WILMES, FRANZ JOSEF v. QUEEN MARY HOSPITAL

DCCJ 1638/2021

[2023] HKDC 644

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1638 OF 2021

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BETWEEN

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DECISION

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INTRODUCTION

1.  By way of a summons dated 15 July 2022 (“the Summons”) and an affirmation dated 15 July 2022 (“P’s Affirmation”), the plaintiff seeks the following orders:-

(a) leave to appeal against the decision of this court dated 24 June 2022 (“the Decision”);

(b) leave to amend the plaintiff’s writ of summons, statement of claim, as well as his affirmation dated 31 May 2022 (as per the proposed amendments attached to the plaintiff’s letter to the court dated 5 July 2022);

(c) directions as sought in the plaintiff’s letter to the court dated 11 July 2022;

(d) a stay of all procedures related and contingent upon the order granted under the Decision; and

(e) costs of the Summons be in the cause.

BACKGROUND

2.  For the background of this case, I would refer to §§2 to 4 of the Decision.

3.  Under §26 of the Decision, I granted an order in terms of the defendant's summons dated 17 May 2022 (“the Order”) as follows:-

(a) this action be transferred to the personal injuries list (“the PI List”);

(b) leave be granted to the plaintiff to amend the writ of summons and statement of claim to amend the defendant’s name to “Hospital Authority”, and the amended writ of summons and amended statement of claim be filed and served within 7 days from the issue of the DCPI action number;

(c) the plaintiff is to file and serve his statement of damages and medical reports required under O 18, r 12(1A) of the Rules of the District Court (“the RDC”) within 28 days after the filing of the amended writ of summons and amended statement of claim;

(d) the plaintiff is to file and serve his expert report on liability and causation required under paragraph 66(5) of Practice Direction 18.1 (“PD 18.1”) within 28 days after the filing of the amended writ of summons and amended statement of claim; and

(e) the costs of and occasioned by this application be paid by the plaintiff to the defendant in any event, to be taxed if not agreed.

DISCUSSION

Legal principles involved

4.  Pursuant to s 63A(2) of the District Court Ordinance, Cap. 336:-

“(2) Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that –

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

5.  With regard to the test for “a reasonable prospect of success”, Mr Se-to on behalf of the defendant submits as follows:-

(a) §59/2A/4 of the Hong Kong Civil Procedure 2022 states that “...A reasonable prospect of success therefore means an appeal with prospects that are more than ‘fanciful’ but which do not need to be shown to be ‘probable’.” It was insufficient to show that the appeal was “merely arguable” and “not fanciful” for the court to be satisfied that it had a reasonable prospect of success. In respect of case management decisions, the appellant faces a very high hurdle and has to show that the Judge had gone clearly wrong and made orders which clearly involved an injustice or an inability for the trial court to carry out its task or had erred in principle or that his order was irrational...”; [emphasis added]

(b) the Decision relates to case management decisions and therefore the plaintiff’s application for leave to appeal would be subject to the abovementioned “very high hurdle” threshold; and

(c) without prejudice to the above, §59/2A/4 of the Hong Kong Civil Procedure 2022 further states that “It has to be noted that whilst the Court would not grant any leave to appeal without a reasonable prospect of success being demonstrated, the converse is not true. Even if the Court takes the view that there is a reasonable prospect of success, it still retains a discretion as to whether to grant leave, although the fact that there is, ex hypothesis, a reasonable prospect of success would heavily influence the Court exercise of discretion”. [emphasis added]

6.  With regard to the test for “other reason in the interests of justice why the appeal should be heard” stated in §63A(2)(b) above, Mr Se-to further submits that §59/2A/4 of the Hong Kong Civil Procedure 2022 mentions that “It is impossible to give an exhaustive list of the circumstances in which the Court of Appeal would find that there is some other reason in the interests of justice that an appeal should be heard. It is suggested that the Court of Appeal would continue to be guided by the practice under the former O 59 r 14. The Court of Appeal may grant leave if the question is one of general principle, decided for the first time: or a question of importance upon which further argument and a decision of the Court of Appeal would be to the public advantage”. [emphasis added]

The plaintiff’s application is out of time

7.  The Decision relates to the defendant’s summons dated 17 May 2022 which is an interlocutory application for leave to transfer this action to the PI List and other procedural matters.

8.  O 58 r 2(4)(c) of the RDC states that the time limit for an application for leave to appeal must be made “in the case of an appeal from an interlocutory judgment, order or decision of a judge, 14 days from the date of the interlocutory judgment, order or decision”. In other words, the plaintiff should have made his application for leave to appeal on or before 8 July 2022.

9.  As the plaintiff’s application for leave to appeal was only made by way of the Summons and the Affirmation both dated 15 July 2022, technically it was made out of time.

10.  However, given the fact that the plaintiff is acting in person and the delay was a minor one, I am prepared to ignore such a matter and would proceed to consider the plaintiff’s application and deal with the issues raised by him in the application accordingly.

The plaintiff’s applications

(i) Leave to appeal against the Decision

11.  P’s Affirmation contains a variety of criticisms made against the findings made by me in the Decision. The defendant submits that there is no clear or cogent argument put forward by the plaintiff in favour of appealing against the Decision to transfer this action to the PI List.

12.  I tend to agree with the defendant on this matter.

13.  While the plaintiff may have different opinions regarding the contents of the Decision, I agree with Mr Se-to that a mere difference in opinion does not automatically mean that leave should be given for an appeal to proceed.

14.  The grounds of appeal set out in P’s Affirmation have been dealt with in §§17 to 22 the affirmation of Wong Daniel Tien Yau dated 28 July 2022 (“D’s Affirmation”). There is no need for me to repeat the contents here.

15.  In the plaintiff’s affirmation in reply dated 15 August 2022 (“P’s Reply Affirmation”), the plaintiff reiterates his concerns “as to why the Decision handed down on 24 June 2022 attracts appealability (sic) of various kinds”.

16.  Having considered the above affirmations filed by the parties, I accept the following submissions made by the defendant:-

(a) Despite claiming that the Decision “attracts appealability of various kinds”, no cogent legal grounds of appeal were specified;

(b) In §2 of P’s Reply Affirmation, the plaintiff states that his claim is what has been described in: (i) the endorsement of claim contained in the writ of summons dated 14 April 2021; (ii) the statement of claim dated 11 May 2022; (iii) the plaintiff’s affirmation dated 31 May 2022; and (iv) the amended statement of claim dated 25 July 2022;

(c) Items (i) to (iii) had all been duly considered by this court and had concluded that in substance this is a case concerning about a claim of alleged medical negligence against the defendant. Item (iv) was not before the court at the time of the Decision and thus it did not fail to consider it. In any event, the amended statement of claim (ie item (iv) above) effectively only “incorporates” (or rather makes reference to) the plaintiff’s affirmation dated 31 May 2022 (ie item (ii) above);

(d) In the circumstances, it is difficult to see how it would or should alter the nature of the plaintiff’s claim such that it would be inappropriate to transfer this case to the PI List;

(e) In §3 of P’s Reply Affirmation, the plaintiff questions the source of the medical information mentioned in D’s Affirmation. As stated in §6 of D’s Affirmation, the relevant medical information was in accordance with the medical records available to the defendant, ie the hospital records of the plaintiff’s late wife, Madam Wilmes, Lai Shim (“the Patient”) kept by the Hospital Authority. While the plaintiff makes allegations that the facts were “taken out of context, simplifying pivotal matters and purposively eclectic”, no specific contested fact relevant to the present application has been identified;

(f) §§4 to 6 of P’s Reply Affirmation take issue with the format and wording used in D’s Affirmation but it does not deal with the substantive points of opposition;

(g) In the remaining paragraphs of P’s Reply Affirmation, the plaintiff ponders the question of whether the alleged act(s) “qualify as an act of ‘Medical Negligence’ under the Personal Injuries List” but he does not proceed to answer the question in a satisfactory manner. The plaintiff only makes assertions with no legal basis to suggest that his current pleaded case is not “Bolemizable” and refers again to his affirmation dated 31 May 2022 and the amended statement of claim dated 25 July 2022 (which, as mentioned above, refers to his affirmation dated 31 May 2022). Yet no legal authorities were cited to support the plaintiff’s assertions;

(h) Under §10 of PD 18.1, “With effect from 15 April 1996, all actions in which a claim is made for damages arising out of death or personal injury, including claims arising out of medical negligence, but excluding all actions within the jurisdiction of the Admiralty Court, should have been commenced in the Personal Injury List”. [emphasis added] Thus, other than actions within the jurisdiction of the Admiralty Court, there is no “carve-out” for the jurisdiction of the PI List in adjudicating matters relating in whole or in part to claims of personal injury, including claims of medical negligence;

(i) The fact remains that, according to the plaintiff’s endorsement of claim in the writ of summons dated 14 April 2021, the present claim relates in whole/at least in part to “un/liquidated costs and/or damages occasioned (and still accruing) at the expense of the plaintiff by the defendant’s tortious acts/omissions mainly consisting of but not limited to inflicting bodily injury eventuating in death of the plaintiff’s late wife, Mrs. Wilmes, Lai Shim, on April 19, 2018...”. Additionally, under “Ad Paragraphs 9 to 11” of P’s Affirmation, it is alleged that “palliative treatment (chemotherapy) was bungled...”. The defendant submits that these are allegations of personal injury and/or medical negligence that should be dealt with under the PI List;

(j) The other purported part of the plaintiff’s claim is that there was alleged “fraudulent misstatement/mis-certification of the immediate cause of death with subsequent abuse of the coroners court system” or ... the results were subsequently lied about to the coroner and the coroner concurred with the lie.” Firstly, any claim concerning the conduct of the Coroner’s Court has already been dealt with in Wilmes Franz Josef v Coroner, West Kowloon Court[2021] HKCFI 462 and it would be an abuse of process to re-litigate the matter under the present action. Secondly, such allegation (in so far as it relates to the defendant, if at all) must certainly first establish that the stated cause of death was medically incorrect, ie that no responsible body of medical opinion would agree with such cause of death (which is denied by the defendant). To examine the conduct of the relevant medical practitioner (Dr KC Wong as referred to in the plaintiff’s affirmation dated 31 May 2022) would also fall within the ambit of the Bolam test, constituting a claim of medical negligence and, thus, must be dealt with under the PI List;

(k) Even if there was any other identifiable cause of action (which is not admitted by the defendant), no cogent reason has been submitted by the plaintiff to explain why that cause of action (if any) cannot also be dealt with under the PI List;

(l) In §10 of P’s Reply Affirmation, the plaintiff states that he has never acknowledged or advocated that the Bolam test has any relevance in this case, seemingly inferring that the court has misunderstood his position. However, in §22 of the Decision, the court has clearly acknowledged that the plaintiff had argued against the applicability of the Bolam test to this case by stating that “even though he argued why it should not apply in this case”. However, it is a matter of fact that the plaintiff had conceded in §11 of his affirmation dated 31 May 2022 that the Bolam test is “routinely applied in medical malpractice contexts”. Therefore, as long as the court found the present case does indeed conform in whole/in part to a claim of medical negligence, it must follow that the Bolam test would be applicable as is conceded by the plaintiff; and

(m) In the first paragraph on page 2 of P’s Reply Affirmation, the plaintiff claims that “the information according to PD 18.l and O 18, r 12(lA) of the RDC is already available” as a justification against the transfer to the PI List. The defendant disagrees with such proposition based on 2 reasons. Firstly, the availability of such documents (which is denied) should have no bearing on whether this action should be transferred to the PI List or not. Secondly, the plaintiff has yet to file and serve (i) a statement of damages setting out the matters required under §65(2) of PD 18.1 and (ii) an expert report on liability and causation prepared by an independent expert in liability and causation. It is trite that a claim in medical negligence is liable to be struck out unless, at its inception, it is supported by an expert report on liability and causation (Kwan Yuen Mei v Lau Sui Yuen HCPI 569/2009). It is the defendant’s submission that the plaintiff should not be permitted to sidestep the requirements of adducing expert evidence by suggesting that his claim is not one of medical negligence (when indeed it is).

17.  For the above reasons (of which I accept), the defendant submits that it must be correct for this action to proceed in the PI List. I further agree with the defendant that, by extension, the plaintiff should be required to comply with the procedural requirements of a personal injuries claim as set out in §§3 and 4 of the Order, namely, to file and serve a statement of damages and medical reports required under O 18, r 12(1A) of the RDC, and to file and serve his expert report on liability and causation required under §66(5) of PD 18.1.

18.  In the circumstances, I find the plaintiff is unable to satisfy the very high hurdle mentioned in §5(a) above, namely, that the court “had gone clearly wrong and made orders which clearly involved an injustice or an inability for the trial court to carry out its task or had erred in principle or that his order was irrational”. I agree with the defendant’s submission that the plaintiff’s appeal has no reasonable prospect of success as required under s 63A(2)(a) of the District Court Ordinance, Cap. 336.

19.  Additionally, given that the Decision is a procedural matter, mainly determining whether the plaintiff’s claim (as pleaded by the plaintiff) should be transferred to the PI List or not, I further agree with the defendant that the plaintiff’s appeal: (i) does not pose a question of general principle; (ii) is not a question decided for the first time; and (iii) does not raise a question of importance upon which further argument and a decision of the Court of Appeal would be to the public advantage:(see §6 above). Therefore, I find there is no other reason in the interests of justice why the plaintiff’s appeal should be heard as required under s 63A(2)(b) of the District Court Ordinance, Cap. 336.

20.  For the reasons above, I refuse to grant leave to the plaintiff to appeal against the Decision.

(ii) Leave to amend the plaintiff’s writ of summons, statement of claim and affirmation dated 31 May 2022 according to the plaintiff’s letter to the court dated 5 July 2022

21.  Pursuant to the directions of the court on 19 July 2022, the plaintiff has made a separate application by way of a summons supported by an affirmation both dated 25 July 2022. The application was heard at the hearing on 18 August 2022 together with the application for leave to appeal.

22.  In light of the decision refusing leave to appeal against the Decision, there is no need to deal with this matter any further.

Directions as sought in the plaintiff’s letter to the court dated 11 July 2022

23.  The defendant reiterates §§25 to 27 of D’s Affirmation. In particular, it says that it is not clear what directions the plaintiff is seeking under the letter dated 11 July 2022. Despite this, the plaintiff has failed to clarify his position in P’s Reply Affirmation, but only stating in the final paragraph that “I dispense with commenting on any of the speculations, the Defendant dishes out under 25 to 29 since the Court’s response is pending at the time of this writing and reserve the right to a further response on my part pursuant to such response of the Court”.

24.  Since the burden is on the plaintiff to clearly state what directions he wishes to seek and to provide proper justifications and that he has failed to do so, I agree with the defendant that such requested directions should not be granted.

25.  I therefore will dismiss his application in the letter dated 11 July 2022 in this regard also.

A stay of all procedures related and contingent upon the order

26.  Since I have dismissed the plaintiff’s application for leave to appeal, I do not see any basis for a stay of proceedings in this case.

27.  As the DCPI action number was issued on 12 July 2022, the deadline for the plaintiff to comply with §2 of the Order was on 19 July 2022 and that for him to comply with §§3 and 4 of the Order was on 16 August 2022. All the said deadlines have elapsed and the plaintiff has not yet complied with any of those orders. If the plaintiff makes an application for time extension, he has to make a separate application to do so. Otherwise, his claim cannot proceed.

CONCLUSION

28.  Based on the aforestated reasons, I will dismiss the plaintiff’s applications, including the applications by way of letter to the court dated 5 and 11 July 2022, with costs in favour of the defendant, such costs to be taxed if not agreed.

The plaintiff acting in person

Mr Warren Se-To, of Messrs Mayer Brown, for the defendant

DCCJ 1638/2021

[2022] HKDC 633

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1638 OF 2021

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DECISION

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1.  This is an application made by the defendant by way of a summons dated 17 May 2022 (“the Summons”) under Order 18, rule 12(1A) and Order 20, rule 5 of the Rules of the District Court, Cap 336H (“RDC”) and Practice Direction 18.1 (“PD 18.1”) for an Order that:-

“(1) This action be transferred to the Personal Injuries List;

(2) Leave be granted to the Plaintiff to amend the Writ of Summons and Statement of Claim to amend the Defendant’s name to “Hospital Authority”, and the Amended Writ of Summons and Amended Statement of Claim be filed and served within 7 days from the issue of the DCPI action number;

(3) The Plaintiff do file and serve his Statement of Damages and medical reports required under Order 18, rule 12(1A) of the Rules of the District Court within 28 days after the filing of the Amended Writ of Summons and Amended Statement of Claim;

(4) The Plaintiff to file and serve his expert report on liability and causation required under paragraph 66(5) of Practice Direction 18.1 within 28 days after the filing of the Amended Writ of Summons and Amended Statement of Claim; and

(5) The costs of and occasioned by this application be paid by the Plaintiff to the Defendant in any event, to the taxed if not agreed.”

BACKGROUND

2.  The plaintiff is acting in person and does not have any legal representation.

3.  On 14 April 2021, he issued a general indorsement of claim under the present civil action number for the following:-

“The Plaintiff’s claim is for un/liquidated costs and/or damages occasioned (and still accruing) at the expense of the plaintiff by the defendant’s tortious acts/omissions mainly consisting of but not limited to inflicting bodily injury eventuating in death of the plaintiff’s late wife, Mrs. Wilmes, Lai Shim on April 19, 20218 (sic) in conjunction with subsequent documented misstatement as to the proximate cause of death of Mrs. Wilmes thus ‘misleading’ the Coroner’s Court to render an inaccurate ‘finding’ of the cause and circumstances and manner of death.”

4.  In the statement of claim filed by the plaintiff on 11 May 2022, it only contains the following single paragraph:-

“The ‘Endorsement of Claim’ as stated/contained in the Writ of summons dated 14 April 2021 is hereby equated as to wording and substance with a Statement of Claim. The Plaintiff believes that the facts contained in and referred to in this document are true.”

DISCUSSION

5.  At the hearing of the Summons, Mr Wong who represents the defendant informed the court that the plaintiff has agreed to §2 of the Summons, namely, the name of the defendant in the writ of summons and the statement of claim be amended to “Hospital Authority” and that the amended writ of summons and the amended statement of claim be filed and served within 7 days from the issue of the DCPI action number.

6.  However, he informed the court that the plaintiff does not agree to the rest of the Summons, including the proposed costs order.

7.  For the purpose of opposing the Summons, the plaintiff has filed a one-page affirmation with 51 pages of documents attached to it. They are listed as Exhibit 1a to 1h and Exhibit 2a to Exhibit 2i under ‘Document A’ which contain the substance of the plaintiff’s objections as to why he thinks this case should not be transferred to the Personal Injury (“PI”) List.

The plaintiff’s allegations 

8.  Firstly, the plaintiff’s claim against the defendant is that the doctors at the Queen Mary Hospital (“QMH”), where his late wife Madam Lai Shim Wilmes was treated, had erroneously put down the cause of death in the death certificate: See §§ (2) to (7) of Document A. The plaintiff says that “it is thus a matter of record, that a misstated direct cause of death has been used as a pretext to refer a case to the coroner’s court”. The plaintiff claims that this “fraudulent referral has set in motion a train of events resulting in coronial decision-making”.

9.  The second part of the plaintiff’s claim is related to the alleged maltreatment of his late wife when she was under the care of QMH as a cancer patient since or about December 2017: See §11 of Document A.

10.  In order to be fair to the plaintiff, I think it is best to put the plaintiff’s allegations of mistreatment/mismanagement of his late wife by the doctors at QMH by reproducing §11 of Document A in full here:-

“As the details of the clinical course of the deceased bear out, starting in Mid-December 2017 being in reasonable clinical condition evidenced by pertinent laboratory data and according to clinical assessment so recorded, a temporary change of the chemotherapeutic regimen was deemed appropriate pending the results of a liver biopsy performed on January 3rd 2018. The envisaged and planned institution of appropriate chemotherapy did - without (informed) consent of the patient -contrary to misinformation disseminated by e.g. Dr. Chan’s witness 'opinion' not materialise. The thus medically induced deterioration of the patients condition was not attended to notwithstanding documented requests by the patient and the husband. The pictorial proof of massive systemic turnour flareup in sharp contrast with the PET scan appearance of 12th day of December 12 2017) associated with pertinent symptoms (e.g. shortness of breath, anuria) was obtained by way of a PET scan on 8th of March 8, 2018, leading to husband-induced emergency admission of the patient to Queen Mary Hospital in critical condition. Both the medical treatment characteristics as an outpatient and inpatient are characterisable as full incompatible with proper medical reasoning and treatment. According to the Bolam test routinely applied in medical malpractice contexts, a doctor would not be found negligent if he had acted in accordance with a practice accepted as proper by a responsible body of medical practitioners. In the context of the current matter however, such considerations are non-contributory as medical negligence of the ‘simple’ type has not been ‘at work’ exclusively. Apart from planned withholding of appropriate help in the run-up to the terminal hospital admission the pivotal events forming the properly designated direct cause of death resulting from such mistreatment were intentionally misrepresented on paper leading to the adverse consequences described above. The liability and culpability thus having been attracted by the defendant vicariously, mandates a claim for unliquidated damages on part of the plaintiff both and jointly acting as plaintiff in his own name, as properly interested person having been exposed to the fraudulently induced coronial proceedings.” [emphasis appeared in original text]

11.  Thus, the plaintiff is of the view that “an Order of transferral of the current action to the Personal Injuries List along with further orders contingent thereupon as applied for the defendants(sic) counsel (Exhibit 2g) along with cost order against to the plaintiff would induce an unnecessary procedural detour at variance with Order 1A RDC. The plaintiff further plans to apply for an order as to no costs.”

12.  Further, the plaintiff disputes the claim of the defendant’s solicitors that he has no locus standi in bringing this action. He refers to Exhibit 2h attached to the affirmation which is a letter from the defendant’s solicitors dated 26 April 2022 whereby the defendant’s solicitors made the following comments:-

“We also note that (1) you do not appear to have the appropriate locus standi to sue on behalf of the Deceased as you do not appear to have been appointed the Administrator of the Estate, and (2) considering the alleged cause of action in the general indorsement of the Writ, the Writ should have been issued under a DCPI case number rather than a DCCJ case number. We reserve our rights to bring these matters to the Court’s attention if necessary.”

13.  In this regard, the plaintiff produced at Exhibit 2i the Letters of Administration in which the plaintiff has been appointed as the administrator of the estate of the deceased.

14.  As to the proposed change of title of the defendant from ‘Queen Mary Hospital’ to ‘Hospital Authority’, the plaintiff does not take issue with that.

15.  Document A of the affirmation concluded by stating that the “unliquidated damages occasioned by the activities described above and inflicted upon both the deceased and the plaintiff the plaintiff (sic) feels justified to estimate those not to be less than amounting to HK $ 2,000,000.-.”

The plaintiff’s submissions made in court

16.  The plaintiff has expanded his arguments contained in the affirmation at the hearing before me.

17.  In short, firstly, the plaintiff is not of the opinion that the substance of the matters “conformed to the requirements, procedures or cause of the Personal Injuries List”. The plaintiff claims the fraud and inducement of the defendant are not compatible with the procedures of the PI List. Secondly, the plaintiff alleges that the steps to be taken by the defendant’s application have brought about changes which are not under his control anymore. The example given by the plaintiff is that the PI case is subjected to a statutory limitation of 3 years, “however the details of this case superseded these problematic issues” according to the plaintiff. The plaintiff claims that his case consisted of different legal perspectives and of different items and therefore should not be subjected to the rules under the PI List. Thirdly, the plaintiff claims that this is a “hybrid case”. He claims that this case “dealt with the fraudulent misrepresentation of direct cause of death to the Coroner’s Court’s context”. The plaintiff claims that it will be a waste of time and money if this case were to be allowed to be transferred to the PI List.

18.  The rest of the plaintiff’s oral submissions have either been mentioned in his affirmation and/or documents attached as exhibits to the affirmation. I do not wish to repeat them here, save to say that I think I have listened to the plaintiff’s arguments fully, patiently and respectfully at the hearing.

The defendant’s submissions

19.  Mr Wong for the defendant submits that the substance of this case is mainly concerned with the medical-legal issues raised by the plaintiff in his endorsement of claim and statement of claim. Hence, it should be subjected to the rules and procedures under the PI List. After the case is transferred, Mr Wong submits that the plaintiff still has to deal with the procedural hurdles/difficulties, whether the case is transferred to the PI List or remains in the general civil jurisdiction list.

Ruling of the Court

20.  I agree with Mr Wong for the defendant that a lot of the plaintiff’s allegations about the substance of the case is not related to the issue identified in the Summons which falls upon this court to decide. The only issue for the court to decide is whether it is reasonable and necessary and in the interest of justice for the case to be transferred to the PI List.

21.  In my judgment, this matter can only be decided upon what has been pleaded by the plaintiff in the general endorsement of claim and the statement of claim in this case. In the general endorsement of claim attached to the writ, the plaintiff has only pleaded one single paragraph: See §3 above. Further, the statement of claim simply repeated the one paragraph statement contained in the writ without further elaboration: See §4 above.

22.  In my view, it is clear that the general endorsement of claim mainly related to the alleged “tortious acts/omissions mainly consisting of but not limited to inflicting bodily injury eventuating in death of the plaintiff’s late wife,….”. In other words, it is based on an alleged medical negligence claim made by the plaintiff against the defendant. The plaintiff has acknowledged this both in §11 of Document A attached to his affirmation and in his oral submissions that the “Bolam test” should generally apply in such cases (even though he argued why it should not apply in this case). However, looking at §11 of Document A in the round, I agree with Mr Wong that this is clearly a case about a claim of medical negligence against the defendant.

23.  While the plaintiff has raised a whole list of concerns about the potential transfer to the PI List in his affirmation and in his oral submissions, I agree with Mr Wong that those potential procedural hurdles and difficulties will have to be dealt with by the plaintiff whether the case is placed under the PI List or remains in the general civil jurisdiction list.

24.  As to the plaintiff’s claim that this is a “hybrid” claim involving “misstatement” which led to ‘misleading’ the Coroner’s Court to “render an inaccurate ‘finding’ of the cause and circumstances and manner of death”, I note that very similar if not identical issues (albeit against the coroner instead of the defendant) had been raised by the plaintiff in another case in the High Court. The matter has been comprehensively dealt with in a very detailed judgment by Coleman J in Wilmes Franz Josef v Coroner, West Kowloon Court[2021] HKCFI 462, HCA 1915/2019 (10 March 2021). I do not consider that those issues should be mixed and dealt with together under a medical negligence claim.

CONCLUSION

25.  In the aforesaid premises, I find that the case as presently pleaded in the general endorsement of claim and statement of claim is related to the alleged medical negligence claim and should therefore be transferred and dealt with under the PI List.

26.  I therefore make an order in terms of the Summons, including an order that the plaintiff to pay the defendant’s costs of and occasioned by the application.

The plaintiff, not represented and appeared in person

Mr D Wong of Mayer Brown for the defendant