Charles Henry Craggs v. Attorney General

HCA001484/1972

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr. Registrar Stapp in Chambers.

Date of Judgment: 31st March, 1976.

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DECISION

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1. This was an application for directions heard by me in Chambers on 25th March, 1976.

2. On the application the plaintiff was represented by M.H. Jackson-Lipkin, Q.C. and M. Asome, instructed by Helen A. Lo & Co. and the defendant by K.C. Wong, Crown Counsel, of the Attorney General's Chambers.

3. I was requested to give a direction in respect of item No. 29 in the summons for directions filed herein on 17th January, 1976. The plaintiff applied for "trial by the Court with a jury" under R.5(5), and this was opposed by the defendant, who required trial without a jury.

4. O.33, R.5(4) provides:

"The Court may direct the trial without a jury of any cause, matter or issue requiring any prolonged examination of documents or accounts, or any scientific or local investigation, which cannot in the opinion of the Court conveniently be made with a jury."

5. The question which I had to decide was whether, in my opinion, this cause requires a "scientific investigation which cannot conveniently be made with a jury."

6. I was referred, inter alia, to the House of Lord's decision in Charles Osenton & Co. v. Johnston 1442 A.C. p.130, (which case is cited in Stroud's Judicial Dictionary 4th edition, Vol. 5 p. 2451 under "scientific investigation").

7. Towards the foot of p.144 of that report, Lord Wright dealt with the meaning of "scientific investigation" as follows:

"'Scientific investigation' is in my opinion wide enough to cover questions of the practical applications of science, though it imports a narrower idea than the words "technical" or "expert". It would not in general include a large proportion of technical or expert evidence, such as that of a handwriting expert or an expert stevedore. But especially in modern days it would cover a wide range of expert evidence, if that is based on scientific knowledge, such as that of medical or surgical experts, engineering experts of many types or classes, sanitary or chemical experts. I give these as mere instances of a term which I should construe widely."

8. The subject cause arises out of alleged negligence in respect of the medical treatment of the late Charles Henry Craggs, which followed his being stabbed in the abdomen with a knife, by his wife. I understand that evidence from twelve medical practitioners was adduced at the hearing of the murder trial of Mrs. Craggs.

9. I further understand that in the trial of this subject cause, each side proposes calling three medical practitioners as witnesses to give expert opinion as to various aspects of such branches of medicine as anatomy, surgery, anaesthetics and pathology, which are involved in the question of whether or not the medical staff of Queen Elizabeth were negligent. Four days is suggested as an appropriate time for trial, and most of the hearing would involve medical evidence.

10. I have also had regard to the pleadings herein, and note in particular that the "Particulars of Negligence" set out in the Statement of Claim, filed on 27th July, 1973, list twenty-one medical particulars. Some of those particulars were amplified in further and better particulars filed on 15th March, 1976. Most of them are esoteric.

11. I have concluded that the trial will involve a deep and complex investigation of various aspects of medical science which in my view cannot conveniently be made with a jury.

12. I therefore direct trial of this cause without a jury.

13. Dated this the 31st day of March 1976.

Representation:

Mr. M.H. Jackson-Lipkin, Q.C. and Mr. Michael J. Asome instructed by Messrs. Helen A. Lo & Co. for the Plaintiff.

Mr. K.C. Wong, Crown Counsel for the Defendant.