HOSPITAL AUTHORITY v. CARLSON JAMES ERNEST

DCCJ 1383/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1383 OF 2010

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BETWEEN

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D E C I S I O N

1.  HA, the Plaintiff, claims against Carlson, the Defendant, for outstanding hospital maintenance fees and overdue administrative charges for the latter’s hospitalisation during the period between December 2008 and January 2009. Carlson resists the claim and counterclaim for effectively medical negligence.

2.  By summons dated 27 August 2010, HA applies for the counterclaim to be struck out on ground that the subject matter of the counterclaim ought to be disposed of by a separate action or that the counterclaim be tried separately or such other order as may be expedient.

3.  The summons has been adjourned for various reasons until now before this court.

The Principles

4.  O.1B, r.1 of the Rules of the District Court gave the court general powers of case management.  Sub-rule (2)(d) provides that except where the Rules provides otherwise, the court may by order direct that part of any proceedings such as a counterclaim be dealt with as separate proceedings.

5.  O.15, r.5(1) provides that if claims in respect of two or more causes of action are included by a plaintiff in the same action or by a defendant in a counterclaim, and it appears to the court that the joinder of causes of action may embarrass or delay the trial or is otherwise inconvenient, the court may order separate trials or make such other order as may be expedient.

6.  O.15, r.5(2) provides that if it appears that the subject matter of the counterclaim ought for any reason to be disposed of by a separate action, the court may, upon application of any party against whom the counterclaim is made, order the counterclaim to be tried separately or make such other order as may be expedient.

Application

7.  In view of his short pleading and the subsequent further and better particulars, Carlson’s counterclaim is for alleged medical negligence on the part of the hospital causing him loss and damage.  Rather than by way of defence, Carlson pleaded in his counterclaim the alleged set-off against HA’s claim by the damages claimed by way of his counterclaim.  In view of the nature of his unliquidated claim, Carlson could only be relying on equitable set-off.

8.  For equitable set-off to apply, it must be established that the counterclaim is closely connected with the same transaction as that giving rise to the claim; and the relationship between the respective claims is such that it would be manifestly unjust to allow one to be enforced without regard to the other: see Esso Petroleum Co Ltd v Milton [1997] WLR 938.

9.  HA claims accident and emergency charge and public ward maintenance fee for the period of hospitalisation between December 2008 and January 2009.  They are apparently charged for the period of hospitalisation at a fixed daily rate according to the scale prescribed by HA pursuant to the Hospital Authority Ordinance, Cap.113.  Likewise the administrative charges on the overdue amount are also levied in accordance with the prescribed percentages published in the Government Gazette.

10.  The counterclaim for medical negligence presumably relates to the specific treatment or medical procedure administered by the hospital during the period of Carlson’s hospitalisation.  These allegations provide no answer to whether Carlson was hospitalised and received treatment during the period and therefore whether the liability to pay the prescribed fee and charges was triggered.  I doubt whether it would be manifestly unjust to allow any judgment on the fee and charges claimed to be enforced independent of the counterclaim for damages for alleged problematic treatment.

11.  But even assuming that I am wrong about Carlson’s right to equitable set-off, I still think there are good reasons for the counterclaim to be disposed of separately from this action.

12.  A claim for damages arising out of personal injuries, including medical negligence, should have been commenced in the Personal Injury List (“PI List”): see Practice Direction 18.1.  Various pre-action protocols peculiar to a case in the PI List must be complied with.  The form of commencement of an action, the pleadings, the documents that must be served with the pleadings that are peculiar to an action in the PI List are also prescribed.  Almost invariably in cases of alleged medical negligence, medical expert evidence will be required.

13.  The issues to be determined, the evidence required and the practice and procedure entailed in a medical negligence action properly commenced and conducted will considerably overwhelm the apparently straightforward debt recovery action by HA.  Allowing the medical negligence claim of Carlson to remain as a counterclaim in the present action will inevitably embarrass or delay the trial and is otherwise inconvenient.

14.  In line with O.15, rr.5(1) and (2) as well as O.1B, r.1(2)(d) above, there are good reasons Carlson’s claim ought to be disposed of separately from the present action.

15.  Before concluding, I notice that HA has provided the statement of accounts and written explanation of the amount claimed to Carlson at his request.  Carlson is not satisfied and demands what he describes as “full detailed invoice” or further breakdown.  As mentioned above, HA is not claiming on a treatment by treatment or quantum meruit basis.  I have doubt as to the relevance of the details being requested to the defence.  Since I am not dealing with an application for further and better particulars or discovery of documents, I say no more.  It suffices for me to say that there is no other factor militating against an order to separate the counterclaim from the present action.

Conclusion

16.  O.15, r.5(2) gives the court options, in the event that the subject matter of the counterclaim ought to be disposed of by separate proceedings.  In view of the above discussion, I think the right course is to have the counterclaim struck out, without prejudice to Carlson’s right to file his lawsuit separately in the PI List.

17.  The counterclaim is struck out.

[Parties submit on costs]

18.  Costs of and occasioned by this application be to HA, summarily assessed at HK$48,000, payable by Carlson within 21 days.

Further directions

19.  At HA’s request, I further direct that:

(1) Carlson shall file and serve mediation response within 14 days;

(2) Leave to HA to file and serve Reply, if any, within 28 days thereafter.

20.  Parties are reminded that upon compliance with (1) above and in event that stay of proceedings pending mediation or extension of time for complying with (2) above is contemplated, application should be made in time and, as far as possible, by consent.