XCHRX FUNG SHUEN v. CHANG WAI, JULIAN t/a DR JULIAN W CHANG

HCPI 168/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 168 OF 1999

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D E C I S I O N

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1. I have before me two applications, the first, by the defendant, is to strike out the statement of claim, and the second, by the plaintiff, to amend the same. I will deal with them in that order.

2. The defendant's application is on the ground that the statement of claim is embarrassing and prejudicial to the fair trial of this action. Mr Graham for the defendant submits that it is severely deficient in pleading in particular the causal relationship between the alleged breaches of duty and negligence, and the alleged injury, that there is no clear pleading as to what the injury is, and what is claimed would have been the situation had the alleged breach not occurred, and, in so far as it is pleaded that there was a failure to advise, there is no case pleaded as to what the plaintiff would have done had there been such advice.

3. The proceedings were commenced by a generally endorsed writ in May 1997. This statement of claim was filed and served in May 1998. A defence was filed and served in June 1998. The plaintiff claims damages in respect of treatment and a series of operations carried out by the defendant on her left knee in February 1991, March 1994, November 1994 and March 1995. The first operation entailed a total knee joint replacement, and this appears to have initially been a success until early 1994 when she returned to the defendant with knee pain. The March 1994 operation was to replace a worn out polyethylene component of the prosthesis, in November 1994 the defendant fitted the plaintiff with a hinged knee brace, and in March 1995 he performed an operation to repair stretched ligaments. It is pleaded that the defendant's treatment of the plaintiff was negligent and unskillful, but the specific particulars of his breach of duty refer only to a failure to diagnose and treat ligamentous laxity in the knee, the rest are general allegations. There is no specific allegation as to what was the correct treatment, what would have been the result had that treatment been carried out, and consequently what injury had been caused to the plaintiff by the alleged breach of duty and negligence. As I have noted above, there is no pleading as to whether or not the plaintiff would have proceeded had other advice or warnings been given.

4. This is clearly a very difficult pleading for the defendant's legal advisers to deal with, and it is far from clear on reading it what the plaintiff's case is, and I can quite understand that the defendant might be embarrassed in meeting it. It appears merely to be a general complaint that, had different treatment been given, without specifying what that treatment should have been, the plaintiff would not have suffered any injury, without again specifying what her injuries attributable to the defendant's treatment are, or what her condition would be in other circumstances.

5. My initial reaction is to agree wholeheartedly with the defendant that this is a pleading which under present rules of practice should not be one which the defendant has to meet. However, meet it he has. By a defence filed in June 1998 a detailed answer to the allegations, such as they are, has been made. Since then, medical reports have been prepared, and witness statements filed and exchanged. There have been at least two check list review hearings and a pre-trial review with leave to set down. This application is now made two years later, when the matter has been set down for trial in one month's time. If the defendant found it so difficult to deal with this matter as pleaded, I should have expected that complaint to have been made long before now, when a large amount of costs has no doubt been incurred preparing the case for trial. I accordingly have sympathy with the application in so far as the grounds go, but I am not prepared to shut out the plaintiff at this stage of proceedings on an application which could, and should, have been made long before now. It is clear that the defendant is aware of the general grounds of the plaintiff's complaint, that he did not use proper skill in treating her. Whether he did or not will be a matter for the court on the evidence from the doctors who will be called at trial. For these reasons I am not therefore prepared to accede to the defendant's application to strike out the statement of claim and I believe it is still possible to have a trial on the issue of whether or not the treatment of the plaintiff by the defendant was or was not in breach of his duty of care.

6. I now turn to the application to amend the statement of claim. My initial reaction again is that it does not improve the plaintiff's case, and does not deal with the deficiencies noted above. Mr Cheung submits that the principal reasons for the amendments are to include matters which have occurred since the original was filed and other matters appearing from later medical reports. To that extent it is unobjectionable. It does however bring in new allegations. For the first time it raises the question of whether the operation should have been done at the same time as fixation of a stress fracture of the tibia. This has not been mentioned before and was only raised in the reports. Here, the plaintiff has some difficulty, as her own reports do not agree as to whether the stress fracture was present before the operation or occurred, or was discovered, during it. Mr Cheung himself seemed unsure of what the plaintiff's case was, and eventually plumped for an alternative, although this is not pleaded as such either. There is a whole list of new terms the plaintiff says were implied in her contract with the defendant and of alleged breaches of duty of care. To a large extent a new case is pleaded. This in turn gives rise to a possible plea by the defendant that a new case is being added outside the limitation period, which I can foresee delaying these proceedings even more while the question is dealt with.

7. I agree with Mr Cheung that the court has a wide discretion to amend, but this can only be exercised if there is no prejudice to the other side, and does not contradict an earlier pleading. While the bulk of the amendments are new matters, the allegations are such that they can also be said to contradict the original statement of claim, rather than expand on it. As such, there is inevitable prejudice to the defendant, not only in having to deal with all the new allegations in an amended defence, and no doubt obtain further medical reports, but, as a professional man, having a claim such as this, casting doubt on his medical integrity, hanging over him for a further considerable time, there being no possibility, were I to allow this application, of adhering to the date fixed for hearing.

8. I therefore find that there is no merit in this application and it will be dismissed, so that the action can proceed to trial as soon as possible on the pleadings as they stand.