Case Detail

HCPI 981/2014

[2020] HKCFI 1052

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 981 OF 2014

__________________________

BETWEEN
	MOMIN LOK	Plaintiff
and
	HOSPITAL AUTHORITY	Defendant

__________________________

Before: The Honourable Mr Justice Bharwaney in Court

Dates of Hearing: 17-18 May 2018 and 26 September 2019

Dates of Closing and Reply Submissions: 11, 17 October and 1 November 2019

Date of Judgment: 4 June 2020

_______________

J U D G M E N T

_______________

1. By this action, issued on 26 September 2014, the plaintiff claims damages in negligence for loss and damage arising from a stroke that she suffered on 5 December 2008. The primary limitation period, under s.27(3) and (4)(a) of the Limitation Ordinance, Cap. 347, (“LO”), of 3 years from the date of the stroke[1], expired on 4 December 2011. This is the trial of 2 preliminary issues[2]:

(a) has the limitation period of the plaintiff’s claim expired under LO: specifically, what was the date of the plaintiff’s knowledge[3] under s.27(4)(b) of LO; and
(b) if so, should the court exercise its discretion to disapply the limitation period under s.30 of LO after having regard to all the circumstances of the case and, in particular, to those listed under s.30(3)?

The writ was issued on 26 September 2014. By s.27(3) and (4)(b) of LO, this action was statute-barred if the plaintiff had the requisite knowledge, as defined in ss.27(6), (7) and (8), more than 3 years prior thereto, i.e. before 26 September 2011. If so, she would need to persuade the court that, having regard all the circumstances of the case and, in particular, to those listed under s.30(3) of LO, it would be equitable to disapply that time limit.

2. I heard evidence from the plaintiff[4] and from Mr Lok Sun Ming Samsen[5] (“Mr Lok”), her former husband[6], at the trial of the preliminary issues that took place on 17 and 18 May 2018 and 26 September 2019. The reason for the delay in concluding the proceedings was my dissatisfaction with the evidence adduced by the plaintiff in May 2018. I observed that the plaintiff had adduced little evidence to show why her 1^st application for legal aid was refused on 17 June 2011 and why her 2^nd application for legal aid was granted on 25 July 2014, and, further, that the sparseness of the plaintiff’s evidence would handicap my exercise of discretion to disapply the 3-year limitation period under section 30 of LO, particularly the sparseness of evidence on the matters set out in section 30(3)(a), (e) and (f), namely:

“(a) the length of, and the reasons for, the delay on the part of the plaintiff;
…
(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”

3. For this reason, I granted leave to the plaintiff on 18 May 2018 to adduce additional evidence, if she wished to do so, on the facts and matters pertaining to 3 specific areas:

(a)  facts and matters pertaining to the refusal of the plaintiff’s first legal aid application on 17 June 2011;
(b)  facts and matters pertaining to the grant of the plaintiff’s second legal aid application on 25 July 2014; and
(c)  events which took place between those 2 dates, with particular reference to the conduct of Messrs Ho Tse Wai & Partners (“HTW”) (her former solicitors).

4. In the result, the plaintiff availed herself of the opportunity to adduce additional evidence which was adduced in the form of the 2^nd affidavit of her assigned solicitor, Mr Nicholas Millar, sworn on 7 June 2018. His assertion of privilege over the additional evidence disclosed and the defendant’s application for further discovery resulted in my further rulings on these matters. On 13 December 2018, I ordered the plaintiff to disclose further documents by list and, on 19 February 2019, I ruled on the claim for privilege. On 11 June 2019, I granted leave to the defendant to further cross examine the plaintiff and Mr Lok at the resumed hearing. The trial of the preliminary issues was resumed and concluded on 26 September 2019.

Right Brachial Artery Occlusion

5. The plaintiff was born in South Africa on 5 April 1973. She is of Indian descent. In 1992, at the age of 19, she married Mr Lok in South Africa. As he was a Hong Kong resident, they moved to live in Hong Kong at the end of 1992. After moving to Hong Kong, she worked as a kindergarten teacher and a yoga teacher. She gave birth to 3 daughters[7]. Afterwards, she began taking a combined oral contraceptive pill called Nordette on a regular basis. By July 2008, she had been on Nordette for 9 years. A side effect of Nordette is that it increases the risk of thromboembolism in the arterial and venous system[8]. Venous thromboembolism is a condition in which blood clots are formed in the deep veins, travel in the blood stream, and cause blood vessel obstruction in other parts of the body.

6. In mid-2008, the plaintiff experienced a feeling of coldness in her right arm and hand. She consulted a general practitioner who diagnosed carpel tunnel syndrome. She then departed for India, as planned, to undertake an advanced yoga course. Shortly after arriving in India, she had pain, numbness, and coldness in her right arm and hand. She attended a local hospital and, after various tests, she was informed that she had a thrombus (a blood clot in a blood vessel) in her right arm. She was advised to return to Hong Kong immediately for an operation. Following that advice, she returned to Hong Kong on 16 July 2008. She was taken to Princess Margaret Hospital (‘PMH’) by ambulance from the airport[9].

7. At PMH, she presented with right hand acute pain, numbness and coldness, with absence of pulse in her right brachial artery (the chief artery in the upper arm) and right radial artery (the chief artery in the forearm). CT angiogram of her right upper limb showed right brachial artery occlusion (blockage). Emergency right brachial artery embolectomy (surgical removal of the blood clot) was performed on the same day[10].

Anticoagulant Therapy & Discovery of Forearm Artery Occlusion

8. Her treating doctors at PMH had started anticoagulant therapy before the operation, with a continuous intravenous infusion of a blood thinning drug, heparin, which was continued after the operation. On the next day, 17 July 2008, the plaintiff was started on an oral anticoagulant, warfarin, with a view to long term anticoagulation. On 18 July 2008, a routine ultrasound scan of the plaintiff’s right arm showed reduced flow in her forearm arteries, and an angiogram revealed occlusion of her forearm arteries (the radial and ulna arteries). Warfarin was then stopped and she was put back on heparin. Her treating doctor, Dr Chan Kwong Man (‘Dr Chan’), decided to manage her conservatively for a few days. He found that collateral arteries had developed around her right elbow to feed her right hand, and that she appeared to be asymptomatic with a warm hand. As her right arm had remained stable and pulse was detectable, Dr Chan decided on 21 July 2008 not to operate on her forearm and warfarin was resumed[11].

Discovery of PFO and Long Term Warfarin Anticoagulation

9. Various tests were conducted on 21 and 22 July 2008 to investigate the cause of the thrombosis in her right arm, including 2 echocardiograms. A trans-thoracic echocardiogram (‘TTE’) was conducted on 21 July 2008, which showed rapid appearance of bubbles in the left atrium after an injection of agitated saline into a peripheral vein. A trans-esophageal echocardiogram (‘TEE’) was conducted on 22 July 2008, which showed the same result as the TTE. Based on the results of these 2 echocardiograms, a finding of patent foramen ovale (‘PFO’) was made[12]. A PFO is a hole in the heart that does not close the way it should after birth. During fetal development, a small flap-like opening (the foramen ovale) is present in the wall between the right and left upper chambers of the heart (the atria). It normally closes during infancy, but when it does not, it becomes a patent foramen ovale.

10. After the PFO finding, on 25 July 2008, the plaintiff was transferred to the care of Dr Choy Chi Chung (‘Dr Choy’) of PMH. Dr Choy was then an associate consultant in the Department of Medicine and Geriatrics of PMH. The purpose of the transfer was to enable Dr Choy to supervise the plaintiff’s anticoagulation with warfarin on a long term basis. She continued to take warfarin as prescribed by Dr Choy from 6 August 2008, when she was discharged home from PMH, up until the time she suffered a stroke on 5 December 2008[13].

Another Right Brachial Artery Occlusion

11. Although she was receiving anticoagulation therapy under the supervision of Dr Choy, the symptoms of pain, numbness, and coldness in her right arm and hand recurred and was reported to Dr Chan at a follow-up on 3 October 2008. An angiogram taken on 13 October 2008 revealed obstruction of her right brachial artery, and she was immediately re-admitted to PMH. After admission, another angiogram was taken of her right upper limb, which confirmed right brachial artery occlusion. Warfarin was then suspended pending a proposed open surgery exploration. However, the surgery was not carried out because the symptoms resolved spontaneously, and warfarin was resumed on 31 October 2008[14].

The Stroke

12. On 5 December 2008, whilst walking from home to a nearby MTR station on her way to work, the plaintiff suddenly felt very sick. Two passers-by helped her reach the MTR station, from where she was taken to Tuen Mun Hospital (‘TMH’) by ambulance.

13. She was diagnosed to have suffered an ischaemic stroke (a stroke caused by blockage or obstruction of arteries in the brain), leading to permanent brain damage in her right cerebral hemisphere, resulting in left hemiplegia, with left side motor limb weakness, left facial weakness and slurred speech. An MRI on 6 December 2008 revealed thrombosis of right internal carotid artery (“ICA”), and middle cerebral artery (“MCA”) with acute infarct (permanent tissue damage due to interruption of blood supply) over the right basal ganglia, the right corona radiate, and the medial right temporal lobe. A cerebral angiogram on 9 December 2009 showed complete occlusion of a number of arteries in her right cerebral hemisphere, namely, the ICA, the MCA, and the anterior cerebral artery (“ACA”). After hospitalization for one month and 10 days at TMH, the plaintiff was discharged home on 14 January 2009[15].

14. She was aged 35 at the time of the stroke.

Events After the Stroke

15. After the stroke she became dependent on her husband. She could walk with a stick, with difficulty, and required help. She had to be looked after by Mr Lok, who assisted her in her activities of daily living[16]. She and her family lived on social welfare as she could not work and her husband also lost his job[17].

16. The plaintiff believed that her stroke was caused by the prescription of warfarin rather than heparin[18]. She and Mr Lok consulted a firm of solicitors, Messrs Lee & So, in about August 2010, who advised her that “she may have a case”[19], and who forwarded an application for legal aid on her behalf to pursue a claim for damages for medical negligence. Apart from obtaining medical records and reports from both PMH and TMH, the Director of Legal Aid (‘DLA’) also obtained 2 expert reports, one from Dr Yu Yuk Ling (a specialist in neurology) and the other from Dr Elaine Chau (a specialist in cardiology) in order to evaluate the plaintiff’s application.

17. In his medical report dated 6 April 2011[20], Dr Yu expressed the view that the plaintiff was properly treated with warfarin given her Nordette taking history, her embolic episode and the finding of PFO, and that her ischaemic stroke could not have been caused by warfarin, which is associated with haemorrhagic strokes, not ischaemic strokes. If she had not been on warfarin, her stroke would have been more severe. He concluded that the plaintiff’s surgical management of her right brachial artery thrombosis was of high standard; that thrombectomy was promptly performed on the day of admission; and that the investigation of the underlying cause of the plaintiff’s arterial thrombosis was thorough. If there was PFO, which should be assessed by a cardiologist, warfarin should be prescribed for prevention of further episodes of arterial thrombosis; if there was no PFO, Nordette might be implicated as a causative or contributory factor and warfarin would still be indicated for about 6 months for prophylaxis against further thrombotic episodes. The plaintiff’s stroke was due to thrombosis of the right ICA and right MCA and was not a complication of warfarin.

18. In her medical report dated 13 June 2011[21], Dr Chau expressed the view that warfarin was the correct treatment for thrombosis, whether or not there was a PFO, that the prescription of warfarin, which increases the risk of bleeding, did not result in the plaintiff’s ischaemic stroke and, if anything, would only have reduced the severity of the stroke. Despite anticoagulation, the plaintiff sustained an ischaemic stoke due to thrombosis of the right ICA and right MCA. Dr Chau noted that, following discharge from hospital, the plaintiff was followed up frequently for monitoring of International Normalised Ratio (“INR”) and adjustment of warfarin dosage according to the plaintiff’s clinical situation. Such close monitoring of patients on warfarin was the proper standard practice. On a follow-up visit on 28 November 2008, the plaintiff’s INR was 1.3 and, therefore, the dose of warfarin was increased from 6 mg per day to 7 mg per day. On 4 December 2008, the day before the plaintiff was due for follow-up, the INR was 1.6. In her opinion, the treatment, diagnosis, and examination given by the doctors at PMH were considered proper and acceptable from a medical point of view.

19. On the basis of these 2 expert reports, DLA refused the plaintiff’s application for legal aid on 17 June 2011[22].

20. Meanwhile, the plaintiff and Mr Lok also learned that Mr Albert Ho, a member of the Legislative Council, ran an advice clinic at a community hall at Tuen Mun. After approaching him sometime in 2011, they were introduced to his solicitors’ firm, which was then known as Messrs Ho, Tse, Wai & Partners (‘HTW’). Mr John Clancey and Ms Jasmine Chau of HTW became responsible for handling the plaintiff’s case[23].

21. The plaintiff received advice from HTW that “she had a legal case against” the Hospital Authority, as can be seen from her evidence during her cross examination:

“Q. And he gave you legal advice that, given what you’d said, you should bring proceedings against the Hospital Authority? You should issue a writ?
A. That’s when I went to his offices to -- and approached them, yes, that’s exactly what I was told.
Q. He heard your explanation...
A. My story.
Q. ...your story and he said that you should sue the Hospital Authority?
A. He didn’t use the words, ‘You go and sue somebody’.
Q. No.
A. He says, ‘You have a legal case against that, so you can approach this.’ It’s not a matter of sue somebody.”[24]

HTW wrote to DLA on 6 May 2011 that the plaintiff had a possible claim for medical negligence and that it was necessary to obtain an expert report from an experienced vascular surgeon[25]. The advice she received that “she had a legal case against” the Hospital Authority was likely to have been given at about this time.

22. Subsequently, a protective writ was issued in the District Court on 8 July 2011 in DCPI 1373 of 2011 (“the DCPI action”). The plaintiff knew that the primary limitation period[26] was 3 years from the date of the stroke she suffered on 5 December 2008. In her letter to the clerk of the District Court dated 15 December 2011[27], which was written with the assistance of HTW, she wrote that the writ was issued “to protect my interest for initiating legal proceedings against the Defendant within the 3 year limitation period”.

23. On 23 June 2011, the plaintiff filed an appeal against the legal aid refusal.

24. In September 2011, the plaintiff, Mr Lok and their 2 younger daughters all went to South Africa to facilitate the plaintiff’s rehabilitation, as she could be better taken care of by her family members in South Africa[28].

25. An expert opinion was later obtained from a vascular surgeon, Miss Linda Hands, Clinical Reader in Surgery and Honorary Consultant Surgeon[29]. In her report dated 25 October 2011, Miss Hands pointed out that, since the plaintiff’s treating doctors at PMH were of the view that she had a PFO and that her right arm embolus was caused by a paradoxical embolus passing through the PFO, her warfarin therapy was grossly inadequate, “with 1 mg increases in warfarin over one to three week periods and an INR which resolutely failed to rise above a maximum of 1.8 on 3 August 2008”. Miss Hands was of the opinion that the plaintiff’s right arm arterial thrombosis was caused by her bilateral cervical ribs compressing on her right subclavian artery which supplies blood to the right arm, and appropriate treatment for this would have been to remove the cervical rib, either at the time of the thrombectomy or after a short period of anticoagulation, and to repair the dilated artery. If she had received the appropriate initial treatment, she would not have required prolonged anticoagulation. However, Miss Hands was unable to see a link between the right arm arterial thrombosis and the plaintiff’s subsequent stroke.

26. On 29 November 2011, HWT advised the plaintiff by email that Miss Hands referred to several areas of negligence but said there was no connection of the negligence to the causation of the stroke. Based on a view of another neurologist that her condition “could very well have caused a stroke”, HWT advised the plaintiff to seek an expert report from a neurologist in Hong Kong[30].

27. HTW did not send a copy of Miss Hands’ report to DLA for their consideration or in support of the plaintiff’s legal aid appeal.

28. As Mr Lok could not obtain employment in South Africa, he returned to Hong Kong in about early 2012, so that he could obtain work here and help to support the plaintiff and their daughters[31].

29. In May 2012, HTW instructed Dr Huang Chen Ya, a neurologist, to advise further on the plaintiff’s case. Dr Huang advised by telephone on 7 May 2012 that the plaintiff did not have a case for the stroke and that it was difficult to make a good case[32]. After receipt of Dr Huang’s first oral advice in May 2012, HTW wrote to Dr Huang on 17 May 2012[33]:

“…
We apologise for troubling you again, but our client is of the view that there is still a possibility that the negligence of the treating doctors had caused damage to her.
… We write to ask whether given the problem with our client’s arm, … the fact that our client was still taking warfarin had caused her to suffer from a stroke[?]
… If you are of the view that prescribing warfarin to Mrs Lok was below the expected standard and caused a stroke, we will formally instruct you [to] prepare an expert report on liability and causation.”

On 8 June 2012, Dr Huang again advised orally that one could not prescribe heparin for a long time and if heparin was stopped, one would need to prescribe warfarin, that there was no evidence the arm problem caused the stroke and that there was no real chance of succeeding[34].

30. Thereafter, HTW asked the plaintiff to seek expert medical opinion from doctors in South Africa in support of her claim. She did try but she was not successful[35].

31. After 2 extensions of the validity of the writ in the DCPI action up to 6 July 2013, HTW discontinued the action on 10 June 2013[36]. It is the plaintiff’s evidence that the discontinuance was done without her knowledge and consent[37]. Mr Lok’s evidence is that he signed the plaintiff’s name on the written instruction for discontinuance[38], without informing the plaintiff, because Mr Clancey told him that the case could not go ahead as there was not enough evidence to support her claim[39]. In her 1^st affirmation, the plaintiff stated that “I did not sign any authority for them to discontinue. I relied on my then husband.”[40] I infer from this statement that she had authorised Mr Lok to deal with HWT in connection with the DCPI action. I find that Mr Lok’s authority to deal with HWT in connection with the DCPI action included the authority to sign on her behalf to discontinue the DCPI action. I also find that the plaintiff is imputed with the knowledge of such discontinuance[41]. By the same token, Mr Lok’s knowledge that the case could not go ahead as “there was not enough evidence to support the claim” was also imputed to the plaintiff.

32. The legal aid appeal was not proceeded with. DLA contacted HTW on 6 September 2013 and were informed that they no longer acted for the plaintiff. After the DLA’s attempts to contact the plaintiff were unsuccessful, the legal aid file was closed in October 2013. On 13 February 2014, the plaintiff made her second legal aid application, which was supported by Miss Hands’ expert report dated 25 October 2011. Based on that report, and notwithstanding that Miss Hands could not demonstrate a causal link between the negligence and the stroke, legal aid was granted to the plaintiff to pursue the claim on 25 July 2014[42].

33. The writ and indorsement of claim in the present action was issued on 26 September 2014. The defendant was served on 17 September 2015.

Expert Opinion of Drs Caplin, Pretorius and Professor Machin

34. At the trial of the preliminary issues, expert opinion was adduced by the plaintiff from Dr John Caplin (consultant cardiologist)[43], Dr Pieter Pretorius (consultant neuroradiologist)[44] and Professor Samuel Machin (consultant haematologist)[45] to the effect that the stroke was caused by the failure of her treating doctors at PMH to prescribe a sufficient dose of anticoagulant from 6 August 2008 to 5 December 2008 so as to maintain a therapeutic INR level of between 2.0 to 3.0 in her blood.

35. The defendant did not adduce any expert evidence at the trial of the preliminary issues.

Issue No. 1: what is the date of the plaintiff’s knowledge?

36. Knowledge is defined in ss.27(6), (7) and (8) of LO. The relevant provisions are as follows:

“27(6) In this section, and in section 28, references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts—
(a) that the injury in question was significant; and
(b) that that injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and
(c) the identity of the defendant; and
(d) ...
and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.
(7) For the purposes of this section an injury is significant if the plaintiff would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(8) For the purposes of this section and section 28 a person’s knowledge includes knowledge which he might reasonably have been expected to acquire—
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek,
but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.”

37. On the pleadings, time started to run in this case either:

(a) on 5 December 2008 (the date of the stroke); or
(b) on 25 October 2011 (the date of the expert report of Miss Hands); or
(c) on 22 January 2016 (the date of the first expert report of Dr Caplin); or
(d) sometime between 5 December 2008 and 25 September 2011.

38. As the writ in this action was issued on 26 September 2014, this action would have been commenced within the 3-year limitation period, and is not statute-barred if the plaintiff acquired the requisite knowledge either on 25 October 2011 or 22 January 2016.

39. The question for my adjudication is whether time had started to run sometime between 5 December 2008 and 25 September 2011. If not, this action is not statute-barred. Did the plaintiff have knowledge, sometime between 5 December 2008 and 25 September 2011, that her stroke was attributable in whole or in part to the act or omission of the defendant, their servants or agents, which is alleged to constitute negligence?

40. It is the defendant’s case that the court should:

(a) find that the date of the plaintiff’s knowledge, in accordance with s.27(6), was August 2010, when she consulted Messrs Lee & So, solicitors. By then, she already knew enough to have begun “to investigate whether or not she had a case against the defendant”[46]; or
(b) find that she had more than the requisite knowledge on 6 May 2011, when HTW wrote on her behalf to Legal Aid, “in regard to her possible claim for medical negligence”; or
(c) find that she had more than the requisite knowledge on 8 July 2011 when she issued her District Court writ on the advice of HTW;
(d) and reject the plaintiff’s submission that knowledge only runs from 25 October 2011 (the date of the expert report of Miss Hands) or from 22 January 2016 (the date of the first expert report of Dr Caplin), as being wrong in law.

Discussion

41. The primary limitation period under s27(3) and (4) of LO is 3 years from the date on which the cause of action accrued. In tort, the cause of action accrues when damage, which is more than minimal, occurs even if the injured person did not know that he had suffered it and could not reasonably have been aware that he had suffered it. The date of accrual of the cause of action may be years before a plaintiff is able to establish a causal connection with the symptoms and the alleged wrongdoer. The problem is particularly acute in medical negligence cases where the plaintiff lacks medical knowledge to attribute his medical condition to some act or omission of a medical practitioner. The reforms to LO were designed to deal, predominantly, with cases of imperceptible injury and concealed causation which gave rise to manifest injustice by becoming statute-barred even before a plaintiff knew that he had an injury or before he knew who was responsible for causing it. S27(6), (7) and (8) of LO, which are modelled on s14 of the English Limitation Act, are the product of these reforms.

42. It is common ground that, on 5 December 2008, the date that she suffered a stroke, the plaintiff had knowledge that she had suffered a significant injury in the sense that she would reasonably have considered it sufficiently serious to justify her instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment. It is also common ground that the plaintiff had knowledge, on 5 December 2008, that the defendant was the Hospital Authority. For time to run in the present case, the plaintiff must also have knowledge that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence.

43. Under s27 of LO, knowledge can be actual or constructive. The latter includes knowledge which the plaintiff might reasonably have been expected to acquire from facts ascertainable by her with the help of medical or other appropriate expert advice which it is reasonable for her to seek. However, a person shall not be fixed with knowledge of a fact ascertainable only with the help of expert advice so long as he or she has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.

44. No point is being taken against the plaintiff that she had constructive knowledge, sometime between 5 December 2008 and 25 September 2011, that her stroke was attributable in whole or in part to the act or omission of the defendant, their servants or agents, which is alleged to constitute negligence. She only had knowledge of the opinions of Miss Hands and Dr Caplin from 25 October 2011 (being the date of the expert report of Miss Hands) and from 22 January 2016 (being the date of the first expert report of Dr Caplin).

45. Did she have actual knowledge, sometime between 5 December 2008 and 25 September 2011, that her stroke was attributable in whole or in part to the act or omission of the defendant, their servants or agents, which is alleged to constitute negligence?

46. It is instructive to refer to English authorities on s14 of the Limitation Act on which our provisions in LO are based.

47. Actual knowledge has been defined by the courts to mean a reasonably firmly held belief sufficient to warrant the taking of preliminary steps to the issuing of proceedings, such as submitting a claim to the defendant, taking legal advice and collecting evidence: Nash & ors v Eli Lilly & Co & ors [1993] 1 WLR 782; Sprago v North Essex District Health Authority [1997] PIQR P235; Haward v Fawcetts [2006] 1 WLR 682 and by the majority in the Supreme Court in AB v. Ministry of Defence [2013] 1 AC 78. In the latter case, the Supreme Court had to consider whether knowledge, for the purposes of the section, had to be founded on strongly objectively justified belief, or whether it was sufficient that the claimant did in fact believe that his injury was attributable to the alleged act or omission. The Supreme Court, by a majority of 4 (Lord Walker, Lord Brown, Lord Mance and Lord Wilson) to 3 (Lord Phillips, Baroness Hale, and Lord Kerr), held that reasonable belief in what is attributable is sufficient to set the time running. The majority were of the view that it is necessary, as a matter of policy, to hold that time begins to run once the claimant has a belief, justified by at least some degree of evidence, that his injury is attributable to the defendant’s act or omission. The minority were of the view that knowledge must be based on clear and objectively justified evidence.[47]

48. Brooke LJ’s statement in Sprago v North Essex District Health Authority [1997] PIQR P235 at P242 has become the authoritative statement of the principles that apply on the issue of actual knowledge:

“(1) The knowledge required to satisfy [s.27(6) of LO] is a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable;
(2) “Attributable” in this context means “capable of being attributed to”, in the sense of being a real possibility;
(3) A plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate whether or not she has a case against the defendant. Another way of putting this is to say that she will have such knowledge if she so firmly believes that her condition is capable of being attributed to an act or omission which she can identify (in broad terms) that she goes to a solicitor to seek advice about making a claim for compensation;
(4) on the other hand, she will not have the requisite knowledge if she thinks she knows the acts or omissions she should investigate but in fact is barking up the wrong tree; or if her knowledge of what the defendant did or did not do is so vague or general that she cannot fairly be expected to know what she should investigate; or if her state of mind is such that she thinks her condition is capable of being attributed to the act or omission alleged to constitute negligence, but she is not sure about this, and would need to check with an expert before she could be properly said to know that it was.” [my emphasis]

49. The facts of the present case throw up a conflict between the third and fourth principles quoted above. Is the certainty of the plaintiff’s belief that her stroke was caused by the prescription of warfarin rather than heparin[48] sufficient to start the running of time in the present case; or does the presence of contrary expert opinion suspend time from running until expert confirmation is received that a causal connection between the stroke and the act or omission said to constitute negligence is established?

50. What distinguishes the present case from many other cases where the question of knowledge has arisen is the fact that the plaintiff received opinion from three experts categorically denying that the plaintiff had a case against the defendant.

51. On 6 April 2011, Dr Yu expressed the view that the plaintiff was properly treated with warfarin and that her ischaemic stroke could not have been caused by warfarin, which is associated with haemorrhagic strokes, not ischaemic strokes. If she had not been on warfarin, her stroke would have been more severe. He concluded that the plaintiff’s surgical management of her right brachial artery thrombosis was of high standard; that thrombectomy was promptly performed on the day of admission; and that the investigation of the underlying cause of the plaintiff’s arterial thrombosis was thorough. The plaintiff’s stroke was due to thrombosis of the right ICA and right MCA and was not a complication of warfarin[49].

52. On 13 June 2011, Dr Chau expressed the view that warfarin was the correct treatment for thrombosis, that the prescription of warfarin, which increases the risk of bleeding, did not result in the plaintiff’s ischaemic stroke and, if anything, would only have reduced the severity of the stroke. Despite anticoagulation, the plaintiff sustained an ischaemic stoke due to thrombosis of the right ICA and right MCA. Dr Chau noted that, following discharge from hospital, the plaintiff was followed up frequently for monitoring of INR and adjustment of warfarin dosage according to the plaintiff’s clinical situation. Such close monitoring of patients on warfarin was the proper standard practice. On a follow-up visit on 28 November 2008, the plaintiff’s INR was 1.3 and, therefore, the dose of warfarin was increased from 6 mg per day to 7 mg per day. On 4 December 2008, the day before the plaintiff was due for follow-up, the INR was 1.6. In her opinion, the treatment, diagnosis, and examination given by the doctors at PMH were considered proper and acceptable from a medical point of view[50].

53. In May and June 2012, Dr Huang advised that that one could not prescribe heparin for a long time and, if heparin was stopped, one would need to prescribe warfarin, that there was no evidence the arm problem caused the stroke and that there was no real chance of succeeding[51].

54. Given these expert opinions, the plaintiff’s strong belief that her treatment by warfarin, instead of heparin, caused the stroke was unsupported and unreasonable. The subsequent medical advice she received was that her treatment by warfarin was proper: the act or omission that contributed to the stroke was that she was not given enough of it[52]. This was the exact opposite of her unsupported belief.

55. In Broadley v Guy Clapham & Co [1994] 4 All ER 439, the Court of Appeal reconfirmed that knowledge of attrition, even in clinical negligence cases, need only be in relatively broad or general terms. They held that Bentley v Bristol & Western Hospital Authority [1991] 2 Med LR 359 was wrongly decided. In that case, the plaintiffs sciatic nerve was damage in a hip replacement operation. The trial judge held that time would run only from when the plaintiff knew that there had been a failure to carry out the operation safely and, specifically, that injury might be due to excessive traction of the nerve. The Court of Appeal held that knowledge of such detail was not required: the broad knowledge that the plaintiff needed to acquire, which she had, was that injury had been caused by damage to the nerve resulting in something which the treating surgeon had done or not done in the course of the operation.

56. In his judgment in Broadley v Guy Clapham & Co, Hoffmann LJ, as he then was, used a colloquial expression, “barking up the wrong tree”, which has been repeated many times afterwards. He said at p.449:

“Ordinarily it will suffice that he knows that the injury was caused by an act or omission of the defendant. But there may be cases in which his knowledge of what the defendant did or did not do is so vague and general that he cannot fairly be expected to know what he should investigate. He will also not have reached the starting point if, in an unusual case like Driscoll-Varley v Parkside Health Authority, he thinks he knows the acts and omissions he should investigate but in fact he is barking up the wrong tree.”

57. Driscoll-Varley v Parkside Health Authority [1991] 2 Med LR 346 was a case in which the plaintiff thought that an injury to her leg had been caused by a surgeon's negligence, but later discovered that the real cause was not the operation but the removal of the leg from traction during subsequent treatment. Lord Walker in AB v. Ministry of Defence [2013] 1 AC 78 at §38 commented that:

“It seems a rather marginal example of barking up the wrong tree, since the plaintiff's misapprehension was in relation to the causative event in a single course of treatment, although the real complaint was about the after-care rather than the operation itself.”

58. The facts of Ogunsanya v Lambert Health Authority 3 July 1985, Bristow J, unreported[53] bear some similarity to the present case. In that case the plaintiff was rendered paraplegic following a gallstone operation which resulted in extensive internal bleeding. The cause of the paraplegia was thought to be attributable to a low dose of subcutaneous heparin which caused the bleeding. It was not until a medical report from a neurologist was received, indicating that the paraplegia was due to a delay in treating the bleeding, that attribution was established.

59. In Khan v Ainslie [1993] 4 Med LR 319, the plaintiff’s blindness was thought by him to have been caused when his medical practitioner administered eye drops which caused him pain. Nearly 6 years later, he finally received the medical opinion indicating that the cause of his blindness was in fact delay in treating his condition of glaucoma. The receipt of this report was held to be the date of attribution and the plaintiff’s date of knowledge.

60. In Forbes v Wandsworth Health Authority [1997] QB 402, the Court of Appeal confirmed that, in clinical negligence cases, there must be knowledge of some causative link between the treatment, or lack of it, and the plaintiff’s condition. He had a bypass operation in 1982. The operation failed and a second operation was carried out the next day. That operation was unsuccessful and the plaintiff was told that he needed to have his leg amputated to prevent gangrene and this was done in November 1982. 10 years later, in 1992, the plaintiff received medical advice that the amputation was due to a failure to perform the second bypass earlier. The majority of the Court of Appeal held that the judge was right to find that, until the plaintiff was so told by an expert, he did not know, as a matter of science, that there was an opportunity to prevent the amputation.

61. However, the Court of Appeal came to a different view in Sniezek v. Bundy (Letchworth) Ltd [2000] PIQR P213. In that case, the claimant experienced a sensation of burning on his lips and throat and formed the firm view that this was the result of exposure to polymer at his workplace, a view that he never abandoned. He stopped work because of this in 1988 and sought legal and medical advice. He was seen by a number of experts, all of whom could find nothing wrong with him. One indeed concluded that his symptoms were psychosomatic. Ultimately, in 1994 a senior ENT Registrar advised that his symptoms might well be attributable to exposure to polymer. The trial judge took that as the date on which he acquired knowledge for the purpose of s14 of the Limitation Act. The Court of Appeal did not agree, holding that the claimant’s firm belief, in the face of expert advice to the contrary, constituted knowledge for the purpose of s14[54] . The Court of Appeal held that it was necessary to distinguish between a claimant who has a firm belief that he has a significant injury, attributable to his working conditions, especially one which takes him to a solicitor for advice about a claim, a belief which he retains whatever contrary advice he receives, and a claimant who believes that he may have, or even probably has, a significant injury which is attributable to his working conditions, but is not sure and feels it necessary to have expert advice on those questions. The former has knowledge of significant injury and attribution for the purposes of section 14; the latter does not. The claimant fell into the former category. The fact that the claimant recognised the need to get both medical and legal advice, and that the advice was adverse until January 1994, did not take him out of the former category and postpone the date of knowledge.

62. I would reconcile the judgment of the Court of Appeal in Sniezek v. Bundy (Letchworth) Ltd and the majority judgments of the Supreme Court in AB v. Ministry of Defence on this basis. The firm belief that the claimant had, that his injury was the result of exposure to polymer in the workplace, although contradicted by contrary medical opinion, was, nevertheless, reasonably held as it was vindicated by the later opinion of the senior ENT Registrar that his symptoms might well be attributable to exposure to polymer. In the present case, as I have stated in §54 above, the plaintiff’s strong belief that her treatment by warfarin, instead of heparin, caused the stroke was, and remained, unsupported and unreasonable. The subsequent medical advice she received was that her treatment by warfarin was proper: the act or omission that contributed to the stroke was that she was not given enough of it. This was the exact opposite of her unsupported belief.

63. Having reviewed the above authorities, and applying the majority decision of the Supreme Court in AB v. Ministry of Defence that that time begins to run once the plaintiff has a belief, justified by at least some degree of evidence, that his or her injury is attributable to the defendant’s act or omission complained of, I find that the plaintiff in this case did not have the requisite knowledge, sometime between 5 December 2008 and 25 September 2011, that her stroke was attributable in whole or in part to the act or omission of the defendant, its servants or agents, which is alleged to constitute negligence.

64. Accordingly, I find that this action, commenced on 26 September 2014, was not time-barred.

Application to override the time limit under s30 of LO

65. If I had concluded that this action was time-barred in that the plaintiff’s belief, which she held shortly after she suffered a stroke, that her treatment by warfarin, instead of heparin, caused the stroke, was sufficient for time to begin to run under LO, I would have exercised my discretion under s30 of LO to override the time limit. I would have done so on the ground that the plaintiff had acted promptly and had made reasonable efforts to obtain expert medical opinion to support her claim; that the delay was caused by the negative medical opinion she had received; that the plaintiff’s claim did not appear to be weak or of little value; and that the defendant has not demonstrated that it has suffered prejudice from this delay. Specifically, the defendant had received notification of the plaintiff’s claim by DLA’s letters to PMH dated 14 September 2010 and TMH dated 5 November 2010, less than two years after the stroke on 5 December 2008, which would have enabled the defendant to gather and assemble, in good time, all relevant clinical notes and records, test results, scans and reports to enable it to study, investigate and, if so advised, to resist, the plaintiff’s claim.

Costs

66. I direct the parties to exchange written submissions[55] on the issue of costs, including any outstanding and reserved costs, within 21 days from today; and that they exchange written submissions in reply[56] within 14 days thereafter. I will then make my ruling as to costs in this matter.

(Mohan Bharwaney)
Judge of the Court of First Instance
High Court

Mr Ronald Tang, instructed by Littlewoods, assigned by Director of Legal Aid, for the plaintiff

Mr Nigel Kat SC, instructed by Deacons, for the defendant

[1] On the basis that the cause of action accrued when the damage complained of was suffered.

[2] Pursuant to the Order made on 20 June 2017 [A/6/42].

[3] Pleaded to have been “on receipt” of a medical report dated 22.1.16: §25 SoC [A/2/12].

[4] [A/48-54, 58-60, 85-90] [T/17May2018/28K-49R] [T/26Sept2019/71S-109B]

[5] [A/61-65] [T/17May2018/50B-65J] [T/26Sept2019/109C-110P]

[6] They were divorced on 26 September 2014 but continued to maintain cordial relations: [A/53 §42].

[7] [A/48-49]

[8] [C/329, 336]

[9] [A/49]

[10] [B/120,122]

[11] [B/120]

[12] [B/122-123] [C/330-331, 349]

[13] [B/123] [C/401-402] Warfarin was suspended from 4 August 2008 to 12 August 2008 and from 8 October 2008 to 30 October 2008.

[14] [B/121, 123]

[15] [B/126, 127]

[16] [A/50]

[17] [T/17May2018/30K]

[18] [A/51 §25] [T/17May2018/29M, 30Q]

[19] [T/26Sept2019/72C]

[20] [C/328-340]

[21] [C/347-355]

[22] [C/487]

[23] [A/51 §27] [T/17May2018/30H, U]

[24] [T/17May2018/39D-H]

[25] [C/346]

[26] Under s.27(4)(a) of LO.

[27] [B/240]

[28] [A/51]

[29] [C/398-407]

[30] [C/413]

[31] [A/51 §30]

[32] [C/443]

[33] [C/449]

[34] [C/452]

[35] [T/17May2018/44E-N]

[36] [B/286]

[37] [A/52 §§40-41] [T/17May2018/31H]

[38] [C/475]

[39] [A/63-64 §21] [T/17May2018/60N-61B]

[40] [A/52 §40]

[41] A principal is generally imputed with knowledge relating to the subject matter of the agency which an agent acquired while acting for the principal: Bowstead & Reynolds on Agency, (21^st ed), Article 95(1) at §8-208.

[42] [C/488]

[43] [B/130-143]

[44] [B/161-188]

[45] [B/189-199]

[46]Oakes v Hopcroft (2000) 56 B.M.L.R. 136, 139-140 at §16 citing Sprago v. North Essex District Health Authority [1997] PIQR P235.

[47] Personal Injury Limitation Law, (4^th ed) at §4.15; A.McGee on Limitation Periods, (8^th ed), at 8041

[48] See §§16 and 29 above.

[49] See §17 above.

[50] See §18 above.

[51] See §29 above.

[52] See §34 above.

[53] Personal Injury Limitation Law, (4^th ed) at §4.87

[54] Lord Phillips remarked in AB v Ministry of Defence [2013] 1 AC 78 at §120 that the facts of this case might have been devised as an examination question on limitation.

[55] Not exceeding 10 pages.

[56] Not exceeding 5 pages.

HCPI 981/2014

[2019] HKCFI 466

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 981 OF 2014

__________________________

BETWEEN
	MOMIN LOK	Plaintiff
and
	HOSPITAL AUTHORITY	Defendant

__________________________

Before: The Honourable Mr Justice Bharwaney

Date of Written Submissions: 25 January 2019

Date of Written Submissions in Reply: 31 January 2019, 4 February 2019

Date of Written Ruling: 19 February 2019

______________

R U L I N G

______________

1. This ruling concerns a discrete point that has arisen in this trial on the preliminary issue of limitations. It has arisen in this manner.

2. On the second and final day of the trial of the preliminary issue, I observed that the plaintiff had adduced little evidence to show why her 1^st application for legal aid was refused on 17 June 2011 and why her 2^nd application for legal aid was granted on 25 July 2014, and, further, that the sparseness of such evidence would handicap my exercise of discretion to disapply the three-year limitation period under section 30 of the Limitation Ordinance, particularly the sparseness of evidence on the matters set out in section 30(3)(a), (e) and (f), namely:

“(a) the length of and the reasons for the delay on the part of the plaintiff;
…
(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”

3. For this reason, I granted leave to the plaintiff on 18 May 2018 to adduce additional evidence, if she wished to do so, on the facts and matters pertaining to 3 specific areas:

(a) facts and matters pertaining to the refusal of the plaintiff’s first legal aid application on 17 June 2011;
(b) facts and matters pertaining to the grant of the plaintiff’s second legal aid application on 25 July 2014; and
(c) events which took place between those 2 dates, with particular reference to the conduct of Messrs Ho Tse Wai & Partners (“HTW”) (her former solicitors).

4. In the result, the plaintiff availed herself of the opportunity to adduce additional evidence which was adduced in the form of Mr Nicholas Millar’s 2^nd affidavit sworn on 7 June 2018, §5 of which stated:

“5. All the documents I refer to are protected by legal professional privilege. In so far as I refer to a particular document I do not waive privilege on behalf of Madam Lok in respect of such document; such reference is purely so as to identify stages with a view to explaining. The documents exhibited hereto are not produced by way of discovery or as part of the substantive action and they are simply to seek to satisfy Mr. Justice Bharwaney’s order of the 18^th May 2018 for the purpose of the plaintiff’s summons dated 24^th March 2016 as amended by paragraph 1 of the order dated 20^th June 2017 of Mr. Justice Bharwaney and are not admissible in the substantive action. In so far as a document is referred to, but not exhibited, (the “referred to document”) in a document that is exhibited to comply with the order then privilege is not waived either expressly or impliedly in such referred to document, as not being necessary for the purpose of satisfying the order.” [My emphasis]

5. The quoted statements are incorrect insofar as they suggest that the documents were exhibited in the said affidavit to satisfy or comply with my order of 18 May 2018. As is clear from the terms of my order of 18 May 2018, which I set out below, it was permissive and not compulsive:

1. Leave granted to Plaintiff to consider whether or not additional evidence will be adduced by way of affidavits and documentary exhibits in connection with the events that occurred between the refusal of Legal Aid on 17/6/2011 and the grant of Legal Aid on 25/7/2014 with particular reference to facts and matters relevant to the refusal and subsequent grant of Legal Aid and to the conduct of Messrs. Ho, Tse & Wai;
2. Plaintiff’s solicitors to informed the Court on or before 25/5/2018 whether or not additional evidence will be adduced pursuant to the leave granted and, if so, a concise statement of what that evidence would comprise of, such evidence to be filed and served within 14 days thereafter;
3. In the event of Plaintiff’s decision to adduce such additional evidence, leave granted to Defendant to adduce evidence in rebuttal within 14 days of the Plaintiff’s additional evidence being filed and served;
4. Upon receipt of the aforesaid information and / or additional evidence, further directions and hearing dates will be granted and fixed;
…”

Indeed, in the plaintiff’s submissions in reply dated 5 October 2018, it is expressly stated that my order of 18 May 2018 was “not an order compelling discovery”.

6. Upon being served with Mr Millar’s 2^nd affidavit, the defendant complained that the plaintiff had made selective discovery of the documents that were relevant to the refusal and subsequent grant of legal aid and sought additional discovery of the following classes of documents:

a. The nature of the advice given by HTW to the plaintiff in connection with the refusal of legal aid on 17 June 2011 (including on the reports of the 2 doctors relied upon in the refusal), and her instructions thereon.
b. The nature of the advice given by HTW to the plaintiff in connection with the advice of Dr. Hands and her report, and the plaintiff’s instructions thereon.
c. The nature of the advice given by HTW to the plaintiff in connection with the views of:
(i) the Hong Kong neurologist referred to in HTW’s email to the plaintiff dated 29 November 2011; and
(ii) Dr. Huang, referred to in HTW’s correspondence with Dr. Huang and Mr. Lok between 3 May 2012 and 8 June 2012.
d. The nature of the advice given by HTW to the plaintiff in connection with her applications to the District Court in December 2011 and in March, June and December 2012 to extend the validity of her writ in HCPI 1373 of 2011 and to adjourn those proceedings; and in connection with the expiry of that writ in July 2013 and the discontinuance of those proceedings in June 2013, and the plaintiff’s instructions.

7. The plaintiff opposed this request for discovery and asserted privilege over the documents sought. I directed written submissions to be filed, and I heard oral submissions from the parties on 13 December 2018 on this application for discovery. Most of those submissions were focused on the point whether or not deployment of the documents exhibited to the 2^nd affidavit of Mr Millar amounted to a waiver of the privilege the plaintiff enjoyed over the additional documents that were being sought. To facilitate my decision in the matter, on 13 December 2018, I directed the plaintiff to file a list of documents identifying the documents that were in existence in relation to the matters raised in the course of the hearing that spanned from 6 May 2011 to 25 July 2014. Identifying those documents would enable me to assess whether the request for the specific documents was reasonable, whether the claim of privilege over such documents was valid, and whether any such privilege over these documents had been waived by the deployment of the documents exhibited to the 2^nd affidavit of Mr Millar.

8. The correspondence exchanged after my direction of 13 December 2018 raised concern on my part that there might have been a misunderstanding of my direction. On 31 December 2018, I clarified my direction in these terms:

“ On 13 December 2018 I directed:
“The plaintiff to provide a list of documents within 21 days relating to the matters raised in the course of the hearing on 13 December 2018 that spanned from 6 May 2011 to 25 July 2014 in the form required by Order 24 of the Rules of the High Court.”
There appears to be some confusion regarding my direction.
My direction is not for the plaintiff to provide copies of any such documents. The plaintiff is at liberty to claim privilege against each and every one of the documents set out in the list that I have asked the plaintiff to prepare. The purpose of the direction is to enable me to understand the nature of each of the documents in respect of which privilege is being claimed so that I may be better enabled to adjudicate upon the defendant’s submission that the plaintiff has waived the privilege which may (or may not) attach to any such document or documents.
…”

9. Pursuant to the extension of time I had granted, the plaintiff filed a list of documents dated 11 January 2019 by way of compliance of my direction of 13 December 2018. It was stated in the list that:

“1. The plaintiff has in her possession, custody or power the documents relating to the matters in question in this action enumerated in Schedule I hereto, which are provided pursuant to the order of Bharwaney J., for him to determine the preliminary trial, but in respect of which privilege is not otherwise waived.
...
3. The plaintiff objects to produce the documents enumerated in Part 2 of the said Schedule I on the ground that they are by their nature privileged from production being either obtained or prepared for the purpose of (intended) litigation against the defendant and or the giving of advice by lawyers for such purpose or for the purpose of legal advice generally.”

10. On 17 January 2019, I made the following direction:

“ I refer to the plaintiff’s list of documents dated and filed on 11 January 2019.
I also refer to the hearing on 13 December 2018. A transcript of that hearing is attached for your reference.
In the course of the hearing, I stated that the list of documents to be provided should indicate, in respect of the documents listed, whether they are privileged, and if so, whether the plaintiff waives privilege over them, or some of them; or whether the plaintiff maintains the claim of privilege over them, or some of them (see page 30 of the transcript at A-C).
The list of documents filed refers, on page 2 paragraph 1, to the documents listed in Schedule I (which is in 2 Parts, being Part 1 and Part 2), and states “in respect of which privilege is not otherwise waived”.
Under page 2 paragraph 3 of the said list, it is expressly stated that the plaintiff objects to produce the documents enumerated in Part 2 of the said Schedule 1 on the ground that they are by their nature privileged from production.
There is no such express statement objecting to production on the grounds of privilege in respect of the documents listed in Part 1 of the said Schedule 1.
The plaintiff's solicitors are required, by close of business tomorrow, to clarify whether or not they are willing to waive privilege on all or some of the documents listed in Part 1 of the said Schedule 1; or whether they maintain their claim of privilege over the entirety of the documents listed in Part 1 of Schedule 1.”

11. The plaintiff’s solicitors responded by 2 letters both dated 18 January 2019. The letters contained the following, amongst other, statements:

1^st letter:
“…
9. The intent of paragraph 1 of the narrative to the list of documents is to seek to say that privilege (as to schedule 1 part 1) is waived for the purpose of the preliminary trial, but only the preliminary trial, not for the main trial should His Lordship find in favour of Mrs Lok in the preliminary trial.
…
11. Should, as we anticipate, His Lordship ultimately give Mrs Lok permission to pursue her claim against the Hospital Authority, it is our position that it would be wrong to allow the Hospital Authority’s legal advisers to avail themselves in the main trial of documents disclosed, so as to satisfy His Lordship, in this preliminary trial as to limitation.
…”
2^nd Letter:
“…
3. The only issue is whether the Hospital Authority’s legal advisors accept the waiver of privilege as to the HTW documents is limited to the preliminary trial or, if they do not accept this, why not?
…”

12. Consequently, on 18 January 2019, I made the following directions:

“ It appears to be that the stance of the plaintiff is that:
1) All of the documents listed in Part 1 of Schedule 1 are privileged documents;
2) Privilege has been waived in respect of those documents in Part 1 of Schedule 1 that have been exhibited to Mr Millar’s 2^nd affidavit;
3) The plaintiff is prepared to waive privilege in respect of the rest of the documents in Part 1 of Schedule 1 but only for the purposes of the preliminary trial, that is to say that, if the court grants leave to the plaintiff to override the limitation period and to proceed to trial, then the rest of the documents in Part 1 of Schedule 1 that are not exhibited to the 2^nd affidavit of Mr Millar may not be deployed at the trial.
No authority has been cited in support of the contention set out in paragraph 3 above. If the plaintiff is entitled to rely on negative advice given to her to justify her delay in prosecuting the claim and, based on the same, the court overrides the limitation period in her favour, it seems to me to be unfair that the defendant is prevented at the trial from relying on the same negative advice to defend the proceedings. However, I am not asked to, nor do I make a ruling on this point.
On the basis that the plaintiff maintains her position as set out in paragraph 3 above, I make the following directions:
a) The hearing fixed on 22 January 2019 at 10 am (1 hour reserved) is vacated;
b) The plaintiff is to identify by close of business on 21 January 2019, those documents listed in Part 1 of Schedule 1 that are not exhibited to the 2^nd affidavit of Mr Millar;
c) Parties to exchange and file written submissions, within 7 days thereafter, on whether or not the privilege that is claimed on the documents listed in Part 1 of Schedule 1 that are not exhibited to the 2^nd affidavit of Mr Millar has been waived, such written submissions to be in font 14 with single spacing and not to exceed 5 pages;
d) Parties to exchange and file written submissions in reply within 5 days thereafter, such written submissions to be in font 14 with single spacing and not to exceed 3 pages;
e) Unless the court otherwise directs, further oral submissions are not required.”

13. I have perused the written submissions filed by the parties dated 25 January 2019, and the written submissions in reply dated 31 January 2019 and 4 February 2019, on whether or not the plaintiff can invoke, in this trial of the preliminary issue of limitations, the doctrine of partial waiver of privilege in respect of privileged documents that have been disclosed for a limited purpose only. This is the discrete issue that I address in this ruling. Both parties accept that there is no authority addressing the question whether the deployment of privileged documents at the trial on the preliminary issue of limitations will have the result that the privilege over those documents is waived at the main trial that would take place if the court disapplies the limitation period.

14. After reviewing the English authorities, including British Coal Corporation v. Dennis Rye Ltd [1988] 1 WLR 1113, B v. Auckland District Law Society [2003] 2 AC 736, and Berezovsky v. Hine [2011] EWCA Civ 1089, the Hong Kong Court of Appeal in Citic Pacific Ltd v. Secretary for Justice [2012] 2 HKLRD 701 held that the concept of partial waiver of privilege was incorporated into the law of Hong Kong[1]. Citic Pacific Ltd had disclosed privileged material to the Securities and Futures Commission (“SFC”) for the purposes of the commission’s investigations which they conducted within the scope of their own statutory enforcement regime. Citic Pacific Ltd had made an express reservation as to this sole use, to which the SFC agreed. The Court of Appeal upheld the claim of privilege by Citic Pacific Ltd in respect of the use of that material by the police for a criminal investigation the police conducted several months later.[2]

15. In British Coal Corporation v. Dennis Rye Ltd, the English Court of Appeal held that where the plaintiffs made available certain privileged documents (created for the purpose of civil proceedings brought by the plaintiffs against the defendants) to the police for a limited purpose only, namely, to assist in the conduct, firstly, of a criminal investigation and then of a criminal trial of the defendants, the disclosure could not be construed as a waiver of such privilege for subsequent civil proceedings brought by the plaintiffs against the defendants[3].

16. In Goldman v. Hesper [1988] 1 WLR 1238, the English Court of Appeal held that where privileged documents were lodged with the court by the receiving party for taxation of costs, and disclosed to the paying party upon the direction of the court to enable the paying party to raise a bona fide challenge to any item of costs claimed, the waiver of privilege is limited to the specific purpose of taxation and would not prevent the receiving party from reasserting his privilege in any subsequent proceedings[4].

17. The English Court of Appeal in Bourns Inc. v. Raychem Corporation [1999] 3 All ER 154 followed and applied Goldman v. Hesper. Aldous LJ, giving the judgment of the court, held that:

(a) if the receiving party had disclosed the documents pursuant to an order made by the taxing master, then clearly the privilege attaching to the documents would only have been waived for the purpose of the taxation proceedings;
(b) but even where no order for disclosure had been made, it is the principle of natural justice that a person should normally see relevant material placed before the tribunal and it is also necessary for the proper administration of justice that parties should cooperate. There is good reason to encourage voluntary disclosure of relevant documents in taxation proceedings. In such circumstances, the receiving party should not lose his right of privilege because justice only requires that right to be lost for the taxation proceedings.[5]

18. The Privy Council in B v. Auckland District Law Society rejected the contention that once a privileged document was disclosed, the privilege was lost for all purposes. Lord Millett, delivering the opinion of the Privy Council, stated:

“68. The society’s argument, put colloquially, is that privilege entitles one to refuse to let the cat out of the bag; once it is out of the bag, however, privilege cannot help to put it back. Their Lordships observe that this arises from the nature of privilege; it is nothing to do with waiver. It does not follow that privilege is waived generally because a privileged document has been disclosed for a limited purpose only: … The question is not whether privilege has been waived, but whether it has been lost. It would be unfortunate if it were. It must often be in the interests of the administration of justice that partial or limited waiver of privilege should be made by a party who would not contemplate anything which might cause privilege to be lost, and it would be most undesirable if the law could not accommodate it.”

19. In Berezovsky v. Hine, the plaintiff provided privileged documents (draft witness statements) to his business associate for a limited purpose, namely, to lend support to the latter’s asylum claim. In holding that the documents remained privileged and could not be used in proceedings in the Commercial Court, the English Court of Appeal reaffirmed the principle that it did not follow that privilege would be waived generally because a privileged document had been disclosed for a limited purpose only; and held that where privilege was waived, the question whether the waiver was limited, and, if so, the parameters of the limitation, must be determined by reference to all the circumstances of the alleged waiver, and, in particular, what was expressly or impliedly communicated between the person sending, and the person receiving the documents in question, and what they must or ought reasonably have understood[6].

20. The limited purpose waiver of privileged documents, that had occurred in the cases referred to above, had occurred in the context of different investigations and different proceedings, including asylum proceedings and taxation proceedings. On the other hand, it is the view of the editor of Thanki’s The Law of Privilege (3^rd Ed. 2018) that a party that deploys otherwise privileged documents in interlocutory proceedings will generally be held to have waived the privilege for the use at trial[7]:

“Deployment in interlocutory proceedings
5.45 It has not always been clear whether use of a document in interlocutory proceedings as opposed to a trial involves a collateral waiver in associated material. In Great Atlantic v Home Insurance⁹⁹Templeman LJ drew a clear distinction between interlocutory proceedings and the trial itself. However, in Derby v Weldon (No 10)¹⁰⁰ Vinelott J rejected the assertion that reliance on a document in an application for a Mareva injunction did not result in a waiver for the trial, and in Dunlop Slazenger International Limited v Joe Bloggs Sports Limited¹⁰¹ the court clearly viewed the deployment of material in interlocutory proceedings as resulting in a wavier in both that and associated material.¹⁰² More recently, in Berezovsky v Abramovich¹⁰³ Gloster J held that privilege had been waived by referring to the contents of privileged interviews in support of a summary judgment application.
5.46 This is now the prevalent view and is surely correct. As with a trial, it will for most practical purposes be impossible to turn the clock back when privileged material has been relied on by a party during the interlocutory stages. It remains to be seen whether there is any remaining scope to argue that the waiver is in some way limited to an issue only arising on the interlocutory hearing. In Dunlop Slazenger International Limited v Joe Bloggs Sports Limited, Waller LJ appeared to leave the door open to this possibility:
It comes to no more than this. If in interlocutory proceedings a party has waived privilege–in that case that was on a Mareva injunction application–then, that is a waiver for all purposes and the cherry-picking principle applies. Whether that will always be right is a matter that I would reserve for future decisions. It is not necessary to say that that will always be right to dispose of this case. If there is to be an exception to that principle it would need to be framed in the following way. It would need to be argued that since it was only for the purpose of the interlocutory proceedings and in relation to an issue in those proceedings that the waiver had taken place the waiver was in some way limited.¹⁰⁴

⁹⁹ [1981] 1 WLR 529, 537. …
¹⁰⁰ [1991] 1 WLR 660.
¹⁰¹ [2003] EWCA Civ 901.
¹⁰² …
¹⁰³ [2011] EWHC 1143 (Comm), …
¹⁰⁴ [2003] EWCA Civ 901, para 17.”

21. Having carefully considered the authorities on point and the parties’ submissions, I have reached the firm conclusion that the doctrine of partial waiver of privilege cannot apply to the trial of a preliminary issue so as to preserve, at the subsequent main trial, the privilege over the documents that were disclosed at the trial of the preliminary issue. The court’s discretionary power to order separate trials of separate issues under Order 33, rr. 3 and 4 of the Rules of the High Court is exercised when it is just and convenient to do so, having regard to the underlying objectives of the Civil Justice Reform, and under Order 1A, which aim to facilitate the more efficient, expeditious and fair disposal of a case. The court does not order a trial of a preliminary issue as to limitations in every case where a limitations defence is pleaded. There may be cases where the court directs that all issues of liability, quantum and limitations be tried together. Such cases may include cases where the period of delay after the expiry of the limitations period is minimal. It would be discriminatory, in my view, that a party to the trial of a preliminary issue as to limitations enjoys the right to invoke the doctrine of partial waiver of privilege but a party to a trial where all issues of liability, quantum and limitations are tried together does not enjoy such a right.

22. Further, as I observed in my direction dated 18 January 2019, if the plaintiff is entitled to rely on negative advice given to her to justify her delay in prosecuting the claim and, based on the same, the court overrides the limitation period in her favour, it would be unfair if the defendant is prevented, at the main trial, from relying on the same negative advice to defend her claim. I find support for my view from the judgment of Gloster J, as she then was, in Berezovsky v Abramovich [2011] EWHC 1143 (Comm) who stated at §21:

“In circumstances where the Claimant has deliberately chosen, in the context of the summary judgment application, to waive legal professional privilege by referring extensively to the contents of the Patarkatsishvili interviews with his former solicitors, in order to support his case on the merits of his claim, it would not be just, fair, or consistent with the principles expounded in the authorities, to permit the Claimant, on the simple pretext of saying that he had not made up his mind whether to refer to such evidence at trial, to withhold disclosure of the underlying privileged materials relating to such interviews.”

23. Legal professional privilege is a fundamental human right which is constitutionally protected under Article 35 of the Basic Law. Article 35 provides that residents “shall have the right to confidential legal advice”. This fundamental right is vested in the plaintiff and not in her solicitors. I am concerned that the plaintiff may have been wrongly advised to waive privilege in respect of the documents that were subsequently exhibited in Mr Millar’s 2^nd affidavit in order “to satisfy or comply with” my order of 18 May 2018. I had previously offered to grant leave to the plaintiff to withdraw the 2^nd affidavit of Mr Millar[8]. I hereby formally grant leave to the plaintiff to withdraw the 2^nd affidavit of Mr Millar, if she wishes to do so, by serving written notice of withdrawal to the court and to the defendant within 14 days from today. I trust that she would be properly advised that she is under no compulsion to waive the privilege that she enjoys over the documents exhibited to the 2^nd affidavit of Mr Millar and over the documents listed in Part 1 of Schedule 1 of the list of documents dated 11 January 2019.

24. I direct the parties to write to me, either jointly or separately, within 21 days from today, on the directions that I should make, in the light of this ruling and the plaintiff’s withdrawal of, or continued reliance on, the 2^nd affidavit of Mr Millar, as the case may be, for the further conduct of the application for discovery and/or the resumption of the trial on the preliminary issue of limitations.

	(Mohan Bharwaney)
	Judge of the Court of First Instance High Court

Mr Ronald Tang, instructed by Littlewoods, assigned by Director of Legal Aid, for the plaintiff

Mr Nigel Kat SC, instructed by Deacons, for the defendant

[1] At §§28-38, 75

[2] At §§54, 68-76

[3] At 1120H-1121E

[4] At 1243H-1245D

[5] At 162d-163a

[6] At §§28-29

[7] See also the discussion in Privilege, Colin Passmore, 3^rd Ed. at §§7-237 - 7-246.

[8] See Transcript of the proceedings on 13 December 2018 at 30G-Q.

MOMIN LOK v. HOSPITAL AUTHORITY

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