CHAN WAI YIN ZOE v. DR. BALDEV SINGH AND OTHERS

HCPI 421/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 421 OF 2004

_________________________

BETWEEN

CHAN WAI YIN ZOE Plaintiff
And
DR. BALDEV SINGH 1st Defendant
THE PRINCE PHILIP DENTAL HOSPITAL 2nd Defendant
THE UNIVERSITY OF HONG KONG 3rd Defendant
THE HOSPITAL AUTHORITY 4th Defendant

HCPI 692/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 692 OF 2005

_________________________

BETWEEN
CHAN KONG YI
(formerly known as CHAN WAI YIN ZOE)
Plaintiff
And
DR. BALDEV SINGH 1st Defendant
THE PRINCE PHILIP DENTAL HOSPITAL 2nd Defendant
PROFESSOR NABIL SAMMAN 3rd Defendant

_________________________

Coram : Before Master J. Wong in Chambers

Date of Hearing : 28 September and 10 November 2009

Date of Decision : 27 November 2009

____________________

TAXATION REVIEW

___________________

1. This is a taxation review.

2. The present proceedings concern a medical negligence case. The Plaintiff is legally aided. She brought her claims against variousDefendants. Eventually, among other things, the 1st Defendant paid her $500,000 and costs of the action to settle the matter.

3. On 28 August 2009, I dealt with the bill of the Plaintiff. After taxation, she sought to review fees of her expert Dr. To. BothMr. Burke and Dr. To appeared at the review to explain to me how the fee notes were arrived at. On the other hand, Mr. B. Leung ofLCD represented 1st Defendant. He opposed the review and asked me to stick to my decision made at taxation.

4. Upon consideration of all the evidence authorities and submissions by the parties, I have decided to dismiss the review. My reasonsappear in below.

5. To start with, I set out and remind myself of the following principles.

(a) There is no dispute that under legal aid taxation the amount payable to the expert, as for fees of Counsel and solicitor, isthe one allowed by the Court at taxation. (Para. 62/App/71-74 of HKCP 2010, at page 1161-1162 are referred to)

(b) There is also no dispute that the taxation herein was done on party-and-party basis. So, only necessary or proper costs willbe allowed.

(c) In assessing expert fees, para. 62/App/54 of HKCP 2010, at page 1158 states useful guidelines.

6. The grounds for review from Dr. To may be summarized as such:

(a) There were about 49 registered specialist Oral and Maxillofacial Surgeons in Hong Kong and only very few of them were seniorenough to be an expert witness. Worse still, it appeared that most of those qualified expert were not willing to help the Plaintiffas HKU had been a defendant herein.

(b) He took up the case for justice only. Dr. To was an expert in the area, a consultant in St. Teresa’s Hospital, an honoraryclinical associate professor in the Department of Surgery at HKU, being members of various professional bodies, and writers of anumber of publications, as well as having a number of honorary appointments. He charged different hourly rates under his fee notes.

(i) $6,000: perusal of papers and drafting reports

(ii) $10,000: conducting medical research

(iii) $15,000: attending conferences

He explained that:

“…

1b. Meeting or research fee

Specific clinical time had to be drawn up for meetings with counsel and solicitor in my clinic. This involves cancellations or postponementsof clinical appointments and operations, not able to see walk in patients and also involve the usage of my premises which needs expensesto run e.g. rent, lighting, air conditioning cleaners, nurses, clerk, receptionist, medical staff and premises insurance… etc.the loss of office hours will surely create a effect of loss of income. Therefore, a higher hourly rate is needed to compensatefor the overhead expenses, loss of income and reducing the opportunity for building up goodwill in the clinical field.

…”

(letter of Dr. To dated 9 September 2009)

(c) All the time claimed under his fee notes should be allowed in full without any deduction.

7. Applying the above principles to the arguments of Dr. To, I am afraid that they cannot persuade me to review any of the items Itaxed off at the taxation.

(a) I am thankful that Dr. To was kind enough to take up the case. However, as to the fees to be payable, they are still bound bythe legal aid regulations as well as principles under taxation.

(b) The expertise of Dr. To has not been challenged. At the taxation, I allowed $6,000 per hour for work done by him generally throughoutthe proceedings. I declined to allow higher rates for medical research and conference because no sufficient or no justificationwas provided. As a matter of facts, there was no evidence before me that Dr. Lo had incurred loss of any actual income because ofthe job he undertook herein. His overhead expenses appeared to be fixed. They had to be incurred anyway. Finally, loss of opportunityto build up goodwill is just too vague to rely upon.

(c) (i) In taxation, the starting point to assess the amount time to be spent in each item is the contemporaneous time record. In our case, although Dr. To did not keep the same, I took that it was the actual time spent by him.

(ii) Even if time record is produced, the taxing master may tax off certain time on attending the conference, preparing the documentsor drafting the report if he or she comes to the view that it is the only time that “should have been spent” for the purposeof party-and-party taxation. I have reviewed those conference notes, papers, reports involving Dr. To’s work, and decide not tochange any of the deduction made at the taxation.

(iii) Dr. To pursued a number of documents sent to him and produced 3 reports in the proceedings: the first one dated 11 May 2005(5 pages), the supplemental one dated 25 October 2005 (3 pages) and the further supplemental one dated 31 March 2006 (3 pages). I allowed 6 hours, 2.5 hours and 2 hours respectively. Given the fact that the hourly rate allowed to Dr. To being $6,000 as wellas the brief approach he employed in preparing his reports, I remain the view that reasonable time has been allowed to him undereach item.

(iv) Dr. To claimed $18,000 for perusal of letters for the solicitor preparation for trial. The letters were short and I allowed15 minutes for the same. As to preparation for trial, the proceedings were set down for trial in August 2008. Parties settled thesame in April, but Dr. To spent time in both January and April 2008 for preparation of trial. It is too early for him to do so. Such fee has to be taxed off.

8. Having refused the review, I see no reason why costs should not follow the event. The Plaintiff shall pay costs of the 1st Defendant thereof and I will summarily assess the same in the followings:

$ $
(a) Communications $4,000 x 1 4,000
(b) Hearing on 28.9.09and 10.11.09 $1,600 x 3 4,800
Preparation $1,600 x 1 1,600 6,400
(c) Miscellaneous 600
11,000

The above costs order nisi will be made absolute within 14 days from the date hereof.

(J. Wong)
Master of the High Court

Mr. P. Burke of Messrs. Burke & Co. for Plaintiff.

Mr. B. Leung of Law Costs Draftsmaninstructed by Messrs. Clyde & Co. for 1st Defendant.