ELIJAH SAATORI v. RAFFLES MEDICAL GROUP

CACV 109/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 109 OF 2008

(ON APPEAL FROM HCPI NO. 1114 OF 2006)

----------------------

----------------------

----------------------

J U D G M E N T

----------------------

Hon Lam J (giving the judgment of the Court):

1.  By a Notice of Motion of 6 February 2009, the Plaintiff seeks leave to appeal to the Court of Final Appeal in respect of our decision on 14 October 2008.  That decision was in respect of an interlocutory matter: we ordered that if the Plaintiff shall file an expert report supporting his allegation of negligence by 10 November 2008, the order of Saunders J striking out the Plaintiff’s claim would be set aside.  We also ordered the Plaintiff to pay the costs of the Defendant in any event because the Plaintiff only succeeded upon an indulgence being granted by the court.

2.  The application for leave to appeal is seriously out of time.  Under Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, such a notice of motion should have been filed within 28 days from the date of the judgment to be appealed from.  There is however a power to extend time under Section 24(5), and the power can be exercised even though the application is made after the expiration of the primary period, see Section 24(6).

3.  An extension of time under Section 24(5) would only be granted where at least very good grounds are shown (Full Wisdom Holdings Limited v Traffic Stream Infrastructure Company Limited, CACV266/2003, 27 July 2004; Wing Hang Bank Ltd v Crystal Jet International Ltd,CACV 255/2002, 9 March 2006 and Bowlstar (HK) Ltd v Ho Kwai, CACV 156/2006, 10 July 2007).

4.  The delay is substantial.  The Plaintiff said he was informed by a friend that the time limit for filing the motion is three months.  He did not disclose the identity of this friend.  Nor did he explain why he could reasonably rely on the information instead of checking the time limit set out in the Hong Kong Court of Final Appeal Ordinance.  We do not think there is any good reason for the delay.

5.  Further, the Plaintiff’s intention is to appeal against our order as to costs.  We have explained in our judgment why we exercised our discretion on costs against the Plaintiff.  There is no question of great general public importance arising from the intended appeal.  The so-called issues identified by the Plaintiff have nothing to do with his intended appeal on costs.  Even if the application were made within time, we would not have granted leave as the matter is not within the scope of Section 22 of the Hong Kong Court of Final Appeal Ordinance.

6.  In any event, given it is clear that the Plaintiff was seeking an indulgence from the court (for leave to file a supplemental expert report and entertaining his allegations of negligence not pleaded in his Statement of Claim) without which his claim is liable to be struck out, there is no merit in his intended appeal as to costs.

7.  The application is therefore dismissed. 

8.  The Defendant seeks costs of this application and asks such costs to be fixed by way of a gross sum order under Order 62 Rule 9(4)(b) of the Rules of the High Court. For that purpose, the Defendant’s solicitor prepared a proposed statement of costs claiming $115,550 in total as costs of this application (of which $40,000 is counsel fee). The Defendant’s solicitors further stated in a letter of 3 March 2009 that the proposed statement of costs is a fair and accurate assessment of the time costs involved in relation to this application.

9.  The following breakdown is given regarding the charges of the solicitor: a partner (admitted in 1998) allegedly spent 10 hours on communications including conferences, telephone calls and letters with client, the other side, counsel and court. In addition, a trainee solicitor allegedly spent 3 hours on the same head. In total, the charge under this head added up to $43,900.

10.  Whilst the Plaintiff may have corresponded with the solicitor firm in a manner that could have contributed to the escalation of costs, we fail to see how such a figure can be justified in the context of a simple application for leave to appeal to the Court of Final Appeal.

11.  Then another $15,900 was said to be incurred on perusal of documents. The documents identified are the order of 14 October 2008, the Notice of Motion issued by the Plaintiff on 6 February 2009 and his affirmation of 16 February 2009, a further document called “the Plaintiff’s application for leave to appeal to the Court of Final Appeal” of 20 February 2009. The partner and the trainee solicitor each claimed 3 hours for perusal. 

12.  The affirmation of 16 February 2009 was not filed for the purpose of this application and had not been relied upon by the Plaintiff in this application. It was clearly stated to be an affirmation for checklist review request. The perusal of that affirmation cannot be regarded as part of the work related to this application. To include that in the statement of costs is misleading and improper. 

13.  In our view, bearing in mind that the solicitors involved were engaged in these proceedings all along, the perusal of the documents relevant to this application should not take more than 30 minutes. There should not be any duplication in charging perusal both by the partners and the trainee. 

14.  Then, another $12,600 was charged for “brief to counsel, review file, Defendant’s skeleton argument and Defendant’s statement of costs”.   The partner allegedly spent 2.5 hours and the trainee solicitor allegedly spent 2 hours for these matters. We do not know how much of the time were spent on the preparation of this statement of costs. In our view, the statement of costs is so grossly inflated and as such singularly unhelpful to this court that no costs should be allowed for its preparation. As regards the other items, given the simple nature of the application, only half an hour of a partner’s time can be allowed. That should build into it the costs of the trainee solicitor insofar as it is necessary for the partner to be assisted by a trainee in the performance of such tasks.

15.  A sum of $2,650 was charged for attendance at the hearing, half an hour each for the partner and the trainee. We do not see why it is necessary to have both of them at the hearing.

16.  Mr Carolan charged a brief of $40,000 for this application. Whilst we appreciate Mr Carolan has been the counsel in this case all along, one must not assume for costs taxation purposes it is necessary or proper to have the same counsel to conduct the present application. As we said, it is a simple and straightforward application. The taxing master should examine whether the brief charged by Mr Carolan is unreasonable and excessive as compared with a hypothetical counsel capable of conducting this application on behalf of the Defendant effectively. One must also take into account of the fact that part the brief of Mr Carolan is in respect of the application for gross sum order which we are not minded to grant.  

17.  In view of the inherent unreliability of the proposed statement of costs, we are not minded to make a gross sum assessment. We would simply order the Plaintiff to pay costs of the application to the Defendant, such costs to be taxed if not agreed. We further direct the taxing master to have regard to our observations above in such taxation. The costs in relation to the letter of 5 March 2009 should also be disallowed.   

CACV 109/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 109 OF 2008

(ON APPEAL FROM HCPI NO. 1114 OF 2006)

----------------------

----------------------

----------------------------------------------------------

REASONS  FOR  JUDGMENT

--------------------------------------------------------

Hon. Lam J (giving the judgment of the court):

1.  On 20 January 2009, after hearing the Respondent, we dismissed its application for leave to appeal to the Court of Final Appeal in respect of our judgment of 14 October 2008 [“the main judgment”].  The following are our reasons.

2.  In the main judgment, we set aside the order of Saunders J striking out the Plaintiff’s claim on condition that the Plaintiff shall file and serve an expert report supporting his allegations of negligence against the Defendant.  As such it is an interlocutory matter.

3.  In the Notice of Motion of 11 November 2008, the Respondent sets out three questions as questions of great general or public importance.  The first question is not engaged.  There is no doubt that a judge in ordering a striking out is exercising a discretion.  We did not say anything in the main judgment to suggest otherwise.

4.  The answers to the second and third questions are again well settled.  The Court of Appeal will usually defer to the first instance judge in dealing with matter of discretion.  However, if there are new developments or there are matters which the judge has not taken into account (whether due to the omission on his part or on the part of parties), this court is duty bound to consider the matter and, if it deems fit, exercise the discretion afresh.  None of the cases cited by the Respondent suggest anything to the contrary.

5.  The Respondent seized upon our observations at paragraph 21 of the main judgment as regards the judge being correct in striking out the claim to suggest we have acted in a manner contrary to established principle.  We must say such a reading of our judgment is taking that comment out of context.  At Paragraph 21, we dealt with question of costs.  What we were saying there was that the result before the judge was correct.

6.  Our reasons for disturbing the judge’s exercise of discretion have been clearly set out at paragraph 19: at the court below the arguments focused on the adequacy of evidence on causation whilst the real objection should be the evidence on negligence.  As we stated at paragraph 6 of the main judgment, Respondent’s counsel accepted at the hearing of the appeal that there is evidence on causation.  Thus, it was common ground that a striking out based on lack of evidence on causation, which was the focus at the hearing below, is wrong.

7.  A new development in the course of the appeal is the indication by the Plaintiff that he could file evidence on negligence from an expert as opposed to materials set out in literatures produced by him.

8.  There is therefore no substance in the Respondent’s complaint.

9.  In any event, at the highest, what the Respondent argued in substance is that we have misapplied the established principle in this particular case.  That can hardly be a question of great general or public importance.

10.  Nor do we see any basis for granting leave on the “otherwise limb”.

11.  Therefore the application was dismissed with costs.

CACV 109/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 109 OF 2008

(ON APPEAL FROM HCPI NO. 1114/2006)

----------------------

----------------------

----------------------

J U D G M E N T

----------------------

Hon Lam J (giving the judgment of the Court):

1.  The Plaintiff underwent syringing of his ears at the Defendant’s Gold Coast Clinic in mid 2003, on a date in late July or early August which the Plaintiff did not specify in the Statement of Claim.  The Plaintiff alleged that as a result of the treatment he suffered from tinnitus.  On 9 May 2006, he commenced this action in the High Court as HCA 990 of 2006 to claim damages from the Defendant.

2.  In the Statement of Claim, apart from alleging that the tinnitus was caused by the treatment, the Plaintiff also alleged in paragraph 6 that there was medical malpractice on the part of the Defendant in the violent ear wash procedure.  However, the Plaintiff did not plead any specific particulars of negligence.  The only specific complaints one can gather from the Statement of Claim are in paragraphs 2 and 3. They are as follows,

“2. The lady used cold water the first time round, with such force that it made me dizzy.  She did this with both ears, but especially the right ear.  Cold water for such a procedure is forbidden by normal medical protocol.

3.  She then repeated the procedure, with warm water, at my request, as the first flush failed to dislodge the wax. Again the force was very intense and made me dizzy again.”

3.  As we shall see, the Plaintiff no longer claims that the use of cold water caused his tinnitus.

4.  On 14 December 2006, Suffiad J ordered the case be transferred to the Personal Injuries List.  The action became HCPI 1114 of 2006.

5.  On 7 August 2007, the Defendant issued a summons to strike out the Writ and the Statement of Claim.  The application was heard by Saunders J. On 11 April 2008, Saunders J ordered the claim be struck out.  The learned judge held that the medical reports filed by the Plaintiff failed to establish negligence or causation.

6.  The Plaintiff appealed against that order.  At the hearing of the appeal, Mr Carolan accepted for the purpose of the striking out application that the report of Dr Carpenter could arguably show causation.  We think that is a fair concession.

7.  For the purpose of this appeal, the only issue is whether there is any expert evidence to show that what the Defendant did fell below the standard of a reasonably competent medical establishment.  The Plaintiff had indicated to the master at the checklist hearing that he would rely on the report of Dr Carpenter as his expert evidence.  That report was very brief on the standard for ear syringing treatments.  The doctor said,

“There are no specific guidelines as to how the ears should be flushed and there is no standard of care concerning the performance of the procedure.  Generally, the ears are flushed with warm water as cold water will cause dizziness.  The amount of force used is not measured and is usually limited by the design of the syringe.  The angle can be either straight or at an angle, but again there are no guidelines or correct method.

The procedure of performing an ENG to evaluate dizziness requires squirting cold water in the ear, and this is a recognized technique that has been performed for many years with the desired side effect of causing dizziness.  Therefore, flushing the ears with cold water is within the standard of care and generally is not associated with tinnitus.”

8.  Plainly, the first paragraph there does not advance the Plaintiff’s case as to negligence on the part of the Defendant.  The second part of the report quoted above dealt with ENG, not the ear syringing treatment.  However, it shows that in the opinion of Dr Carpenter, the use of cold water, though it might cause dizziness, is unlikely to be the cause of tinnitus.

9.  At the appeal, the Plaintiff took the position that though the use of cold water for his treatment was wrong, he agreed that this was not the cause of his tinnitus.  He only referred to it to show the unprofessional manner in which the treatment was given by the Defendant.  Regarding the real cause of his tinnitus, the Plaintiff pointed to evidence other than that of Dr Carpenter.

10.  In an affirmation of 12 June 2007, the Plaintiff disputed the opinion of Dr Carpenter as regards the absence of guidelines and procedures for proper ear syringing.  He produced some documents he downloaded from the internet to support his claim that there were established procedures.  He said the Defendant had failed to comply with those procedures.

11.  In so doing, the Plaintiff attempted to play the role as his own expert.  This is not permissible.  It is well settled that the court will not admit opinion evidence on matters of expertise from unqualified person.  The standard of a reasonably competent medical establishment is a matter which the court cannot decide without the assistance of expert opinion.

12.  There are good reasons behind this rule.  The court only entertains opinion evidence from expert in respect of a subject relevant to the trial the proper understanding of which requires special knowledge or experience that a layperson does not possess.  Hence, assistance is required from qualified expert.  At the same time, expert owes a duty to the court to give an impartial opinion based on his or her expert knowledge in the relevant field.  The law has been clearly set out in The Ikarian Reefer [1993] 2 Ll Rep 68.  The court has repeatedly stressed the importance of expert witness adhering to such duty.  In the present context, we only need to highlight three facets of such duty.  First, an expert witness should never assume the role of advocate.  Second, an expert witness should clearly set out facts or assumptions upon which his opinion is based together with possible material facts which could cause him to alter his conclusions.  Third, in a case where insufficient data is available, an expert witness should expressly qualified his opinion.  These should be familiar to all expert witnesses coming to testify in our courts.

13.  A layperson does not have the necessary expertise, training, experience or skill to provide the requisite assistance to the court.  Further, very often, a layperson has no regard to the duty owed by an expert witness to the court.  A layperson would not be subject to the same adverse impact on his professional reputation as an expert would in case of a finding of a breach of that duty.  Thus, to allow a layperson to give opinion evidence in a realm where expert opinion is required only serves to confuse the matter before the court and unnecessarily prolong a trial.  That would not be conducive to the fair and efficient administration of justice.

14.  In the course of the appeal, the Plaintiff put forward the following as particulars of his allegation of negligence against the Defendant,

(a) The horizontal insertion of the nozzle into his ear in the process of syringing causing water to be injected directly at his eardrum instead of the roof of his ear canal;

(b)    The use of a syringe with an irrigator which is not the proper equipment for the treatment.

15.  These are not allegations set out in the Statement of Claim.  The Plaintiff said he would amend his Statement of Claim accordingly.

16.  More importantly, under Practice Direction 18.1 Para. 5.2(v), the Plaintiff should have served his expert medical report on liability and causation together with his Writ and Statement of Claim.  As explained, the report of Dr Carpenter does not provide the necessary expert evidence on negligence.  If the Plaintiff wishes to advance the case as put forward in the course of the appeal, he would need to have an expert report supporting his case specifically with positive opinion on those particulars of negligence. Materials downloaded from internet cannot serve as expert report on liability because those materials were not written by experts after conducting a full and comprehensive review of the facts of this case.

17.  The Plaintiff said he should be given the opportunity to call Dr Carpenter to testify about his allegations of negligence in the witness box.  He also drew our attention to the reservation made by Dr Carpenter in his report to modify his opinion when further information is available.

18.  In our judgment, that cannot be an excuse for non-compliance with the Practice Direction.  Gone are the days when one only learnt about the substance of the expert evidence of one’s opponent during the course of trial.  Modern litigation ethos and case management techniques forbid this.  Nowadays, a plaintiff is required to put all his cards on the table at an early stage.  Hence, in the context of professional negligence claim, it is essential that the plaintiff’s expert report should provide the necessary grounds for saying that the defendant fell below the standard of a reasonably competent professional.  Only then can a defendant make a proper response to the claim in terms of pleading as well as preparation of expert evidence in reply.

19.  Should the Plaintiff be given one more chance to put his house in order? Mr Carolan drew our attention to the history of this action and the various opportunities given to the Plaintiff to comply with the Practice Direction in the past.  By now more than 5 years had lapsed since the occurrence of the incident the Plaintiff complained of.  It is unsatisfactory that the Plaintiff has yet to properly and precisely formulate the grounds of his claim.  However, it is fair to observe that at the court below the focus seemed to be place on the question of causation instead of the expert evidence on negligence.

20.  In the interest of justice, we would grant one further indulgence to the Plaintiff to put forward his case in compliance with the rules and the practice direction.  We will give the Plaintiff one month to file and serve an expert report supporting his allegations of negligence against the Defendant.  If such a report is not filed and served by 10 November 2008, the appeal shall be dismissed.  If the report is filed and served before that deadline, the appeal shall be allowed in that the striking out order would be set aside and the action shall continue with a direction that the Plaintiff shall take out a summons within 7 days after the filing of the report for leave to amend his Statement of Claim in the manner as indicated by him in the course of the appeal.  The summons shall be returnable before the PI Master who may give further directions regarding the future conduct of the case.

21.  As regards costs, for the reasons given above, based on the existing Statement of Claim and expert report relied upon by the Plaintiff, his claim is liable to be struck out.  Therefore, the Defendant has been acting properly in issuing the application and Saunders J was correct in striking out the action.  We decided to give the Plaintiff a further indulgence.  But that indulgence should not be at the expense of the Defendant in terms of costs.  We would not disturb the order of Saunders J on costs below. Further, we would make a costs order nisi that the Plaintiff shall bear the Defendant’s costs of the appeal in any event.