LIM MAN LEE v. CONGRUENCE MEDICAL SERVICES LTD t/a CONGRUENCE ORTHOPAEDICS & REHABILITATION CENTRE AND OTHERS

LIM MAN LEE v. CONGRUENCE MEDICAL SERVICES LTD t/a CONGRUENCE ORTHOPAEDICS & REHABILITATION CENTRE AND OTHERS

The strike-out application was dismissed because, accepting the plaintiff's expert evidence, a triable issue existed as to whether the failure to achieve or maintain spinal canal expansion resulted from a recognised complication or from sub-standard surgical technique; it was not plain and obvious that the pleaded...

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Citation
LIM MAN LEE v. CONGRUENCE MEDICAL SERVICES LTD t/a CONGRUENCE ORTHOPAEDICS & REHABILITATION CENTRE AND OTHERS
Parties
Plaintiff: LIM MAN LEE; 1st Defendant: CONGRUENCE MEDICAL SERVICES LIMITED trading as CONGRUENCE ORTHOPAEDICS & REHABILITATION CENTRE (Discontinued); 2nd Defendant: DR. TSE YUN TIN, PAUL; 3rd Defendant: DR. CHOI SUM HUNG
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
5 December 2011
Case Number
HCPI912/2008
Procedural Posture
Personal Injuries Action / Pre Trial Strike Out Application Under O.18 R.19 (dismissed)
Outcome
Application dismissed; paragraphs 24(b) and (c) of the Statement of Claim not struck out
Legal Topics
Strike Out, Expert Evidence, Res Ipsa Loquitur, Joint Expert Statement, Costs
Source Language
en
Medical Negligence Personal Injury Civil Procedure Evidence Strike Out Expert Evidence Res Ipsa Loquitur Joint Expert Statement +1 more

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Parties

LIM MAN LEE

Plaintiff

CONGRUENCE MEDICAL SERVICES LIMITED trading as CONGRUENCE ORTHOPAEDICS & REHABILITATION CENTRE (Discontinued)

1st Defendant

DR. TSE YUN TIN, PAUL

2nd Defendant

DR. CHOI SUM HUNG

3rd Defendant

Procedural Posture

Personal Injuries Action / Pre Trial Strike Out Application Under O.18 R.19 (dismissed)

Legal Issues

  1. 1 Whether paragraphs 24(b) and (c) alleging medical negligence should be struck out for lack of medical expert evidence
  2. 2 Whether post-operative loss of spinal canal expansion was due to a known complication or due to negligent surgical technique
  3. 3 Whether res ipsa loquitur applies given the recognised risk of loss of expansion

Ratio Decidendi

The strike-out application was dismissed because, accepting the plaintiff's expert evidence, a triable issue existed as to whether the failure to achieve or maintain spinal canal expansion resulted from a recognised complication or from sub-standard surgical technique; it was not plain and obvious that the pleaded particulars could not succeed, so paragraphs 24(b) and (c) should not be struck out.

Court Disposition

Application dismissed; paragraphs 24(b) and (c) of the Statement of Claim not struck out

Orders

  • Defendants' costs of the application up to 31 October 2011 to be paid by the plaintiff, taxed if not agreed
  • Costs incurred after 31 October 2011, including the hearing costs, to be the plaintiff's costs in the cause, taxed if not agreed