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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D E C I S I O N

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1.The plaintiff has not turned up for the trial this morning, despite the court’s previous order dated 5 September 2016.

2.The plaintiff has, however, produced a number of medical certificates in support of his application for an adjournment of the trial, in particular:-

(1)  a medical certificate from Dr Cheng Tat Sun, specialist in neurology, dated 6 September 2016 stating that the plaintiff “is currently staying in the hospital for management for his medical illness.  He needs to stay and will not be discharged from the hospital tomorrow”;

(2)  another medical certificate from Dr Cheng Tat Sun also dated 6 September 2016 stating that the plaintiff “is medically unfit to attend trial and represent himself till 16/09/2016”; and

(3)  a medical certificate from Dr Chan Chung Mau, specialist in psychiatry, dated 6 September 2016 stating as follows –

“This is to certify that [the plaintiff] is currently hospitalized in Hong Kong Baptist Hospital for dizziness and tinnitus. He is now receiving psychiatric treatment from me. He is now on the following medications for Adjustment disorder …

He still requires active psychiatric treatment.”

3.The plaintiff has also sent a few letters by fax to the court, making various accusations against (i) Dr Brian Choa, specialist in neurology, regarding his medical examination of the plaintiff on 3 September 2016 and also his medical report of the same date, and (ii) the defendant’s lawyers.  Mr Raymond Leung SC (for the defendant) has given me a typewritten version of Dr Brian Choa’s notes of his examination of the plaintiff on 3 September 2016, which I have read.  I am satisfied that the plaintiff’s accusations against Dr Brian Choa’s are without foundation or basis.  The same comment applies to his accusations against the defendant’s lawyers.  In deciding whether to grant the adjournment sought by the plaintiff, I place no weight on the contents of the plaintiff’s letters but will concentrate on the medical certificates produced by him.

4.Mr Leung submits that the adjournment sought by the plaintiff should be refused for the following reasons:

(1)  for some 13 years since the date of the incident giving rise to the present claim against the defendant, the plaintiff took no medication to relieve his insomnia, and it was not until 25 August 2016 that he was put on medication by a psychiatrist for the first time;

(2)  when he appeared before the court on 1 September 2016, he made submissions for 1.5 hours and was perfectly coherent;

(3)  the plaintiff did not have any episode of “black out” prior to 2 September 2016;

(4)  in the morning of 2 September 2016, the plaintiff was in fact preparing for a meeting with his former solicitor (Mr Burke) in relation to the trial when he suddenly collapsed;

(5)  the sudden collapse of the plaintiff was not regarded as an emergency by the plaintiff or his wife as evidenced by the fact that he went to a private hospital in Kowloon to seek medical treatment;

(6)  the plaintiff is quite capable of procuring medical certificates to suit his purposes, as evidenced by the contents of an “ENT Consultation Summary” issued by Tuen Mun Hospital dated 23 July 2010;

(7)  Dr Cheng has not given any reason for his opinion that the plaintiff is medically unfit to attend trial and represent himself till 16 September 2016; and

(8)  lastly, Dr Chan has not certified that the plaintiff is medically unfit to attend trial or represent himself.

5.There are conflicting medical opinions before me regarding the plaintiff’s fitness to attend court.  On the one hand, as mentioned in my previous reasons for decision dated 5 September 2016 in this action, Dr Choa has expressed the view that the plaintiff should be fit to attend court by 7 September 2016.  On the other hand, Dr Cheng has expressed the view that the plaintiff is medically unfit to attend trial and represent himself till 16 September 2016, while Dr Chan has stated that the plaintiff requires active psychiatric treatment.  It would also appears from Dr Chan’s certificate that he considers that the plaintiff is suffering from “Adjustment disorder”, for which he has prescribed certain drugs for the plaintiff.

6.In 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), at paragraph 22, it is stated that 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.

7.I take into account the fact that the plaintiff is now without any lawyer.  If the trial is not adjourned, he will have to conduct the trial in person, involving cross examination of the defendant’s experts, as well as giving evidence himself.  Although I have previously ruled that the fact that the plaintiff had no legal representation consequent upon the revocation of his legal aid certificate was not a sufficient reason to adjourn the trial, I cannot ignore his current physical or mental conditions as suggested in the medical certificates of Dr Cheng and Dr Chan.

8.On the other hand, the defendant will suffer prejudice if the trial is adjourned.  I refer to the defendant’s prejudice in paragraph 32 of my previous reasons for decision dated 2 September 2016 in this action and shall not repeat the same here.

9.Taking everything into account, I consider that I ought to adjourn the trial but on terms so that the defendant will be adequately protected in respect of those costs which the plaintiff has previously been ordered to pay to the defendant which (i) have been taxed and (ii) have not yet been taxed, as well as the costs thrown away by the adjournment of the trial.

10.The order that I shall made is follows:-

(1)  Subject to the terms in paragraphs (2) to (4) below, the trial of this action shall be adjourned to new dates to be fixed.

(2)  The plaintiff do pay to the defendant the total sum of HK$438,491.60 within 21 days from the date hereof, being the taxed costs which he has previously been ordered to pay to the defendant in this action and in CACV 109/2008 as more particularly set out as items 1, 2, 3, 4 and 10 in the Schedule attached hereto.

(3)  The plaintiff do pay into court the sum of HK$1,200,000 within 21 days from the date hereof as security for (i) the costs which he has previously been ordered to pay to the defendant in this action and in CACV 184/2009 as more particularly set out as items 5, 6, 7, 8, 9 and 11 in the Schedule attached hereto, and (ii) the defendant’s costs thrown away by the adjournment of the trial.

(4)  Unless the plaintiff shall make full payment in accordance with paragraphs (2) and (3) above, the plaintiff’s action herein against the defendant shall stand dismissed without any further order of the court with costs to the defendant to be taxed if not agreed.

The plaintiff acting in person and absent

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