LEE FAI and Another v. TUNG WAH GROUP OF HOSPITALS

IN THE COURT OF APPEAL

1997, No. 40

(Civil)

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J U D G M E N T

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Godfrey, J.A. :

1. This is an appeal from Seagroatt, J., who on 27 January 1997 refused the defendant leave to serve a third party notice upon the father of the infant plaintiff. The action is an action for damages for personal injuries. The plaintiff sues by his mother as his next friend.

2. The plaintiff alleges that due to the defendant's negligence he was born suffering from cerebral palsy. His injuries are of a most serious nature; he is unable to speak, stand up or to walk. He cannot hold his head erect. He has no muscle control. He is 100% disabled. He will remain so for the rest of his life.

3. Nevertheless, it is said for the defendant that the provision of optimal therapy in the early periods of such a condition can help to improve the condition and that in the present case the treatment actually provided to the plaintiff fell far short of the desired treatment by a large margin. This, it is said, is the fault of the child's parents (including, of course, the father) who, it is also said, were under a legal duty to see to it that the plaintiff received such optimal treatment.

4. It is in these circumstances that the defendant seeks to bring in the father as a third party and to claim contribution from him. (It intends also, as I understand it, to make a similar claim for contribution against the mother too.) But the judge was not impressed by the defendant's argument, which he described as follows :

"The argument raised by Mr. Mok before me today is that the Defendants are entitled to seek contribution from the parents in respect of one part of the infants claim, namely the damages to flow from the extent of the disability. Put another way, the Defendants contend that had the parents exercised a proper degree of care towards the child he would have been treated by experts and would have been in a much better, or at least better, state than he is today. It is not necessary for me to deal with the merits of that contention, if there are any, but simply with the Defendants' contention that the issue of the Third Party notice is the proper and essential means of dealing with it."

5. The judge was pressed with an argument that the parents were tortfeasors, and therefore potentially joint tortfeasors, with the defendant; that in those circumstances the defendant could unfairly be left with the whole of the liability; and that, in the absence of the parents as third parties, the court would not be able to order them to make a contribution towards the damages which a court might order the defendant to pay. Of that argument, the judge said this :

"This is a mistaken argument. The tort complained of is the original insult/injury to the brain. There is no question of the parents being joint tortfeasors in respect of that. Of course, parents have a duty of care towards injured children to save them from further injury, or aggravation of existing injury but what is contended for here is that the parents failed to mitigate the loss suffered by the child. That is not a tort."

6. The judge was of the opinion that the parents were not parties to the original tort. His answer to the defendant's argument was what he described as "the practical legal one". The judge said this :

"The Plaintiff, albeit an infant, is entitled only to recover damages which flow from any tort proved. There is a duty to mitigate loss. If it can be shown that he has not mitigated that loss - or rather if it can be shown that those who have care and control of him have not mitigated his loss, then the Defendants are liable only for the loss that flows directly and inevitably from their tort. They will have to compensate the victim for the disability which could not reasonably be mitigated. This principle is observed in the courts on a daily basis."

7. Mr. Mok, in an interesting and attractive submission, now contends that the judge was wrong. His argument before us, if I may attempt to summarise it, proceeds as follows. (1) The defendant is liable to the plaintiff for all the damage suffered by the plaintiff; (2) the parents are liable to the plaintiff for their negligence in not securing optimal treatment for the plaintiff; (3) the damage for which the defendant is liable to the plaintiff and the damage for which the parents are liable to the plaintiff is the same damage; (4) since the plaintiff has a cause of action against both the defendant and the parents for the same damage, the defendant is entitled to contribution from the parents in respect of the total damages awarded to the plaintiff.

8. This argument requires careful consideration.

9. The first step assumes that the defendant is indeed liable to the plaintiff for all the damage suffered by the plaintiff in the circumstances I have related; but this is not so. The rule, as I understand it, is that the defendant is only liable for such part of the plaintiff's loss as is caused by the defendant's breach of duty; see, for example, The Solholt [1983] 1 Lloyd's Rep. 605, per Sir John Donaldson, MR at p.608 (cited in McGregor on Damages, 15th Ed. para. 288). There is no duty, strictly speaking, on a plaintiff to mitigate his damage, still less on anybody else to mitigate it for him. But where the victim of an injury fails (for example) to take steps to put himself in good medical hands, the damages he will recover from the wrongdoer will take that into account and his award will be reduced accordingly; see, for example, McAuley v. London Transport Executive [1957] 2 Lloyd's Reports at p.500 (cited in McGregor on Damages, 15th Ed., para. 308).

10. The second step in the argument assumes that, as a matter of law, the parents are liable to the plaintiff for negligence in not securing optimal treatment for the plaintiff; but no authority was cited to us which satisfies me that this is so. It may be that, one day, a court will hold that parents are liable to their child for failure to procure optimal medical treatment for that child, but that is not, as it seems to me, a proposition which represents the common law in its present state of development. So this step too is a shaky rung on the ladder leading to success for the defendant on the present application.

11. The third step requires that the damage for which the defendant is liable and the damage for which the parents are liable should be the same damage. But, as it seems to me, here it is not the same damage. The damage for which the defendant is liable is the injuries suffered by the plaintiff at birth when, due (as it is alleged) to the defendant's negligence, he was born with cerebral palsy. The damage, if any, for which the parents are liable, i.e., the failure to secure optimal treatment for this condition for the plaintiff, is not, in my judgment, the same damage.

12. So I turn to the fourth step. As I have said, the defendant has to show that the plaintiff has (1) a cause of action against both the defendant and the parents for (2) the same damage. I am not satisfied that the plaintiff has any such cause of action against the parents; and even if he has, I am not satisfied that it is for the same damage. That being so, this is not a suitable case, as it seems to me, for the court to give the defendant leave to issue a third party notice against the father.

13. For these reasons, I would hold that the argument for the defendant fails. The judge was right to hold, as he did, that any question which might arise at the trial, as to the damages for which the defendant should be held responsible to the plaintiff, can be resolved by looking simply at the question what damage to the plaintiff flowed from the defendant's breach of duty to the plaintiff. Mr. Mok urged on us that this might result in unfairness to the plaintiff, who will recover as against the defendant only those damages for which the defendant is truly responsible. But I see, for my part, nothing wrong with that. I see no good reason why, in the interests of justice, the defendant should be made to pay more damages than those for which he is truly responsible.

14. I would refer, for completeness, to one further authority, K. v. P. & others J. (Third Party) [1993] Ch. 140. In this case, Ferris, J. (at p. 148) mentioned what he called "the necessary ingredients" in such a claim as this, i.e., "that a person or persons, namely the plaintiffs, have against the third party a cause of action in respect of the same damage as gives rise to that person or person's cause of action against the third defendant."

15. I would put the matter precisely as Ferris, J. does. In my judgment "the necessary ingredients" of the defendant's claim to contribution are missing here.

16. I would dismiss this appeal.

Liu JA:

17. In an action for personal injury, the damages are limited by the general doctrine of mitigation of damages. In the care of his parents and in the absence of unusual circumstances, the 1st infant plaintiff had not taken himself out of this general doctrine.

18. In justice, the defendant in this case would not be made responsible for unmitigated damages, if anyone was reasonably expected to do some intervening act in mitigation. The proposed Third Party Notice against the father of the 1st plaintiff would seem, therefore, to be wholly unnecessary even if it could arguably be applied for under the rubric of contribution.

19. In my view, the defendant's application for leave to issue the notice was rightly refused. I, too, would dismiss this appeal.

Nazareth V-P:

20. I agree that for the reasons given by my Lord Godfrey JA that the appeal must be dismissed.

21. But I feel bound to say that I have found it rather more difficult than my Lord has to reach that conclusion. One respect I would mention is that I have found it unclear whether the damages for which the defendant is liable include all the damages for which the father might be liable, since it is only the former or a portion thereof that he could have mitigated in the discharge of his duty of care. Viewed in that way, any damage the father would be liable for, would be damage that flowed from injury caused by the defendant and for which the defendant was liable. The possibility of obtaining some contribution from the father by virtue of the Civil Liability (Contribution) Ordinance would be a windfall. Although the damages for which the defendant and the father are liable are said to be the same in the foregoing literal sense, that seems not to be so in a legal sense, for the causes of action would not be the same. But however that may be, it is only one of the four steps in Mr Mok's submission; and I have no doubt that the other three are flawed in the manner my Lord Godfrey JA has identified.

22. It is for those reasons I do not dissent from and agree the conclusion my Lords have reached.

23. Accordingly, the appeal is dismissed. Having heard counsel, we vary the costs order below from the common fund basis there ordered to a party and party basis, give the respondent/plaintiffs their costs of this appeal and order their own costs to be taxed in accordance with the Legal Aid Regulations.