WONG TZE MING v. DR WOO CHI PANG, VICTOR AND ANOTHER

HCPI 472/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 472 OF 2009

_________________________

____________________

_______________

J U D G M E N T

_______________

Introduction

1. The 1^st defendant is a registered ophthalmology specialist. The 2^nd defendant runs a medical centre. The plaintiff is a patient of the 1^st defendant.

2. On 17July 2006, the 1^st defendant carried out a laser intrastromal keratomileusis surgery (it is more commonly known as a laser refractive surgery or LASIK) on the plaintiff (“the Lasik Surgery”) at the 2^nd defendant’s premise. The plaintiff claims damages against both the 1^st and 2^nd defendants for medical negligence.

3. Before the Lasik Surgery, the plaintiff had suffered from a pre existing condition of myopia and diplopia as a result of a photorefractive keratectomy done by Dr Hung Son On on 2 July 1993.  

4. The plaintiff claimed, had he not agreed to undergo the Lasik Surgery, he would not have developed haze and further scarring of his corneas. He suffered poor quality of vision after the Lasik Surgery. 

The Applications

5. There are two summonses before me today:

(i)   the plaintiff’s summons dated 15 July 2011 for leave to file and serve his Reply out of time (“the Plaintiff’s summons”) and

(ii)   the 1^st and 2^nd defendants’ amended summons dated 22 July 2011 for an order of specific discovery (“the Defendant’s summons”).

6. In the Defendants’ summons, the substantive argument is only limited to seek further discovery by providing a further and better list of documents in relation to Class 1 of the Schedule, or alternatively that the plaintiff to file an affidavit stating that he no longer has in his possession, custody or power the documents specified in the schedule:

“Any and all documents relating to the Plaintiff’s claim for damages from Dr. Hung Son On, including but not limited to any and all communications with Dr. Hung (“Class 1 Documents”)” and

The plaintiff’s conduct before and at the proceedings

7. The plaintiff was a legally aided person at the commencement of the proceedings.  On 15July 2011, the Plaintiff’s summons was taken out  by his solicitors.  Subsequently, on 22 November 2011, the legal aid certificate was discharged.  The plaintiff has been acting in person thereafter.

8. On 21February 2012, the court gave directions for the substantive hearing for both summonses, amongst them, there were directions for parties to file and serve their written submissions and supporting authorities (if any).  The plaintiff was directed to do the same on or before 17 April 2012.

9. Time has been extended twice for the plaintiff to comply with such direction, from 17 April 2012 to 2 May 2012 and then to 1 June 2012 respectively.  The plaintiff attempted to seek a further extension of time at the hearing, I refused and decided the hearing shall proceed as scheduled.

10. In turn, the plaintiff insisted to file and serve more than 400 pages of documents for hearing today. Both parties agreed I shall consider those documents after the oral hearing.  I found amongst them, the plaintiff’s written submissions.  Most of the documents were unrelated to both summonses, but rather evidence to be heard at trial.

11. Notwithstanding the plaintiff has occupied most of the hearing time to express his grievance and to make complaints against a number of persons, I learn from the plaintiff his position of the two summonses:

(i)   For filing Reply out of time

  He claimed he had no idea what his previous solicitors had done. He did not know what a Reply is but he chose to proceed with his summons for leave to file and serve it out of time.

(ii)   For Specific Discovery

  Class 1 material: He has disclosed what he has had in possession with regard to the Class 1 documents to his previous solicitors already; he had nothing more than a 13 – page letter written by Dr Hung Son On dated 20 February 1994 (which was later included in his 400 odd pages documents).

The 1^st and 2^nd defendants’ opposition of the plaintiff’s summons

12. Ms Toner provided me with a chronology of events.  The Defence of the 1^st and 2^nd defendants’ was filed on 29 November 2010, the plaintiff did not file and serve his Reply within the next 28 days. Pleadings were therefore deemed to be closed.

13. On 17 February 2011, nearly two months after the close of pleadings, the plaintiff’s then solicitors first notified the 1^st and 2^nd defendants of their intention to apply for leave to file and serve a Reply out of time.  The 1^st and 2^nd defendants agreed and were provided with the 1^st draft of the Reply.

14. On 28 February 2011, the 1^st and 2^nd defendants withdrew the consent because the 1^st draft was inappropriate for a pleading.

15. On 17 March 2011, the plaintiff’s then solicitors lodged a 2^nd draft of the Reply before the PI Master at the checklist review hearing.  It was so ordered by the PI Master that parties to reconsider the application.

16. On 12 May 2011, the plaintiff’s then solicitors provided the 1^st and 2^nd defendants’ with a 3^rd draft of the Reply.

17. On 22 June 2011, the 1^st and 2^nd defendants refused to give consent to the late filing of the 3^rd draft of the Reply.

18. On 7July 2011, the plaintiff’s then solicitors enclosed a 4^th draft of the Reply to the 1^st and 2^nd defendants.

19. On 11 July 2011, the PI Master ordered the plaintiff to issue a summons to apply for leave to file and serve the 4^th draft of the Reply.  The plaintiff did so on 15 July 2011.  It was already some 7 months after the close of pleadings.

20. On 22 November 2011, the plaintiff’s legal aid certificate was discharged.

21. The 1^st and 2^nd defendants opposed to the late filing of the Reply because (i) the contents of the Reply is inappropriate, and (ii) it would cause prejudice to the 1^st and 2^nd defendants and (iii) it is contrary to the objectives of the CJR.

Analysis of the plaintiff’s summons

22. It is contained in the The Hong Kong Civil Procedure 2012 at para 18/3/2,

“… A Reply is strictly for the plaintiff to set up an affirmative case of his own in answer to the facts alleged by the defendant… A plaintiff must not put forward in his Reply a new cause of action which is not raised either in the writ or the Statement of Claim.”

23. In paragraphs 3 and 4 of the 4^th draft of the Reply, the plaintiff pleaded the discussion between the plaintiff and the 1^st defendant which took place after the treatment, not facts relating to the surgery.[1] I agree.  The plaintiff pleaded “evidence” which should be contained in his witness statement, if so advised.

24. Furthermore, I failed to see paragraph 5 of the 4^th draft of the Reply qualifies an affirmative case to the defence.[2] The contents were about complaints made against the 1^st and the 2^nd defendants in other cases, which is also unrelated to his claim.

25. The application of filing the Reply lingered for almost 4 years from the issuance of the writ of summons, i.e. almost 4 years from on 26 June 2009.  This is highly unsatisfactory. Apart from its inappropriate contents, the application should not be allowed for purpose of achieving the underlying objectives of Order 1A of the Rules of High Court. I am not satisfied there are reasons justified for the late filing, especially there is no evidence before me to explain why the plaintiff’s then solicitors needed to revise the Reply for 4 times before taking out a formal application for leave to file it out of time.  The Plaintiff’s summons is a futile application.

The Defendants’ summons for specific discovery

26. This application was first raised to the plaintiff on 27 January 2011. The plaintiff refused to provide these documents, on 7 July 2011, the 1^st and 2^nd defendants filed a summons for further discovery, or alternatively, to file an affidavit.

27. On 11 July 2011, the PI Master ordered the plaintiff to disclose the Class 2 documents[3]. With regard to Class 1 documents, the PI Master directed the plaintiff to confirm whether he had made a claim in damages from Dr Hung Son On in respect of Class 1 documents.  The PI Master also ordered the 1^st and 2^nd defendants to file the amended summons, and for the plaintiff to serve a supplementary list of documents making discovery.

28. On 18 July 2011, the plaintiff confirmed that he had made a claim for damages from Dr Hung Son On but not made by way of formal issuance of legal proceedings.  The plaintiff stated he did not have any documents concerning this claim for damages due to the lapse of time.

29. On 22 July 2011, the 1^st and 2^nd defendants filed the amended summons.  Directions were given and the hearing was set down for hearing on 7 December 2011.

30. On 6 September 2011, the plaintiff provided a bundle of Class 2 documents.  It was 15 days late from the due date of the 11 July 2011 Order.

31. On 18 October 2011, the plaintiff informed the 1^st and 2^nd defendants that he had no more Class 1 documents to disclose.

32. On 31 October 2011, the plaintiff’s solicitors filed the affidavit in opposition of the amended summons.

Analysis of the 1^st and 2^nd defendants’ summons

33. The legal principles of discovery under Order 24, the Rules of the High Court is an obligation of each  party to create a list of the documents that they now have, or previously  had in their possession, custody or power relevant to the claim. Under the new Order 24 rule 15A after the Civil Justice Reform, the court has power to limit discovery for purpose of case management and furthering any of the objectives specified in Order 1A, Rules of the High Court.

34. I am satisfied the 1^st and 2^nd defendants could establish a prima facie case in the application, Class 1 documents are those relating to the pre existing condition of the plaintiff prior to the Lasik Surgery. The burden rested with the plaintiff to demonstrate it is not necessary and irrelevant. 

35. The plaintiff’s then solicitors filed an affirmation in opposition of the Class 1 documents. He opposed on the ground that (i) the plaintiff did not possess perfect vision when he first consulted the 1^st and 2^nd defendants and (ii) the 1^st and 2^nd defendants’ experts, Dr. Gordon Chau did not ask for such documents.  Notwithstanding the said affirmation, the plaintiff maintained he has already disclosed a 13- page document to the 1^st and 2^nd defendants, he does not possess any other Class 1 documents.

36. I do not find the plaintiff could resist the defendant’s application.  If the plaintiff was known to have suffered from pre existing conditions before he underwent the Lasik Surgery, the conditions of his vision would be relevant in deciding the condition of his eye sight immediately before the Lasik Surgery. Thus, any claim arising from the previous operation with Dr. Hung Son On would point to the degree of injury and recovery after that operation.

37. The absence of Dr. Gordon Chau, the 1^st and 2^nd defendants’ expert’s request for Class 1 documents was not an indicator that they were irrelevant.  This is not conclusive.

38. There is nothing particular I am aware of that I should exercise my discretion in achieving the underlying objectives of Order 1A to limit the present application pursuant to the new Order 24 rule 15A.

Conclusion

39. I make the following orders:

(i)   The plaintiff’s application to file and serve the Reply as attached to the plaintiff’s summons be refused.  The Plaintiff’s summons dated 15July 2011 be dismissed.

(ii)   The plaintiff shall within 28 days from this judgment, make discovery by way of a further and better list of documents of: -

“Any and all documents relating to the plaintiff’s claim for damages from Dr Hung Son On, including but not limited to any and all communications with Dr Hung (“Class 1 Documents”)”

(iii)  Alternatively, the plaintiff shall within 28 days from this judgment, make and file an affidavit stating whether he has or has at any time had in his possession, custody or power the documents under Class 1, and if the documents or any of them has or have been but is or are not now in his possessions, custody or power, stating when the plaintiff has parted with the same and what has become of the same.

(iv)  There be a costs order nisi that both the Plaintiff’s and the Defendants’ summonses be to the 1^st and 2^nd defendants, taxed if not agreed.  The costs order nisi shall be made absolute after 14 days.

40. I make special arrangements in handing down this judgment: during the period when the plaintiff was acting in person, the court has provided, or ordered the 1^st and 2^nd defendants to provide the plaintiff Chinese translation of both the orders and skeleton submissions.  On the date of handing down this judgment, the court shall arrange an interpreter to interpret this judgment to the plaintiff in Chinese.