XCHRX LEONARD LEACH v. HOSPITAL AUTHORITY

HCPI 1285/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1285 OF 2000

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R U L I N G

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1. This is an application by the defendant, being the Hospital Authority, asking for an order that the plaintiff give security for the defendant's costs up to the setting down of this action for trial. The application is opposed by the plaintiff.

2. The plaintiff who is ordinarily resident in the United Kingdom, brings this action against the defendant claiming damages for personal injuries.

3. It is the plaintiff's case that on 15 October 1997, whilst under the influence of alcohol, he fell from the balcony outside the "Golden Eagle Lounge" at Gold Coast, Tuen Mun and landed on the concrete concourse below thereby sustaining multiple fractures as well as head injuries. Emergency services were called and the plaintiff was taken to Tuen Mun Hospital.

4. It is accepted by the plaintiff that those injuries which he sustained from the fall were not caused by the defendant. The plaintiff's case against the defendant is that the defendant was negligent in that it had failed to properly and fully identify and treat the plaintiff for all the injuries which he had sustained in the fall. In particular, it is alleged that the defendant failed to identify the fractures to the right wrist and left hip of the plaintiff which he had sustained despite X-rays having been taken when he was admitted to the Tuen Mun Hospital.

5. It is also common ground between the parties that on or about 27 October 1997, after his wife (who is a nurse in the United Kingdom) flew out to Hong Kong from the United Kingdom and after some 12 days in Tuen Mun Hospital, the plaintiff discharged himself from the hospital against medical advice. He was then flown back to the United Kingdom and admitted into a hospital there for treatment.

The Application for Security for Costs

6. The defendant in making this application, bases it on the fact that the plaintiff is resident outside the jurisdiction of this Court. The defendant submits that it is just in all the circumstances of this case to grant such security. In particular I am asked to take into account, in the exercise of my discretion in this matter, the prospect of the plaintiff's case, the delay which already exist due largely to the plaintiff and the fact that legal aid has been discontinued to the plaintiff since May this year.

7. On the other hand, the plaintiff, represented by Mr Burke of Messrs Burke & Co. submits that any substantial order for security would likely stifle the plaintiff's claim herein and that the plaintiff should be allowed a chance to investigate and to obtain the necessary evidence to proceed with his claim, a matter which I shall enlarge on later in this ruling.

8. It is accepted by both parties that whether or not security is ordered is discretionary upon the Court when all the circumstances of the case are considered.

Prospect of Plaintiff's case

9. When the plaintiff was admitted to Tuen Mun Hospital, he was diagnosed to have sustained the following injuries from his fall at the "Golden Eagle Lounge" :

(a) Subarachnoid haemorrhage of left temporal frontal region;

(b) Fracture of left distal radius with dorsal tilting;

(c) Fracture of left 3rd and 4th fingers;

(d) Fracture of right 5th finger;

(e) Fracture of left orbit;

together with laceration, bruising and swelling over left orbital region, abrasion on left hand and neck, and bleeding from the nose.

10. As already stated above, the plaintiff's claim against the defendant is for negligence in failing to properly identify fully his injuries and to provide appropriate and prompt treatment resulting in increased disabilities to the plaintiff.

11. Although no Defence has been filed as yet, it is abundantly clear that there is no admission of negligence by the defendant on the part of Tuen Mun Hospital or any of its staff there. The stance taken by the defendant is that the plaintiff's present condition and complaints are entirely consistent with head injuries sustained by him in the fall from the balcony of the Golden Eagles Lounge.

12. Moreover, it is conceded by the plaintiff, at least for the present, that there is as yet no expert medical report presently in existence which points to the defendant or Tuen Mun Hospital having been negligent in their treatment of the plaintiff. In a telling admission by the plaintiff's solicitors in their letter dated 22 August 2001, they admitted for the first time in these proceedings that "the reason for the discharge of Legal Aid is that the experts that Legal Aid consulted, have formed the view that there are no grounds to establish clinical negligence".

13. I am informed by Mr Burke that the present position is that he had approached medical experts in the United Kingdom and that he expects to receive an expert report from them by the end of December. It is only if that medical report comes out with the necessary evidence to show negligence on the part of Tuen Mun Hospital that the plaintiff's case will proceed. He submits that the plaintiff should be given a chance to investigate this possibility of maintaining its claim against the defendant. It is for this reason, says Mr Burke, that the Statement of Claim when it was filed in Court did not have any expert medical report annexed to it as no expert medical report which he intended to rely on was available at that time.

Delay

14. The Writ in this matter was issued on 10 October 2000, a matter of days before the expiry of the three years limitation period. No doubt it was issued to beat that deadline. However an Acknowledgement of Service of the Writ was filed by the defendant on 5 March 2001. No Statement of Claim was filed by the plaintiff until an Unless Order was made by this Court in that respect on 5 June 2001 giving the plaintiff's solicitors 28 days in which to do so. The Statement of Claim was filed and served on 3 July 2001.

15. It is quite apparent now that one of the reasons for such delay must have been due to the fact that the plaintiff was still trying to obtain the necessary evidence to allow him to proceed - a matter which he is still trying to achieve.

Legal Aid

16. Legal Aid was granted to the plaintiff on 7 October 2000, three days before the protective Writ was issued in this case.

17. Legal Aid was discharged on 8 May 2001. The reason for that is now clear from the letter of the plaintiff's solicitors referred to above.

18. After Legal Aid was discharged, the plaintiff, who was himself in the United Kingdom, tried to appeal against that discharge. That appeal was lodged and came before a Master for hearing. Mr Burke, the previously assigned solicitor of the plaintiff, attended that hearing only to be told by the Master that he had no locus since Legal Aid had been discharged. In the absence of the plaintiff present at that hearing, the appeal was dismissed for want of prosecution.

19. Mr Burke is now acting for the plaintiff pro bono. He tells me that he is prepared to act for the plaintiff on that basis but only limited to assisting the plaintiff to make investigation in order to obtain the necessary evidence to pursue this matter.

20. I am told by Mr Burke that the plaintiff has renewed his application for Legal Aid but on the basis that an expert report will be forthcoming from the United Kingdom in which the necessary evidence showing medical negligence on the part of Tuen Mun Hospital will be available some time towards the end of this year. Once that report is available, he is confident that Legal Aid will be granted to the plaintiff since it is only on that basis that the case can proceed.

21. The long and short of all this is that assuming that the necessary evidence can be obtained by the plaintiff by the end of this year and Legal Aid is once more granted to him shortly thereafter, there will still be the period from 8 May 2001 until the end of this year during which time the defendant would have been exposed in so far as costs is concerned.

22. If, on the other hand, the evidence which the plaintiff hopes for is not forthcoming, and assuming the case dies there, it is unlikely the defendant will be able to recover any cost incurred after the discharge of Legal Aid on 8 May 2001.

Financial Position of the plaintiff

23. There is evidence before me that the plaintiff and his wife (both of them are now living in the United Kingdom) are not working. The house that they live in is rented and not owned by them. They are both dependent on social welfare payments for their living and when Legal Aid was granted to the plaintiff in this case, it was granted on a "Nil" contribution basis. This has not been disputed by the defendant.

24. I am further told by Mr Burke that if a substantial amount of security is ordered against the plaintiff, then that could very well stifle his claim.

Decision

25. I fully accept that if an order for security for cost may stifle a plaintiff's claim, that in itself may be a very powerful reason for not ordering security (see Thune v. London Properties Ltd [1990] 1 WLR 562 at 573).

26. In this case however, that needs to be balanced against the other considerations referred to above. The other factor which swings the pendulum to the other side is of course the fact the as it stands at present, the prospects of the plaintiff's case looks almost hopeless. The further expert evidence which the plaintiff hopes for may or may not materialize. In any event, it is not for me to speculate what the evidence will be at a future date. All I can say is at present the prospects do not look good for the plaintiff in so far as his case is concerned.

27. A further matter which I take into consideration is that the injuries and disabilities to the plaintiff, as the evidence presently stands, came about as a result of his fall from the balcony and not from anything done by the defendant or by Tuen Mun Hospital. In that sense it is not the defendant who had put him in the position (both physical and financial) he is now in.

28. Balancing all the above considerations, I am of the view that the plaintiff should be ordered to give security for costs but not in the amount suggested by the defendant of $500,000 which is based on a skeleton bill of cost prepared on the basis of these proceedings taking its full course.

29. The amount I have in mind in making an order for security for costs is an amount which would sufficiently cover the period from May to December of this year and also cover the cost of the adjourned hearing for Check List/PTR as well as the present hearing. On that basis, I am of the view that an amount of $50,000 would suffice.

30. Accordingly I shall order that the plaintiff do give security for the defendant's cost in the sum of $50,000 to be paid into Court within 28 days and in the meantime all proceedings be stayed.

Costs

31. This application was wholly opposed by the plaintiff. I can see no reason for departing from the general rule that cost should follow the event. There will be an order nisi that the cost of this application be to the defendant.