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.