SEAN LEONARD v. HONG KONG HOSPITAL AUTHORITY AND OTHERS

DCPI 1180/2021

[2023] HKDC 1249

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1180 OF 2021

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BETWEEN

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DECISION

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1.  This is an appeal by the plaintiff filed on 11 April 2023 against an order made by Master Louise Chan (“the Learned Master”) on 24 March 2023 that:

“The costs of and occasioned by this action, which was discontinued on 3 March 2022, be payable by the plaintiff to the defendant, to be taxed if not agreed.” (“the Cost Order”).

2.  According to the Notice of Appeal and the Affidavit of the plaintiff, the plaintiff seeks the following:

a. The Cost Order be set aside and there be no order as to costs for the entire action, including this appeal and the hearing;

b. Alternatively, each party shall bear their own costs for the entire action including this appeal and hearing; and

c. Alternatively, costs of and occasioned by the entire action including this appeal and hearing be payable by the defendants to the plaintiff.

Background

3.  This is a medical negligence claim. The plaintiff is acting in person.

4.  In summary, the plaintiff’s case was that:

a. He underwent an oesophago-gastro-duodenoscopy (“OGD”) on 30 April 2018 under the care of the defendants (being the Hospital Authority, two attending doctors (“the Two Doctors”) and a nurse (“the Nurse”)) for investigation into the plaintiff’s “complaints of the stomach” and “other internal midsection pains” (see paragraphs 2-7 of the Statement of Claim).

b. Just before the OGD, the Nurse attempted to place a “bite guard” into his mouth (“the Mouth Guard”) but he refused because he was concerned that this would damage his fixed upper front bridge.

c. Despite his refusal and attempt to prevent the nurse, one of the Two Doctors or the Nurse immediately injected him with a sedative and the plaintiff lost consciousness (see paragraphs 9 - 12 of the Statement of Claim).

d. When he recovered from the OGD later that day, he noticed that the front row of his upper teeth contained in the fixed bridge had become loosen.

e. The plaintiff attended a follow-up at the clinic for the result of the OGD on 8 May 2018 and he had raised the complaint of his loosened bridge and that he expected the clinic would repair the damage. The attending doctor told him “that he should ask his own private dentist to repair the damage and she then issued a referral letter”.

f. The plaintiff attended his family dentist, Dr. Tony T.Y. Hsu (“Dr. Hsu”) on the same day and interim remedial work was performed the day after. Unfortunately, the plaintiff has other pre-existing medical condition which required consultation of other specialists which resulted in a treatment protocol over a long period of time, with the replacement complete denture (removable denture) finally done in April 2021.

Chronology of the legal procedure

5.  The plaintiff issued a letter before action to the defendants on 31 March 2021. However, the letter before action did not contain any medical reports, medical records or expert reports (contrary to paragraph 15 of Practice Direction 18.1).

6.  The defendants’ solicitors wrote to the plaintiff on 23 April 2021 seeking further information, and noting that the action might be time barred by 30 April 2021, offered not to raise a limitation period defence until further notice in order to allow time for the plaintiff to obtain further information and for constructive pre-action discussion.

7.  The plaintiff nevertheless issued a writ on 27 April 2021 and serve the same on the defendants on 30 April 2021.

8.  On 11 May 2021, the defendants wrote to the plaintiff:“in order to allow you to have sufficient time to obtain the relevant documents and our clients to investigate the matter upon receiving the documents to be received from you and to communicate with you further on your intended claim” and proposed to stay the proceedings for 4 months until 20 September 2021 for the plaintiff to file and serve the Statement of Claim.

9.  However, the plaintiff filed and served the Statement of Claim on 20 May 2021 together with a medical report by Dr. Hsu, i.e. his own attending dentist (report dated 3 May 2021).

10.  The defendants wrote to the plaintiff on 31 May 2021 requesting the plaintiff to serve an independent expert report of his claim on both liability and causation and a Statement of Damages.

11.  The court ordered on 6 July 2021 for the plaintiff to file and serve his Statement of Damages and independent expert report on or before 6 October 2021, and for the defendants to file and serve their Defence 56 days thereafter.

12.  The plaintiff duly filed and served the Statement of Damages and independent expert report on 6 October 2021. The plaintiff’s expert was Dr. James Donald Greig (“Dr. Greig”) who signed his expert report as a “Specialist in Surgery”.

13.  The plaintiff was absent from the Check List Review hearing on 27 October 2021. The Defendants sought an extension of time to file and serve the Defence.

14.  According to the Defendants, they were concerned that the plaintiff’s expert, being a “Specialist in Surgery”, might be different from the speciality of the defendant doctor supervising the relevant procedure in this case (who is a “Specialist in Gastroenterology and Hepatology”) and wished to raise this at the Check List hearing. However, the plaintiff did not attend this hearing so this matter could not be dealt with at that time.

15.  On 7 December 2021, the court ordered the Defendants to report to the PI Master the field, speciality and name of their expert in respect of liability and time for compiling the expert report on liability by 21 December 2021, and for the Defence to be filed and served on 25 January 2022.

16.  The defendants duly informed the court on 21 December 2021 confirming that they would appoint Dr. Hui Yee Tak, a Specialist in Gastroenterology & Hepatology (“Dr. Hui”), and that the expert report would be ready within 42 days.

17.  The defendants duly filed and served their Defence on 24 January 2022 and disclosed Dr. Hui’s expert report (dated 8 December 2021) to the plaintiff on 14 February 2022.

18.  On the next day (15 February 2022), the plaintiff took out a Summons with supporting affidavit seeking to discontinue the action against the defendants.

19.  The Summons was heard on 3 March 2022 and the Learned Master granted leave for the plaintiff’s claim against all defendants be discontinued and to have all claims against all defendants withdrawn, and ordered costs of the said Summons and the action to be dealt with on paper submissions.

20.  Both parties had made submissions on paper and, the Learned Master made the Cost Order on 24 March 2023.

21.  The plaintiff filed the Notice of Appeal against the Cost Order on 11 April 2023.

22.  The hearing for the appeal was initially fixed for 27 June 2023. However, the plaintiff submitted during that hearing that he was not aware that he would need to enclose all relevant authorities with his submission that he would be relying upon. Therefore, the court adjourned the hearing until 24 August 2023 to allow the plaintiff to lodge and serve a bundle of relevant authorities, which he duly did.

Legal principles of an appeal as to costs

23.  It is trite that:

“In general, a judge in chambers will not allow an appeal from a master’s costs order unless it is unreasonable or the master erred in law: Hoddle v. CCF Construction [1992] 2 All E.R. 550…” (Hong Kong Civil Procedure 2023 paragraph 58/1/6)

24.  In Paul Y - ITC Construction Ltd v Kin Shing Co Ltd [1999] 1 HKC 511, His Honourable Justice Sakhrani J affirmed the application of this principle and observed:

“As this is an appeal as to costs only from the discretion of the master such application should not be allowed unless it can be shown that the order made by the master was unreasonable or erred in law, i.e. if he either failed to take into account proper matters or took into account matters that should not have been taken into account.”

The plaintiff’s grounds of appeal

25.  According to the Affidavit of the plaintiff dated 11 April 2023 in support of the appeal, and upon further submissions and confirmation by the plaintiff in court, the grounds of appeal can be summarised as follows:

a. The Cost Order was made “untimely and / or out of time”;

b. The wrong rule (Order 21 Rule 5) was mentioned in a letter from the Clerk to Learned Master to the parties dated 24 March 2023 (“the Letter”);

c. The Learned Master failed to take into account of “highly questionable” conduct by the defendants’ solicitors; and

d. There were “good reasons” / “exceptional circumstances” for the court to depart from the general principles regarding costs.

The Cost Order made “untimely and / or out of time”

26.  The plaintiff referred to Practice Direction 37 concerning the handling down of reserved judgment in District Court which stated under “A3: Masters”:

“9. Whilst masters are expected to be able to deliver judgment at the conclusion of the hearing…in the event that judgment was reserved, the judgment will be handed down within 3 months after the conclusion of the hearing.”

27.  First of all, I note that the learned Master has sought written submissions from both parties on costs on 3 March 2022, the written submissions of the defendants was filed on 12 May 2022 and the plaintiff on 30 June 2022.

28.  As such, if PD37 was applied, the judgment / decision should ideally be handed down by 30 September 2022. Thus, the delay as such was less than 6 months, not 1 year as suggested by the plaintiff.

29.  Secondly, I also note that this was during the period of Covid when there were many restrictions in court procedures, which might explain the delay of many legal processes.

30.  Thirdly, and most importantly, a practice direction is no more than a supplemental protocol or guidelines to regulate court procedures to lay down directions and advice on how such court procedures should function. As such, it is clearly not a “law” and any inadvertent and relatively minor departure from it (such as a delay in handing down a decision for 6 months) cannot be considered, by any means, as an error in law.

31.  I may point out that, as stated above, the plaintiff, having failed to serve required information and documents (e.g. an independent expert report on liability), with his letter before action and thereafter, has also himself departed from the guidelines of PD18.1 regarding “Pre-Action Protocol”. Indeed, he only complied with the Practice Directions when he filed and served Dr. Greig’s expert report on 6 October 2021, which was more than 6 months after the letter before action. However, by then, the plaintiff has already commenced proceedings despite the clearly constructive reply from the defendant. This is, by itself, another non-compliance of the Pre-Action Protocol by the plaintiff which might likely incurred unnecessary costs. Indeed, the defendants were aware of the limitation period issue of the claim and has offer constructive steps in an attempt to comply with the spirit of the Pre-Action Protocol (see paragraph 21 of PD18.1).

32.  I would therefore dismiss this as ground for appeal.

The wrong rule being mentioned in the Letter

33.  The Letter stated that the Learned Master has made the following order:

“Upon reading the respective submission on costs from the plaintiff and the defendants, the court considered that there are no exceptional circumstances to depart from the general principles under Order 21 Rule 5 of the Rules of District Court, which governs costs when an action is discontinued or withdrawn. As such, the court ordered that the costs of and occasioned by this action, which was discontinued on 3 March 2022, be payable by the plaintiff to the defendants, to be taxed if not agreed.”

34.  The plaintiff argued that Order 21, rule 5 was concerned with “Stay of subsequent action until costs paid” and should not apply to the Cost Order. He argued that, therefore, the wrong law was applied.

35.  When one turns to the Rules of the District Court (Ch. 336H), although Order 21, rule 3 concerns with “discontinuance of action etc., with leave”, it was rule 5(1) which deals with the costs of such discontinuance:

“Where a party has discontinued an action…and she is liable to pay any other party’s costs of action…or the costs occasioned to any party by the claim withdrawn, then, if, before payment of those costs, she brings an action for the same…cause of action…the Court may order the proceedings in that action to be stayed until the costs are paid.”

36.  The rule is somewhat misleadingly titled “Stay of subsequent action until costs paid” probably because the rule serves two purposes: the first part states the general principle that the discontinuing party pay the costs of the other parties but the second part goes on to allow the court to order certain proceedings to be stayed until costs are paid.

37.  I also note that the “exceptional circumstances to depart from general principles” is referred to in the commentary under paragraph 21/5/12A of Hong Kong Civil Procedure 2023 (which gave examples of “good reasons” for departures). The paragraph is listed under paragraph 21/5, which normally meant commentary to Order 21 rule 5 (in fact the top left corner of that page contains paragraph 21/5/21A (P.610) also stated “O.21, r.5”). However, the paragraph is rather confusingly titled “Terms for grant of leave - costs (r.3)”.

38.  I think this might be the cause of confusion. In fact, I was myself slightly confused in thinking that the cost order should be under rule 3 when glancing at such rules during the hearing. It is now clear to me that whilst the leave for discontinuance should be granted under rule 3, the general principle for costs order under the circumstances is mentioned in rule 5(1).

39.  As such, the Learned Master clearly did not apply the wrong rule and I would therefore dismiss this as a ground for appeal.

Allegations against the defendants’ conduct

40.  The plaintiff raised various complaints against the conduct of the defendants, or more specifically, the defendants’ solicitors.

41.  One example of such “questionable conduct” given by the plaintiff was:

“an admission by Ms. Lee of Kennedy that she in fact did not have instructions from her clients to make application for disqualification of the plaintiff’s medical expert…although she and her supervising partner, Ms. Cho had engaged with plaintiff in substantial voluminous of disingenuous and needless communications on the subject…costs of the hearing were awarded to the plaintiff…”

42.  During the hearing, Ms. Lee, solicitor for the defendants, explained that the defendants decided not to contest the expertise of Dr. Greig at that stage.

43.  I cannot see how that amounts to any misconduct.

44.  The defendants were not improper to raise a concern about the expertise of Dr. Greig and whether his expert opinion satisfied the Bolam Test. However, deciding whether to contest that matter at the interlocutory stage (perhaps affording a chance for the plaintiff to instruct another expert in the same speciality as the defendant doctors thus avoiding any contest in this aspect at trial) or at trial was a balancing act between tactics and time / cost consideration.

45.  If, after relevant legal advice from their solicitors, the defendants instructed that they would not contest the matter at that stage, I see nothing wrong with that.

46.  In fact, by raising such an issue early, the defendants have given a fair warning to the plaintiff that he would risk a challenge as to the expertise of his expert. As such, if the defendants were to raise such a challenge at trial, it could not be seen as any “ambush” tactics.

47.  I see nothing that remotely amounts to “questionable conduct” here on part of the defendants and their solicitors.

48.  Another example of “questionable conduct” raised by the plaintiff concerned an exchange between the Learned Master and Ms. Lee during the hearing on 7 December 2022.

49.  From the transcript:

“Court: …I would like to know when now I can ask the defendant to…the deadline filing defence 25 Jan 2022, the expert report on liability, do you have a timeframe as to when that can be submitted?

Ms. Lee: You mean the expert report?

Court: Yes.

Ms. Lee: Sorry, I cannot say.”

50.  The plaintiff suggested that Ms. Lee was misleading the court because the Dr. Hui’s expert report (later disclosed) was dated 8 December 2022, i.e. the day after that hearing.

51.  Again, I cannot see how this amounts to any misconduct or any attempt to mislead the court. The court has simply asked to see if Ms. Lee could provide a time frame to submit their expert report, and having not received the expert report at that stage, there was nothing wrong about Ms. Lee admitting that she could not say anything regarding the expected time frame.

52.  A further example given by the plaintiff on alleged “questionable conduct” of the defendants concerned a letter dated 21 December 2021 from the defendants’ solicitors to the clerk of the Master (with copy to the plaintiff) which stated, amongst others:

“The defendants write to inform the court and the plaintiff that they have instructed Dr. Hui Yee Tak…as their liability expert. The report on liability will be ready within 42 days.”

53.  The plaintiff claimed that this was “a bland-faced lie” because Dr. Lee’s expert report, when disclosed eventually, was dated 8 December 2021. And the plaintiff also claimed that this was “delaying tactics” by withholding the disclosure of the report.

54.  I disagree.

55.  The letter only stated that the report would be “ready” within 42 days. It did not say that they have not received the expert report.

56.  Ms. Lee explained that they were still seeking instructions from their clients at that stage. I see nothing wrong with that.

57.  I would think that when the solicitors first received an expert report, it would be usual (and indeed, good practice) for them to peruse it carefully to check for mistakes and typos, and to make sure that the expert has abided by the instructions given (e.g. has properly applied the legal tests on liability and causation) and has prepared the report in the correct format in accordance with the practice directions (e.g. proper declarations given) etc. Of course, the solicitors would also need to disclose the report to the clients in order to seek instructions before release.

58.  I think that this would be all part and parcel of the care and work needed before the expert report should be deemed “ready” for release.

59.  Given that the defendants in this case involves the Hospital Authority, two medical doctors and a nurse, it does not occur to me that there was anything unusual for the solicitors to seek this length of time so as to err on the side of caution (e.g. busy schedules of the client doctors and nurse during Covid, as I may imagine) so not to risk breaching any deadlines imposed by the court.

60.  The defendant eventually disclosed Dr. Hui’s expert report on 14 February 2022. I do not see any unreasonable delay in this and no evidence was tendered by the plaintiff to support his claim that this was “delaying tactics”.

61.  Indeed, as stated in paragraph 31 above, the plaintiff himself might be considered to have caused delay in the proceedings when he failed to comply with PD18.1. for more than 6 months.

62.  Importantly, any alleged delay in the release of Dr. Hui’s expert report has nothing to do with the plaintiff’s reasons to discontinue the claim, which was that:

“…plaintiff was advised by his cardiologist…and his psychologist…that he should “remove himself from the District Court case as soon as possible for the protection of his health and longevity” for fear of further atrial fibrillation attacks, which may lead to even more serious heart conditions.” (Paragraph 3 of the plaintiff’s submission on costs dated 29 June 2022)

63.  In fact, all these allegations of “questionable / egregious conduct” on part of the defendants were already placed before the Learned Master (paragraph 18 of the plaintiff’s Submission on Costs) and the plaintiff was simply attempting to “re-argue” exactly the same points before this court in the appeal.

64.  Further, even when such allegations are now re-examined, this court finds no misconduct on the part of the defendants nor their solicitors, let alone any serious degree of misconduct that requires this court to consider imposing a wasted costs order, or reporting the matter to the Law Society and Department of Justice etc. as apparently suggested by the plaintiff.

65.  Instead, I find that the conduct of the defendants and their solicitors was all along in accordance with the spirit of PD 18.1 in order to save costs and time.

66.  I would therefore also dismiss this ground of appeal.

Exceptional circumstances

67.  The plaintiff argued that his application for discontinuance was one of those “exceptional circumstances” which should persuade the court to “depart from the general rule” (as stated under paragraph 21/5/12A of the Hong Kong Civil Procedures 2023).

68.  In particular, the plaintiff confirmed in court that his argument was that his claim was “highly meritorious” to the extent that “his case is so strong that he is bound to win had it gone to trial and therefore he was justified in commencing the action in the first place” (as per paragraph 21/5/12A as above) and only the change of circumstances of ill health prevented him from pursuing the action further.

69.  The plaintiff further submitted that his alleged “insertion of the Mouth Guard against will” incident was “confirmed by subsequent correspondence”.

70.  However, I note that these allegations were specifically denied by the defendants in paragraph 6(b) of the Defence:

“…It is specifically denied that the plaintiff explained to the endoscopy nurse that he did not want to have a plastic object inserted into mouth…nor did he raise that he was concerned that the device could damage…a fixed upper frontal bridge. The endoscopist or the endoscopy nurse did not act against the plaintiff’s wish to forcefully insert the plastic mouth guard into the plaintiff’s mouth.”

71.  In fact, the “subsequent correspondence” referred to by the plaintiff appeared to be from the medical report by the plaintiff’s own attending dentist, Dr. Hsu, who stated:

“Mr. Leonard explained to me…the nurse had indicated…that she wished to insert… “bite guard” …He also indicated that there had been no prior warning…

Mr. Leonard told me that he told the nurse that he did not want the device to be inserted into his mouth…Whilst protesting…Mr. Leonard told me that, without any warning or further discussion, he was immediately rendered unconscious…” (my underlining)

72.  Dr. Hsu took care to make it clear that he was stating what the plaintiff had told him. As such, these were no more than “hearsay” evidence which would only go to show, at most, that this was what the plaintiff told Dr. Hsu, but would not lend much support as to the truthfulness of what was said.

73.  Clearly, there are substantial factual disputes between the parties regarding this alleged “insertion of the Mouth Guard against the will” incident.

74.  Secondly, the plaintiff submitted that the experts were in agreement and, as such, his claim was highly meritorious.

75.  Having perused both expert reports, I do not agree.

76.  For example, I note that Dr. Greig opined that:

“fully informed written consent was not obtained…as none of the literature provided to the patient or explained at the consultation involved the discussion regarding the insertion of a necessary mouth guard.” (Summary, first paragraph of Dr. Greig‘s expert report).

77.  However, Dr. Hui opined that:

“The failure to obtain an informed consent about the use of mouth guard should not be regarded as below standard for the following reasons…the mouth guard is expected to protect the teeth rather than causing damages…it is not a standard practice worldwide to obtain a separate consent for insertion of mouth guard…the use of mouth guard is usually not mentioned in most of patient’s information sheet, including those from the international society, like the American Society for Gastrointestinal Endoscopy…” (paragraph 1 under Comments of Dr. Lee’s expert report)

78.  In short, Dr. Hui’s opinion was that in accordance with the usual relevant standard of care, there was no need to obtain informed consent regarding the insertion of the Mouth Guard.

79.  Further, Dr. Hui’s view was that the use of the Mouth Guard was precisely to avoid dental injury (Paragraphs 1 and 6 under Comments in Dr. Hui’s expert report). As such, Dr. Hui’s opinion completely countered the plaintiff’s claim: the purpose of inserting the Mouth Guard was to protect the denture rather than risk damaging it, so it follows, rather ironically, that any failure to insert the Mouth Guard would have increased the risk of damage to the plaintiff’s dental bridge and would instead be considered below the standard of care.

80.  There are clearly major disputes between the experts regarding the issue of informed consent.

81.  Further, Dr. Hui also raised questions as to the issue of causation:

“the alleged dental injuries of mobile crown were most likely due to the biting force of pre-existing weakened teeth onto the mouth guard, rather than directly contributed by the endoscopic procedure itself, or inappropriate manipulation of the mouth guard.” (Paragraph 5 under Comments in Dr. Hui’s expert report)

82.  Regarding this same issue of causation, Dr. Greig opined:

“…it is implied that this is a procedure related complication” (under Post Procedure of Dr. Greig’s expert report).

83.  Dr. Greig appeared to have based his opinion on the temporal proximity between the time of discovery of loose bridge and the OGD (as alleged by the plaintiff). Indeed, one may question whether this opinion properly satisfies the correct legal test in causation in negligence.

84.  As a passing comment, this may serve as an example of why an expert report when first received may not be “ready” to be disclosed: sometimes further clarifications may need to be sought from the expert to ensure that he has fully understood and correctly applied various legal tests in the report.

85.  Obviously, this court is not conducting a “mini-trial” on the strength of each party’s case so there is no need to go further into each expert report, but the selected quotes above are sufficient to demonstrate that the plaintiff has been far from being truthful when he suggested to the court that the experts were in agreement.

86.  Given that there are major disputes regarding the facts of the case as well as experts’ opinion on both the issues of liability and causation, the plaintiff’s case is obviously very far from being “so strong that he is bound to win had it gone to trial”.

87.  Again, such arguments have been submitted before the Learned Master in the plaintiff’s Submission on Costs (paragraphs 8-13) and such are repeated again before this court.

88.  Even when this court revisited the same arguments, I find that the plaintiff has failed to provide good reasons for the court to depart from the general principles under Order 21 Rule 5 that costs should follow the event.

89.  I would therefore also dismiss this ground of appeal.

Conclusion

90.  This court finds nothing to show that the Cost Order was unreasonable, that the Learned Master either failed to take into account proper matters or took into account matters that should not have been taken into account, or that she has erred in law.

91.  I would therefore dismiss the plaintiff’s appeal and the Costs Order do stand.

92.  Further, I order that the cost of and occasioned by this application be paid by the plaintiff to the defendants, to be taxed if not agreed.