This interrogatory may well be viewed in conjunction with questions 15-16 in terms of the relevance of the answers. Her statement in relation to her past experience in terms of number of completed consultations, which counsel refers to, is quantitative in nature, which cast no light on the experience being asked about.

(33)  This question is allowed.

Questions 19-21:

(34)  Regarding §9 of her statement, Tran is asked whether she was aware of and considers the risk of the alleged cytotoxic ingredient of the Mydrin-P used for pupil dilation on Butt’s cornea. She is also asked if she reviewed Butt’s previous clinical records at the Clinic whereby the agent was not previously used on him for pupil dilation.

(35)  The case of the defendants is that Tran specifically consulted Yu for the use of such agent for pupil dilation, and Yu and Tran did consult the clinical history and evidence of Butt, including drug allergy and contradistinction for using Mydrin-P, before Tran was permitted to use that on Butt.

(36)  Tran is asked why she preferred using Mydrin-P on the day. However, it is never the suggestion in terms of preference.

(37)  These questions are not necessary.

Questions 22-23:

(38)  Regarding §11 of her witness statement, Tran is asked when she gave the warning about the side effects of mydriatic eye drops as well as the dilation of the pupils lasting for a couple of hours causing blurry vision and light sensitivity so that sunglasses would assist.

(39)  In her statement, Tran confirmed with reference to the clinical record on the day that she warned Butt of such side effect and light sensitivity. In her statement, Yu stated that she had confirmed with Tran that the latter had before instillation told Butt such side effect before obtaining Butt’s verbal consent to perform the procedure.

(40)  These questions are not necessary.

73.  The strict necessity test for administering interrogatories is premised on enabling the asking party to know and to prepare the case effectively or to reduce potential costs. Such grounds must be shown to be not merely existing but material before one concludes that without the answers from the party being asked at this stage, difficulty in securing fair disposal of the dispute would arise. It should also be borne in mind that interrogatories, particularly premature ones, could be a double-edged sword if they turn around to effectively guide the party being asked to better his case.

74.  As mentioned, what about this application which hits the nerve of the University and Yu is the unless order sought which prescribes the consequence of default in compliance being striking out of Tran’s defence and entry of judgment. Consequential order upon failure to comply is a matter of the discretion of the court: see O26, r6.

75.  This court is not minded to prescribe the consequence of default in compliance which is out of proportion in the circumstances, bearing in mind the significance of the answers to the interrogatories allowed to the sustainability and the overriding concern of fair disposal of the dispute. In the circumstances of this case, this court refrains from acceding to the application for the prescribed consequence of default. That said, Tran’s compliance is not without monitor, in view of the potential of committal for default pursuant to O26, r6(2), though that, if pursued by Butt, will become a matter between the court and her, and may not materially assist Butt in respect of the substance of the case.

76.  All things considered, the order in respect of this application is set out at the end of this decision.

The Expunction Summons

77.  The Expunction Summons came about as a result of the RRRAD, which was filed on 8 August 2022, in answer to the RRRASC. The RRRASC was filed on 30 May 2022 pursuant to this court’s leave granted on 27 May 2022 (“the 27/5/2022 Order”)[3] after CC has formally ceased to act for Tran. The RRRAD was thus filed on behalf of the University and Yu.

78.  By the 27/5/2022 Order, Butt was granted leave to amend the RRASC as per draft RRRASC annexed to his summons filed then, and in the following terms:

(1)  In §4(b), “floaters (eg grey specks)” was added as part of the symptoms absent from Butt before the appointment with the Clinic on the day in question.

(2)  In §12(a), “and/or D3” was added as the party, together with Yu, allegedly responsible for making the diagnosis during the ocular examination of Butt.

(3)  In §18A(a)-(b), abbreviations, grammar and sentence structure of the existing plea in relation to the alleged illegality of the practice were amended. Then (c) was added in these terms:

“The drug used in the GAT was Benoxinate. Because it is unlawful for D2 and D3 to possess and use of Benoxinate on P’s eyes, the consent P gave to D3 for GAT was also null and void for illegality.”

(4)  §53A was added in the following terms:

“The [Clinic] breached their duty of care to P.

Particulars of breach of duties

(a) Failing to require D2 to supervise D3 inside the consultation room to provide direct/on-the-spot supervision when D3 performed contact-type Ocular Examinations (including GAT, EE and DFE) that involve risks of harm; and

(b) Unreasonably permitted an unqualified person, D3, to independently conduct contact-type Ocular Examinations (including GAT, EE and DFE) on P, thereby exposing P to heightened risks of iatrogenic harm.”

(5)  §54 was amended, so that the University is allegedly liable for the negligence or breach of duty on the part of Yu and Tran not only on the basis that they were employed or engaged by the University to work at the Clinic but also on the basis that it is the body corporate having management and control of the Clinic.

79.  By the 27/5/2022 Order, the defendants were given leave to amend their then RRAD. The RRRAD should be filed within 21 days of the service of the RRRASC as mentioned. Leave was also given to file further amended reply, if so advised.

80.  Butt took issue as to various parts of the RRRAD, which are said to have exceeded the ambit of consequential amendments contemplated by the leave given. He has since indicated his readiness to consent to retrospective leave to the University and Yu to retain such amendments, if sought by the University and Yu, except for what the Expunction Summons now targets.

81.  On behalf of Butt, the following relief are sought:

(1)  of the RRRAD, §§0A-D, 1A-B, 3A (ie the 3^rd and 4^th sentences), 5(iv)-(v), 5A(ii)-(iii), 5C-H, 16, 22(x), 25A, 25B, 27, 31(iv)-(v) and 32(iii)-(v) be set aside for irregularity, redrafted, or otherwise dealt with in the way as the court shall think just;

(2)  any other directions as the court shall think fit;

(3)  costs of and occasioned by the application.

82.  It is readily apparent that the amendments introduced by the RRRAD, including the abovementioned objected amendments targeted by the present application (“the Objected Amendments”), far exceed what is reasonably expected as being brought about or necessitated by the amendments introduced by the RRRASC set out above.

83.  However, counsel for the University and Yu first categorises this as an issue of interpretation of the 27/5/2022 Order, suggesting that they are not prohibited by the order from introducing their amendments.

84.  As the court making the order, I see no interpretation issue as suggested.

85.  As much as Butt required leave of the court for introducing his amendments to his existing pleading (ie the RRASC), the defendants would have required leave to do the same, if so desired. Had there been no application by Butt to amend the RRASC in the first place, there would have been no basis for the defendants to amend their existing pleading (ie the RRAD) without obtaining leave: see O20, r3(1) and (2); r5(1).

86.  In granting leave to the defendants to amend the RRAD upon that to Butt to amend his then RRASC, this court indeed did not literally limit those to consequential amendments. However, it is the least expected that the parties may claim to have legitimately laboured under the misunderstanding that the defendants had a free hand in introducing whatever amendments to their pleading as they considered necessary without reference to the amendments to the claim which brought about the application and the order of this court. That there were such extensive amendments by way of the RRRAD is perhaps not surprising, in view of the change of counsel at that juncture. But that is irrelevant.

87.  Where the plaintiff is given leave to amend his claim, the defendant is not entitled, in the absence of express leave to do so, to introduce any amendments that he chooses. His implied right to amend his defence is limited to making only such amendments as are consequential upon the amendments made in the claim. It extends to amending only those parts of the defence which relate to allegations made in the statement of claim and does not extend to the parts which relate to allegations in the statement of claim not affected by the amendments made therein: see Squire v Squire [1972] Ch 391 (applied in Chow Ching Yee v Wong Hung Kee [2020] HKCFI 2555 at §§14-15); Hong Kong Civil Procedure 2025 at §20/4/8.

88.  That the intention of this court behind the leave for amendment of pleadings under the 27/5/2022 Order cannot be different from the norm in line with the above principle must be understood. Suggestion to the contrary is unacceptable.

89.  Now the Objected Amendments targeted are what Butt argues to be not permissible even for the purpose of retrospective leave now.

§§0A-D

(1)  These are new additions.

(2)  §0A is introductory, but is awkward and unnecessary in terms of what is expected of pleading in compliance with O18, rr7 and 12.

(3)  §0B contains the pleaded stance of the University and Yu to put Butt to strict proof of the RRRASC and to rely on the unverified defences concerning Tran as relevant to the issue of credibility at the trial. It has no pleading value and fails for the purpose of O18, rr7 and 12. See also Excel Concrete Ltd v The Concrete Producers Association of Hong Kong Ltd & Ors CACV 233/2013 (25 June 2014) at §13.

(4)  §0C contains the qualification that the amendments were made without prejudice to the right of the University and Yu to amend or plead further, and that such right is reserved. Such qualification does not thereby give them the right to do so other than pursuant to specific leave of the court. The qualification is self-serving and unnecessary.

(5)  §0D is a plea of intention to rely on the witness statement of Tran as hearsay evidence and her defence which has been verified by her statement of truth, namely the defence and AD. This fails for the purpose of O18, rr7 and 12. See Excel Concrete Ltd (above).

(6)  None of these amendments should be allowed.

§§1A-B

(7)  §1A is descriptive of the establishment of the Clinic at the campus of the University, the organizational relationship between them and provision of clinical practice opportunities to students.

(8)  Under §1B, in addition to the plea under §22(vi), particulars of the background and qualification of Tran before and after the exchange student programme are given, including her qualification to deal with topical medicines for the purpose of optometry practice. Legitimacy of reliance on these matters as relevant to factual issue of alleged competence of Tran may not be denied.

(9)  These amendments may stay.

§3A (the 3^rd and the 4^th sentences)

(10)  This paragraph serves to deny the plea in §4(b) of the RRRASC, namely the alleged absence of symptoms of seeing floaters on the part of Butt prior to the incident. The 1^st and the 2^nd sentences of this paragraph for such purpose are not objected to.

(11)  The 3^rd and the 4^th sentences relate to Butt’s consultation at Canossa Hospital on 16 July 2010 for the complaint about headache as well as the ophthalmologist examination result showing lack of ocular pathology related to the headache. As far as this serves to deny the plea in §4(b) of the RRRASC mentioned above, such events cast no light on how they are relevant as the preceding sentences could be. As counsel for Butt observes, if anything, they tend to support his client’s case.

(12)  The 3^rd and the 4^th sentences of this new paragraph may not stay.

§5(iv)-(v)

(13)  These are new additions.

(14)  They serve to deny §§4(c) and 48 of the RRRASC. §4(c) contains the plea in respect of Butt’s consultation of Dr Vincent Ng on 28 July 2015 and his subsequent symptoms. §48 contains some of the findings and opinion of the liability and causation medical expert engaged by Butt in such respects.

(15)  By the new (iv), the University and Yu introduce further averments of fact in relation to their denial with specific reference to Butt’s consultation with Dr Vincent Ng on 29 July 2015. That was the urgent appointment which Butt made due to the symptoms mentioned above. The alleged complaints and findings made during that urgent appointment are relevant to the defendants’ denial of the alleged symptoms resulting from the 28 July 2015 consultation.

(16)  §5(iv) may stay.

(17)  The further averment in §5(v) was introduced insofar as it is Butt’s pleaded case that he had lodged complaint to the Optometrists Board against Dr Vincent Ng on 1 September 2017 for failure to keep full medical records of the alleged acute symptoms of Butt. It is out of the blue and premature in the absence of actual pleaded case advanced by Butt for the time being.

(18)  §5(v) may not stay.

§5A(ii)-(iii)

(19)  Under section A2, §5A(i) and (ii) of the RRAD consist of plea in relation to the consultation of Dr Vincent Ng on 29 July 2015 mentioned above, which Butt pleaded in §§4(d)-(f) of the RRASC.

(20)  Now §5A(ii) is slightly amended to specify the already pleaded findings during that consultation to be the state of both eyes of Butt. This is uneventful and relevant.

(21)  §5A(iii) is newly introduced to aver to Butt’s complaint by email to Dr Ng on the day following the consultation mentioned above making allegedly the first complaint about pain in his right eye. This is relevant.

(22)  The amendments to §5A(ii) and the new §5A(iii) may stay.

§5C-H

(23)  Under section A3, §5B of the RRAD contained the averment in relation to the consultations with Dr Joseph Yeung on 31 July 2015 and Professor Jimmy Lai on 1 August 2015.

(24)  §§5C-D are newly introduced in relation to Butt’s summary of the findings of Dr Joseph Yeung to Dr Vincent Ng by email dated 31 July 2015 and the result of examination by Professor Lai on 1 August 2015. Both are relevant and not objectionable.

(25)  By the new §§5E-G, averment is made with reference to various other consultations and examinations conducted on Butt as well as their results. Together with the consultations and examination results pleaded before them, the plea ends with the contention under the new §5H that all of these optometrist and treating ophthalmologists were unable to find the cause of Butt’s alleged complaints. They are relevant.

(26)  §§5C-H may stay.

§16

(27)  This paragraph of the RRAD served to deny §12 of the then RRASC, which set out Butt’s reliance on the expert opinion of Dr Donald CF Woo, ophthalmologist, on the medical practice on the part of the defendants, referring to, amongst other particulars, the practice of diagnosis of eye disease made by Yu being unlawful. The amendment introduced to this paragraph by the RRRASC was merely to include Tran as the person responsible for making the diagnosis.

(28)  The plea in denial of that by §16 of the RRAD was that Butt did not have leave of the court to rely on such opinion of Dr Woo as expert. Now by the amendment of that paragraph in the RRRAD, the University and Yu aver that the court in fact refused leave to Butt to rely on such opinion.

(29)  The amendment does not occasion any material change in the stance or contention already pleaded. It may stay.

§22(x)

(30)  §22 under section B4 of the RRAD served to deny §22 of the RRASC, which contained the alternative contention in respect of the alleged unsupervised conduct of examinations by Tran. In respect of supervision of Tran by Yu at Butt’s consultation in question, §22(ix) referred to a complaint to the Optometrists Board in February 2016 against Yu, which was allegedly dismissed in December 2016.

(31)  The new subparagraph (x) introduced by the RRRAD contains the further averment insofar as Butt is pleading his other/further complaint to the Supplementary Medical Professions Council in June 2018 regarding the finding of the Optometrist Board mentioned above. This is premature in the absence of actual contention pleaded by Butt for the time being.

§§25A-B

(32)  Section C of the RRAD contained a single §25 in denial of the alleged negligence on the part of the defendants.

(33)  §§25A-B of the RRRAD are new additions setting out the specific contentions of the University and Yu in reliance of the expert opinion of Dr Jane Duffy.

(34)  In the context of clinical negligence, such plea with reference to medical expert evidence on liability and causation is not objectionable.

(35)  These paragraphs may stay.

§27

(36)  §27 of section C1 of the RRAD put Butt to proof of the causation issue. By the amendment introduced to this paragraph in the RRRAD, specific averments are made with reference to the opinion of Butt’s ophthalmology expert. For similar reason mentioned above, such amendments may stay.

§§31(iv)-(v); 32(iii)-(v)

(37)  Section C2 of the RRAD consisted of the defence in relation to the specific procedures conducted by Tran. §31 concerned eyelid eversion, and §32 concerned Goldmann applanation tonometry (GAT).

(38)  The addition of §31(iv)-(v) by the RRRAD introduces further averment by reference to the expert opinion of Dr Jane Duffy and Mr Ian Simmons.

(39)  The addition of §32(v) by the RRRAD introduces further averment by reference to the expert opinion and Butt’s complaints to Dr Vincent Ng on 29-30 July 2015.

(40)  For similar reasons explained above, these amendments may stay.

90.  Indeed, this court is prepared to treat the application for retrospective leave for the amendments in the RRRAD to have been made at this hearing, albeit not lodged formally by way of summons. As such, I give retrospective leave save and except those of the Objected Amendments which may not remain in any event. Hence the order in this respect set out below.

Conclusion and order

91.  In respect of the Verification Summons (as amended), I order that unless Tran files her statement of truth in respect of the RAD filed on 15 June 2020 and the RRAD filed on 23 October 2020 within 35 days from the date of service of this order, the amendments contained therein, insofar as the same concerns her, shall be struck out so that she shall be debarred from relying on or adducing evidence in respect of any of such versions of amended defence at the trial.

92.  In respect of the Interrogatories Summons (as amended), I grant leave to Butt to serve on Tran the interrogatories as per the copy annexed to the summons, namely questions 7, 9, 10, 15, 16 and 18; and Tran shall file answers to the interrogatories by way of affidavit filed and served within 35 days from the date of service of this order.

93.  In respect of the Expunction Summons, I find for Butt. However:

(1)  there be retrospective leave to the University and Yu to amend their RRAD in terms as set out in the RRRAD save and except §§0A-D, 3A (the 3^rd and the 4^th sentences), 5(v) and 22(x) thereof;

(2)  the University and Yu shall file and serve the RRRAD as further revised pursuant to (1) above (ie the RRRRAD) within 21 days from the date hereof;

(3)  leave to Butt to file and serve further amended reply in response to the RRRRAD filed pursuant to (2) above within 21 days thereafter.

Costs

94.  Whilst the Verification Summons and the Interrogatories Summons target Tran as the responsible defendant, albeit taken out and served on CC while CC were solicitors on record for all the defendants. In the circumstances, it is appropriate to order her to pay Butt’s costs of and occasioned by these applications with certificate for counsel.

95.  Whilst the University and Yu claim interest and locus to make representation, but they do so beyond assisting the court on the legal principles while Butt still succeeds on the substance, albeit partially. A fair order would be no order as to costs between Butt and the University and Yu in respect of these 2 summonses.

96.  Butt substantially succeeds on the Expunction Summons. The University and Yu have in October 2022 offered to resolve the disagreement by seeking retrospective leave in respect of the amendments in the RRRAD. That would have been seeking the indulgence of the court in the circumstances. The parties failed to do so by consent, as the University and Yu refused to give in on any of the objected amendments discussed above. Treating such application to have been taken out in this hearing, this court finds that they fail to secure the retention of all the Objected Amendments. In the circumstances, Butt remains substantially successful. The University and Yu shall therefore pay Butt his costs of and occasioned by the Expunction Summons and the application for retrospective leave for amending the RRAD in terms of the RRRAD with certificate for counsel.

97.  The above said, the costs order is still nisi, which shall in the absence of application within 14 days become absolute without further order of the court. Upon that, Butt shall lodge and serve his statement of costs in respect of these applications within 14 days whereupon the defendants may lodge and serve their respective comments in writing within 14 days thereafter. Upon receipt of the comments or the expiry of the time for doing so, the court will, unless directing otherwise, assess the costs summarily on paper without oral hearing.