POON KING WAI v. HOSPITAL AUTHORITY for and on behalf of PRINCE OF WALES HOSPITAL

HCPI 836/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 836 OF 2014

_________________________

_________________________

_______________

D E C I S I O N

_______________

1.  This is the Plaintiff’s application to nominate a new expert on liability.

BACKGROUND

2.  The Plaintiff initially instructed Professor Tse Hung Fat, a cardiologist from the University of Hong Kong, as his expert on liability.  Professor Tse produced his expert report on 7 April 2014.

3.  Professor Tse raised criticisms on the interpretation of an ECG which led to a delay in diagnosis.  However, he did not opine on the issue of causation, i.e. whether the delay of diagnosis, on balance of probability, caused any damages.

4.  This defect was raised by the Defendant. On 20 November 2015, I gave an order for the parties to arrange for a joint cardiology expert report on the issue of causation, condition and prognosis.

5.  However, when the Plaintiff approached Professor Tse in December 2015, he apparently said that his “Legal Aid quota for 2016 has been used up and that he would not be available for preparing a report until early 2017.”

6.  The Plaintiff therefore sought assistance from another cardiologist, Dr. Yip Wai Cheong.

7.  The case came before me again in February 2016. I directed that it would be undesirable for the Plaintiff to have one cardiology expert on standard of care and another cardiology expert on causation, condition and prognosis.  As Dr. Yip’s expert report has addressed both standard of care and causation etc., I saw no reason why Dr. Yip should not replace Professor Tse unless the Defendant has reasons to object.  As the solicitor for Plaintiff said that he would need to seek Counsel’s advice, I directed that the Plaintiff shall have leave to take out an application regarding such on or before 31 May 2016.

8.  The Plaintiff eventually took out the application on 1 September 2016.

THE MATTERS IN DISPUTE

9.  The objection raised by the Defendant was an objection to Professor Tse’s failure to discharge his duty as an expert, the delay in the Plaintiff’s part in handling the proceedings, “expert shopping” and prejudice to the Defendant.

10.  I share the Defendant’s concern with Professor Tse.  He apparently gave several versions of explanations of his behaviour.

11.  According to the 2^nd Affidavit of Ip Tung Shing for the Plaintiff, when asked about the “Legal Aid quota”, Professor Tse explained that this was not a “quota imposed by Legal Aid” but “an internal policy of the University of Hong Kong in limiting the time spent by their academics in providing expert service to legal aid cases.”

12.  But then on 22 November 2016, Professor Tse told Mr. Ip that “…due to increasing workload of his position in the University of Hong Kong and Queen Mary Hospital, he has actually decided in 2015 not to take up any further work as expert witness.  He has informed the Director of Legal Aid of the same, as a result, he would not be available as a witness in 2017 or any time after.”

13.  I find this truly regrettable if this is an accurate reflection of what the professor has said.

14.  Any experts nominated by the Court should be aware that an expert’s duty is to the Court: once he has been nominated by the Court, he has the duty to act and assist in the Court proceedings all the way to the conclusion of the case.  This is a sacred duty for the administrative of justice without which our courts cannot function, and therefore should not be undertaken lightly.

15.  As for the alleged “internal policy of the University of Hong Kong”, I have no further details or evidence besides what was stated in Mr. Ip’s 2^nd affidavit.  However, if this policy is a simple restriction of time that each academic is allowed to spend on such legal cases, then there is a serious problem.

16.  Quite simply, an expert’s time on a case cannot be limited in such a way.  There is no reliable way to predict how a case will proceed and thus how much assistance from an expert is required.  Sometimes, if the case settles early, it may only require a few hours of the expert’s time to prepare an expert report.  In other times, supplemental expert reports may be needed, or the case may proceed to trial and the expert may be called to give evidence which may take hours or even days.

17.  There should not be a policy that interferes in any way with an expert’s duty to the Court.  If a limit has to be imposed, a better policy may be to limit the number of cases that an expert can take up a year.  But once the expert has been instructed, there should be no interference with the expert’s duty to fully and properly discharge his duty to the Court.

18.  The legal process is such that sometimes, it is not as easy as “just instruct someone else” and this case illustrates that.  Professor Tse’s refusal meant that the whole legal proceeding is inadvertently delayed by 1 ½ years with legal costs (including Legal Aid fund), not to mention the time of this Court, all wasted.

19.  As for the Defendant’s submission regarding the delay on the part of the Plaintiff, I agree that there was some delay in recognising the defect in Professor Tse’s report, and there was also delay in taking out the current application.  Nevertheless, unless the Defendant could show prejudice, these can be compensated by costs.

20.  The Defendant also alleges that this is a case of “expert shopping”.

21.  I do not think so. The opinion of Dr. Yip is as “supportive” as Professor Tse’s regarding the issue on the interpretation of the ECG.  The Defendant’s real objection was that Dr. Yip has raised other allegations of breach in other hospitals and clinics.  I do not think this constitutes “expert shopping”: the fundamental reason for instructing Dr. Yip was because Professor Tse has quitted.

22.  As for the Defendant’s allegation of prejudice, Mr. Ashok Sakhrani, Counsel for the Plaintiff, pointed out that only vague allegations of “lost memories” or “difficulties in tracing witnesses” were advanced with no evidence of any specific incidents.

23.  Mr. Kam Cheung, the Defendant’s Counsel, rightly conceded that he really had no evidence to support the claim for prejudice.

24.  As I already indicated during the hearing, the situation of the case is such that I do not have any other choice other than directing Dr. Yip to replace Professor Tse as the Plaintiff’s expert in liability and causation. There has been enough delay already and the case needs to go forward.

25.  The only remaining issue is costs.

26.  There are two sets of costs involved in this application: the costs of and occasioned by the application itself, and the costs of this hearing.

27.  The rationale of differentiating the two sets of costs is that in an application when indulgence of the Court is sought, if the Court routinely allows costs to follow the event, this will encourage the other side to a try-on to resist no matter what since, win or lose, they will get their costs anyway. (Yam J in Lessy SARL v. Pacific Star Development Ltd [1996] 2 HKC 326, Deputy High Court Judge A Cheung (as he then was) in Man Fong Hang v. Man Ping Nam and Others HCA 7935/1998).

28.  Mr. Sakhrani argued that the Defendant should not have resisted the application: this was clearly not a case of “expert shopping” and it was due to the Defendant’s opposition that Counsel was instructed for the application.  Indeed, the entire submission of Mr. Sakhrani was spent on arguing for the application, and yet Mr. Cheung, on his submission, almost immediately conceded that there was no evidence that the Defendant suffered any prejudice.

29.  I agree. Professor Tse might have initially provided an unsatisfactory (and possibly misleading and untrue) excuse but by the time the 2^nd Affidavit of Ip Tung Shing was filed and served on 29 November 2016, it should be clear that Professor Tse was quitting and there would be no choice.  The Defendant should have consent to the application with costs to be argued, if needed.

ORDER

30.  I will give the following orders:

a)   Leave for the Plaintiff to nominate Dr. Yip Wai Cheong as his cardiology expert in place of Professor Tse Hung Fat;

b)   Leave for the Plaintiff to amend the Statement of Claim dated 18 August 2015 and to file and serve the same within 28 days of this order;

c)   Leave for the Defendant to amend the Defence and file and serve the same 28 days thereafter;

d)   Parties shall, within 14 days of this order, proceed to fix an earliest date for a Check List Review hearing; and

e)   Costs of and occasioned by the Plaintiff’s Summons dated 1 September 2016 be to the Defendant except the costs after 29 November 2016 up to and including the substantive hearing on 29 May 2017 be to the Plaintiff with certificate to Counsel. All costs are to be taxed if not agreed.