ELIJAH SAATORI v. RAFFLES MEDICAL GROUP (HONG KONG) LTD

HCPI 1114/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1114 OF 2006

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D E C I S I O N

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Introduction

1.   I have before me an application by the plaintiff by summons dated 22 June 2016 seeking leave to amend his pleadings and certain consequential directions.  The proposed amendments relate to a single issue, namely, the date on which the plaintiff attended the defendant’s clinic for the purpose of wax removal in his right ear (“the Treatment”), which gave rise to his present complaint of “tinnitus” and his claim against the defendant for damages for medical negligence.

Background

2.   In his original writ of summons and statement of claim dated 9 May 2006, which were prepared by the plaintiff himself, he alleged that the Treatment took place “in very late July or very early August 2003”.  This remained his allegation in his amended statement of claim, also prepared by the plaintiff himself, dated 26 February 2010.  It was further alleged in his statement of claim and amended statement of claim that within 3 days of the Treatment, he began to experience severe tinnitus.

3.   In the re-amended statement of claim dated 29 July 2013 prepared by his counsel, Mr Jeevan Hingorani, it was pleaded that the Treatment took place on or about 10 July 2003.  I am told by Mr Hingorani that this date was based on certain medical records discovered by the defendant on 19 July 2010.  This date also appeared in the defendant’s amended defence dated 23 April 2010.

4.   However, in a letter previously sent by the plaintiff to Master de Souza dated 6 September 2007 in connection with a check list review hearing, the plaintiff appeared to be saying that the onset of the tinnitus occurred while he was on a trip to the Philippines.  I should point out that there is an issue as to whether the plaintiff’s letter ought to be read in that manner, that issue being raised in a Draft/Joint Letter to the expert psychiatrists prepared by the plaintiff’s solicitors in July 2014.  This is an issue which will have to be resolved at the trial.  There is no dispute, however, that the plaintiff only went to the Philippines on 11 August 2003.  Hence, if it was a fact that the onset of the tinnitus occurred while the plaintiff was in the Philippines, that would be more one month after the date of the Treatment (assuming that it took place on 10 July 2003) instead of within 3 days of the Treatment as alleged by the plaintiff.

5.   According to Mr Patrick Burke (the plaintiff’s solicitor), in view of this potential discrepancy, he reviewed the matter with the plaintiff in a recent conference, which I understand took place on 21 April 2016 at which counsel was also present.  Apparently, the plaintiff was still unable to recall the exact date of the Treatment, but he “suspected that it was not so long before he went to the Philippines”.  By what I think can fairly be described as a process of reconstruction (including what the plaintiff’s had previously said, the date of his birth and his travel records), the view was taken that the Treatment “most likely” took place on 5 August 2003 (Tuesday).  This gives rise to the present application to amend the pleadings, in particular, to amend the date of the Treatment from 10 July 2003 to 5 August 2003.

Discussion

6.   On behalf of the defendant, Mr Raymond Leung SC objected to the proposed amendments on the following grounds:

(1) the amendments amount to a withdrawal of admission;

(2) the application is late since the trial is due to commence on 2 September 2016;

(3) no proper affidavit has been filed by the plaintiff in support of the application;

(4) no credible and convincing explanation for the amendments has been shown;

(5) the plaintiff’s attempt to shift the date of the Treatment is nothing but a tactical move to “patch up” his case upon realisation of its weakness; and

(6) the defendant will suffer prejudice which cannot be compensated by costs if the amendments are allowed.

7.   In respect of (1), I am unable to see that the proposed amendments amount to a withdrawal of any admission.  It is the plaintiff’s existing pleaded case that the Treatment took place on 10 July 2003, and he wishes to amend it to 5 August 2003.  According to the plaintiff, that would be to correct what he now believes to be a mistake in his pleadings.  The defendant would characterise that as an attempt to “patch up” his case upon realisation of its weakness.  On either view, that would not amount to any withdrawal of admission.  I may add that the proposed amendments would be broadly consistent with the plaintiff’s original pleaded case that the Treatment took place “in very late July or very early August 2003”.

8.   In respect of (2), I accept that the application is late and the proposed amendments relate to a material issue in the case.  These are obviously matters that I have to take into account in the exercise of my discretion whether to allow the amendments sought.

9.   In respect of (3) and (4), the explanation for the amendments is given in Mr Burke’s 3^rd affidavit.  I regard that as being a sufficient explanation although, as rightly pointed out by Mr Leung, the plaintiff ought to have realised the discrepancy arising from the pleaded date of the Treatment and the onset of the tinnitus much earlier, namely, at the time when the parties were preparing the Draft/Joint Letter to the expert psychiatrists in 2014.

10.   In respect of (5), namely, the allegation that the plaintiff’s attempt to shift the date of the Treatment is nothing but a tactical move to “patch up” his case upon realisation of its weakness, I consider that to be a matter for the trial.

11.   Lastly, in respect of (6), I understand that there will be no change in the defendant’s factual case, but the defendant may need to file supplemental expert reports (ENT and psychiatrists).

12.   I consider that I should seek to achieve a result which would do the least injustice to both parties.  The date of the Treatment is plainly a material issue in the present case.  It would not be fair to force the plaintiff to proceed to trial on a factual basis which he does not now believe to be correct.  On the other hand, I consider that, although the application is late, the defendant would still have sufficient time to prepare consequential amendments and supplemental expert reports prior to the commencement of the trial.  Overall, I consider that justice would best be served by permitting the plaintiff to amend the pleadings.

13.   I would therefore make an order in terms of paragraphs 1, 2(a) and 3 of the plaintiff’s summons dated 22 June 2016.  In respect of paragraph 3, the defendant shall have 28 days to file and serve its re-re-amended defence and answer to the amended revised statement of damages (if so advised).  I also grant leave to the defendant to file and serve supplemental expert reports (ENT and psychiatrists) within 28 days from the date hereof, Mr Hingorani having confirmed that the plaintiff does not need to file any supplemental expert reports.

14.   I shall now hear the parties on the question of costs.