ELIJAH SAATORI v. RAFFLES MEDICAL GROUP

HCA990/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 990 OF 2006

------------------------------

---------------------

-------------------

R U L I N G

-------------------

1. There are two applications before me to be ruled upon.

2. The first application, taken out by the plaintiff acting in person, effectively asks that this matter be set down for trial before a jury. That application was taken out by the plaintiff by Summons dated 24^th October 2006.

3. The second application, taken out by the defendant by Summons dated 1^st November 2006, seeks an order that this case be transferred to the Personal Injury List.

4. Since the argument put forward by the parties in respect of both applications are linked, both applications were heard together.

Background

5. The claim is brought by the plaintiff for damages stated to be $27 million in the Statement of Claim against the defendant. However, no particulars or breakdown has been pleaded for the amount claimed.

6. The cause of action relied upon is for medical negligence.

7. The Statement of Claim pleads that in late July or early August 2003, a nurse employed by the defendant at its Gold Coast branch clinic, in performing a routine ear wash for the plaintiff to remove ear wax, using a syringe, used intense force such that it resulted in the plaintiff suffering severe Tinnitus which he had never experienced before.

8. It was further pleaded that the plaintiff’s Tinnitus was directly caused by the medical malpractice of the defendant during the violent ear wash procedure.

9. There can therefore be no doubt that the plaintiff’s claim is founded on medical negligence resulting in personal injury to the plaintiff and as such is, by its nature, an action for personal injury.

Plaintiff’s application for jury trial

10. The reasons put forward by the plaintiff in asking for a jury trial is that while he has evidence to show that Tinnitus cannot be cured and is undetectable.  His entire case therefore hinges upon whether he is to be believed in saying that he has suffered from Tinnitus ever since the day immediately after he had his ear wash performed by the nurse employed by the defendant.

11. His credibility will therefore be a fundamental issue in the case.

12. In those circumstances, it is submitted that it will be far too onerous and unfair to a single judge to have to resolve the issue of credibility in determining the question of liability, rather it would be far better for a jury to collectively decide that fundamental issue.

13. Furthermore, the plaintiff submits that the injury caused to him is unique such that it would be an exceptional case and therefore appropriate for the exercise of the court’s discretion to order a trial by jury.

14. The plaintiff therefore asks the court to exercise its discretion to order a jury trial in this matter.

15. It is for those same reason that the plaintiff would resist the application for the case to be transferred to the Personal Injury List if by so doing, it would mean that it will be more difficult, or that he, the plaintiff, will be deprived of having a jury trial.

16. On the other hand, the plaintiff would not resist the transfer if, despite the case being put in the Personal Injury List, the court would still be agreeable to ordering a jury trial for the case.

The defendant’s application

17. The defendant submits that this case, being by its nature a claim for personal injury, should be transferred to the Personal Injury List and that the practice laid down in PD 18.1 should be followed.

18. Moreover, it is submitted that there is nothing exceptional in respect of this personal injury claim to warrant the court exercising its discretion to order a trial by jury since the rules of practice contained in the White Book makes provision that in personal injury action a jury will not be ordered unless there are exceptional circumstances.

Decision

19. First and foremost, since it cannot be disputed that this claim of the plaintiff is a personal injury claim arising out of alleged medical negligence but does not come within the jurisdiction of the Admiralty Court, under paragraph 1.1 of Practice Direction 18.1, it should have been started in the Personal Injury List.

20. In view of the fact that this matter was not commenced in the Personal Injury List, but in the civil action list, it should be transferred and assigned to the Personal Injury List.

21. That is so irrespective of any intention of the plaintiff to ask for a trial by jury, since it is still open to the plaintiff to make that application for the court to exercise its discretion to that effect when the claim is in the Personal Injury List.

22. It must follow therefore that the intention of the plaintiff to ask for a trial by jury is not a good ground for resisting the transfer of this matter to the Personal Injury List.

23. Coming now to deal with the question whether or not there should be a jury trial as sought for by the plaintiff in this case, the starting point must be Section 33A of the High Court Ordinance, Cap 4 which provides :

“(1)	Where, on the application of any party to an action the Court of First Instance is satisfied that there is in issue-
	(a)	a claim in respect of libel, slander, malicious prosecution, false imprisonment or seduction; or
	(b)	any question or issue of a kind prescribed for the purposes of this paragraph by rules of court,

the action shall be tried with a jury, unless the Court is of the opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury.

…..

(3)          An action to be tried in the Court of First Instance which does not by virtue of subsection (1) fall to be tried with a jury shall be tried without a jury unless the Court  in its discretion orders it to be tried with a jury.

24. It can therefore be seen at once that the present claim, not being one of libel, slander, malicious prosecution, false imprisonment or seduction, the general rule under Section 33A is that it will not be tried with a jury.

25. However, the Court is given a discretion to order a trial by jury even if the claim is not of such a kind as coming within subsection (1).

How then is that discretion to be exercised to bring a case within the exception to the general rule, and in particular in the context of a personal injury action?

26. That such discretion is to be exercised in the present case by viewing it as a personal injury action, despite that it was not started in the Personal Injury List, must follow from the fact that this claim is by its nature a personal injury claim.

27. Once again, the general rule of practice in a personal injury claim is that it should be heard and decided by a single judge without a jury. In Ward v James [1965] 1 All E R 563, Lord Denning MR had this to say by way of conclusion, after reviewing a number of cases of personal injuries action, at page 576 :

“CONCLUSION.  The result of it all is this. We have come in recent years to realize that the award of damages in personal injury cases is basically a conventional figure derived from experience and from awards in comparable cases. Yet the jury are not allowed to know what that conventional figure is. The judge knows it, but the jury do not. This is a most material consideration which a judge must bear in mind when deciding whether or not to order trial by jury. So important is it that the judge ought not, in a personal injury case, to order trial by jury save in exceptional circumstances. Even when the issue of liability is one fit to be tried by a jury, nevertheless he might think it fit to order that the damages be assessed by a judge alone.”

28. What then would be “exceptional circumstances” referred to in the cited passage by Lord Denning MR?

29. One such exceptional circumstances appeared in the case of Hodges v Harland & Wolff, Ltd. [1965] 1 All ER 1086. In that case, also a personal injury case, the plaintiff was employed by the defendant, and while operating a diesel driven air compressor at work, the spindle on that machine, revolving at great speed, caught and tore the plaintiff’s trousers and avulsed his penis and scrotal skin due to it not being properly guarded as required by statute. One effect of that injury was that the plaintiff had still the sexual urge without the ability to perform the sexual act.

30. In dismissing an appeal by the defendant against the order of the judge ordering a trial by jury, Lord Denning MR (sitting with Davies and Salmon L JJ.) had this to say :

“In this present case the judge, it seems to me, has borne all the relevant considerations in mind. He said “this is a unique case”. So it is. Counsel for the defendants urged that there were one or two cases in the books where a man had retained the sexual urge without the ability to perform the sexual act. That may be so; but they were very different from this. I think that the judge was well entitled to take the view that this was an exceptional case, and in the circumstances to exercise his discretion in favour of trial by jury. Indeed, when a judge exercises his discretion and takes all the relevant considerations into account, it is well settled that the burden is on anyone coming to this court to show that he was wrong.. I see nothing wrong in the way that Lyell J dealt with this case in ordering trial by jury.”

31. In the present case, even if Mr. Saatori is able to prove what he had submitted as to Tinnitus, namely, that it is undetectable and cannot be cured, that does not make his injury unique or the case an exceptional case. That is because it will be of general application to all cases of Tinnitus.

32. The second limb of his argument that there should be a jury trial in this case is based upon his credibility being of fundamental importance and therefore says Mr. Saatori, it should be a jury, rather than a single judge, to decide on that issue.

33. However, the House of Lords in the case of Williams v Beesley [1973] 3 All ER 144, reversing the decision of the Court of Appeal, held that the fact that a case involved issues of credibility was not a ground for departing from the usual rule that cases, other than those in which a prima facie right to trial by jury was conferred by statute, should be tried by judge alone.

34. Ultimately, therefore I have come to the conclusion that in the present case, there is really no aspect of this case which would cause me to exercise my discretion to order a trial by jury. The injury alleged by the plaintiff is not unique nor is the case itself exceptional and I can see no reason why it should not be tried as any other personal injury case, namely by a single judge.

35. I would therefore refuse the plaintiff’s application for a trial by jury upon his Summons dated 24^th October 2006 for the above reasons.

Order

36. I would make the following orders :

1.     The application for a trial by jury is refused and the plaintiff’s summons of 24^th October 2006 is dismissed.

2.     This matter be transferred to the Personal Injury List forthwith.

37. There will be the following further directions being ancillary to the above Order for transfer :

Upon this matter being transferred to the Personal Injury List :-

1.     The plaintiff do file and serve a Statement of Damages within 14 days;

2.     A Check List Review hearing is to be fixed for hearing before the Personal Injury Master, with estimated length of hearing being for half hour.

Costs

38. There will be costs order nisi as follows :

1.     Costs of the plaintiff’s application for jury trial and all hearings relating thereto be to the defendant in any event;

2.     Costs of the defendant’s application for transfer to the Personal Injury List and all hearings relating thereto be to the defendant in any event.