ELIJAH SAATORI v. RAFFLES MEDICAL GROUP

HCPI 1114/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1114 OF 2006

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D E C I S I O N

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1.  The Plaintiff has taken out a summons on 11 May 2009 to:

(1)  restore the case for Checklist Review (“CLR”) for the purpose of setting down for trail;

(2)  amend the Statement of Claim; and

(3)  complain against the PI Master in adjourning the CLR fixed on 11 May 2009 to be heard together with the Defendant’s application for striking out the action on 16 July 2009.

Background

2.  The Plaintiff is suing for damages for medical negligence.  He alleged that he had received improper ear washing operation from the Defendant’s clinic causing severe tinnitus.

3.  The action was struck out by Saunders J in April 2008.  The Plaintiff appealed to the Court of Appeal.  On 14 October 2008,  the Court of Appeal allowed the appeal on condition that the Plaintiff do file an expert report supporting allegations of negligence within a month, otherwise the appeal would be dismissed, and upon the filing of the expert report, the Plaintiff was to take out a summons within 7 days to amend the Statement of Claim. 

4.  A report dated 29 October 2008 from Dr Robert J Carpenter from the United States was filed. 

5.  Since then, the Defendant has taken out another summons to strike out the action, and the Master has adjourned the hearing of the CLR with the attendant amendment, etc. to be heard by the judge dealing with the striking out.

6.  The Plaintiff’s written grounds of application are as follows:

(1)  the Master has allowed the Defendant who is represented to  take control of the case where the Plaintiff is unrepresented;

(2)  the Plaintiff’s application pre-dates the Defendant’s application;

(3)  the Plaintiff’s application was made pursuant to an order of the Court of Appeal whose jurisdiction outweighed the Master;

(4)  the striking out application is bound to fail in the light of the new expert evidence; and

(5)  the Plaintiff is prejudiced in not having a separate hearing.

7.  At this hearing, the Plaintiff submitted that the application to strike out was vexatious. In any case, it is a separate application and separate matter from the CLR and amendment, and he is entitled to a separate hearing.  His aim was to set the case for trail, so that the matter can be resolved without any unnecessary complications.

8.  The Master in adjourning the CLR and amendment summons to the striking out hearing was making a case management decision.  Case management decisions are made on relevance, convenience and fairness, and not what application has been made first and by what party.

9.  Striking out and amendment are not separate matters.  They are two sides of the coin.  Upon a striking out application, the consideration of amendment is always relevant as pleadings which are curable by amendment should not be struck out. 

10.  Without prejudging the matter, if the action were struck out, nothing more needs to be done.  On the other hand, if the amendment were allowed, whether in terms or further amended, directions may be given for the trial preparation in the light of the issues disclosed by the amendment.

11.  Hence, there is nothing wrong for the Master in adjourning the CLR, amendment and trial preparation to the striking out hearing. 

12.  Whether this is a fresh application before me or whether it is an appeal against the Master, the application to restore the case for CLR regardless of the striking out application is refused.

13.  I order that the Plaintiff do pay the costs of this application to the Defendant, summarily assessed at $10,000, to be paid within 14 days.

14.  The Defendant has intimated the application for a Restrictive Applications Order.  I said I would not deal with it now.

15.  Instead, I order that all future applications in this case (save in relation to any appeal to the Court of Appeal) be docketed to me, so that appropriate directions may be given before any hearing is listed.