Elijah Saatori v. Raffles Medical Group
Read the full judgment text of CACV 109/2008 on BabelCite. This Court of Appeal judgment was delivered on 14 October 2008.
1. The Plaintiff underwent syringing of his ears at the Defendant’s Gold Coast Clinic in mid 2003, on a date in late July or early August which the Plaintiff did not specify in the Statement of Claim. The Plaintiff alleged that as a result of the treatment he suffered from tinnitus. On 9 May 2006, he commenced this action in the High Court as HCA 990 of 2006 to claim damages from the Defendant.
Cites 3 cases
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CACV 109/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 109 OF 2008 (ON APPEAL FROM HCPI NO. 1114/2006) ----------------------
---------------------- Before: Hon Yeung JA and Lam J in Court Date of Hearing: 23 September 2008 Date of Judgment: 14 October 2008 ---------------------- J U D G M E N T ---------------------- Hon Lam J (giving the judgment of the Court): 1.The Plaintiff underwent syringing of his ears at the Defendant’s Gold Coast Clinic in mid 2003, on a date in late July or early August which the Plaintiff did not specify in the Statement of Claim. The Plaintiff alleged that as a result of the treatment he suffered from tinnitus. On 9 May 2006, he commenced this action in the High Court as HCA 990 of 2006 to claim damages from the Defendant. 2.In the Statement of Claim, apart from alleging that the tinnitus was caused by the treatment, the Plaintiff also alleged in paragraph 6 that there was medical malpractice on the part of the Defendant in the violent ear wash procedure. However, the Plaintiff did not plead any specific particulars of negligence. The only specific complaints one can gather from the Statement of Claim are in paragraphs 2 and 3. They are as follows,
3.As we shall see, the Plaintiff no longer claims that the use of cold water caused his tinnitus. 4.On 14 December 2006, Suffiad J ordered the case be transferred to the Personal Injuries List. The action became HCPI 1114 of 2006. 5.On 7 August 2007, the Defendant issued a summons to strike out the Writ and the Statement of Claim. The application was heard by Saunders J. On 11 April 2008, Saunders J ordered the claim be struck out. The learned judge held that the medical reports filed by the Plaintiff failed to establish negligence or causation. 6.The Plaintiff appealed against that order. At the hearing of the appeal, Mr Carolan accepted for the purpose of the striking out application that the report of Dr Carpenter could arguably show causation. We think that is a fair concession. 7.For the purpose of this appeal, the only issue is whether there is any expert evidence to show that what the Defendant did fell below the standard of a reasonably competent medical establishment. The Plaintiff had indicated to the master at the checklist hearing that he would rely on the report of Dr Carpenter as his expert evidence. That report was very brief on the standard for ear syringing treatments. The doctor said,
8.Plainly, the first paragraph there does not advance the Plaintiff’s case as to negligence on the part of the Defendant. The second part of the report quoted above dealt with ENG, not the ear syringing treatment. However, it shows that in the opinion of Dr Carpenter, the use of cold water, though it might cause dizziness, is unlikely to be the cause of tinnitus. 9.At the appeal, the Plaintiff took the position that though the use of cold water for his treatment was wrong, he agreed that this was not the cause of his tinnitus. He only referred to it to show the unprofessional manner in which the treatment was given by the Defendant. Regarding the real cause of his tinnitus, the Plaintiff pointed to evidence other than that of Dr Carpenter. 10.In an affirmation of 12 June 2007, the Plaintiff disputed the opinion of Dr Carpenter as regards the absence of guidelines and procedures for proper ear syringing. He produced some documents he downloaded from the internet to support his claim that there were established procedures. He said the Defendant had failed to comply with those procedures. 11.In so doing, the Plaintiff attempted to play the role as his own expert. This is not permissible. It is well settled that the court will not admit opinion evidence on matters of expertise from unqualified person. The standard of a reasonably competent medical establishment is a matter which the court cannot decide without the assistance of expert opinion. 12.There are good reasons behind this rule. The court only entertains opinion evidence from expert in respect of a subject relevant to the trial the proper understanding of which requires special knowledge or experience that a layperson does not possess. Hence, assistance is required from qualified expert. At the same time, expert owes a duty to the court to give an impartial opinion based on his or her expert knowledge in the relevant field. The law has been clearly set out in The Ikarian Reefer [1993] 2 Ll Rep 68. The court has repeatedly stressed the importance of expert witness adhering to such duty. In the present context, we only need to highlight three facets of such duty. First, an expert witness should never assume the role of advocate. Second, an expert witness should clearly set out facts or assumptions upon which his opinion is based together with possible material facts which could cause him to alter his conclusions. Third, in a case where insufficient data is available, an expert witness should expressly qualified his opinion. These should be familiar to all expert witnesses coming to testify in our courts. 13.A layperson does not have the necessary expertise, training, experience or skill to provide the requisite assistance to the court. Further, very often, a layperson has no regard to the duty owed by an expert witness to the court. A layperson would not be subject to the same adverse impact on his professional reputation as an expert would in case of a finding of a breach of that duty. Thus, to allow a layperson to give opinion evidence in a realm where expert opinion is required only serves to confuse the matter before the court and unnecessarily prolong a trial. That would not be conducive to the fair and efficient administration of justice. 14.In the course of the appeal, the Plaintiff put forward the following as particulars of his allegation of negligence against the Defendant,
15.These are not allegations set out in the Statement of Claim. The Plaintiff said he would amend his Statement of Claim accordingly. 16.More importantly, under Practice Direction 18.1 Para. 5.2(v), the Plaintiff should have served his expert medical report on liability and causation together with his Writ and Statement of Claim. As explained, the report of Dr Carpenter does not provide the necessary expert evidence on negligence. If the Plaintiff wishes to advance the case as put forward in the course of the appeal, he would need to have an expert report supporting his case specifically with positive opinion on those particulars of negligence. Materials downloaded from internet cannot serve as expert report on liability because those materials were not written by experts after conducting a full and comprehensive review of the facts of this case. 17.The Plaintiff said he should be given the opportunity to call Dr Carpenter to testify about his allegations of negligence in the witness box. He also drew our attention to the reservation made by Dr Carpenter in his report to modify his opinion when further information is available. 18.In our judgment, that cannot be an excuse for non-compliance with the Practice Direction. Gone are the days when one only learnt about the substance of the expert evidence of one’s opponent during the course of trial. Modern litigation ethos and case management techniques forbid this. Nowadays, a plaintiff is required to put all his cards on the table at an early stage. Hence, in the context of professional negligence claim, it is essential that the plaintiff’s expert report should provide the necessary grounds for saying that the defendant fell below the standard of a reasonably competent professional. Only then can a defendant make a proper response to the claim in terms of pleading as well as preparation of expert evidence in reply. 19.Should the Plaintiff be given one more chance to put his house in order? Mr Carolan drew our attention to the history of this action and the various opportunities given to the Plaintiff to comply with the Practice Direction in the past. By now more than 5 years had lapsed since the occurrence of the incident the Plaintiff complained of. It is unsatisfactory that the Plaintiff has yet to properly and precisely formulate the grounds of his claim. However, it is fair to observe that at the court below the focus seemed to be place on the question of causation instead of the expert evidence on negligence. 20.In the interest of justice, we would grant one further indulgence to the Plaintiff to put forward his case in compliance with the rules and the practice direction. We will give the Plaintiff one month to file and serve an expert report supporting his allegations of negligence against the Defendant. If such a report is not filed and served by 10 November 2008, the appeal shall be dismissed. If the report is filed and served before that deadline, the appeal shall be allowed in that the striking out order would be set aside and the action shall continue with a direction that the Plaintiff shall take out a summons within 7 days after the filing of the report for leave to amend his Statement of Claim in the manner as indicated by him in the course of the appeal. The summons shall be returnable before the PI Master who may give further directions regarding the future conduct of the case. 21.As regards costs, for the reasons given above, based on the existing Statement of Claim and expert report relied upon by the Plaintiff, his claim is liable to be struck out. Therefore, the Defendant has been acting properly in issuing the application and Saunders J was correct in striking out the action. We decided to give the Plaintiff a further indulgence. But that indulgence should not be at the expense of the Defendant in terms of costs. We would not disturb the order of Saunders J on costs below. Further, we would make a costs order nisi that the Plaintiff shall bear the Defendant’s costs of the appeal in any event.
The Plaintiff/Appellant, in person, present Mr Paul Carolan, instructed by Messrs Robertsons, for the Defendant/ Respondent |
Cases cited in this judgment
Further hearings and rulings under CACV 109/2008