Gurung Sumitra v. Hospital Authority

HCPI 887/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 887 OF 2013

__________________________

__________________________

Before: The Honourable Mr Justice Bharwaney in Chambers

Dates of Hearing: 13 September 2017 and 27 October 2017

Date of Decision: 27 October 2017

___________________

D E C I S I O N

___________________

1.This is a late application by the plaintiff to adduce additional medical expert evidence on liability in this complex medical negligence action. Provisional trial dates had been fixed on 8 to 12 and 15 to 17 January 2018. Once the action was set down for trial on 1 December 2016, these provisional dates became milestone trial dates. The plaintiff’s application to adduce additional medical expert evidence on liability was made by summons on 8 June 2017. To suit the convenience of counsel, the application was only fixed to be heard on 13 September 2017.

2.I have read the submissions from the parties.  Of course, I will allow the parties to address me further if they wish to. My preliminary view, having read the submissions, is that I am prepared to adjourn the trial, for a very short period of time of a few months, to 21 May and fix five hearing dates on 21, 23, 24, 25 and 28 May 2018, which are dates which, as I understand from my clerk, are convenient to counsel. And then I will fix two further dates in June, which, apparently, are also convenient to counsel, two days on 14 and 15 June 2018, to complete the evidence; and then, finally, I will fix 29 June 2018 for closing submissions.

3.I have to inform the parties that the hearing dates in June might be somewhat troublesome, because I am then on duty as a Panel Judge under the Interception of Communications and Surveillance Ordinance, and I may be called on to attend to an urgent application. I might have to adjourn the trial for a period of time to enable me to do so but we can always make up any lost time by sitting longer.

4.I do not find that this is an exceptional case that allows me to change milestone dates. The late assignment of senior counsel by the Legal Aid Department who then advises that additional expert evidence ought to be adduced is not an exceptional circumstance which the court will rely upon to adjourn milestone trial dates.

5.In this case, the trial dates could have been preserved if the plaintiff’s solicitors had been more diligent in fixing the hearing date of the application to adduce additional expert evidence and, ignoring the convenience of counsel, if they had pressed my clerk to fix an early date soon after the application was made in June 2017.  Somehow, they allowed some three months to pass to suit counsels’ convenience with the result that the matter was not considered by me until 17 September 2017.

6.That is the reason why I have found myself in this uncomfortable situation of feeling pressured, of being put between a rock and a hard place. However, thankfully, I have some availability in my diary – actually the availability is the result of the cancellation of my leave, but that matters little – but because I have some availability, and because I am able to fix the trial to be heard just some four months later, I find that I am able, in these fortuitous circumstances, to exercise my discretion in this matter by balancing the needs of the parties: by balancing, on the one hand, the right of the parties to adduce relevant and probative evidence on important issues, and, on the other hand, by affording to the opposite party a proper opportunity to address those new issues; and, balancing those factors against a short, four months’  adjournment of the trial, I am prepared to adjourn the original milestone trial dates to these new dates.

[After further submissions, orders to adjourn the trial made accordingly]

Mr Michael Ozorio SC and Mr Matthew T S Tse, instructed by Lee & So, for the plaintiff

Mr Russell Coleman SC, instructed by Mayer Brown JSM, for the defendant