ELIJAH SAATORI v. RAFFLES MEDICAL GROUP

   CACV184/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.184 of 2009

(On Appeal from HCPI No.1114 of 2006)

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BETWEEN:

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JUDGMENT

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Hon. Yuen JA:

1.  This is an appeal from an order of Deputy Judge Carlson made on 7 August 2009 (1) dismissing the Plaintiff’s action for damages for personal injuries (HCPI 1114/2006) and (2) making a Restrictive Application Order (“RAO”) in that action and a Restricted Proceedings Order (“RPO”) concerning matters relating to that action. I shall deal with the dismissal order first.

Allegations giving rise to the claim

2.  In July 2003, the Plaintiff (then aged 47) went to the Defendant’s clinic to have wax removed from his ears. He says the following occurred. The doctor who attended him delegated the procedure of ear washing to an assistant (the Plaintiff has referred to the assistant as a “nurse” or “receptionist” while the Defendant has referred to her as a “trained health care assistant”). The assistant used a metal syringe to inject water into the Plaintiff’s ears. She first used cold water which was injected “with force” into his ears, especially the right ear. The Plaintiff felt dizzy. The assistant then repeated the procedure with warmer water, but with “force [which] was very intense”. The Plaintiff again felt dizzy. Within 3 days at the most, he started suffering from tinnitus, a condition in which a person feels a ringing sensation in the ears.

3.  On 26 August 2003 the Plaintiff wrote a letter of complaint to the Defendant seeking compensation. After some correspondence, the doctor who attended to the Plaintiff replied on 19 September 2003 denying that the tinnitus complained of was caused by the ear syringing procedure.

HCA990/2006

4.  On 9 May 2006, the Plaintiff, acting in person, issued a writ in the High Court (HCA990/2006) endorsed with a statement of claim alleging that he was suffering from tinnitus and that it was “directly caused by medical malpractice by [the Defendant] during the violent ear wash procedure” and seeking substantial damages.

Requirement of medical report(s) under Rules of Court and Practice Direction

5.  As the claim was for personal injuries, Order 18 Rule 12(1A) of the Rules of the High Court provides that the plaintiff “shall serve with his statement of claim a medical report” amongst other documents. The “medical report” is defined under Order 18 Rule 12(1C) as

“a report substantiating all the personal injuries alleged in the statement of claim which the plaintiff proposes to adduce in evidence as part of his case at the trial”.

This requirement is supplemented by Practice Direction PD18.1 which provides:

“at least one medical report must describe the Plaintiff’s condition at a time preferably no earlier than four months prior to service thereof”.

(para. 5.1(i) PD 18.1).

6.  Where the claim is for personal injuries as a result of medical negligence, the Practice Direction also provides:

“in order to avoid unnecessary delay and costs, the Plaintiff should additionally serve together with the Writ and Statement of Claim and documents set out in 5.1 the following documents, if they are available and in so far as this is practicable: ...

(v)  in all medical negligence cases, a copy of any expert medical report relied upon as to liability and causation.

Failure to comply with this Direction may result in applications for disclosure with consequent orders for costs”.

(para. 5.2(v) PD 18.1)

7.  In other words, for a personal injuries claim based on medical negligence, the plaintiff must serve with his Statement of Claim

- at least one medical report describing his recent condition, and

- if available and in so far as practicable, an expert medical report (which may be the same report) which he relies on as to liability and causation.

Medical reports

8.  The Plaintiff failed to file any medical reports with his Statement of Claim. On 31 July 2006 Master Lung made an order giving him 70 days in which to file a medical report (as well as other documents which are not relevant to this appeal). On 14 December 2006 Suffiad J made an order transferring the action to the Personal Injuries List, after which the action became known as HCPI1114/2006.

9.  Pursuant to a further order made by Master Kwan on 28 June 2007, the Plaintiff filed on 6 July 2007:

(1)  a certificate issued by Dr Lawrence C.K. Chow, consultant otorhinolaryngologist and Director of the Ear Nose & Throat Centre of the Hong Kong Baptist Hospital;

(2)  a report from Dr Robert J Carpenter, an otolaryngologist and Assistant Professor of Surgery, Division of Otolaryngology - Head and Neck Surgery at the University of Connecticut Health Centre  (which report I will refer to as “Carpenter I”); and

(3)  42 pages of documents printed from the internet which the Plaintiff described as “additional expert documents regarding ear washing and the correct procedures to be carried out, including opinion that harsh ear washing causes tinnitus”.

10.  In (1), Dr Chow certified that he examined the Plaintiff on 25 January 2007 and diagnosed tinnitus.

11.  In (2) “Carpenter I”, Dr Carpenter’s statements may be categorized and summarised as follows (emphases added in italics):

Standard of care in ear washing procedure

(A)  “there are no specific guidelines as to how the ears should be flushed and there is no standard of care concerning the performance of the procedure”;

(B)  “the amount of force used is not measured and is usually limited by the design of the syringe.  The angle can be either straight or at an angle, but again there are no guidelines or correct method”;

(C)  (after giving reasons) “flushing the ears with cold water is within the standard of care and generally is not associated with tinnitus”.

Cause of tinnitus

(D)  “Tinnitus has many causes.  A common cause is noise exposure, either acute or chronic”;

(E)  “In this case, from the temporal relationship, it is my opinion that the tinnitus was, more likely than not, caused by noise trauma from the water hitting the ear drum”.

Proof of tinnitus and damage

(F)  “It is ... difficult to prove that the tinnitus is actually present. There is no method for determining whether a person has tinnitus and no method to quantify tinnitus”.

(G)  “If an audiogram were done and a unilateral hearing loss was noted, then there would perhaps be concrete evidence of damage to the right ear, since this is the ear with the greater tinnitus.  Other than an audiogram, there is no reliable method to determine the extent of injury. ... an audiogram would be helpful as the next step in evaluation, and if an asymmetric hearing loss is noted with the poorer hearing in the right ear this would be helpful in terms of proving that damage did occur”.

Caveat

(H)  Dr Carpenter added “I reserve the right to modify my opinion if further relevant information becomes available”.

12.  In (3), the Plaintiff attached some documents printed from various internet websites. Although the documents have not been put together in an orderly way, it would appear that they included the following:

- a document on tinnitus from the website of the National Association for Deaf People;

- a document on Ear Care Policy from the website of the National Health Service (“NHS”) East Elmbridge and Mid Surrey Primary Care Trust (“PCT”); and

- a document on Ear Care Guidelines from the NHS Cambridge PCT.

Audiograms

13.  After Carpenter I, the Plaintiff had two audiograms done:

- on 24 July 2007, at the Adventist Hospital;

- on 29 January 2008, at the Tuen Mun Hospital.

It would appear that both audiograms supported the Plaintiff’s allegation that he was suffering a loss of hearing. The Defendant’s expert Dr Buddy Y.K. Wong appears to have accepted in his report dated 14 August 2007 that the Plaintiff was (possibly because of ageing) suffering from tinnitus.

Issues

14.  However as the claim is based on medical negligence, the issues in the proceedings include:

- whether the Plaintiff’s tinnitus was caused by the ear washing procedure, and

- whether the Defendant was liable for negligence i.e. whether it had fallen below the standard of care and skill that should be provided by the ordinarily competent professional (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582).

Summarizing the Bolam test, it has been held that:

“ ... a professional ... should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession.  He should not lag behind other ordinary assiduous and intelligent members of his profession in knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill.  He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of his profession would be alert.  He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more.  The standard is that of the reasonable average.  The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet”.

(per Bingham LJ in Eckersley v Binnie [1988] 18 Con LR 1, quoted in Charlesworth & Percy on Negligence, 11^th  ed. pp 509-510, para. 8-04).

As we have seen, in claims of personal injuries based on medical negligence, PD18.1 para. 5(v) requires the plaintiff to file an expert medical report as to causation and liability.

Defendant’s summons to strike out action (2007)

15.  The Defendant issued a summons on 7 August 2007 to strike out the Statement of Claim on the ground that the Plaintiff had failed to file a medical report which complied with Order 18 Rule 12 and/or the PD; further or alternatively, on the Order 18 Rule 19 grounds (i.e. disclosing no reasonable cause of action, scandalous frivolous or vexatious, prejudicing embarrassing or delaying a fair trial, and/or abuse of process of the court).

Saunders J’s order

16.  Saunders J decided the summons on 11 April 2008. In a short judgment he held that “in the absence of any evidence that the tinnitus had been caused by the syringing, that evidence coming from an appropriately qualified medical expert, the claim against [the Defendant] must be struck out”. (Emphasis added).

CACV 109/2008

17.  The Plaintiff appealed. At the hearing before this court (Yeung JA and Lam J) on 23 September 2008, counsel then appearing for the Defendant accepted for the purpose of the application that Carpenter I “could arguably show causation”. In the court’s judgment handed down on 14 October 2008, it was noted that that was a fair concession (para. 6).

18.  That left the issue of liability for negligence, or as it was put in para. 7 of the court’s judgment, “whether there is any expert evidence to show that what the Defendant did fell below the standard of a reasonably competent medical establishment”.

19.  The court observed that what Dr Carpenter said about the absence of a standard of care in performing the ear washing procedure (set out in para. 11(A) - (C) above) did not advance the Plaintiff’s case as to negligence on the part of the Defendant (para. 8). Although the Plaintiff referred the court to the internet documents, the court held that that was tantamount to the Plaintiff acting as his own expert, and that was not permissible (paras. 11-13).

Court of Appeal’s order of 14 October 2008

20.  However the court gave the Plaintiff “one further indulgence” in the interests of justice (para. 20). It ordered that “unless the Plaintiff do on or before 10^th November 2008 file at Court and serve on the Defendant’s solicitors an expert medical report supporting his allegations of negligence against the Defendant, the Plaintiff’s appeal herein shall stand dismissed”. (Emphasis added). Further directions were given in the event of compliance with that order.

Carpenter II

21.  To comply with the Court of Appeal’s order, the Plaintiff relies on an addendum provided by Dr Carpenter dated 29 October 2008 (which I will refer to as “Carpenter II”). In this document Dr Carpenter stated: “further information has become available to me as to the standard of care for cerumen removal in the UK and other countries that have a written protocol for removal to try to prevent tinnitus and hearing loss”. He then stated that he was “modifying” Carpenter I “in the light of the further evidence now in my possession” which included “established syringing practices now mandated in the United Kingdom, Australia and New Zealand”. (Emphasis added).

22.  As far as causation was concerned, after discarding ageing as the cause of the Plaintiff’ tinnitus, Dr Carpenter stated “syringing with excessive force is a well-documented cause of the sudden onset of tinnitus which can continue”, and after considering the Adventist Hospital audiogram, he stated his opinion that “the excessive force of the syringing procedure produced acute noise trauma and caused injury to the inner ear resulting in tinnitus and slightly greater hearing loss in the right ear”. These statements are consistent with the statements in Carpenter I (para. 11 (D) - (E) above).

23.  What is significant is Dr Carpenter’s new opinion on liability for negligence. Although he had stated in Carpenter I that there was “no standard of care concerning the performance of the [ear washing] procedure”, he now stated:

“  I reference articles from the UK which direct the technique and type of equipment to be used for ear irrigation and state that they feel a metal syringe should not be used for irrigation, except in the hands of a specialist, because of the chance of injury to the eardrum or tinnitus from excessive force and warm water should be used to prevent dizziness.

In my opinion, assuming Hong Kong is under the same standard of care as the UK, negligence occurred at the Raffles Clinic in July 2003 when [the Plaintiff’s] ear was flushed with excessive force, causing injury and tinnitus from which he has not recovered.

Had [the Plaintiff] been treated by the techniques described, with warm water and different apparatus, he, more likely than not, would not have experienced tinnitus”.

(It should be noted that Dr Carpenter did not cite the “articles from the UK” to which he referred.  At the hearing before us the Plaintiff informed us that these were the documents he had supplied on 6 July 2007 (see para. 12 above) and that if necessary Dr Carpenter could provide a supplemental statement confirming that fact).

Filing and service of Carpenter II

24.  The indulgence given to the Plaintiff by the Court of Appeal required him to file and serve the required expert medical report on or before 10 November 2008.

25.  On 4 November 2008, the Plaintiff faxed Carpenter II to the Defendant’s solicitors (this is common ground). On 5 November 2008, he filed Carpenter II in Court. However the evidence shows that the Plaintiff’s domestic helper did not post Carpenter II to the Defendant’s solicitors until 12 November and it did not arrive until 13 November.

26.  I set out these facts as a matter of completeness only as leading counsel for the Defendant has fairly conceded before this court that he was not relying solely on delay in service of Carpenter II as a ground for dismissal of the action.

Defendant’s summons to strike out (2009)

27.  On 2 February 2009 the Defendant issued a summons:

(1)  to stay the action on the grounds that the Plaintiff had failed to comply with the Court of Appeal’s order to serve an expert medical report

(a) in time; and

(b) supporting allegations of negligence;

alternatively, to strike out the claim as Carpenter II was in any event non-compliant with Order 18 Rule 12(1A) and the PD; and

(2)  to strike out the action on Order 18 Rule 19 grounds.

Deputy Judge Carlson’s Judgment on the strike out application

28.  Deputy Judge Carlson struck out the action on ground (1). Essentially his reasons are contained in para. 27 of his judgment where he said:

“I have decided that on a true analysis Dr Carpenter’s reports cannot get the Plaintiff to the starting gate.  Dr Carpenter has based himself on a very general proposition that there is greater hearing loss in the right ear detected at 3,000 hz, although overall the difference between the two ears is minimal on a true reading of the audiogram, and that this therefore proves damage to the right ear caused by the noise trauma which was the result of excessive force being applied to expel the water, cold at first, and then warmer on the second application.  It strikes me that these bare assertions based on very limited material does not amount to the sort of cogently reasoned report which the Practice Direction requires in order to start a medical negligence action”.  (Emphasis added).

29.  A judge’s decision whether to strike out an action is of course an exercise of discretion and it is well-established that an appellate court should not interfere unless it is shown that the judge had made an error of law, or misapprehended material facts, or had failed to take relevant matters into account, or had been “plainly wrong”.

30.  However with respect, it seems the judge failed to take into account in his reasoning the following:

(1)  on the Plaintiff’s case, water had been injected forcefully into both ears causing tinnitus in both (see paras. 2 and 5 of the Statement of Claim);

(2)  that the Plaintiff was suffering from tinnitus had been accepted by the Defendant’s own expert (see para. 13 above);

(3)  the fact that the ear washing procedure caused tinnitus had been conceded as being arguable before the Court of Appeal (see para. 17 above);

(4)  the Court of Appeal’s judgment focussed on the issue of  liability not causation (see para. 18 above) and the order was to enable the Plaintiff to provide a medical report to support his case that “what the Defendant did fell below the standard of a reasonably competent medical establishment”.

31.  As shown in para. 27 of the judgment, the judge focussed on causation and proof of damage, and did not examine those parts of Carpenter II which dealt with the standard of care issue (see para. 14 above). It therefore falls to this court to consider this issue.

Discussion

32.  Leading counsel for the Defendant has of course emphasised that part of Carpenter I where the doctor stated there was “no standard of care concerning the performance of the [ear washing] procedure” (see paras. 11(A) -(C) above), but it should be noted that he had entered a caveat on that occasion, and he has now expressly “modified” his opinion in light of new materials from the UK which he has considered.

33.  The Defendant’s observation that Dr Carpenter has not physically examined the Plaintiff is neither here nor there. It has not been suggested that this rendered Dr Carpenter’s reports inadmissible.

34.  The question at this stage of the proceedings is not whether Dr Carpenter’s report or Dr Wong’s report is better presented or researched, or which materials should be given more weight, or whose expert view will prevail at trial as being the more reliable. The question is simply whether there is a medical report supporting the Plaintiff’s case that a reasonably competent medical establishment should not have injected water forcefully from a metal syringe straight at the ear drums. In light of Dr Carpenter’s views apparently supported by materials from other medical establishments containing warnings against that practice (see para. 23 above), it cannot be said that Carpenter II did not comply with the Court of Appeal’s order.

35.  Accordingly had the judge examined the materials on the relevant issue, he should not have struck out the action on ground (1). As far as ground (2) was concerned, the judge took the view that this added nothing to ground (1) (see para. 28) and he therefore did not make an order on this ground.

36.  However the judge did hold that alternatively he would have stayed the action on the basis of the Plaintiff’s “abusive and offensive conduct” (see para. 37). This appeared in the section of the judgment under the rubric of restrictive orders and I will turn to this now.

RAO and RPO

37.  The judge held that even if Carpenter II was compliant with the Court of Appeal’s order, he would have stayed the action on account of the Plaintiff’s abusive and offensive conduct and he also granted an RAO and an RPO against the Plaintiff.

38.  The court’s jurisdiction to make these orders and the principles to be applied have been set out in the Court of Final Appeal’s judgment in Ng Yat Chi v Maxshare Ltd [2005] 1 HKLRD 453.

39.  Essentially these are measures designed to deal with and prevent persistent abuse of the court’s process. In describing “abusive proceedings” in Ng Yat Chi (at p.481 para. 2), the Chief Justice referred to “hopeless claims” being instituted, “totally misconceived appeals” being launched, “attempts, often repeated, to re-litigate the same matters as have already been determined”, “irrelevant, incoherent or scandalous” materials being filed and the fact that some vexatious litigants are “unable to conduct themselves with decorum” and hurl abuse at opposite parties and judges.

40.  When a court considers whether there has been an abuse of its process, it should consider both the substance and the form of a plaintiff’s actions. In the present case the Plaintiff is essentially pursuing an ordinary personal injuries cause of action. There is one (or more) medical report(s) stating that he is suffering from tinnitus, causation is conceded to have been arguably shown and there is now a medical report stating that the Defendant fell below the standard of care in the performance of the ear washing procedure. It is for the master to consider now whether to permit the Plaintiff to amend his Statement of Claim, and if so the action would progress like any other ordinary personal injuries actions.

41.  However the Defendant has pointed to (1) a number of previous proceedings instituted by the Plaintiff against other persons or corporations; (2) unwarranted applications by the Plaintiff in the present action; and (3) certain conduct of the Plaintiff in this action, which it says justified the order staying the action which was made by the judge, and/or an RAO and/or RPO. I shall deal with these in turn.

Previous proceedings

42.  In the past 10 years the Plaintiff has sued 4 other individuals or corporations unconnected with this action. However I do not consider that much turns on those figures. They may show that he is a litigious person but the real issue is whether he is a vexatious litigant. Apparently none of the previous proceedings was struck out for failing to disclose a reasonable cause of action or for being scandalous frivolous or vexatious. In none of those previous proceedings did the court make an RAO or RPO (or its predecessor a Grepe v Loam order). One action was struck out for being an abuse of the process as the Plaintiff sought to re-litigate a claim adopting a cause of action that he had not advanced in an earlier action, but as the Plaintiff was not legally represented, this was not an egregious abuse of the process. So I do not think much weight should be given to the history of those previous proceedings.

Unwarranted applications

43.  Coming to this action, leading counsel for the Defendant has listed 8 applications made by the Plaintiff which he says were unwarranted. I shall deal with them concisely.

(1)  Application filed on 7 July 2006 to set aside an order  made on 3 July 2006 in the Plaintiff’s absence:

-  The order of 3 July 2006 was duly set aside on 17 July  2006.  With that result, the application cannot be said to  be unwarranted.

(2)  Application filed on 24 October 2006 for the trial to be  heard before a jury:

-  Suffiad J. gave judgment on 14 December 2006 holding that there was jurisdiction to make such an order in exceptional circumstances, but he declined to exercise his discretion in the present case as he found no exceptional circumstances.  Although the application was ultimately unsuccessful, I do not think it can be said that the making of such an application by an unrepresented litigant was unwarranted.

(3)  Application filed on 1 March 2007 for the trial to be heard    before a jury:

-  Master Kwan held on 13 March 2007 that the application was premature and should be made before the Personal Injuries judge.  That was a surprising decision considering Suffiad J.’s judgment which was given on the assumption that the action is a personal injuries action (see paras. 20-22, 26-34) and he was the Personal Injuries judge at the time.  This application was clearly an attempt to re-litigate the matter which Suffiad J. had already determined.  It was therefore unwarranted.

(4)  Application filed on 8 March 2007 for directions pursuant to the Defendant’s request for further documents:

-  The master made no order and ordered costs in the cause.  As such, the application cannot be said to be unwarranted. If it had been, one would have expected the master to dismiss the application with costs.

(5)  Application filed on 18 September 2007 to change a hearing date and for inclusion of a medical report:

-  The order was made with costs in the cause.  With that result, the application cannot be said to be unwarranted.

(6)  Application filed on 12 October 2007 to strike out the report of the Defendant’s expert:

-  Saunders J dismissed the application on 1 November 2007.  There has been no appeal.  Having read the documents and the transcript of Saunders J’s oral judgment, it is clear that the application was unwarranted.

(7)  Application filed on 11 May 2009 for amendment of the Statement of Claim despite the master’s order that it should be heard by the judge dealing with the Defendant’s strike-out application:

-  Fung J. dismissed the application on 18 May 2009.  There has been no appeal.  The master’s order was a “case management” order and was obviously correct.  Having read the documents and the transcript of Fung J.’s oral judgment, it is clear that the application was unwarranted.

(8)  Application filed on 20 May 2009 to change the judge for the hearing on 16 July 2009:

-  Considering the materials advanced in support of this application, there seemed to be no good reason for an application for recusal.  However the hearing on 16 July 2009 was transferred from Fung J. to Deputy Judge Carlson.  As there was no hearing of the application and no reason given for the transfer, it is not demonstrable that this application was unwarranted.

44.  It will be seen from the above that there has been a number of unwarranted applications, i.e. (3), (6) and (7). These applications delayed the proper progress of the action, wasted the time of the court as well as the other party, and led to costs being unnecessarily incurred by both parties. In these circumstances, the judge was clearly entitled in the exercise of his discretion to impose an RAO. The imposition of an RAO would be of benefit to both parties as it would focus the Plaintiff’s mind on pursuing only relevant matters of substance and ensure that no unnecessary or improper procedural steps are taken.

45.  The Plaintiff has also embarked on satellite litigation against the Defendant’s solicitors (HCA1626/2009). The judge was entitled in the exercise of his discretion to impose an RPO. Again its imposition would be of benefit to both parties as it would focus the Plaintiff’s mind on the real matters in contention. I would uphold the judge’s orders imposing the RAO and RPO.

Conduct of the Plaintiff

46.  It can readily be seen from the materials placed before this court that some of the documents filed and served by the Plaintiff contain irrelevant and sometimes highly offensive matters. It would also appear from the transcript that the Plaintiff has behaved in an unrestrained manner at a hearing before Fung J.

47.  Irrelevant and offensive materials should be expunged on application made under Order 41 Rule 6 of the Rules of the High Court which empowers the court to strike out of any affidavit any matter which is “scandalous, irrelevant or otherwise oppressive”. As for unrestrained behaviour, the Plaintiff should realize that behaving in an abusive way does himself no favours. It is of course for the judge dealing with a hearing to control his court, and he can if necessary find an unruly litigant in contempt of court which is punishable by measures including committal.

48.  I refer to these measures not to intimidate but to observe that these were not considered by Deputy Judge Carlson when he ordered the action to be stayed even on the assumption that he was wrong to find non-compliance with the Court of Appeal’s order. With respect to the judge, a stay of an action for damages for personal injuries (if a plaintiff has a valid cause of action) by reason of the plaintiff’s abusive conduct should only have been considered as a last resort. I would therefore allow the appeal against the judge’s alternative order.

Order and directions

49.  I would allow the Plaintiff’s appeal from Deputy Judge Carlson’s order dismissing HCPI1114/2006 on the ground that the Plaintiff had failed to comply with the Court of Appeal’s order to serve an expert medical report supporting allegations of negligence, or on the ground that Carpenter II was in any event non-compliant with Order 18 Rule 12(1A) and the PD, and also the appeal from the judge’s order staying the action by reason of the Plaintiff’s conduct.

50.  As for the Court of Appeal’s directions in para. 2 of the order of 14 October 2008 regarding amendment of the Statement of Claim, the Plaintiff had on 5 November 2008 and 11 May 2009 applied for leave to file an Amended Statement of Claim. Master Kwan ordered the amendment application to be listed before the judge dealing with the Defendant’s strike-out application and Fung J. upheld that order on 19 May 2009. Accordingly the amendment application was before Deputy Judge Carlson on 16 July 2009 as well (see para. 14 of his judgment). The judge did not specifically deal with the amendment application, presumably because of his order dismissing the action. That order has now been overturned but it does not necessarily follow that the amendment should be allowed. It would still be necessary for the court to determine whether the draft amendment pleaded sufficient particulars of negligence. However it is not appropriate for an appellate court to deal with an application for amendment when there has been no decision at first instance. Accordingly I would direct that the application for amendment be restored for hearing before a master within 14 days of this order.

51.  I would also direct that the Plaintiff file and serve within 14 days of this order a supplemental statement from Dr Carpenter listing the articles he has referenced in his report dated 29 October 2008, with liberty to both parties to apply to this court if the Plaintiff fails to file and serve a proper supplemental statement in time.

52.  Finally as to costs, the parties have agreed that costs of the appeal should follow the event. As the Plaintiff and the Defendant has each succeeded in half of the appeal, I would make an order that there be no order as to costs. As for the costs before Deputy Judge Carlson, I would make an order nisi that the Plaintiff bear half of the Defendant’s costs as it would have needed to incur costs to obtain the RAO and RPO.

Hon Hartmann JA:

53.  I agree.