NG TIN YEUNG v. LO SHUK FA trading as LOYAL DECORATION CO.

DCPI 2356/2017

[2025] HKDC 1094

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2356 OF 2017

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JUDGMENT

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Introduction

1.  This is the retrial of this action.

Procedural history

2.  This action was originally tried by Deputy District Judge Kenneth KH Lee on 26 April 2023.

3.  By the decision of the learned Judge ([2023] HKDC 1118), a trial de novo was ordered on the ground that there were justifiable concerns about the mental condition of the defendant.

4.  By the order of Her Honour Judge Phillis Loh dated 15 August 2024, leave was granted to set the action down for trial.

Absence of the defendant

5.  The defendant was absent at the retrial.

6.  Lee & Yik Lawyers (“the defendant’s solicitors”) were and remained the solicitors on record of the defendant.

7.  Prior to the trial, the defendant’s solicitors wrote to inform this court that they were unable to contact the defendant.

8.  Upon the request of Mr Leon Ho, counsel for the plaintiff, the defendant’s solicitors clarified that they did not seek to participate in the trial by making substantive submissions, adducing evidence or conducting examinations.

9.  On the day of the trial, Mr Lee Ming Tak of the defendant’s solicitors informed this court that he was still unable to contact the defendant and although the defence witness, Mr Lau Siu Fai (“Lau”) was notified of the trial dates, he had failed to turn up.

The plaintiff’s case

10.  The plaintiff was employed by the defendant as a decoration worker. Lau, who was the husband of the defendant, was the plaintiff’s supervisor.

11.  On 7 March 2015, the plaintiff was assigned by the defendant to do carpentry works at a residential unit in Tsuen Kam Centre, Tsuen Wan, New Territories, Hong Kong (“the Location”). In the course of doing so, the plaintiff was injured by a tile cutter (“the Cutter”) provided by Lau which went out of order.

12.  The plaintiff says that although he had brought his own cutter, he was however instructed and insisted by Lau to use the Cutter saying that it would help him to do his job faster as Lau was rushing to complete the renovation works.

13.  The plaintiff further says that the Cutter was dangerous and unsafe for carpentry works.

The defence

14.  The defendant denies that the plaintiff was assigned by her, her servants or agents to do any carpentry work on the day of the accident.

15.  The defendant further denies that Lau provided the Cutter to the plaintiff for him to do any work on the day of the accident.

16.  The defendant also claims contributory negligence on the part of the plaintiff.

Findings of fact

17.  The plaintiff gave evidence at the trial. His evidence was not challenged.

18.  I accept that on 7 March 2015, the plaintiff was assigned by Lau to work at the Location. Although the plaintiff had brought his own wood cutter, he was instructed by Lau to convert a tile cutter that Lau had just bought for his carpentry work because Lau said his wood cutter was too slow. Lau insisted on the plaintiff to do so because he was rushing to finish the renovation works.

19.  I accept that the plaintiff acceded to Lau’s request because he was the supervisor and also the husband of the defendant.

20.  As the plaintiff is an experienced carpenter, I accept his evidence that there should be a sawing platform for wood cutting at the work site. However, none was provided by the defendant. He had no alternative but to do the wood cutting by squatting on the floor, which was not only dangerous but also made the task more difficult and causing him fatigue more easily.

21.  The accident happened because the Cutter suddenly slipped in his hand. The plaintiff’s left little finger and ring finger were cut at proximal phalanges.

22.  Turning to the defendant’s plea of contributory negligence, it is trite that the burden of proof is on the defendant: see Ng Tim Yip Kevin v Chan Ho Kin, CACV 285/2007, 23/10/2008, unreported, at para 31. Given that no evidence was adduced by the defendant, the plea must fail.

23.  Accordingly, I find in favour of the plaintiff on liability.

Quantum

24.  The plaintiff was born on 26 February 1951. He was 64 years old at the time of the accident.

25.  After the accident, he was admitted to the Accident & Emergency Department of Yan Chai Hospital. On examination, he was found both of his left little finger and ring finger were cut at proximal phalanges.

26.  An emergency operation was performed on the same day. Intra-operatively, there was a comminuted fracture over the left little finger proximal phalanx and the arterial stump quality was poor. Replantation was not feasible. Revision amputation of the left little finger was performed. The fracture over the left ring finger was fixed with K-wire. There was a complete cut over the ring finger extensor, and it was repaired. Neurovascular bundles of the ring finger were intact. He was discharged on 9 March 2015 and was referred to physiotherapy and occupational therapy for rehabilitation.

27.  The plaintiff was jointly assessed by Dr Tio Man Kwun Peter (instructed by the plaintiff) and Dr Tsoi Chi Wah Danny (instructed by the defendant) on 15 June 2018.

28.  At the time of the examination, the plaintiff was found:

(1)  left hand numbness at stump of left litter finger;

(2)  left ring finger stiffness over PIP and DIPJ;

(3)  left ring finger pain on movement and at night;

(4)  left little finger pain on movement;

(5)  weakened handgrip;

(6)  sleep disturbance; and

(7)  independent with activities of daily living. Handles household chores occasionally. Able to take public transport.

29.  On physical examination of the plaintiff’s left hand, the doctors found:

(1)  amputation of left little finger at proximal phalange level;

(2)  ankylosis of left ring finger with mallet deformity, deformity at DIP joint with atrophic changes;

(3)  no wasting of small muscles;

(4)  no swelling of soft tissue;

(5)  tenderness over little finger stump, right finger proximal phalange and PIP joint;

(6)  inconspicuous scar over left ring finger;

(7)  2 cm scar over stump of left little finger;

(8)  left hand grip strength around 50% to 75% of that of the right hand; and

(9)  reduced sensation at stump of left little finger and left ring finger by >50%.

30.  The experts are of the following common opinion:

(1)  The fractures were solely attributable to the accident. The soft tissue injuries over those 2 fingers were also caused by the accident.

(2)  The treatment was standard and appropriate. There is no indication for further surgery.

(3)  Dr Tio opined that the plaintiff’s demonstrated signs and symptoms are compatible with post fracture status. Dr Tsoi opined that most of the plaintiff’s complaints and disabilities are genuine with the exception that there was submaximal effort in performing the hand grip assessment.

(4)  The plaintiff has reached maximal medical improvement. Prognosis is poor to fair. Stiffness, weakness, numbness and pain over those fingers were likely permanent.

(5)  Orthopaedically, the plaintiff should have difficulty to resume his pre-injury work as a carpenter with full capacity. He may consider changing jobs that are relatively sedentary in nature such as security guard or gatekeeper or by continuing to work as a carpenter with much reduction in working hours like half day’s work.

(6)  Dr Tio assessed whole person impairment at 12% whereas Dr Tsoi assessed at 9%.

(7)  Dr Tio opined that the sick leave given is reasonable and appropriate. Dr Tsoi opined that the plaintiff’s left hand injury should have reached a stage of maximal medical improvement by one year after the accident. Further sick leave might not have any therapeutic value.

Pain, suffering and loss of amenities (“PSLA”)

31.  Mr Ho referred me to the following cases which concern amputation of part of one finger of a non-dominant hand.

32.  In Ho Shu Yan v Lo Siu Ling formerly t/a Chi Wo Civil Engineering Co & Another, HCPI 1336/2000, unreported, 31/1/2002, a metal pipe shifted and cut the left ring finger of the plaintiff. 0.7 cm of the distal phalanx of the plaintiff’s left ring finger was amputated. In light of the loss of flexion of his distal interphalangeal joint of the ring finger and amputation of 1/3 of the distal section of the phalangnex, the plaintiff was assessed to have 2% whole person impairment. $120,000 was awarded on PSLA.

33.  In Thapa Chhetri Shankar v Heng Ming Metal Trading Limited, DCPI 428/2009, unreported, 27/10/2009, the plaintiff was injured by a falling forklift prong and nearly severed the tip of his left middle finger. About 1 cm of the left index finger was amputated. $150,000 was awarded on PSLA.

34.  In Zhang Hongli v Wong Kam Fuk[2018] HKDC 290, the plaintiff’s left little finger was crushed by construction waste. Part of the left little finger was amputated, exposing the distal phalanx of the left little finger. $120,000 was awarded on PSLA.

35.  In view of the comparative severity of injury of the plaintiff and taking into account of inflation, I would award a sum of $250,000 under this head.

Loss of earnings

36.  The plaintiff says that at the time of the accident, his daily wage was $800 and worked for 23 days per month.

37.  In the defendant’s answer to revised statement of damages filed on 9 July 2021 (“the Answer”), the defendant says that the plaintiff only worked 11 days a month approximately.

38.  Mr Ho, citing Yeung Chung Chun v Poon Tak Fung (transliteration)[2021] HKDC 1023, Chan Kai Fai v Kong Wang Engineering Co Ltd[2021] HKDC 519 and Lo Wai Shing v Lik Sang Engineering Co Ltd, HCPI 15/2012, unreported, 5/11/2013, submitted that the court should adopt a pragmatic approach and find that a casual worker worked 20-22 days a month in the absence of cogent documentary evidence. Mr Ho submitted that the plaintiff should have worked at least 20 days per month.

39.  Having said that, however, Mr Ho informed this court that the plaintiff is prepared to accept the figures pleaded by the defendant, ie $8,800/month ($800 x 11 days).

40.  Furthermore, Mr Ho informed this court that the plaintiff is prepared to accept the defendant’s pleaded figures in loss of earnings as pleaded in the Answer at paras 12-20 as follows:

(1)  From 7/3/2015 to 6/11/2015

$800 x 11 days x 8 months = $70,400

(2)  From 7/11/2015 to 26/2/2021

$400 x 11 days x 64 months = $281,600

(3)  Loss of MPF

$70,400 x 5% = $3,520

Total: HK$355,520

Future loss of earnings plus MPF

41.  Mr Ho informed this court that as the plaintiff is now 74 years old, there is no claim under this head.

Loss of earning capacity

42.  This head of damage arises where a plaintiff is at the time of the trial in employment, but there is a risk that he may lose this employment at some time in the future, and may then, as a result of his injury, be at a disadvantage in getting another job or an equally well paid job: see the speech of Lord Browne, LJ in Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132 at p140B.

43.  The doctors are of the opinion that the plaintiff should have difficulty to resume his pre-injury work as a carpenter with full capacity. He may consider changing jobs that are relatively sedentary in nature such as security guard or gatekeeper or by continuing to work as a carpenter with much reduction in working hours like half day’s work.

44.  Mr Ho informed this court that the plaintiff is prepared to agree with the defendant’s proposed figure of $25,000 under this head.

45.  The award under this head is $25,000.

Special damages

46.  The plaintiff claims $5,000 on medical expenses, $3,000 on travel expenses and $8,000 on tonic food. The defendant agrees to a total sum of $8,000 under this head.

47.  Notwithstanding the differences, Mr Ho informed this court that the plaintiff is prepared to limit his claim to $8,000.

48.  The award under this head is therefore $8,000.

Summary of the award

49.  Accordingly, the plaintiff is entitled to the following damages:

PSLA	$250,000
Loss of earnings	$355,520
Loss of earning capacity	$25,000
Special damages	8,000
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Total:	$638,520

Interest

50.  Interest on PSLA shall run at 2% per annum from the date of writ to the date of judgment and thereafter at judgment rate until payment.

51.  Interest on other heads of damages shall run at half judgment rate from the date of accident to the date of judgment and thereafter at judgment rate until payment.

Costs

52.  Costs to follow the event. I make a costs order nisi that the defendant shall pay the plaintiff the costs of this action (including all costs reserved and the costs of the 1^st trial) with certificate for counsel, to be taxed if not agreed.

53.  Unless an application is made by summons for variation within 14 days from the date of this judgment, the costs order nisi shall become absolute.

54.  The plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations.

Mr Leon Ho, instructed by Michael Pang & Co, assigned by the Director of Legal Aid, for the plaintiff

Mr Lee Ming Tak, of Lee & Yik Lawyers, for the defendant

DCPI 2356/2017

[2023] HKDC 1118

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2356 OF 2017

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DECISION

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A. Introduction

1.  In this action, the plaintiff (“P”) claims damages against his employer, the defendant (“D”), for injuries sustained while using a tile cutter to perform carpentry work at a private residential unit located at Tsuen Kam Centre, Tsuen Wan, New Territories, Hong Kong on 7 March 2015. 

2.  The trial of this action was scheduled to be heard by me on 26 April 2023.  D was however absent on the date of the hearing.  As will be apparent, D was represented until her former solicitors ceased to act for her shortly before the trial.  Slightly unusual, however, no affirmation of service was prepared by P for the hearing.  Instead, I was informed of the following circumstances at the hearing by Mr Leon Ho, counsel for P: -

2.1  D’s former solicitors Messrs. Lee & Yik Lawyers(“L&Y”) made an application to cease to act for D and the order allowing the application was granted on 18 April 2023.

2.2  All relevant documents had been served by P’s solicitors, Messrs. Michael Pang & Co. (“MP”), on L&Y prior to the order being granted.

2.3  Further, according to L&Y, the documents served by MP had been forwarded by L&Y to D’s address and sent by email to a family member of D.

2.4  L&Y stated in correspondence that it had received information that D had suffered an acute stroke.  However, L&Y had not replied to MP’s request for medical proof.

3.  Based on the above, Mr Ho submitted that D must have been aware of the trial hearing, and all documents had been duly served on D through L&Y. Therefore, Mr Ho submitted that the trial hearing should proceed.

4.  After hearing Mr Ho’s submissions, I was satisfied that D was aware of the trial date and had been properly served with all the relevant documents.  I therefore allowed the trial to proceed.  On the other hand, at my request, Mr Pang Yiu Kwong of MP undertook to file an affirmation of service to cover all the relevant circumstances including those explained by Mr Ho at the hearing.

5.  At the hearing, P was the only witness.  He gave evidence to prove his case.  As aforesaid, D was absent and there was no witness from her side. After hearing closing submissions from P, judgment was reserved.

B. Affirmation of service

6.  In honour of his undertaking to the court, Mr Pang filed an affirmation dated 27 April 2023.  After reading the said affirmation, I was able to get a fuller picture of the relevant circumstances, which includes the following.

7.  On 4 April 2023, L&Y wrote two letters, one to MP and the other to the court.

8.  In the letter to MP, L&Y stated, amongst others, that they had not been able to obtain instructions from D.

9.  In the letter to the court, L&Y stated, amongst others: -

“We write to inform the Court that we have received information that the Defendant has recently suffered an acute stroke rendering her incapable of giving instruction to us to carry on her defence in this case.An application has been taken out by us seeking an order to cease to act, which has been fixed for hearing on 18 April 2023.

To safeguard the Defendant's interest, we have written to notify the Official Solicitor's Office.To our knowledge, no family member of the Defendant is prepared or willing to apply to act on her behalf in that regard.”

10.  I will come back to these two letters later. 

11.  By a letter dated 11 April 2023, MP asked L&Y whether L&Y intended for MP to serve the trial bundles on L&Y, or for MP to send the same direct to D.

12.  By another letter of even date, MP wrote to inquire L&Y of D's then physical and medical condition, and requested for the provision of medical proof of the onset of the acute stroke suffered by D.

13.  By a letter dated 20 April 2023, L&Y enclosed an order of Master Jo Siu dated 18 April 2023, which stated, amongst others, that upon compliance with the requirements of Order 67, rule 6(1) of the Rules of the District Court (“RDC”), L&Y would cease to be the solicitors acting for D. 

14.  In the said letter, L&Y also stated that as a matter of courtesy, various trial documents that MP had sent to L&Y had been forwarded to all last known addresses of D, and such documents had also been electronically sent to a family member of D.  However, L&Y said that they did not have any indication from D or her family to disclose to MP D’s contact details.

15.  Mr Pang drew the attention of this court to the fact that various court documents had clearly marked the trial date and therefore D should have notice thereof.

C. Queries raised by this court

16.  After reading the said affirmation and the attached exhibits, I had some concerns about the mental capacity of D on the date of the trial hearing.  The significance of this is that it could bring into play the provisions in Order 80 of RDC.

17.  My concern had mainly arisen from L&Y’s aforesaid letters to MP and the court, both dated 4 April 2023. 

18.  As stated above, in their letter to MP, L&Y expressly stated that they “have not been able to obtain instructions from [D]”.  In their letter to the court, L&Y explained that they had been unable to take instructions because they learnt that D had suffered an acute stroke.  As a result, L&Y said they had taken out an application to cease to act which had been fixed for hearing on 18 April 2023.  Further, L&Y had written to notify the Official Solicitor’s Office “[t]o safeguard the Defendant’s interest”. In the context of the case, the notification could only have been in relation to issues concerning the mental capacity of D.  Further, L&Y also stated that D’s family members had been consulted, but no one was “prepared or willing to apply to act on [D]’s behalf in that regard”.  It therefore appears to show that L&Y had, because of D’s then condition, seen the need to find a family member to act on D’s behalf, but unfortunately there was no willing candidate.

19.  On 19 May 2023, I therefore gave directions for P to address me on whether in the circumstances, P could still have proceeded with the hearing, when D had allegedly suffered a stroke shortly therebefore and no family member was prepared or willing to act on her behalf.

D. MP’s reply

20.  By a letter dated 25 May 2023, MP replied as follows, amongst others: -

20.1  There was insufficient evidence that D required a next friend.  L&Y did not suggest that their solicitors had “personally interacted” with D.  L&Y did not reply to MP’s request for medical proof.  No evidence in the form of affirmation or medical report had been filed before the court in relation to D’s alleged mental incapacity.  A bare denial of mental capacity is insufficient.

20.2  Not every stroke results in mental incapacity to the extent that would justify the appointment of a next friend.

20.3  MP were not allowed to attend the hearing on 18 April 2023 for L&Y’s application to cease to act for D and therefore did not know what was discussed at the hearing.  However, if there were good reasons to believe that D needed a next friend, the learned Master would not have allowed L&Y’s application and would have made appropriate orders to inquire as to D’s mental capacity. No such order had been made.  Further, it would be impossible for L&Y to comply with Order 67, rule 6(1) of RDC to serve the order of the learned Master on D.

20.4  L&Y stated in their letter dated 20 April 2023 that they had forwarded various trial documents to D’s last known address and sent the same electronically to a member of D’s family.  L&Y said that they had also notified the Official Solicitor.  However, as far as MP was aware, neither the Official Solicitor nor D nor her family members had approached the court or MP for further information or inquiries.

20.5  As such, there was no prima facie evidence to justify the appointment of a next friend and it was appropriate for the court to proceed with the trial in the absence of D.  Otherwise, the proceedings would “likely remain in limbo” in view of the lack of response from D and her family members which would cause P serious and irreparable prejudice.

E. The mental capacity rule

21.  It is convenient to first set out the relevant legal principles to set the framework for discussion. 

22.  Order 80 contains rules relating to persons under disability who are involved in legal proceedings. 

23.  Order 80, rule 1 provides, amongst others, that “person under disability” means a person who is a minor or a mentally incapacitated person.  In this case, D potentially falls within the latter category.

24.  Order 80, rule 2 states as follows:

“Person under disability must sue, etc., by next friend or guardian ad litem (O.80, r.2)

2.— (1) A person under disability may not bring, or make a claim, in any proceedings except by his next friend and may not acknowledge service, defend, make a counterclaim or intervene in any proceedings, or appear in any proceedings under a judgment or order notice of which has been served on him, except by his guardian ad litem.”

25.  As set out in paragraph 80/2/2 of the Hong Kong Civil Procedure, 2023 Ed, Volume 1, the words “may not” in Order 80, rule 2(1) are equivalent to “shall not”.

26.  In the leading case of Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511, Chadwick LJ made it clear that the rationale of the mental capacity rule is that the court is itself concerned not only to protect its own process but to provide protection to all parties.  His Lordship said (at [65]): -

“65. RSC Ord 80, r 2(1) provided that a person under disability might not bring proceedings except by his next friend and might not defend proceedings except by his guardian ad litem. … The pursuit and defence of legal proceedings are juristic acts which can only be done by persons having the necessary mental capacity; and the court is concerned not only to protect its own process but to provide protection to both parties to litigation which comes before it. A defendant is entitled to expect that he will not be required to defend proceedings brought against him by a person of unsound mind acting without a next friend. …”

27.  In a similar vein, Stinson J observed in the Canadian case of Ontario Limited et al. v. Kagan, Shastri, Barristers & Solicitors et al. [2013] ONSC 4114 (at [17]): -

[17] These procedural safeguards set out in Rule 7 are designed to protect not only the person under a disability, but also "to protect the integrity of the judicial process for all participants in the litigation, including the Court" (Murphy v. Carmelite Order of Nuns, [2004] O.J. No. 6286, 2004 CarswellOnt 9965 (S.C.J.)). As noted by Lofchik J. in Lico v. Griffiths, [2008] O.J. No. 1018, 58 C.C.L.I. (4th) 280 (S.C.J.), at para. 24, because the rules protect the person under a disability, they consequently protect the entire court procedure. In that case, Lofchik J. cited with approval the following passage from Holmested and Watson, Ontario Civil Procedure, looseleaf, vol. 2 (Toronto: Carswell, 1984- ), p. 7-13, as quoted in Cameron v. Louden, [1998] O.J. No. 2791, 24 C.P.C. (4th) 50 (Gen. Div.) by Master Beaudoin, in which the authors explain how the procedural requirement of appointing a litigation guardian when a person is under a disability offers protection to all involved in the proceeding [at para. 4]:

The purpose of a rule requiring a litigation guardian for parties under disability is drawn for protection to the party, the other parties and the Court itself. The rule offers protection to the party by ensuring that a competent person with a duty to act for the party's benefit is there to instruct counsel and take steps in the litigation on the party's behalf. To the other parties, the rule offers the protection of a competent person who instructs counsel on how the proceeding is to be conducted, is responsible for costs and is responsible for seeing that the court's eventual judgment is obeyed. The litigation guardian offers assurance to the court that its process is not abused by or against a party under disability and that its order will be obeyed.”

28.  When a party is mentally ill, the continuation of the proceedings by the court may be a denial of natural justice.  Therefore, when there is sufficient concern about the mental capacity of a party, the court may need to adjourn the proceedings to examine that question, where appropriate, of its own volition.  This was explained by Bell J in the Australian case of Goddard Elliott v Fritsch [2012] VSC 87 (at [566] to [567]): -

“566 The responsibility of the court to determine whether a party has the requisite mental capacity can have important consequences for the conduct of legal proceedings by the court. The position of a person compelled to participate in a hearing when mentally ill may be seen to be analogous with someone compelled to attend a hearing who cannot for reasons of legitimate physical illness or other reasonable explanation. A person who is physically ill or otherwise (reasonably) cannot attend the hearing has a strong claim to an adjournment. So also a person who is mentally ill but able to be physically present has a strong claim to an adjournment. As was held by Handley JA in Murphy v Doman, in both cases there is a serious risk that the continuation of the proceeding by the court would be a denial of natural justice.

567 In consequence, when it is shown that there is sufficient concern about the capacity of a party to participate in legal proceedings, the court may need to adjourn the proceeding in order to examine that question. Where necessary, the court must consider these issues of its own motion. …” (footnotes omitted)

29.  As an officer of the court, it is a solicitor’s primary responsibility to be reasonably satisfied that the client has the mental capacity to participate in the proceeding and to instruct.  Bell J observed (at [549]): -

“549 The mental capacity of a client to instruct is a reflection of that mental capacity which the client must have to participate in the legal proceeding. As a lawyer is an officer of the court, it is their ‘primary responsibility’ to be reasonably satisfied that the client has the mental capacity to participate in the proceeding and to instruct. Where the client does not have that capacity, the lawyer does not have the authority to represent them in the proceeding, except for certain limited purposes, most particularly perhaps for the purpose of an inquiry into that question. I say perhaps because they are not really representing the client in that process, but rather assisting the court as an officer of the court.” (footnotes omitted)

30.  Bell J then explained that if the solicitor has doubts about the client’s mental capacity and the issue cannot be resolved to the reasonable satisfaction of the solicitor, the solicitor must raise the issue with the court (at [568] – [569]): -

“568 We have seen the primary responsibility of a lawyer is to be satisfied the client has the mental capacity to instruct. Doubts about this issue in the mind of the lawyer can also have important consequences for the conduct of legal proceedings. If the issue cannot be resolved to the reasonable satisfaction of the lawyer, as occurred in the present case, the lawyer must raise the issue with the court. It is the court which has the final responsibility to determine the issue. That is how the matter was dealt with in Till v Nominal Defendant. The plaintiff’s counsel became concerned through the trial that his client lacked the necessary capacity to instruct. When he brought his concerns to the attention of McMeekin J, his Honour stayed the plaintiff’s proceeding ‘until his capacity to provide instructions and make decisions about his legal rights is established’. His Honour referred the plaintiff to the Queensland Consumer and Administration Tribunal for a capacity assessment. As we are about to see, the problem in the present case occurred because (among other reasons) Paul’s lawyers did not adopt this course although it was definitely called for.

569 By these rules and principles, a person having mental capacity can, but a person lacking mental capacity cannot, commence or defend legal proceedings. The person lacking mental capacity must have a litigation guardian appointed (by whatever name). A lawyer must be reasonably satisfied that their client has the mental capacity to give instructions. If they are not so satisfied, they cannot act for or represent the client. They can only be, or act for and represent, the litigation guardian. When a client loses mental capacity, their lawyer loses the authority to act for and represent them. If a person commences a proceeding with that capacity but loses it thereafter, their capacity to participate in the proceeding on their own behalf and instruct their lawyer to do so is also lost. The lawyer loses their authority to act for and represent the party in those circumstances. Therefore, when it arises, the issue of the person’s capacity to commence or participate in legal proceedings is a matter of the first importance for the court and for the person’s legal representative as an officer of the court.” (footnotes omitted)

F. My view

31.  I have sympathy for P’s submissions.  However, for the following reasons, I cannot accept those submissions.  Had I been appraised of the full picture on the trial date, I think I would not have allowed the hearing to proceed.

32.  P submitted that there is a presumption of mental capacity and the burden of proving the contrary rests with those asserting incapacity (Goddard Elliott v Fritsh [2012] VSC 87 at [546]), that a simple denial without evidence would not be sufficient (In re Lees (1884) 46 Ch D 496 at 500), and that the court will require the clearest of evidence before taking the drastic step of interfering with a person’s legal and human right to participate personally and directly in legal proceedings (Goddard Elliott v Fritsh [2012] VSC 87 at [565]).

33.  With respect, the above are correct but have missed the point.  At this stage, I am not concerned about whether a guardian ad litem should be appointed.  No such application has been made so far.  At this stage, the question is merely whether there is evidence to raise sufficient concern that D might not have the requisite mental capacity on the trial date.  If that is the case, to proceed without first determining the issue may mean that the court is participating in what may be irregular proceedings.  The court is after all duty bound to decide whether a party has capacity: Allregal Enterprises Pty Ltd v Carpaolo Nominees Pty Ltd [2009] WASCA 33 at [8].

34.  Further, and in any event, in order for me to decide whether the trial should have proceeded in the absence of D under Order 35, rule 1, I would also have to consider the reason for D’s absence.  In this regard, the mental condition of D on the date of the trial would, of course, be highly relevant.    

35.  Viewed in the round, I think there should have been sufficient concern on the trial date about D’s mental capacity that would warrant an adjournment of the proceedings to allow an examination of the matter. 

36.  First, L&Y said unequivocally in their letters dated 4 April 2023 that they had been unable to take instructions from D.  As explained above, solicitors must, of course, always be reasonably satisfied that their client has the mental capacity to give instructions.  This is because their authority ends when that capacity ends.  If they are not so satisfied, they simply cannot continue to represent the client. 

37.  It is true that, as submitted by P, L&Y had not indicated clearly in their letters whether they had “personally interacted” with D.  However, the fact was that they had been prudent enough to notify the Official Solicitor and had also tried to arrange for D’s family members to act for D in such regard.  At this stage, the precise factual matrix is, of course, unclear.  However, if the court is to err, I think it is better to err on the cautious side by presuming that L&Y, as officers of the court, had found justifiable concerns about D’s mental condition before they wrote the letters dated 4 April 2023.  

38.  Second, I acknowledge the force of P’s submissions that D’s mental capacity would likely have been canvassed before the learned Master at the hearing on 18 April 2023, but she still granted the order to cease to act without other order pertaining to D’s mental condition.  However, just like P, I am not privy to any details of the hearing.  As such, I do not know what had been presented to the learned Master and what considerations she had taken into account before she made her order. 

39.  I therefore do not think I can safely draw any conclusion, as suggested by P, from the absence of relevant order at the said hearing.  Further, at the end of the day, I must exercise my own discretion.  As explained above, in the circumstances of the case, I find that there are justifiable concerns about D’s mental condition and the court is therefore duty bound to examine the matter on its own motion.

40.  Third, I do not think the apparent lack of action from family members or the Official Solicitor has much significance to the issue in question. According to L&Y’s letter, none of the family members were willing to act on D’s behalf.  As for the Official Solicitor, it is again unknown what information had been presented to him, and why he had apparently taken no action in respect of D’s mental condition. 

41.  In fact, there can be various reasons that the Official Solicitor may have reservations to act as a litigation friend of a party, even when the party is clearly a person under disability.  For example, in Director of Social Welfare v LNT [2021] 2 HKLRD 579, a case regarding an application for an infant’s adoption, B Chu J directed the Director of Social Welfare to explore the possibility for the Official Solicitor to be appointed the guardian ad litem for the defendant mother, a mentally incapacitated person within the meaning of the Mental Health Ordinance, Cap 136 (“MHO”), or to be appointed as the Committee for the mother under Part II of the MHO.

42.  The Director of Social Welfare explained that he had not made an application for a guardian ad litem for essentially three reasons: -

42.1  No person had given consent to so act as guardian ad litem for the mother, and that the Official Solicitor had expressed reservation to do so because he had no means to ascertain the real intention of the mother and, further, it is a serious step for a public official to take part in proceedings leading to a person relinquishing her parental rights;

42.2  The Official Solicitor had indicated that in general, the Official Solicitor’s costs would have to be indemnified before he accepts appointment and the Director of Social Welfare was unable to mobilise funding to cover the mother’s legal costs, nor did the mother have any sufficient fund to cover such legal costs;

42.3  Even if a guardian ad litem (be it a relative or the Official Solicitor) is appointed, he/she would be unable to ascertain the mother’s will or take instructions from her, and that the appointment of the same would be merely superficial.

43.  The court found that the issue was whether it was of benefit to the mother for a guardian ad litem to be appointed for her at that stage of the proceedings.  Despite the aforesaid reservations from the Director of Social Welfare and the Official Solicitor, the court concluded that a guardian ad litem should be appointed for the mother in those proceedings, and that if there was no other relative or family member who was willing to so act, then the Official Solicitor should be appointed as the guardian ad litem for the mother.  Regarding the costs issue, the court noted that consideration could be given as to whether an application for legal aid could be made on her behalf by the guardian ad litem.   Regarding the potential difficulty faced by the guardian ad litem to ascertain the mother’s will or take instructions from her, the court was of the view that, in fact, that was a reason why the mother might need a guardian ad litem for her benefit and protection.

44.  In the premises, the fact that the Official Solicitor has apparently taken no action despite being alerted about D’s mental condition is not, per se, proof that D has not been suffering from mental incapacity. Instead, that inaction may well be one matter, amongst others, that ought to be examined by the court in the process. 

F. Disposition

45.  For the above reasons, although the hearing has technically been completed, I consider that the interest of justice demands that D’s mental condition be examined before the matter should proceed further.  However, as my appointment has already expired, I will direct that the matter be fixed before the Listing Judge for further directions.  I will also make an order that there be a trial de novo of the action herein to be fixed before a judge with costs of the trial on 26 April 2023 together with costs of P’s reply to my direction dated 19 May 2023 be reserved.

46.  I thank Mr Ho and Mr Pang for their assistance.