Stephen Graham Olding v. Singapore Airlines Ltd.

DCPI000145B/2001

DCPI145/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 145 OF 2001

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Coram: H H Judge Carlson in Court

Date of Hearing: 2 July 2002

Date of Ruling: 2 July 2002

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R U L I N G

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1.On 17 June I delivered judgment in this matter and judgment was entered in favour of the plaintiff. Part of the evidence in the case before me were the hospital notes from the Tang Shiu Kin Hospital, where the plaintiff had gone as he was feeling unwell. This was two days after he arrived in Hong Kong. Part of the hospital's investigations were an X-ray. That X-ray initially did not appear to show any abnormality but it was reviewed by radiologists on 4 October. The hospital notes placed before me included the observation by the radiologist "film reviewed likely to be glass particle". The way I treated that evidence appears in my judgment. Clearly, it was very important evidence in the case, a case where the evidence was very finely balanced.

2.Following judgment the solicitors for the defendants made their own investigations with the Hospital Authority and they asked the doctor who had made that entry to look at the original of the notes, and what he had actually recorded was "film reviewed unlikely to be glass particle", so quite the contrary to what had been placed before me.

3.As a result I have directed that the matter should be brought back so that I can consider what course I should take. I am satisfied that I have the power to now recall my judgment as it has neither been entered in the court record, nor has the order been drawn up and perfected. So much is clear from Order 20, rule 11 of the Rules of the District Court. The question now is whether I should exercise that power.

4.I have come to the conclusion that there is no alternative but to set aside my judgment. I expect that the result would have gone the other way had the evidence that was placed before me indicated that the radiologist had said that the X-ray film showed that it was unlikely to be a glass particle. And where I have the power to deal with the matter in this way, it seems to me that I must in the interests of justice.

5.Accordingly, the judgment will be set aside. The order for costs will also go. Mr Watkins, who appears on behalf of the defendants, has indicated that I should go one step further and dismiss the action with an order for costs in favour of his clients. But it seems to me that I cannot go that far. In order to do so I would have to be satisfied that the plaintiff had been, in effect, guilty of misleading the court by having deleted the letters "un" before the word "likely", and on the present material I cannot possibly come to that view.

6.And so I direct a retrial and I also direct that it be given the earliest possible listing. The costs of the trial before me will now be reserved to the trial judge on the second trial. He will be in the best position, having regard to the outcome of that trial before him, to make the appropriate order for costs in respect of the costs of the trial before me. And I suspect it will be very much up to that judge to decide whether he ought to refer these papers to the Director of Public Prosecutions for him to decide what investigations he should instigate as to how this evidence was presented before me. That is all I wish to say.

Representation: