WILMES, FRANZ JOSEF v. QUEEN MARY HOSPITAL

CAMP 230/2023, [2024] HKCA 243

On Appeal From [2022] HKDC 633

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 230 OF 2023

(ON AN INTENDED APPEAL FROM DCCJ NO 1638 OF 2021)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  The defendant made an application in the District Court for, inter alia, the transfer of the plaintiff’s action to the Personal Injuries List, in addition to some usual case management directions. After a hearing, despite the plaintiff’s opposition, His Honour Judge Andrew Li (“Judge”)  granted the defendant’s application in his decision dated 24 June 2022[1] (“Decision”).  The plaintiff applied to the Judge for leave to appeal and other orders and directions.  After a hearing, the Judge dismissed the plaintiff’s application in his decision handed down on 31 May 2023.[2]

2.  Having failed to obtain leave to appeal from the Judge, the plaintiff renewed his application for leave to appeal in this Court.  Having read the materials including the parties’ written submissions lodged pursuant to the directions of the Registrar of Civil Appeals (“Registrar”), we consider it appropriate to determine the application on the basis of written materials only pursuant to Order 59 rule 14A(1)  and Order 59 rule 2A(5)  of the Rules of the High Court (Cap 4A).

Background

3.  The plaintiff’s late wife, Mrs. Wilmes Lai Shim had a history of breast cancer with multiple metastases since 1996.  Since around 2008, Mrs. Wilmes was referred to and treated at Queen Mary Hospital (“QMH”)  for local recurrence and metastases of the disease.  On 9 March 2018, Mrs. Wilmes was admitted to and treated at QMH for shortness of breath and poor general condition.  The clinical diagnosis was acute chronic renal failure and the underlying cause was hydronephrosis.   She also received further treatment for various complications during hospitalization.  Unfortunately, Mrs. Wilmes’ condition gradually deteriorated over time and she passed away on 19 April 2018.

4.  The initial cause of death stated on the Form 18 Death Certificate was “aspiration pneumonia [due to] metastatic breast cancer”, but it was subsequently amended to omit the word “aspiration”.  The plaintiff raised queries and issues with this amendment and Mrs. Wilmes’ death was subsequently reported by QMH to the Coroner because of “uncertain cause of death (disputed by husband)”.  The Coroner ordered for and received necessary documents in relation to Mrs. Wilmes, including an autopsy report, a preliminary death investigation report and an independent medical expert report sought by the police.  Eventually, the Coroner decided not to hold an inquest into the death of Mrs. Wilmes on 12 May 2020, due to his finding that she died of natural causes with “pneumonia” as the direct cause of death and “metastatic adenocarcinoma” as the intervening cause of death.  Arising from this matter, the plaintiff had sought to claim against the Coroner for the tort of misfeasance in public office, but the plaintiff’s statement of claim was struck out and his action was dismissed by a master in HCA 1915/2019.  The plaintiff’s  appeal to Coleman J was dimissed and the plaintiff’s further application to the Court of Appeal for extension of time to appeal was dismissed in CAMP 527/2021.

5.  The present action was commenced by the plaintiff against QMH by way of writ of summons issued on 14 April 2021 in the District Court under the general civil jurisdiction list and the claim nature is marked as a mixed claim under tort law.  The plaintiff’s claim is set out in the general indorsement of claim on the writ, and adopted in his statement of claim dated 11 May 2022, as follows (sic):-

“ 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, 2018 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.”

6.  The defendant applied by way of summons dated 17 May 2022 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 to transfer the case to the Personal Injuries List (“PI List”)  together with other usual case management directions for medical negligence claims.  It was the defendant’s case that the substance of the plaintiff’s case, as raised in the indorsement of claim and statement of claim, was mainly concerned with medical-legal issues and therefore should be subjected to the rules and procedures of the PI List.

7.  As for the plaintiff’s position, he alleged that there were two parts to his claim against the defendant, namely for “a misstated direct cause of death” of Mrs. Wilmes causing “fraudulent referral” to the Coroner and for alleged mistreatment/ mismanagement of Mrs. Wilmes at QMH.  The plaintiff took the view that the directions for transfer to the PI List and other case management directions sought by the defendant would “induce an unnecessary procedural detour at variance with Order 1A RDC”.  Aside from elaboration of his written submissions, at the hearing below he made further oral submissions.  In brief, the plaintiff submitted that the substance of the action did not fall within the ambit of the PI List as his claim of fraud and inducement would not be compatible, that a transfer to the PI List would bring about procedural difficulties and changes not within his control, and that his claim was a “hybrid case” as it “dealt with the fraudulent misrepresentation of direct cause of death to the Coroner’s Court’s context”.  He further claimed that it would be a waste of time and money if this case were transferred to the PI List.

The Decision below

8.  After consideration of the submissions of both parties, the Judge identified that the only issue for the Court to determine was whether it would be reasonable and necessary and in the interests of justice for the case to be transferred to the PI List.  His determination was considered within the ambit of the plaintiff’s pleaded case in the general indorsement of claim and the statement of claim as stated in paragraph 5 above.  The Judge’s reasons were set out at [22] to [24] of the Decision as follows:-

“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.”

The Judge granted an order in terms of the defendant’s application for transfer of the action to the PI List amongst other usual case management directions.

9.  By summons dated 15 July 2022, the Plaintiff sought, inter alia, leave to appeal against the Decision.  After consideration of the parties’ respective written and oral submissions, the Judge dismissed the plaintiff’s application with reasons set out in his decision handed down on 31 May 2023, which will not be repeated here.

The application in this court

10.  This is the plaintiff’s renewed application out of time for leave to appeal against the Decision to transfer the action to the Personal Injuries List together with other case management directions by way of summons dated 15 June 2023 (“Summons”), which was one day later than the 14 days prescribed by the rules.  In support, the plaintiff filed an affirmation appending a bundle of documents containing 147 pages which were later revised and bound into the application bundle.  Pursuant to the Court’s directions dated 20 June 2023, pages 1 to 4 of that bundle would be treated as the plaintiff’s written statement and draft grounds of appeal.  As for the Defendant, its solicitors lodged its statement in opposition on 14 July 2023.

Legal Principles

11.  The legal principles applicable to an application for extension of time to appeal are well established.  In Lee Chick Choi v Best Spirits Co Ltd (HCMP 371/2015; 21 May 2015)  at [19], Kwan JA stated (as Kwan VP then was):-

“ The legal principles regarding an application to extend time for an appeal are well established. In the exercise of its discretion, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding if an extension of time is granted, and the degree of prejudice to the other party if the application is granted. Where the delay is substantial and not wholly excusable, the applicant must show a real prospect of success on the merits, not merely a reasonable prospect of success. In other words, he would need to demonstrate a strongly arguable case.”

12.  The legal requirements applicable to an application for leave to appeal are found in section 63A(2)  of the District Court Ordinance (Cap.336)  as follows:-

“ (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.”

Discussion

13.  The decision of the Judge to refuse leave to appeal was handed down on 31 May 2023.  Pursuant to Order 58 rule 2(4A)  of the RDC, an application for leave to appeal should have been made to this Court within 14 days from the date of refusal, i.e. on or before 14 June 2023.  The plaintiff took out his application on 15 June 2023, which was late for 1 day. By affirmation dated 3 July 2023, the plaintiff explained that his application was late by one day as a result of his honest mistake or clerical error in interpreting the relevant rules.  As it was a minor delay, we are prepared to proceed to consider the merits of his intended appeal.

14.  Whether to transfer the action to the PI List is very much a case management decision of the judge.  As has been repeatedly stated by this Court, we will be slow to intervene in such decisions and a challenge against a decision of this kind faces a very high hurdle.  Thus, for example, Kwan JA stated in Mimi Kar Kee Wong Hung (also known as Mimi Kar Gee Wong Hung)  v Severn Villa Ltd & Ors [2012] 1 HKLRD 887 at [31]:-

“ 31. It must also be borne in mind that the orders made by the Judge in the intended appeal are case management decisions in the exercise of the discretion of the trial judge. Case management decisions are only subject to appeal in rare circumstances. The appellant faces a “very high hurdle” and must show that the judge “has gone clearly wrong and made orders which will clearly involve an injustice or an inability for the trial court to carry out its task”[17], or if the judge “erred in principle or the order was irrational having regard to the issues that had to be resolved”[18]. It need hardly be emphasised that generally, an appellate court will not interfere with a judge’s exercise of discretion unless the judge has misunderstood the law or the evidence or the exercise of his discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible[19].”

15.  According to the written statement of the plaintiff contained in pages 1 to 4 of the bundle appended to his supporting affirmation, it appears that the plaintiff advances three grounds of appeal as follows:-

(1)  The Decision would “curtail the scope of claim”;  

(2)  There were “court-induced procedural irregularities hampering the legitimate pursuance of the case”; and

(3)  There were “events that border on the commission of inducement of miscarriage of justice.”

16.  As to the first ground, the plaintiff appears to allege that transferring the case from the general civil jurisdiction list to the PI List would limit the scope of his claim.  The Judge had already set out his reasoning on how the pleadings themselves and other submissions demonstrated that the plaintiff’s claim was based on alleged medical negligence, along with his views in relation to the hospital’s alleged misstatement.  Briefly, it is clear that the wording of the case pleaded as shown at [5] above corresponds with [10] of PD18.1 which states that “all actions in which a claim is made for damages arising out of death or personal injury, including claims arising out of alleged medical negligence… should have been commenced in the Personal Injury List”.  Personal injuries claims can and often are conducted in one action together with other related civil claims, such as for property damage, under the PI List.  We fail to see how the scope of the plaintiff’s claim would be limited at all as alleged.  As such, this ground of appeal is misguided and there are no reasonable prospects of success.

17.  For the second ground, the plaintiff alleges that there were procedural irregularities caused by the Court that hampered the progress of his claim.  The litigation process in the courts is governed by relevant legislation and rules, and this case, like other cases, would also be subjected to them.  According to [11] of the plaintiff’s written statement, an example of a perceived procedural irregularity was the occasion where the plaintiff’s summons for leave to appeal listed for 3 minutes was vacated and he was required to make a separate application by summons for leave to amend. The Judge had explained that a summons listed for 3 minutes would not be sufficient time and an application to amend should not be made informally by letter.[3] We are of the view that the Judge had acted in compliance with the relevant rules and we fail to see any procedural irregularities.  Despite he is acting in person without legal representation, the plaintiff is required to comply with the rules and procedures that govern civil cases, like all other parties in civil cases.  Therefore, this ground of appeal is misconceived and has no reasonable prospects of success.

18.  The third ground consists of the plaintiff’s serious allegations against the Judge.  Thus the plaintiff alleges, inter alia, that the Judge made no meaningful reference to his submissions and arguments, that the Judge in a “quasi obsessive-compulsive fashion” craved for arguments to bring about a transfer, that the Judge gave “global acceptance” to the defendant’s arguments, that the Judge by “procedural trickery” curtailed the scope of the plaintiff’s claim, and that the “idiosyncrasies of the Judge’s behaviour” showed why he should consider recusing himself.  In our view, the Judge had properly adopted the correct legal approach under the rules.  The plaintiff has no basis at all for making those serious allegations against the Judge.  This ground of appeal is completely unfounded and has no reasonable prospects of success.

19.  As mentioned in [14] above, the judge’s decision is a case management decision for the action to be transferred to the PI List, and the hurdle for challenging such a decision is very high.  For the above reasons, we are of the view that the plaintiff has not shown any reasonable prospects of success for his intended appeal at all.  Accordingly, the Summons is dismissed.

20.  As costs should follow the event, we make an order nisi that the plaintiff do pay the defendant the costs of this application to be summarily assessed if not agreed.  The costs order nisi will become absolute unless within 14 days any party applies by summons to vary it. In the absence of any such application, the defendant shall file and serve a statement of costs within 14 days of the costs order absolute, and the plaintiff may file and serve a statement of objections, if any, to the items listed in the defendant’s statement of costs (limited to the same number of pages as the defendant’s statement of costs)  within 14 days thereafter.  The Court will summarily assess the defendant’s costs on the basis of the written materials.

21.  As this application is in our view wholly without merits, pursuant to Order 59 rule 2A(8)  of the Rules of the High Court, we further order that no party may request under rule 2A(7)  that the present determination be reconsidered at an oral hearing inter partes.

[1]  [2022] HKDC 633.

[2]  [2023] HKDC 644.

[3]   See Directions of the Judge dated 19 July 2022 (pages 93 - 96 of the bundle).