WAN SAI PING AND ANOTHER v. HONG KONG BAPTIST HOSPITAL

DCPI510/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 510 OF 2006

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D E C I S I O N

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1.  After the Plaintiff disclosed the 2 medical expert reports as to liability, the Defendant withdrew the second application to strike out the Plaintiffs’ Statement of Claim.  The parties cannot agree on the costs of the application and this is the matter that I have to decide this morning.

2.  This action is about the outbreak of SARS in 2003.  During the SARS crisis, the deceased was admitted to the Defendant hospital.  The deceased contracted the SARS virus from the other patients or medical staffs in the Defendant hospital and died as a result.  The Plaintiffs therefore brought the present action for negligence against the Defendant. 

3.  The Defendant made the first striking out application by summons dated 15 May 2006.  In short, the attack on the pleading was then based on two fronts.  Firstly, the pleading was embarrassing or defective and secondly, there was no expert medical report as to liability to prove matters such as the possible route of transmission of the SARS virus and the appropriate actions that the Defendant hospital should have taken which could have prevented the transmission of the SARS virus to the deceased.  After hearing the submissions, I refused to strike out the Statement of Claim.  In respect of the attack on the pleading issue, I accepted the Defendant’s argument.  However, I refused to strike out the claim and granted leave to the Plaintiffs to amend the Statement of Claim.  Regarding the attack on the expert report, the Plaintiffs’ counsel at that time, Mr Wong Po-wing, indicated to the court that the Plaintiffs would adduce a medical expert report on liability in due course.  I therefore took the view that the Plaintiffs should be given such opportunity to adduce further evidence to substantiate their claim and so I refused to strike out the Statement of Claim.

4.  The Defendant made the second striking out application on 29 October 2007.  Prior to the taking out of this application, the Defendant’s solicitors wrote to the Plaintiffs’ solicitors alleging that the Amended Statement of Claim was still defective.  In the said letter, the Defendant’s solicitors did not include the attack based on the lack of medical expert evidence.  Neither did the Defendant’s solicitors ask the Plaintiffs’ solicitors to agree on a timetable for the filing of medical expert evidence.

5.  In fact, the Plaintiffs’ solicitors had obtained an expert report as to liability from Professor Wong Tze-wai in June 2007, but they did not disclose the report to the Defendant.  The second striking out application came before me for direction on 2 November 2007.  In the subsequent hearing for argument before myself on 10 March 2008, the Defendant expressly relied on the lack of expert medical evidence as a ground for striking out the claim, and it was only by that time that we knew about the Plaintiffs’ expert report.  After the disclosure of the 2 medical reports made by Professor Wong, the Defendant withdrew the second striking out application on 19 June 2008.

6.  In the first striking out application, I have already emphasised that expert medical evidence is crucial for the Plaintiffs to establish matters such as possible route of transmission of the SARS virus and the appropriate precautions that the Defendant hospital should have taken during the outbreak of the SARS virus.  Without such evidence, the Plaintiffs’ claim simply cannot succeed.  However, no direction has been sought relating to the filing of expert evidence.  What was more unfortunate was that the Defendant’s solicitors had not included the complaint of the lack of expert evidence as a ground in the letter sent to the Plaintiffs’ solicitors before the second striking out application.

7.  Without hearing the full argument on the second striking out application, I can only proceed on the basis that the lack of expert evidence is the main attack for the second striking out application, otherwise the Defendant would not have withdrawn the summons after perusing the Plaintiffs’ expert reports.

8.  As to whether the Plaintiffs should have adduced the expert report earlier which could have prevented the second striking out application, I take the view that both parties should bear some responsibility for that.  Although there was no timetable for the filing of the expert reports as to liability, the Plaintiffs’ solicitors should have disclosed the report to the Defendant earlier.  They have already received warning in the first striking out application that such report would be crucial to the Plaintiffs’ claim, and so the expert report should have been disclosed as soon as possible.  For the Defendant’s solicitors, they were informed in the first striking out application that the Plaintiffs intended to adduce medical expert evidence, and so the Defendant should have asked for a timetable for the filing of such expert reports.  Even if they took the view that it was the duty on the part of the Plaintiffs to disclose the expert report, the Defendant’s solicitors should have included such complaint as a ground for striking out in the letter before the second striking out application. 

9.  In my judgment, both sides should bear some responsibility for the costs wasted by the summons, and I therefore order that there be no order as to costs of the second striking out application. 

DCPI510/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 510 OF 2006

D E C I S I O N

1.  This is the second application before me for striking out the Statement of Claim.  In the first application before me, the Defendant argued that the Statement of Claim was embarrassing.  I agreed with the Defendant’s contention, but instead of striking out the pleading, I granted leave to the Plaintiffs to amend the Statement of Claim. 

2.  The present dispute arises out of the outbreak of SARS in Hong Kong in 2003.  It is the Plaintiffs’ case that the deceased contracted the SARS virus during his stay in the Defendant’s hospital and he died as a result.  The Plaintiffs argue that the deceased’s death was caused by the negligence of the Defendant. 

3.  In the first striking out application, there was an issue as to whether the Plaintiffs can prove the route of transmission of the SARS virus and whether the Plaintiffs can prove that deceased’s negligence has caused the contraction of the SARS virus on the part of the deceased.  It is always the Defendant’s contention that, pursuant to Practice Direction 18.1, the Plaintiffs were required to serve, with the Statement of Claim, a copy of an expert medical report as to liability and causation.  In the absence of such expert report, the Defendant argues that the Plaintiffs cannot prove their case at the trial and so the claim should be struck out.  In the first striking out application, Mr P.W. Wong, then counsel for the Plaintiffs, conceded that expert report as to liability and causation was essential to the Plaintiffs’ case, and such report would be supplied to the Defendant once it was available.  On this basis, the Plaintiffs should be given a chance to prove their case at the trial, and the claim was not struck out in the first striking out application. 

4.  Apparently no expert report was filed after the first striking out application, and the Defendant therefore made the second application to strike out the same claim.  The second application first came before me on 10 March 2008.  On that particular occasion, Mr Fong, counsel for the Plaintiffs, informed us that the Plaintiffs’ expert report was actually ready, and so the hearing was adjourned to enable the Defendant to peruse the expert report first.

5.  In the expert report, Professor Wong, the Plaintiffs’ expert, relies on certain facts included in the various correspondence and statements to prove that the deceased probably contracted the SARS virus from the in-patient who shared the same ward with the deceased, and the Defendant should have taken certain measures to prevent the deceased from contracting the virus from this particular patient.  Before proceeding with the second striking out application, Mr Fung, counsel for the Defendant, asks the Plaintiffs to disclose the statements relied on by Professor Wong in his report.  These statements contain a lot of factual information which forms the factual basis of Professor Wong’s opinion. After perusing these statements, the Defendant would then reconsider its position on the striking out application.

6.  Mr Fong for the Plaintiffs concedes that the statements and the documents requested by the Defendant should be disclosed in due course.  However, as it is the burden on the part of the Defendant to prove a plain and obvious case in striking out a claim and that the Plaintiffs’ claim is bound to fail, the court should not ask the Plaintiffs to prove all their case at this stage.  Further, ordering the Plaintiffs to disclose the documents now is oppressive.  However, Mr Fong agrees that if the statements eventually disclosed by the Plaintiffs do not support the factual basis relied on by Professor Wong for his opinion, then the Defendant is free to make the third application for striking out the claim. 

7.  In my judgment, the Plaintiffs should disclose the statements relied on by Professor Wong before the court proceeds to hear the second striking out application.  Whether the Plaintiffs can prove the route of transmission and causation has all along been the crucial issue in both striking out applications.  As the Plaintiffs concede that they need to rely on expert evidence to prove such issue at the trial, the contents of the expert report are very relevant to the issue before the court in this striking out application.  As the Plaintiffs rely on the expert report to oppose the striking out application, the statements relied on by Professor Wong to form the factual basis for his opinion should be disclosed to the Defendant, so that the latter can properly assess whether to proceed with the second striking out application.

8.  Further, I do not find the Defendant’s request oppressive.  One must appreciate that we are dealing with a novel case here.  The outbreak of SARS was an unprecedented event, and in a way both the Plaintiffs and the Defendant have encountered difficulties in the preparation of their respective case.  While the Plaintiffs should be given every opportunity to prove their case, the Defendant should, likewise, be entitled to know the details of the Plaintiffs’ claim, in particular the expert evidence, before the Defendant can proceed with the preparation of the defence.  Ordering the Plaintiffs to disclose more details of their case is therefore not oppressive, and indeed it is necessary to enable the Defendant to consider its position in this litigation.  Instead of mutual discovery as in most of the other run-of-the-mill personal injuries litigations, I am of the view that requesting the Plaintiffs to provide more information at this stage is more appropriate to the conduct of this case.  This is also in line with the spirits of the Practice Direction 18.1.

9.  I therefore allow the Defendant’s request, and the Plaintiffs should disclose the documents requested by the Defendant. 

DCPI 510/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

          PERSONAL INJURIES ACTION NO. 510 OF 2006

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DECISION

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1.  This is an application by the Defendant to strike out the Statement of Claim on the ground that it discloses no reasonable cause of action, it may prejudice, embarrass or delay the fair trial of the action or the claim is frivolous or vexatious.

2.  This action is another litigation arising out of the outbreak of Severe Acute Respiratory Syndrome (“SARS”) in Hong Kong in 2003.  The deceased was a patient admitted to the Defendant’s hospital (“the Hospital”) at the time of the outbreak.  Unfortunately, the deceased was later found to have contracted the SARS virus and died as a result, the Plaintiffs therefore bring the present action against the Defendant to claim for damages.

3.  I have heard a similar application by the Defendant in another case involving a different patient (see Mak Ka Chun v. Hong Kong Baptist Hospital, unreported, DCPI 1810/2005, decision of HH Judge Lok on 15 September 2006).  However, as the formulations of the claims are not the same in these two actions, different considerations apply.

4.  The Plaintiffs’ claim in the present case is formulated in the following manner.  According to the Plaintiffs, there were suspected SARS infections on the 8^th Floor of the Hospital some time in March 2003.  However, the Defendant did not reveal these probable infection cases to the public, and so the deceased was admitted as a patient to the Hospital in the period from 20 to 26 April 2003 without knowing the risk of getting infected with the virus.  During the time of his hospitalization, the deceased stayed on the 9^th floor of the Hospital, on which there was an outbreak of SARS at the same time.  It is the therefore the Plaintiffs’ contention that the deceased contracted the virus during his stay in the Hospital.

5.  As to the causes of action relied on by the Plaintiffs, it is pleaded in paragraph 12 of the Statement of Claim as follows:

“12.   The infection of SARS by the deceased in the Hospital was caused by the negligence and/or breach of common duty of care under [the Occupiers Liability Ordinance] on the part of the Defendant, its employees, servants or agents.  In the premises, the negligent of failure to inform the deceased and/or his relatives of the outbreak of SARS in the Hospital caused and/or contributed to the death of the deceased.

Particulars of breach of common duties of care of the Defendant

(a)    The deceased was a lawful visitor of, or patient admitted in, the Hospital and the Defendant being the occupier within the definition of [Occupiers Liability Ordinance] had breached the common duty of care towards the Plaintiff:-

(i)    Failing to take any or any adequate precaution to ensure that the Plaintiff would not be infected of SARS whilst visiting or staying in the Hospital;

(ii)    Failing to provide any or any adequate information to its patient and/or member of the public in respect of the danger of being infected of SARS whilst visiting or staying in the Hospital;

(iii)    Failing to erect any or any adequate warning signs to notify its patient or member of the public in respect of the outbreak of SARS in the Hospital;

(iv)    Lack of any or any adequate management structure so as to ensure an effective chain with frequent and meaningful interchanges to take control during the outbreak of SARS in the Hospital;

(v)    Lack of any or any adequate communications system between the management and the Hospital staffs including doctors, nurse and administrative staffs in the frontline so as to ensuring them to take adequate measurement or precaution to avoid the risk of infection of SARS in the Hospital;

(vi)    Failing to institute or enforce any or any adequate isolation system at the first detention of suspected SARS in the Hospital;

(vii)    In all the circumstances of the case to ensure that the deceased would be reasonably safe in using the Hospital; and

(viii)    In all the circumstances the Defendant exposed the deceased to an unnecessary risk of infection.”

6.  The Defendant’s grounds for challenging the Statement of Claim can be summarized as follows:

(i)    the Plaintiffs have not pleaded how the deceased had contracted the SARS virus, nor how the alleged breach of the common duty of care pleaded under paragraph 12 had caused the deceased’s contraction of such virus.  As there is no nexus between the particulars pleaded and the actual contraction of the virus by the deceased, the Plaintiffs’ Statement of Claim discloses no reasonable cause of action;

(ii)    by reason of the lack of the aforesaid particulars, the Defendant does not know what case it has to meet and the Plaintiffs’ pleading is therefore embarrassing;

(iii)    without expert report or supporting particulars to prove the route of transmission of the SARS virus to the deceased, the Plaintiff’s claim is simply frivolous or vexatious;

(iv)    the Plaintiffs cannot maintain a claim for breach of the common duty of care under the Occupiers Liability Ordinance, Cap. 314, as the danger of contracting the virus arose from the activities in the Hospital and not due to the state of the premises; and

(v)    the doctrine of res ipsa loquitur is not applicable in the present case.

7.  Mr. Wong, counsel for the Plaintiffs, was not responsible for drafting the Statement of Claim.  In the hearing, Mr. Wong clarifies that the Plaintiffs will only rely on the following two omissions to establish liability on the part of the Defendant.  Firstly, the Defendant had failed to inform the public about the suspected SARS infection cases on the 8^th floor of the Hospital in March 2003.  It is the Plaintiffs’ contention that, had the deceased been informed about the suspected SARS infections, he would not have been admitted to the Hospital in the first place.  Hence, the deceased’s contraction of the virus and his death were caused by the negligence of the Defendant.  Secondly, the Plaintiffs claim that, had the Defendant provided a good isolation system in the Hospital, the deceased would not have contracted the SARS virus during his stay there.

8.  In order to succeed in their claim, the Plaintiffs must be able to prove that the deceased was infected with the SARS virus during his stay at the Hospital.  Although the exact route of transmission is not known at this stage, the Plaintiffs may rely on circumstantial evidence, including the outbreak of SARS on the 9^th floor of the Hospital at the time of the deceased’s hospitalization, to prove that the deceased contracted the virus whilst he received in-patient treatment at the Hospital.  As happened in the case of Mak Ka Chun, the Plaintiffs must plead all the circumstantial facts to support their case on causation, but whether the Plaintiffs are able to establish the same is a question of fact which has to be decided at the trial.  Hence, although the exact route of transmission is not pleaded, it is not fatal to the Plaintiffs’ claim at this stage.  The Plaintiffs, however, should amend the Statement of Claim to plead all the necessary facts that they seek to rely on in establishing that the deceased had contracted the virus during his hospitalization, including but not limited to the details regarding the outbreak of SARS on the 9^th floor of the Hospital as stated in Mr. Wong’s written submissions.  Provided that such particulars are given, the Plaintiffs’ claim is at least arguable and should not be struck out at this stage.

9.  However, I agree with Mr. Fung, counsel for the Defendant, that the present Statement of Claim is an embarrassing pleading.  Apart from the lack of the particulars mentioned in the last paragraph, there are many other reasons for me to make such conclusion.  Firstly, although negligence and breach of occupiers liability are mentioned in paragraph 12 of the Statement of Claim, only particulars of the latter are supplied in the pleading, giving the impression that the Plaintiffs are relying on breach of occupiers liability as the only cause of the action.  It is only in the hearing itself that the Plaintiffs confirm that they are relying on both causes of action, and so the lack of the particulars of negligence is a defect in the pleading.

10.  Secondly, the Plaintiffs have not supplied any particulars as to what sort of isolation system that they say should have been provided by the Defendant.  Although the Plaintiffs do not know the exact route of transmission of the virus to the deceased, the Plaintiffs must tell the Defendant the possible routes of transmission that they seek to establish at the trial.  Having supplied the aforesaid, the next step is to identify the type of isolation system that the Plaintiffs say should have been provided by the Defendant, and the Plaintiffs must also establish how such isolation system could have prevented the deceased from contracting the virus.  In my judgment, the Plaintiffs’ claim is far from clear from the present pleading.  Is the Plaintiffs’ case that the Hospital should have isolated every patient who was having a fever at the time of their admissions?  Are the Plaintiffs claiming that Patients I1, I2, F1 and 3 identified in the Report & Recommendations of the Independent Commission of Inquiry (mentioned in paragraph 13 of Mr. Wong’s written submission) were such patients which should have been isolated at the time of their admissions?  No such particulars are given, and the nexus between the type of isolation system and contraction of the virus by the deceased is simply missing in the present case.  Without being supplied with such information, the Defendant does not know what case it has to meet at the trial, and the Plaintiffs’ pleading is therefore an embarrassing one.

11.  Thirdly, Mr. Wong confirms in the hearing that it was the suspected SARS cases in March 2003 that he says should have been disclosed by the Defendant.  However, in paragraph 4 of the Statement of Claim and in his written submissions, Mr. Wong refers to the outbreak of SARS on the 9^th floor of the Hospital in April 2003 in support of the claim on non-disclosure of SARS cases.  The problem is that the deceased had already been hospitalized by that time, and so how could the non-disclosure of the suspected SARS cases on the 9^th floor in April 2003 have prevented the contraction of SARS virus by the deceased?  Further clarifications are therefore necessary.

12.  No medical expert report on liability has been attached to the Statement of Claim.  As there is no expert evidence to substantiate the case that the deceased had contracted the SARS virus during his hospitalization and how the alleged negligence on the part of the Defendant could have led to the death of the deceased, the Defendant also complains that the Plaintiffs’ claim is bound to fail.  In my judgment, it is too early to tell whether the Plaintiffs’ claim is unarguable simply because of the lack of expert evidence on liability.  The court would need to examine the full particulars of the Plaintiffs’ revised claim before making a decision in this regard.  However, if the Plaintiffs’ claim is still defective after revising their claim, the Defendant is always free to make a second application for striking out which the court would only do so in a clear and obvious case.

13.  Since the Plaintiffs are relying on both negligence and breach of occupiers liability as the basis of their claim, it is not necessary for me to deal with the Defendant’s argument as to whether the negligence arose from the activity in the Hospital or due to the state of the premises.  Further, the doctrine of res ipsa loquitur is a rule of evidence dealing with the burden of proof.  Although I have some reservation as to the applicability of such doctrine in the present case, I think that such issue should be left to the trial judge dealing with the evidence of the case.

14.  By reason of the aforesaid, I accept that the present Statement of Claim is an embarrassing pleading.  As such defect can be cured by an appropriate amendment, I will grant general leave to the Plaintiffs to amend the Statement of Claim within 21 days from the date of the handing down of this decision.  Obviously, if there are still defects in the amended pleading, the Defendant will be at liberty to make a second application to strike out the Amended Statement of Claim.  I also make an order nisi that the costs of the summons and the costs of and occasioned by the amendment of the Statement of Claim be to the Defendant, and such order will be made absolute 14 days after the handing down of this decision.

Mr. Wong Po Wing, instructed by Messrs. Tai, Mak & Partners, for the Plaintiffs

Mr. Alfred Fung, instructed by the Messrs. Johnson, Stokes & Master, for the Defendant