Elijah Saatori v. Raffles Medical Group

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 OF 2006)

----------------------

BETWEEN

----------------------

Before: Hon Yeung JA and Lam J in Court

Date of Hearing: 20 January 2009

Date of Judgment: 20 January 2009

Date of Handing Down Reasons for Judgment: 29 January 2009

----------------------------------------------------------

REASONS  FOR  JUDGMENT

--------------------------------------------------------

Hon. Lam J (giving the judgment of the court):

1.On 20 January 2009, after hearing the Respondent, we dismissed its application for leave to appeal to the Court of Final Appeal in respect of our judgment of 14 October 2008 [“the main judgment”].  The following are our reasons.

2.In the main judgment, we set aside the order of Saunders J striking out the Plaintiff’s claim on condition that the Plaintiff shall file and serve an expert report supporting his allegations of negligence against the Defendant.  As such it is an interlocutory matter.

3.In the Notice of Motion of 11 November 2008, the Respondent sets out three questions as questions of great general or public importance.  The first question is not engaged.  There is no doubt that a judge in ordering a striking out is exercising a discretion.  We did not say anything in the main judgment to suggest otherwise.

4.The answers to the second and third questions are again well settled.  The Court of Appeal will usually defer to the first instance judge in dealing with matter of discretion.  However, if there are new developments or there are matters which the judge has not taken into account (whether due to the omission on his part or on the part of parties), this court is duty bound to consider the matter and, if it deems fit, exercise the discretion afresh.  None of the cases cited by the Respondent suggest anything to the contrary.

5.The Respondent seized upon our observations at paragraph 21 of the main judgment as regards the judge being correct in striking out the claim to suggest we have acted in a manner contrary to established principle.  We must say such a reading of our judgment is taking that comment out of context.  At Paragraph 21, we dealt with question of costs.  What we were saying there was that the result before the judge was correct.

6.Our reasons for disturbing the judge’s exercise of discretion have been clearly set out at paragraph 19: at the court below the arguments focused on the adequacy of evidence on causation whilst the real objection should be the evidence on negligence.  As we stated at paragraph 6 of the main judgment, Respondent’s counsel accepted at the hearing of the appeal that there is evidence on causation.  Thus, it was common ground that a striking out based on lack of evidence on causation, which was the focus at the hearing below, is wrong.

7.A new development in the course of the appeal is the indication by the Plaintiff that he could file evidence on negligence from an expert as opposed to materials set out in literatures produced by him.

8.There is therefore no substance in the Respondent’s complaint.

9.In any event, at the highest, what the Respondent argued in substance is that we have misapplied the established principle in this particular case.  That can hardly be a question of great general or public importance.

10.Nor do we see any basis for granting leave on the “otherwise limb”.

11.Therefore the application was dismissed with costs.

The Appellant (Plaintiff) in person, present

Mr Paul Carolan, instructed by Messrs Robertsons, for the Respondent (Defendant)