CHENG WAN KAAI v. HOSPITAL AUTHORITY

HCPI 235/2022

[2023] HKCFI 1521

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 235 OF 2022

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D E C I S I O N

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1.  On 14 September 2022, the plaintiff commenced the present action against the defendant for damages in the sum of HK$50 million for alleged medical negligence. Legal aid has been applied for but refused in mid-November 2022. The plaintiff acts in person.

2.  The generally endorsed writ contains the mere allegation that a Mr Chung Kit Keung, presumably a medical officer, was under the employ of the defendant without professional licence. There is no other contention or particular. There is yet to be statement of claim, let alone compliance with O18 of the Rules of the High Court, Cap 4A (“RHC”) and Sections E, F and G of the relevant Practice Direction (“PD”) 18.1.

3.  The defendant acknowledged service of the writ with intention to defend.

4.  There has not been substantial procedural progress since the end of 2022. Then came the first checklist review (“CLR”) hearing on 17 February 2023.

5.  Nevertheless, by summons filed on 13 February 2023, the plaintiff applied for judgment against the defendant for damages in the sum of HK$50 million claimed. The grounds essentially were (i) breach of the date of service of the defendant’s questionnaire for the CLR hearing; (ii) failure of the defendant to serve documents by 3 February 2023; and (iii) false claim by the defendant of ability to provide an independent medical expert report.

6.  At the CLR hearing on 17 February 2023, the plaintiff sought to withdraw her summons. The master gave leave for her to do so with costs agreed at HK$1,040 payable forthwith to the defendant; and also gave case management directions starting with the filing of pleadings. This is the order of the master in the appeal before this court today (“the Order”).

7.  By notice of appeal filed on 9 May 2023, the plaintiff seeks an order in the following terms (in her own words):

“the action being escalated to a Judge’s hearing for judgements without pleadings under Cap 4A O18, r21. In addition, the order to Extensions, etc, of time is sought according to O3, r5 and O58/1/9”

8.  In my judgment, the appeal is incapable of reasoning and in any event devoid of merit.

9.  First, an appeal under O58 RHC targets a decision or order of the master with a view to its being set aside or varied. The Order was made upon the hearing of the plaintiff’s summons for judgment, which she withdrew with leave of the master. There is no basis for the plaintiff to challenge that.

10.  Second, the plaintiff filed an affirmation in support of the appeal. O58, r1(5) RHC provides that no further evidence other than that which has come into existence after the master’s order or decision may be received. Nothing of that sort is made out in her affirmation. None of the content will be considered except for its extent as submission.

11.  Third, the Order continued with the fairly expected case management directions by the master starting with the filing of statement of claim in accordance with O18, r12 RHC and PD 18.1. These are the statutory requirements which the master rightly directed the plaintiff to comply with. Insofar as the appeal seeks to challenge that part of the Order, it is devoid of merits.

12.  Fourth, the plaintiff purports to rely on O18, r21 RHC. That rule governs application for trial without pleadings but only in an action to which the rule applies. O18, r1 makes it mandatory to serve a statement of claim unless leave to the contrary is given by the court or the statement of claim is already indorsed on the writ. Further, O18, r12(1A) also provides that a plaintiff in an action for personal injuries shall serve with his statement of claim a medical report and a statement of special damages claimed. In other words, O18, r21 simply does not apply to a personal injuries action, let alone a medical negligence case.

13.  Fifth, as it defies the rules and practice of a personal injury action, no leave will be given to dispense with the filing and service of statement of claim in the present action.

14.  Last, as an appeal under O58 RHC, it is seriously out of the time limit under O58, r1(3). The appeal being without excusable delay and devoid of merit, there is no way that extension of time for the appeal should be allowed.

15.  The notice of appeal is dismissed for being misconceived.

[submission on costs]

16.  Costs of and occasioned by the notice of appeal be to the defendant, summarily assessed at the sum of HK$7,500 and payable by the plaintiff to the defendant within 7 days.