KWAN YUEN MEI v. LAU SUI YUEN

KWAN YUEN MEI v. LAU SUI YUEN

The negligence claims were properly struck out because the plaintiff failed to adduce expert medical evidence complying with the formal requirements and addressing causation and breach under the Bolam test; the proffered reports were non‑compliant, inadequate or unavailable for oral testimony and there were no special grounds to admit late expert material on appeal. However, the Master erred in refusing to allow a battery claim to proceed against Dr Lau where it was arguable he procured or authorised the nurses to perform the urine tests, so leave was granted to pursue the battery claim against Dr Lau and to re‑amend pleadings accordingly.

Citation
KWAN YUEN MEI v. LAU SUI YUEN
Parties
Plaintiff (administratrix): KWAN YUEN MEI; Defendant (hcpi 569/2009): LAU SUI YUEN; 1st Defendant (hcpi 570/2009): LEE, SEE CHING; 2nd Defendant (hcpi 570/2009): MAU, KA YAN; 3rd Defendant (hcpi 570/2009): CHENG, SUI YEE, CHRISTINA; 4th Defendant (hcpi 570/2009): CHAN, SAU CHU; 5th Defendant (hcpi 570/2009): THE HOSPITAL SUPERINTENDENT (OUR LADY OF MARYKNOLL HOSPITAL)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
9 October 2012
Case Number
HCPI569/2009
Procedural Posture
Personal Injuries Action (medical Negligence and Battery) / Appeal From Master's Orders (court of First Instance)
Outcome
Appeal partly allowed and partly dismissed
Legal Topics
Bolam Test, Expert Report Formalities, Striking Out, Consent to Medical Treatment, Vicarious/authorisation Liability, Late Evidence on Appeal, Costs, Consolidation, Jurisdictional Transfer
Source Language
EN
Medical Negligence Tort (battery/assault) Civil Procedure Evidence (expert Evidence) Bolam Test Expert Report Formalities Striking Out Consent to Medical Treatment +5 more

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Parties

KWAN YUEN MEI

Plaintiff (administratrix)

LAU SUI YUEN

Defendant (hcpi 569/2009)

LEE, SEE CHING

1st Defendant (hcpi 570/2009)

MAU, KA YAN

2nd Defendant (hcpi 570/2009)

CHENG, SUI YEE, CHRISTINA

3rd Defendant (hcpi 570/2009)

CHAN, SAU CHU

4th Defendant (hcpi 570/2009)

THE HOSPITAL SUPERINTENDENT (OUR LADY OF MARYKNOLL HOSPITAL)

5th Defendant (hcpi 570/2009)

Procedural Posture

Personal Injuries Action (medical Negligence and Battery) / Appeal From Master's Orders (court of First Instance)

Legal Issues

  1. 1 Whether the Master was correct to strike out the plaintiff's medical negligence claims for failure to produce compliant expert evidence
  2. 2 Whether the Master was correct not to allow the plaintiff to pursue a battery claim against Dr Lau given he did not personally carry out the urine tests
  3. 3 Whether late expert evidence (Dr Gong) should be admitted on appeal

Ratio Decidendi

The negligence claims were properly struck out because the plaintiff failed to adduce expert medical evidence complying with the formal requirements and addressing causation and breach under the Bolam test; the proffered reports were non‑compliant, inadequate or unavailable for oral testimony and there were no special grounds to admit late expert material on appeal. However, the Master erred in refusing to allow a battery claim to proceed against Dr Lau where it was arguable he procured or authorised the nurses to perform the urine tests, so leave was granted to pursue the battery claim against Dr Lau and to re‑amend pleadings accordingly.

Court Disposition

Appeal partly allowed and partly dismissed

Orders

  • Leave for the plaintiff to file notices of appeal against the Master's orders of 17 April 2012 in both actions out of time
  • Appeal against the Master's orders dated 2 September 2011 in both actions dismissed