Wong Hoi Tang Alexander v. Hospital Authority

CACV000202A/2000

CACV202/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 202 OF 2000

(ON APPEAL FROM HCPI 529 OF 1996)

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Coram: Hon Leong CJHC, Wong & Woo JJA in Court

Date of Hearing: 15 February 2001

Date of Determination: 15 February 2001

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D E T E R M I N A T I O N

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Hon Leong CJHC (giving the determination of the court) :

1. On 9 June 2000, Seagroatt J of the Court of First Instance refused to order the defendant to make discovery of its actual costs of maintaining the plaintiff at Tung Wah Hospital. The plaintiff's appeal against this ruling was dismissed by this court on 8 December 2000. The plaintiff now seeks leave to appeal to the Court of Final Appeal.

2. The plaintiff's appeal is pursuant to s.22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap.484, the appeal being against an interlocutory judgment of this court. To succeed, the plaintiff has to show that the question involved in the appeal is one which by reason of its great general or public importance or otherwise ought to be submitted to the Court of Final Appeal for decision.

3. The plaintiff in his notice of motion submits two questions:

(a) In a medical negligence case where the tortfeasor has admitted liability and offers to provide the necessary future clinical care to the injured person, whether the latter is entitled to seek discovery of the actual costs to be incurred by the tortfeasor so as to compare it with the expenses to be incurred on an alternative care regime and to demonstrate that this alternative care regime is reasonable.

(b) In a medical negligence case where the tortfeasor has admitted liability and offers to provide the necessary clinical future care to the injured person and alleges that non-acceptance of the offer constitutes failure to mitigate loss on the part of the injured person, whether the latter is entitled to seek discovery of the actual costs to be incurred on an alternative regime in order to rebut the allegation of failure to mitigate loss and to show that it is not unreasonable for the injured person not to accept such an offer.

4. The issues for Seagroatt J to decide in the action were :

(i) the level of care, attention and maintenance required by the plaintiff, the test of which is reasonableness;

(ii) if Tung Wah Hospital was in a position to provide the requisite level of care, attention and maintenance, the costs to the plaintiff for him to stay there; and

(iii) if he had to go to a private hospital or other regime to obtain the requisite level of care, attention and maintenance, the costs to the plaintiff for him to stay in that private hospital or regime.

5. The actual costs incurred by the defendant to provide to the plaintiff, whether in Tung Wah Hospital or other hospitals under the defendant or in a private hospital or other regime, the requisite level of care, attention and maintenance, are neither relevant to the issue of the level of care, attention and maintenance nor to the loss suffered by the plaintiff. There can be no discovery in respect of irrelevant matters.

6. The questions in the motion relate to discovery of matters that are not relevant to the issues of the action and refusal to order discovery in these circumstances does not involve any question of great general or public importance, nor is it a case which otherwise this court should exercise its discretion to grant leave under s.22(1)(b).

7. We should perhaps add, that there has been no decision either here or in the United Kingdom speaks strongly for itself. It is simply not an argument that is or can be supported by any logic or reason. To put it more bluntly, the point is not arguable.

8. We therefore refuse the application for leave and the costs of this application shall be to the defendant.

Representation:

Mr Neville Sarony SC & Mr Raymond Leung, instructed by Messrs Cheung & Yip for Plaintiff

Mr John Bleach SC, instructed by Messrs Deacons, Graham & James for Defendant