陳勝龍 v. 何偉成及另四人

HCPI 228/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. HCPI 228 of 2006

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BETWEEN

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Coram : Before Master B Kwan in Chambers

Date of Hearing : 27 June 2007

Date of Handing Down of Rulings : 11 July 2007

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R U L I N G S

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1.The Rulings relate to 2 Summons.  The first Summons dated 20 June 2007, was taken out by Messrs Johnson Stokes & Master representing the 1^st and the 4^th Defendants, applying for the plaintiff’s claim to be struck out with costs.  The second Summons dated 21 June 2007, was taken out by the Department of Justice representing the 3^rd Defendant, applying for the plaintiff’s claim to be struck out with costs.

2.The plaintiff Mr Chan is acting in person.  On 11 March 2006 Mr Chan filed several documents.  These documents were: (1) a Writ, (2) a document described as a “Statement of Damages”, (3) a document described as a “Statement of Claim” and (4) a Bundle of documents purporting to be his medical reports.

3.In his Statement of Claim the plaintiff named only 4 defendants. Later, for the purposes of the Check List Review Hearing on 27 July 2006, and without amendment of his Statement of Claim, the plaintiff added (The Department of Health) as the 5^th defendant in his Check List.  The 5^th Defendant was added without reference to the procedure under Order 20 of the Rules of the High Court.  There is no evidence before me that the Writ was ever served on the 5^th Defendant.  The Statement of Claim has not been amended to include the 5^th Defendant.  Miss Yeung who appeared for the 1^st and the 4^th Defendant has told the Court that the documents have not been served on the 2^nd Defendant.

4.Rules and procedures are important.  Just as traffic rules and regulations ensure that traffic on our roads move along safely and smoothly, the purpose of the civil procedure rules are to ensure that civil litigation is conducted in a fair and efficient manner.  If a vehicle disobeys the traffic regulations, this causes confusion to other road users.  If a civil litigant does not follow the correct procedure, it causes confusion and unfairness to his opponent.  Therefore the civil procedure rules are there to ensure that claims are processed fairly, quickly and efficiently.

5.To supplement the Rules of the High Court, the Chief Justice has issued codes of practice called “Practice Directions”.  The Practice Direction governing personal injury claims is “PD18.1”.  All litigants involved in a personal injuries action, whether represented or unrepresented are obliged to comply with PD18.1.

6.Paragraph 3.3 of PD18.1 states that “A medical report or reports within the meaning of Order 18 Rule 12(1C) including in a fatal accident case a post-mortem report (if one exists) shall be filed at the same time as the Statement of Claim but not attached thereto.”

7.The Bundle of documents filed by the plaintiff on 11 March 2006 purporting to be his medical reports are not medical reports and those documents do not come within the meaning of “a medical report” in Order 18 Rule 12(1C).  That Bundle consisted of 3 medical certificates issued by Pamela Youde Nethersole Eastern Hospital dated 13 August 2003, 27 July 2003 and 28 July 2003, plus a patient’s discharge slip.  None of these documents can qualify as a medical report.  In the circumstances the plaintiff has not complied with paragraph 3.3 of PD18.1.

8.The document described as a “Statement of Claim” did not state his cause of action in relation to each of the named defendants, in contravention of Order 15 of the Rules of the High Court.  If a plaintiff fails to set out the nature of his claim, or the facts he relies on, the defendants will not be able to make a proper response.

9.A particularly important omission is that the plaintiff has not set out in detail what his allegations on medical negligence are in respect of the 1^st, 2^nd and 3^rd defendants.  Allegations of medical or dental negligence are regarded as very serious matters, therefore, the law sets out stringent criteria when such allegations are made, see for example HCPI 1018 of 2002.

10.Paragraph 5 of PD18.1 lists out the information that a plaintiff is required to provide in his Statement of Damages.  The plaintiff has not complied with that paragraph and has not given the requisite information.

11.At the Check List Review on 27 July 2006, I gave a detailed explanation to the plaintiff about the deficiencies in his pleadings, and non-compliance with PD18.1.  Since he was unrepresented, I gave the plaintiff 3 months to sort out his claim and adjourned the hearing to 16 October 2006.

12.In October I received a letter from the plaintiff seeking an adjournment of the Check List Review to give him more time to obtain his medical reports.  I vacated the hearing on 16 October 2006 and adjourned the hearing to 16 February 2007.

13.The plaintiff did not make an appearance on 16 February 2007.  I further adjourned the Check List Review to 27 June 2007.

14.What is required of the plaintiff is to state in simple, everyday language his allegations against each one of the parties sued.  The Court does not expect an unrepresented plaintiff to draft his documents in the same way as a trained lawyer.  Despite having had nearly a year, the plaintiff has not rectified the defects in his case.  He has not been able to produce a single medical report in support of his claims.  He has not been able to frame his complaints against the doctors in a comprehensible manner.

15.The representatives of the defendants say that the plaintiff’s claim should be struck out as he has been given a year to provide medical reports and to state his case clearly, but he has failed to do so.

16.When dealing with the claims of an unrepresented party, the Court has to perform a difficult exercise, balancing the plaintiff’s right to make his claim in the court with ensuring that the defendant does not suffer any unnecessary burdens or costs.  In the present circumstances, the Court has given the plaintiff since July 2006 to prepare his claim properly.  Having had an adequate opportunity to state his claim clearly, the plaintiff has not done so, and even now the defendants are not told the case they have to meet at trial.

17.In all the circumstances I am persuaded that the plaintiff’s claims against the 1^st Defendant, the 3^rd Defendant and the 4^th Defendant shall be struck out.

18.There shall be an Order Nisi that there be “No Order as to the Costs of the Applications by the 1^st Defendant, the 3^rd Defendant and the 4^th Defendant”.  Unless applications are received within 14 days of the Handing Down of this Ruling, the Costs Order Nisi shall become absolute.

The plaintiff appearing in person;

Ms PK Leung of Messrs Johnson Stokes & Master for the 1^st & 4^th Defendants;

Mr ML Leung of the Department of Justice for the 3^rd Defendant.