HKCFI 1052
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES ACTION NO 981 OF 2014
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, expired on 4 December 2011. This is the trial of 2 preliminary issues:
(a) has the limitation period of the plaintiff’s claim expired under LO: specifically, what was the date of the plaintiff’s knowledge 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 and from Mr Lok Sun Ming Samsen (“Mr Lok”), her former husband, 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 1st application for legal aid was refused on 17 June 2011 and why her 2nd 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 2nd 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. 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. 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.
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.
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.
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. 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.
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.
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...