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DCEO 10/2016
[2018] HKDC 146
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
EQUAL OPPORTUNITIES ACTION NO 10 OF 2016
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| BETWEEN |
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ER |
Claimant |
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and |
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LI KWOK CHANG, LAWRENCE |
Respondent |
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| Before : His Honour Judge Ko in Chambers |
| Date of Hearing : 24 November 2017 |
| Date of Decision : 8 February 2018 |
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DECISION
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1. This is the respondent’s application for costs of the action.
2. In equal opportunities proceedings (of which this action is one), [1] the normal rule in civil proceedings that costs follow the event does not apply. Instead, the District Court Ordinance, Cap 336 (“DCO”) mandates each party to bear its own costs unless the proceedings were brought maliciously or frivolously or that there are special circumstances warranting an award of costs.[2]
3. It is the respondent’s argument that he should be awarded costs because: (i) the proceedings were brought frivolously and/or (ii) there are special circumstances justifying a costs order in his favour.
4. The application is opposed by the claimant, who argues that each party should bear its own costs.
A. Background
5. The applicant is an HIV carrier. He has been treated by Dr John Simon since April 2013.
6. The applicant is also diagnosed with mild obstructive sleep apnoea. Between 15 August 2014 and 25 November 2014, he consulted the respondent who is a registered Specialist in Otorhinolaryngology (commonly known as “ENT Specialist”).
7. After going through some tests and trying some more conservative treatments (such as CPAP therapy[3]), the respondent advised the claimant to consider surgical intervention (“the Surgery”) which was accepted by the claimant. The respondent made a reservation at the Hong Kong Sanatorium & Hospital for 24 November 2014 for the Surgery and a backup booking for 26 November 2014 at the Canossa Hospital.
8. As matters progressed, the respondent cancelled the two bookings and did not proceed with the Surgery. Instead, the claimant was referred to Professor Van Hasselt who performed the Surgery on 23 January 2015.
9. It is the claimant’s case that the respondent had unlawfully discriminated against him (in contravention of ss 6 and 26 of the DDO) on the ground that he is HIV positive, by refusing to provide him with medical services in like terms, conditions or manner that the respondent would have provided to others.
10. The claimant’s allegations (summarized in paragraph 26 of the Notice of Claim) are that:
(a) The respondent cancelled the Surgery scheduled for 24 and 26 November 2014 even though there were no outstanding matters and when Dr Simon had advised that the Surgery presented no or low risk and could continue as scheduled.
(b) The respondent required the claimant to indefinitely defer the Surgery.
(c) The respondent required the claimant to be subjected to a second opinion and to attend at another ENT Specialist’s office to confirm that his level of infectivity was sufficiently low.
(d) The respondent required the claimant to be subjected to further risk assessments that were not medically necessary, just because the respondent was not comfortable with treating an HIV positive patient.
(e) Upon the claimant’s insistence that the Surgery should go ahead, the respondent suggested the claimant to seek a referral to another ENT Specialist to perform the Surgery and had therefore sought to pass the claimant to another ENT Specialist.
(f) The respondent altered and revised his medical opinion whereby he recommended the claimant to revisit other forms of treatment alternative to surgery, such as CPAP therapy which had been tried and proved unsuitable and/or ineffective.
11. The respondent denies any discrimination and avers that he had treated the claimant in the same way as he would treat his other patients.
12. He elaborates in his Notice of Response that:
(a) Despite the enquiries made, the claimant had failed or omitted to reveal that he was HIV positive and had been receiving antiretroviral therapy. Such information was only revealed to the respondent by Dr Simon (presumably upon the claimant’s instruction) on Saturday, 22 November 2014. The revelation had necessitated reassessment, further investigation and procurement of advice before proceeding with the Surgery scheduled for the following Monday (ie 24 November 2014) and there was not much the respondent could have done during the intervening weekend.
(b) Dr Simon did not say that the Surgery could continue as scheduled and his intimation of “low” (as opposed to “no”) risk of infection did not dispense with the need for proper and thorough assessment and investigation and/or procurement of further advice.
(c) Between 24 and 26 November 2014, the respondent took steps to proceed with reassessment, further investigation and procurement of advice from more experienced and knowledgeable colleagues (such as Professor Michael Tong of the Department of Otorhinolaryngology, Head and Neck Surgery at The Chinese University of Hong Kong) which could not have been completed by 26 November 2014 and the cancellation and deferment of the Surgery scheduled for 26 November 2014 was therefore necessary and reasonable.
(d) It is incorrect for the claimant to say that the respondent was “not comfortable” with treating HIV positive patients. The respondent had to proceed cautiously since the claimant was his first patient with a history or diagnosis of HIV positive. He had doubts as to whether he could handle the Surgery and whether his clinic could handle the claimant’s post-operative care. It was therefore medically necessary to undergo further risk assessment and his professional view was confirmed by Professor Tong.
(e) The respondent did not “indefinitely” defer the Surgery, as he referred the claimant to Professor Van Hasselt (who was the Chairman of the Department of Otorhinolaryngology, Head and Neck Surgery at The Chinese University of Hong Kong) and secured an early appointment for the claimant (on 15 December 2014). Referral is one of the management options in treating patients and Professor Van Hasselt was very experienced in sleep apnoea operations and knowledgeable in this area. As such, the referral (which the claimant agreed to) was in the best interest of the claimant.
(f) The advice that the claimant could consider trying the CPAP machine again was, in the respondent’s professional view, appropriate and, in the circumstances, justified.
(g) The claimant did not request the respondent to restore the Surgery.
13. In his Reply, the claimant clarifies that:
(a) He is alleging direct discrimination.
(b) Neither the respondent nor his associates had at any time made specific inquiries as to whether he had been diagnosed with any infectious diseases, HIV or otherwise.
(c) He took the view that Dr Simon would be better placed to accurately relay his medical condition to the respondent.
(d) He did not request the respondent to restore the Surgery because he had lost all trust and confidence in the respondent.
14. After the close of pleadings, the respondent applied for specific discovery of the medical records, notes and reports of Dr Simon and Professor Van Hasselt and from the hospital where the professor carried out the Surgery. On 22 May 2017, I granted the application after hearing the parties.
15. On 14 July 2017, the claimant filed a Notice of Discontinuance to wholly discontinue this action before compliance with my order for specific discovery.
B. The application
16. The claimant is entitled, under rule 15(1) of the District Court Equal Opportunities Rules, Cap 336G (“EO Rules”), to discontinue this action without leave by filing a notice to that effect.
17. Rule 15 also provides for the consequences of a discontinuance:
“(2) The respondent may, within 14 days after having been served with a copy of that notice, or within any extended period that the Court may on application allow, apply to the Court for an order for costs.
(3) Subject to sections 73B(3), 73C(3), 73D(3) and 73E(3) of the [DCO], the Court may make any order for costs that it thinks fit.”
18. The respondent took out his summons to seek costs on 25 August 2017, admittedly beyond the time period prescribed by rule 15(2). He therefore seeks an extension of time as well.
19. The respondent’s summons is supported by two affidavits sworn by an Associate of the respondent’s solicitors (Mr Chan).
20. On the claimant’s side, the claimant’s solicitor (Mr Vidler) and a paralegal (Ms Overbury) each filed an affirmation to oppose the application. In Mr Vidler’s affirmation, he exhibited some documents to confirm that the claimant had been admitted to Mount Sinai West Hospital in New York between 6 and 15 February 2017 for psychosis. There is also a letter from the claimant’s attending psychiatrist who confirmed that the claimant had been treated for severe anxiety, major depression, panic disorder, paranoia and post-traumatic stress disorder since 6 December 2016 and that the claimant had been unresponsive to treatment and had not been able to leave his apartment for months. Mr Vidler emphasized in his affirmation that but for the claimant’s ill-health, the claimant would have pursued these proceedings vigorously.
C. The argument
C1. Preliminary objection to the respondent’s representation
21. Ms Souza for the claimant took a preliminary point at the hearing. She complains with reference to some New Zealand and local authorities that Mr Chan, who has sworn the two affidavits for the respondent, should not appear as advocate at the hearing. I do not think there is any merit in her complaint.
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