Elijah Saatori v. Raffles Medical Group (Hong Kong) Ltd

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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REASONS FOR DECISION

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1.These are my reasons for further adjourning the trial to commence on 7 September 2016 at 10:00 am.

2.For the procedural history leading to my dismissal of the plaintiff’s summons taken out on 30 August 2016 and refusal of his application to adjourn the trial for 4 to 5 months, which had been scheduled to commence on 2 September 2016 (last Friday), I refer to my previous reasons for decision dated 2 September 2016.

3.On 2 September 2016, the plaintiff did not turn up for the trial.  The court was informed by Mr Patrick Burke, the plaintiff’s former solicitor, that he had been informed by the plaintiff’s wife at around 8:55 am on 2 September 201 that the plaintiff had collapsed in his home earlier in that morning and had been taken to Evangel Hospital for treatment.

4.The court also received by fax 2 documents:-

(1) An “Attendance Certificate” dated 2 September 2016 issued by Dr Wong Ming Shun of Evangel Hospital stating that the plaintiff attended the hospital on 2 September 2016 and was suffering from “Dizziness”.  Dr Wong remarked that the plaintiff needed to see a psychiatrist, neurologist and ENT specialist, and was not fit for attending court that morning.

(2) A “Referral Letter” dated 2 September 2016 issued by Dr Wong referring the plaintiff to see a neurologist.  It was stated in that letter that the plaintiff was suffering from “Dizziness, black out at home this morning, sleep disturbance”.

5.After hearing submissions from Mr Raymond Leung SC (for the defendant), the court made an order directing the plaintiff to make himself available for a medical examination by a neurologist appointed by the defendant at the plaintiff’s costs for the purpose of determining his fitness to attend court for the trial of this action, and that the trial was to be adjourned to 11:00 am on 5 September 2016.

6.On 3 September 2016, the plaintiff was examined by Dr Brian Choa, Specialist in Neurology appointed by the defendant, at Hong Kong Baptist Hospital, to which the Plaintiff had been admitted.  In Dr Choa’s report dated 3 September 2016, it was stated (inter alia) that:-

(1) The Plaintiff told Dr Choa that for 13 years (since the date of the incident giving rise to the present claim against the defendant) he took no medication to relieve his insomnia, and it was not until 25 August 2016 or less than two weeks ago that he was put on medication by a psychiatrist for the first time.  The medication included (i) propranolol, a beta-blocker, (ii) alprazolam (Xanax), a minor tranquillizer and (iii) the antidepressant escitalopram.

(2) The Plaintiff further told Dr Choa that on 2 September 2016, he was up early preparing for a meeting with his solicitor (Mr Burke).  He knelt on the floor arranging documents when he suddenly felt an odd feeling in his abdomen, following which he lost consciousness.  His wife returned home some minutes later (having gone out to accompany her son to go to a bus stop) and found him sprawled on the floor, unconscious.  The plaintiff was then taken to Evangel Hospital, and later admitted to Hong Kong Baptist Hospital and placed under the care of Dr Cheng Tat Sun.

(3) At both hospitals, the diagnosis was that of syncope (simple faint).  Apparently, the plaintiff had never fainted before.

(4) The plaintiff said that EEG (electroencephalogram) and ECG (electrocardiogram) examinations had been booked for him for Monday 5^th and Tuesday 6^th September. However, when Dr Choa later spoke to Dr Cheng, he was told that no EEG or ECG had been booked for Monday and Tuesday.[1]

(5) On examination by Dr Choa, the plaintiff was found to be normal in all material aspects, save that when he was demonstrating how he would walk to the lavatory by holding on to things, he suddenly complained of dizziness but after a short interval of a few seconds he recovered and was able to return to his bed.

(6) Dr Choa expressed the following opinions:-

“1. There is no reason to believe that [the plaintiff]’s brief loss of consciousness at home on the morning of 2^nd September was anything more than a simple faint. My findings today (an entirely normal neurological examination) effectively exclude a central nervous system disorder. There was also no clinical evidence of narrowing of the arteries supplying his brain.

2. The most likely cause for his faint was the multiple medication he was taken. The combination of a beta blocker and a tranquillizer would be expected to lower blood pressure. In the context of stress and an empty stomach this could plausibly led to syncope.

3. Propranolol and Xanax would be excreted from a subject’s system within two or three days at the most, and the same would apply to the escitalopram.  For this reason, my own view is that [the plaintiff] should be fit to attend court by the middle of next week, say, Wednesday 7^th September, especially if his attendance is confined to the afternoon sessions.”

7.This morning, prior to the commencement of the hearing, the court received (inter alia) the following documents which I understand were hand-delivered to the court on behalf of the plaintiff:-

(1) a “Certificate of Attendance” dated 2 September 2016 signed by Dr Cheng certifying that the plaintiff attended the specialist clinics of Hong Kong Baptist Hospital on 2 September 2016 and the diagnosis was “LOC”; and

(2) a letter dated 2 September 2016 signed by Dr Cheng, which stated that the plaintiff complained of dizziness and syncope, and “was currently staying in the hospital for management”, and he was “recommended for resting and not working in 2 weeks”.

8.The court also received by fax a letter from Messrs Burke & Company dated 5 September 2016 stating, inter alia, that “[the plaintiff] telephoned our Mr Burke on afternoon of 4^th September 2016, to state he is staying in the Hospital for several days for further medical tests.  He will not attend Court on the 5^th September 2016.”

9.Mr Leung submitted that there is currently no proper application by the plaintiff to adjourn the trial of this action.  It appears from Messrs Burke & Company’s aforesaid letter to the court that the plaintiff had informed Mr Burke that he would be staying in the hospital for several days for medical tests and would not attend court on 5 September 2016.  The fact that the plaintiff has decided not to attend court today cannot, plainly, be regarded as any application for an adjournment of the trial.

10.Mr Leung further submitted that on the basis of Dr Choa’s medical report, there is no reason why the trial of this action cannot be proceeded with.  However, in view of the opinion expressed by Dr Choa regarding the effect of the drugs that the plaintiff had been prescribed (namely, that the drugs would be excreted from the plaintiff’s system within 2 to 3 days at the most), Mr Leung suggests that the trial should be adjourned to the afternoon of 6 September 2016 or the morning of 7 September 2016.

11.Mr Leung also referred me to the reasons for judgment of the Court of Appeal in Law Yin Pok Bosco, a minor by Lam Po Yee, his mother and next friend v Dr Chan Yee Shing also known as Dr Chan Yee Shing Alvin, HCMP 2256/2012 (2 November 2012), regarding the applicable principles for deciding whether a trial should be adjourned by reason of the illness of a party or an important witness.  The followings passages in the reasons for judgment of the Court of Appeal are relevant for the present purpose:-

“9. In the ordinary course of events, milestone dates such as the dates fixed for the trial of an action must, on occasion, yield to the vicissitudes of life. The illness of a party or a necessary and important witness may, depending on the circumstances of the case, justify vacating and re-fixing the trial dates. This is simply a manifestation of the principle recognised in Dick v Piller [1943] 1 KB 497, the headnote of which reads:

‘When a witness in, or a fortiori a party to, an action in a county court is alleged to be prevented by illness from attending the court for a hearing of the case and the judge is satisfied of the fact of his illness and of the materiality and importance of his evidence and that the granting of an adjournment will not cause an injustice to the other party which cannot be reduced by costs, it is the duty of the judge to grant an adjournment, it may be on terms, and failure on his part to do so constitutes a miscarriage of justice which necessarily involves an error of law on which an appeal may be founded.’

11. However, in order for an adjournment to be granted on this basis, the court is entitled to be satisfied that the inability of the litigant to be present is genuine and the onus is on the applicant for an adjournment to prove the need for such an adjournment: Teinaz v Wandsworth London Borough Council at §21.

18. A court will only vary a milestone date if there are exceptional circumstances justifying the variation. The court has a positive duty actively to manage cases with a view to furthering the underlying objectives of the rules, one of which is to ensure that cases [are] dealt with as expeditiously as is reasonably practicable. Of course, it remains nevertheless necessary for the court to recognise that its primary aim in the exercise of its powers is to secure the just resolution of disputes in accordance with the substantive rights of the parties.

22.  … it is important that trial judges retain a full discretion to case-manage litigation before them.  The decision as to whether a trial should proceed due to the delicate state of a party’s or witness’ state of mind is one for the trial judge and not solely for a medical expert.  If this were not the case, there would be a real danger of the pace of litigation being dictated by a party and his medical witnesses and this would be contrary to the spirit of the Civil Justice Reform and its underlying objectives.  Furthermore, it is not right that an adjournment application should be expanded into a full-blown mini-trial at which the parties’ medical experts are required to testify and be cross-examined on the likely effect of a trial on a plaintiff.  In the present case, the Judge reached the view that, notwithstanding the medical evidence, it was possible for the trial to proceed as scheduled and we do not agree with the submission that he was in error in reaching this conclusion.”

12.In the present case, according to Dr Choa, the effects of the drugs that the plaintiff had been prescribed should be spent within 2 to 3 days at the most, and the plaintiff should be fit to attend court by 7 September 2016.  There is no other reason why the plaintiff would not be capable of attending court to conduct the trial of his action against the defendant starting from 7 September 2016 (if not earlier).   Bearing in mind the history of this matter (as set out in my earlier reasons for decision dated 2 September 2016) and giving the maximum allowance to the plaintiff, I have decided to adjourn this trial to commence at 10:00 am on 7 September 2016.  The defendant’s solicitors shall give notice of the adjournment of the trial to the plaintiff.  The costs of today are reserved.

The plaintiff acting in person and absent

Mr Raymond Leung, SC and Mr Eric Tsoi, instructed by Robertsons, for the defendant