Prejudice – To Be More Specific!
Momin Lok v Hospital Authority  HKCA 1075
CACV 236/2020, Hon Barma, Au and G Lam JJA in Court, 26 July 2021
The case mainly deals with two issues: (i) the level of knowledge required under s.27 of the Limitation Ordinance (“LO”) and (ii) when the court shall exercise its discretionary power under s.30 LO to disapply the time bar.
Throughout second half of 2008, the plaintiff had been receiving treatment from Princess Margaret Hospital (“PMH”) as she was found to have thrombus in the chief artery of her right arm. In particular, the PMH doctors had been prescribing Warfarin to the Plaintiff. Despite the anticoagulation medication and treatment, the plaintiff still suffered from ischaemic stroke in December 2008. The plaintiff believed that the prescription of Warfarin caused the stroke.
Notwithstanding all the twists and turns, the plaintiff managed to commence a District Court action against the defendant in 2011 with the help of a solicitors’ firm. However, the plaintiff could not find any favourable expert medical opinion. In 2013, when the plaintiff was rehabilitating in South Africa, her then-husband discontinued the action on her behalf upon the law firm’s advice. The plaintiff only learnt about the discontinuance in 2014 as she returned to Hong Kong. In 2015, the plaintiff served another writ to the defendant and new expert medical opinion was obtained in 2016.
The plaintiff applied for an order to allow the action to proceed such that the writ was issued within 3 years of the plaintiff’s date of knowledge under s.27(4)(b) LO; or alternatively, the court should exercise the discretion under s.30 LO. On the trial of preliminary issues, it was held that the action is brought within time since the plaintiff did not have the requisite knowledge to start time running under s.27 LO. The judge further expressed that he would have exercised the discretionary power under s.30 LO to override the time limit for the action to proceed.
The Court of Appeal only partially concurred with the trial judge and ruled that s.27 LO does not apply to this case whereas discretion to disapply the time limit under s.30 LO can be exercised.
Regarding s.27 LO, the court clarified that the “knowledge” limb was fulfilled when the plaintiff was equipped “with sufficient confidence to justify embarking on the preliminaries to the issue of a writ”. The plaintiff had demonstrated sufficient knowledge about the possible attribution of the medication and treatment she received from the defendant to the stroke. Time had started running when she started to obtain legal advice, gather medical records and seek expert medical opinions as well as actually commenced proceedings. The new expert reports obtained in 2016 did not reset the clock since the information given by the experts was not the broad knowledge essential to her claim required under s.27 of the Ordinance. Further, the unfavourable expert medical reports obtained before did not necessarily negate the plaintiff’s knowledge.
The court nonetheless agreed that discretionary power under s.30 LO could be exercised in this case. The court reiterated the significant role of “equity” in guiding the court to determine whether such power should be exercised. The court perceived that the plaintiff’s case was “unusual” because of her failure to obtain any favourable expert opinion based on wrong line of investigation. Considering the fact that (a) the District Court action was discontinued by the plaintiff’s then-husband when there was no other viable alternative without favourable expert opinion, (b) the solicitors’ firm might have been negligent in advising the discontinuance and (c) the defendant had not suffered any prejudice from the delay, the court concluded that it was equitable to have the time bar overridden at the court’s discretion.
The present case is a crucial case expounding respective requirements to rely on s.27 and deter the application of s.30 LO.
The Court of Appeal spent a large proportion of the judgment shedding light on the required level of knowledge under s.27 LO. The court’s elucidation, which spelled out that the support by known facts or evidence is not required under s.27 for a plaintiff to possess the relevant knowledge, hinted that time starts running quite easily.
Especially, the lawyer representing the plaintiff in this case tried to reframe the issue as “when did the plaintiff come to reasonably believe there was a real possibility that her stroke was caused by inadequate anticoagulation”, but such formulation was quickly rejected by the court due to narrow interpretation of the law. The broad approach adopted by the court to understand the level of knowledge required implies the court’s devotion to prevent the exception(s) to the limitation period from being exploited. This case serves a warning to people who seek to pursue a claim to observe the limitation period and act promptly.
Another important implication arising out of this case concerns about when the court would exercise its discretion under s.30 LO. It is trite that the court must be guided by what appears to be equitable when balancing competing outcomes. Apart from the plaintiff’s unique situation, the court also found that the defendant was not prejudiced because the defendant did not adduce any specific or concrete evidence in this regard. It highlights that simply adducing evidence is insufficient to convince the court about the disadvantage, one should adduce solid evidence. Although the court did not further explain what constitutes “specific or concrete evidence”, it did impose a stringent evidential requirement on the party who would wish to show prejudice caused by the delay.
With the detailed guidance provided specifically in subsection (3), S.30 LO as a whole requires the court to exercise its discretion positively. As the court is required to take into account all relevant circumstances, the law intrinsically imposes a heavy burden on the plaintiff to prove equity in disapplying the time bar. Nonetheless, in recent decade, it is recognized in some UK and Hong Kong cases that a more flexible, generous or liberal approach should be adopted for the exercise of the discretion (A v Hoare  2 All ER 1, Mok Lai Fong v Ng Po Shui  3 HKLRD 67). As a result, this case has clearly reflected the significance for the defendant to adduce specific and concrete evidence to convince the court of the prejudice suffered if the time bar is disapplied.