LAM WING HEI (a minor suing by her mother and next friend LAM TSZ KIU) AND ANOTHER v. HOSPITAL AUTHORITY

HCPI 1129/2015

[2018] HKCFI 1167

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1129 OF 2015

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REASONS FOR DECISION

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1.  I handed down my decision in this matter on 29 March 2018. These are my reasons for my decision.

2.  This is an application by the defendant to strike out the claim of the 1^st plaintiff on the ground that it discloses no reasonable cause of action.

3.  The defendant Hospital Authority (“HA”) is the defendant to this medical negligence claim brought by the 1^st plaintiff (“Baby”) and the 2^nd plaintiff (“Mother”), arising out of the circumstances leading to and the birth of the Baby at the Kwong Wah Hospital (“Hospital”) on 15 April 2012.

4.  The plaintiffs’ and, in particular, the Baby’s claims are pleaded as follows:

(1)   The Baby and/or the Mother’s claim is for negligent advice and/or treatment rendered by the HA, its servants or agents at the Hospital, and/or breach of duty of care owed by the HA to the Baby and/or the Mother in the management of the pregnancy of the Mother and the provision of antenatal care during the gestation of the Baby resulting in the Baby being born with severe deformities, disabilities and impairment of a genetic origin[1] ;

(2)   Unbeknown to the Mother until about 22 August 2016 (when discovery was made by the HA), by an email dated 6 December 2011, Dr Richard Choy of CUHK had informed Dr Leung of the Hospital that certain defects were found in Chromosome No.17 of the foetus (“Chromosomal Defect”)[2];

(3)   Upon detection of the catalogue of congenital defects, the Baby was diagnosed with CHARGE Syndrome (also known as CHARGE Association)[3];

(4)   The congenital deformities, disabilities and/or impairment found in the Baby (categorically diagnosed as CHARGE Syndrome) are more likely than not to be manifestation of and/or caused by or associated with the Chromosomal Defect[4];

(5)   Prior to the birth of the Baby,  by reason of the information contained in and ascertainable from the medical literature, including but not limited to those particularised,  the HA knew (or ought to have known or harboured a reasonably high index of suspicion as to) the existence of a causal relationship or an association between the Chromosomal Defect and the congenital deformities, disabilities and/or impairment of the same or similar nature and severity now suffered by the Baby[5];

(6)   The HA, its servants or agents involved in the management of the pregnancy of the Mother and/or antenatal care of the Baby knew or ought to have known and/or alerted themselves to:

(a)   the real and substantial risk of the Baby suffering or developing serious deformities, disabilities or impairment of a genetic origin caused by and/or associated with the known Chromosomal Defect (“Risk”); and

(b)   the fact that if the Risk was to materialise, it would have devastating effects on the Baby, who would have to lead a handicapped, tarnished and meaningless life and to endure the serious congenital deformities, disabilities and impairment[6].

(7)   A duty co-extensive with the duty owed to the Mother was owed by the HA to the Baby in utero (under common law or section 22B of the Law Amendment and Reform (Consolidation) Ordinance Cap 23) (“LARCO”) which dictated that the like information as to the existence of the Chromosomal Defect and the Risk attendant should have been imparted to the Mother, the biological mother of the Baby[7];

(8)   Further or in the alternative (to the breach of duty of care owed to the Mother), the HA, its servants or agents, was/were in breach of the duty of care owed to the Baby thereby resulting in the Baby having to endure the severe congenital deformities, disabilities and impairment throughout the subsistence of her life due to the fact that the Mother was deprived of the option of terminating the pregnancy by reason of the negligence and/or breach of duty[8];

(9)   But for the negligent advice and/or treatment rendered by the HA, its servants or agents, in managing the pregnancy and/or rendering antenatal care and, if the Mother had been informed of the Chromosomal Defect, she would have:

(a)   Procured relevant, competent and sufficient genetic and/or medical advice in assessing the effect thereof and/or any risk to the Baby attendant thereupon; and/or

(b)   Decided to terminate the pregnancy of the Baby as guided by the genetic and/or medical advice so procured[9].

5.  In its Defence, the HA denied that it owed a duty of care to the Baby, who was not born when the HA provided advice and/or treatment to the Mother during the antenatal period.  The HA also averred that it did not owe any duty of care to the Baby,  who was a foetus, to terminate its existence and life[10].

6.  It is not in dispute that the Mother is entitled to bring her claim.  It is also not in dispute that the disabilities suffered by the Baby are congenital in nature, and those disabilities themselves were not caused by any negligence on the part of the HA.  Further, there is no assertion of any negligence in the treatment of the Baby after she was born.

7.  The Baby’s claim is a ‘wrongful life’ claim or, as the Baby’s counsel, Mr Raymond Leung SC, would prefer to describe it, a claim for damages for ‘wrongful suffering’ caused by the HA’s negligence in failing to properly advise the Mother who, if properly advised, would have decided to terminate the pregnancy. Although the label ‘wrongful life’ is an entrenched and convenient shorthand, it has the potential to mislead: the notion that a person’s lifecould be wrongfulis counter-intuitive; what is wrongful is the negligence, not the child’s life.  The question on this application is whether Hong Kong law permits such claims.

8.  There are 3 issues before me:

(a)   Are wrongful life and wrongful suffering claims barred by the provisions of Part IVA of LARCO and, in particular, by section 22A(1);

(b)   If not, does the common law of Hong Kong, as it has developed in the light of all the authorities including those from other common law jurisdictions, permit wrongful life and wrongful suffering claims; and

(c)   Whether the above issues ought to be determined at an interlocutory strike out application or at trial.

9.  The principles governing the present application are clear.  The court should only strike out a claim in plain and obvious cases where the claim is bound to fail. As Ma J, as he then was, said in Eugene Chuang and Kevin Ho, questions of law may be dealt with in a strike out application provided that the court has all the relevant facts before it and provided that those facts are certain[11].  It is trite law that, on an application such as the present one that the Statement of Claim discloses no reasonable cause of action, no evidence is admissible[12] and that I have to decide the matter on the assumption that the pleaded facts are true[13].

Should the issue, whether or not wrongful life and wrongful suffering claims are barred by LARCO, be determined at an interlocutory strike out application or at trial

10.  The first issue turns on the construction of the relevant provisions of Part IVA of LARCO.  I am satisfied that all the relevant facts bearing upon the application of the the relevant provisions of LARCO, properly construed, are before me, and that it is right and proper that I should determine this issue on the present application before me.

Are wrongful life and wrongful suffering claims barred by the provisions of Part IVA of LARCO and, in particular, by section 22A(1)

11.  The Solicitor General, when he moved the second reading of the Law Amendment and Reform (Consolidation) (Amendment) Bill 1978, explained that:

“… this Bill clarifies the law relating to the rights of an unborn child under the ordinary civil law. It will, if enacted, add to the Law Amendment and Reform (Consolidation) Ordinance, a new Part based on the Congenital Disabilities (Civil Liability) Act 1976, of England[14], which implemented the recommendations of the English Law Commission in their Report on Injuries to Unborn Children.

At common law a person suffering from a pre-natal injury caused by another’s fault would, in appropriate circumstances, have a right of action.  But the extent of that right is uncertain.”  

12.  The tragedy of the thalidomide children, born with dreadful deformities because their mothers had taken the drug thalidomide, coupled with the uncertainty as to what the law was with regard to a claim for damages by a child born with a deformity which he or she suffered as a result of a wrongful act committed before birth, prompted the then Lord Chancellor, on 20 November 1972, to invite the Law Commission to advise him what the nature and extent of civil liability for ante-natal injury should be.  They did so in their Report on Injuries to Unborn Children (“the Report”) to which they annexed a draft Bill.  The Congenital Disabilities (Civil Liability) Bill was largely based on the draft Bill annexed to the Law Commission Report, although there were some departures in the Bill from that prepared by the Law Commission.

13.  The Law Commission explained in §109 of the Report that:

“109. … without legislation the common law would probably provide a remedy for a plaintiff suffering from pre-natal injury caused by another’s fault[15]. For the reasons stated in the following paragraph we conclude, however, that legislation is desirable. We recommend that any legislation implementing our report should apply to all causes of action accruing after the passing of the Act (that is to say to all births on or after that date irrespective of when the fault occurred). For such births there should be no cause of action for pre-natal injury save under the Act. For any cause of action accruing before the passing of the Act all rights the plaintiff had at common law will be retained.”

14.  Clause 3(3) of the draft Bill annexed to the Report provided that “[t]his Act applies in respect of births after (but not before) its passing; and in respect of any such birth it replaces any law whereby a person may be liable to a child in respect of disabilities with which it is born” [my emphasis].  By this clause, the Law Commission intended not only to replace any common law providing a remedy to a plaintiff suffering from pre-natal injury caused by another’s fault, but also to prohibit children from bringing ‘wrongful life’ claims, as can be discerned from §89[16] of the Report:

“Conclusions as to ‘wrongful life’

89.   We do not think that, in the strict sense of the term, an action for ‘wrongful life’ should lie. In the cases referred to of negligent treatment of a woman during pregnancy and the hypothetical drug preventing spontaneous abortion, had it not been for the negligence, the child would not have been born at all. To justify an action in logic, therefore, it is necessary to argue that the child would have been better off had he never existed. Nor would it be easy to assess his damages on any logical basis for it would be difficult to establish a norm with which the plaintiff in his disabled state could be compared. He never had a chance of being born other than disabled. We have given this problem the most careful consideration and have not, we think, been unduly influenced by these considerations of logic. Law is an artefact and, if social justice requires that there should be a remedy given for a wrong, then logic should not stand in the way. A measure of damages could be artificially constructed. We react in different ways to the various situations we have postulated, but the one which is much the most likely to give rise to claims is that which arises out of medical advice. In this situation we are clear in our opinion that no cause of action should lie. Such a cause of action, if it existed, would place an almost intolerable burden on medical advisers in their socially and morally exacting role. The danger that doctors would be under subconscious pressures to advise abortions in doubtful cases through fear of an action for damages is, we think, a real one. It must not be forgotten that in certain circumstances, the parents themselves might have a claim in negligence. Similar considerations lead us to the same conclusion in respect of the negligent performance of a therapeutic abortion.”

15.  Section 4(5) of the Congenital Disabilities (Civil Liability) Act (“the 1976 Act”) and section 22A(1) of LARCO contain the nearly identical provision that “[t]his [Part][17] [Act][18] applies in respect of births after (but not before) [the commencement of this Part][19] [its passing][20]; and in respect of any such birth it replaces any law in force before [such commencement][21] [its passing][22] whereby a person could be liable to a child in respect of disabilities [with which it might be][23] born” [my emphasis].

16.  Clause 1(2)(b) of the draft Bill annexed to the Report, section 1(2)(b) of the English Act and section 22B(2)(b) of LARCO contain the identical provision that “[a]n occurrence to which this section applies is one which – … (b) affected the mother during her pregnancy, or affected her or the child in the course of its birth, so that the child is born with disabilities which would not otherwise have been present”.  The Law Commission explained in its Explanatory Note to clause 1(2)(b) of the draft Bill annexed to the Report that:

“6. The clause gives the child no right of action for ‘wrongful life’ (see paragraphs 89 and 90 of the report). Subsection (2)(b) is so worded as to import the assumption that, but for the occurrence giving rise to a disabled birth, the child would have been born normal and healthy (not that it would not have been born at all).”

17.  There are various references in the debate in the House of Lords to the Bill being of “limited scope and objective”[24]. The limited objective was to provide certainty that a foetus suffering deformity from a wrongful act would have a cause of action after it was born.  The Bill might prove to be of limited duration and might be overtaken by the Royal Commission, chaired by Lord Pearson, who were due to publish a Report on Civil Liability and Compensation for Personal Injury.  The Royal Commission might recommend changes to this branch of the law.  It was also limited in the sense that the operation of the Bill was limited to one generation[25]. The Bill would confer clear legal rights on children injured before birth from a pre-natal event caused by the fault of another, it would not assist those whose disabilities result from inherited characteristics or natural illness or pure accident: so it was a modest bill with limited scope.

18.  In the Report of the Royal Commission on Civil Liability and Compensation for Personal Injury, 1978 (“the Pearson Report”), it was stated:

“Wrongful life

1845 The Law Commission considered that there should be no liability for ‘wrongful life’, that is, where the child has suffered harm from being born and it would have been better for it not to have been born at all. The weight of the evidence we have received supports the Law Commission’s recommendation. The Mothers’ Union said that, if actions were allowed, a doctor would be obliged to urge a woman to have an abortion if there was the slightest chance that her child would be born defective.

1846   We agree with the Law Commission and we recommend that there should be no cause of action for damages for ‘wrongful life’. [Emphasis provided]”     

19.  The decision of the English Court of Appeal in McKay v. Essex Area Health Authority [1982] QB 1166 is the leading authority on the issue before me.  Although not binding on me, it is persuasive authority[26]. In that case, the infant child was born disabled by rubella (German measles), which had infected the mother in the early months of her pregnancy.  The Master struck out the child’s claim for wrongful life.  On appeal, Lawson J set aside the Master’s order.  The defendants appealed on the ground that Lawson J was wrong in law to hold that the facts in relation to the claim pleaded in the statement of claim disclosed a reasonable cause of action against them.

20.  The mother thought she had been in contact with rubella, so had blood samples taken.  The mother was informed that she and her unborn child had not been infected with rubella during the pregnancy and she need not consider an abortion of it.  The child had in fact been infected with rubella whilst still in her mother’s womb and, as a result of such infection, she suffered injuries while still in the womb. The child’s claim was that by reason of the negligence of the defendants, she had suffered “distress, loss and damage; entry into a life in which her injuries are highly debilitating…”[27].

21.  The Court of Appeal held that the mother had a cause of action against both defendants for, in effect, being deprived of the opportunity of choosing to abort the damaged child, and they also stated that the child had a cause of action for injury to her in her mother’s womb before birth.  What the Court of Appeal said it had “to decide was whether the child has also a cause of action for being allowed to enter life damaged – what has been called ‘wrongful life’ – or whether that is not a “reasonable cause of action” and should therefore be struck out now”[28].

22.  The 3 Judges of the Court of Appeal held unanimously that the 1976 Act precluded ‘wrongful life’ claims.  Ackner LJ said:

“(3) The Congenital Disabilities (Civil Liability) Act 1976 received the Royal Assent on July 22, 1976. Section 1, which deals with civil liability to a child born disabled, was in the terms of clause 1 of a draft annexed to the Law Commission Report on Injuries to Unborn Children (1974) (Law Com. No. 60) (Cmnd. 5709). It provides:

“(1)   If a child is born disabled as the result of such an occurrence before its birth as is mentioned in subsection (2) below, and a person (other than the child’s own mother) is under this section answerable to the child in respect of the occurrence, the child’s disabilities are to be regarded as damage resulting from the wrongful act of that person and actionable accordingly at the suit of the child. (2) An occurrence to which this section applies is one which– ... (b) affected the mother during her pregnancy, or affected her or the child in the course of its birth, so that the child is born with disabilities which would not otherwise have been present.”

Subsection (2) (b) is so worded as to import the assumption that, but for the occurrence giving rise to a disabled birth, the child would have been born normal and healthy–not that it would not have been born at all. Thus, the object of the Law Commission that the child should have no right of action for ‘wrongful life’ is achieved. In paragraph 89 of the Report the Law Commission stated that they were clear in their opinion that no cause of action should lie:

“Such a cause of action, if it existed, would place an almost intolerable burden on medical advisers in their socially and morally exacting role. The danger that doctors would be under subconscious pressures to advise abortions in doubtful cases through fear of an action for damages is, we think, a real one.”

This view was adopted by the Royal Commission on Civil Liability and Compensation for Personal Injury (1978) (Cmnd. 7054-1), paragraph 1485.

(4) Section 4 (5) of the Act provides:

“This Act applies in respect of births after (but not before) its passing, and in respect of any such birth it replaces any law in force before its passing, whereby a person could be liable to a child in respect of disabilities with which it might be born; …”

Thus, there can be no question of such a cause of action arising in respect of births after July 22, 1976. This case therefore raises no point of general public importance. It can, for all practical purposes, be considered as a “one-off” case.”[29]

Lord Stephenson LJ said:

“The general importance of that decision is much restricted by the Congenital Disabilities (Civil Liability) Act 1976, and in particular section 4(5) to which Mr. Adams called our attention. That enactment has the effect explained by Ackner L.J. of depriving any child born after its passing on July 22, 1976, of this cause of action. Section 1(2)(b) repeats the same clause of the draft bill annexed as an appendix to the Law Commission Report on Injuries to Unborn Children (1974) (Law Com. No. 60) (Cmnd. 5709), and was intended to give the child no right of action for ‘wrongful life’ and to import the assumption that but for the occurrence giving rise to a disabled birth, the child would have been born normal and healthy, not that it would not have been born at all: see pp. 46 and 47 of the report. I reject Mr. Wilmers’s submission that it did not carry out that intention, which, in my judgment, the language of the paragraph plainly expresses. But the Act went further than the draft bill in replacing, by section 4 (5), “any law in force before its passing, whereby a person could be liable to a child in respect of disabilities with which it might be born;...” ”[30]

Lord Griffiths LJ, who dissented on the issue whether it was appropriate to strike out the claim under Order 18, r. 19, nevertheless went on to state his opinion on whether or not the common law recognises a claim for ‘wrongful life’. He said:

“Whether the law should give a remedy in such circumstances has been considered by the Law Commission. They concluded that there should be no liability for wrongful life and deliberately drafted section 1 of the Congenital Disabilities (Civil Liability) Bill to exclude any such liability. Parliament accepted that advice and enacted the material part of the Congenital Disabilities (Civil Liability) Act 1976 in precisely the same language as the Law Commission’s Bill. I am unable to accept Mr. Wilmers’s submission that the language of section 1 does not exclude the action for wrongful life; I have no doubt that it achieves its objective.”[31]

23.  Mr Raymond Leung SC, who appeared for the Baby, submitted that it was least arguable that sections 22A-C of LARCO, being equivalent to sections 4(5), 1 and 4(3) of the 1976 Act respectively – had notremoved the possibility of bringing a ‘wrongful life’ action or a ‘wrongful suffering’ action.

24.  He submitted, firstly, that the 1976 Bill, which was passed in the UK leading to the enactment of the 1976 Act, was not the same “draft Bill” appearing at Appendix 1 to the 1974 Report.  It is correct that there have been departures from the draft Bill in the Report which were addressed during the debate in the House of Lords.[32]  However, as Viscount Colville observed in the debate in the House of Lords, these were:

“minor amendments to the Law Commission’s text. I do not think that any of them are of great substance but some of them are sufficient to change the nuances in the legislation from what it was that was explained by way of the notes on the Law Commission’s report.”[33]

25.  Typical of the amendments were those in clause 1(4) and clause 1(6).  In the case of clause 1(4), the Law Commission had disapplied the defence contained therein to a father who was the defendant.  Parliament altered this slightly so that the defence contained in the provision was disapplied in a case where the defendant was the father and when the mother did not know of the risk.  In the case of clause 1(6), which concerned contracts excluding or limiting liability, the Law Commission had only referred to the mother. In the Parliamentary Bill, the provision referred to “either parent”.

26.  Another amendment of a similar ilk was in relation to clause 2, which concerned a mother’s liability in a road traffic accident. The Law Commission had recommended that it applied to mothers who were pregnant. Parliament changed this to mothers who knew, or ought reasonably to have known, they were pregnant, in recognition of the fact that a woman might not always know that she is pregnant.

27.  Notwithstanding these departures, there were many references to the Law Commission Report, starting with first paragraph of the Explanatory and Financial Memorandum to the Parliamentary Bill[34] which stated that the purpose of the Parliamentary Bill was to give effect to the recommendations of the Law Commission Report. The influence of the Law Commission’s Report and of the draft Bill attached to it radiated throughout the debate in the House of Lords[35].  Indeed, Viscount Colville was at pains to point out that the draft Bill and its explanatory notes would be of immense value in interpreting the law they were going to pass.[36]

28.  I accept the submission of Mr Russell Coleman SC, who appeared for HA and submitted that, above all, none of the departures from the draft Bill had any impact on the prohibition on ‘wrongful life’ claims.

29.  Mr Leung submitted, secondly, that nothing in the 1976 Bill suggested that ‘wrongful life’ was declared ‘non-viable’ or ‘abolished’. Importantly,  Mr Ray Carter, who had introduced the 1976 Bill as a private members’ bill in the House of Commons, had said that “[i]t confers no action for what the Law Commission called ‘wrongful life’, such that any action for the “fact of being brought into the world… the Bill is neutral.”[37] [Mr Leung’s emphasis].  The full statement of Mr Carter is set out as follows:

“The question of whether abortions should be permitted does not arise under the Bill. It confers no action for what the Law Commission called ‘wrongful life’. By this is meant that the disabled child will have the right of action only for disabilities caused by a pre-natal occurrence and not for the fact of being brought into the world. In this respect, too, the Bill is neutral. It is not concerned with any question relating to the rights of the foetus, but it is concerned with disabilities suffered by a living child which result from a wrongful act committed before that child’s birth.”

30.  All the statements in the paragraph quoted above are correct except the statement that, in this respect, too, the Bill is neutral. The Bill is not neutral in respect of a claim “for being brought into the world”, i.e. a claim for wrongful life. It specifically bars such claims by clause 4(5) of the Bill, which became section 4(5) of the 1976 Act, thereby giving effect the recommendation of the Law Commission as set out above.  It is settled law that statements made in Parliament must be clear and unequivocal before they can be of assistance in the interpretation of legislation, as Lord Nicholls was at pains to point out in R v. Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Ltd[38].  Mr Carter’s unclear and equivocal statement does not persuade me that it is arguable that the provisions of 1976 Act and sections 22A–C of LARCO do not bar a claim for wrongful life and wrongful suffering.

31.  Mr Leung submitted, thirdly, that the common law position is open, citing the remarks of Lord Hailsham during the debate in the House of Lords when he responded to the query of Lord Platt, who was not a lawyer, in these terms:

“… I am quite clear in my own mind that in the second of the two cases he mentioned–namely, the case of a doctor who advises against a termination of pregnancy–there could be no possible liability, because the child who is born deaf as a result of an infection by the mother of rubella cannot under this Bill claim for not having been aborted before he was born. This, I think, is absolutely plain on the construction of the Bill.”[39]

What Lord Hailsham said was absolutely correct.  The 1976 Act did not create a cause of action for damages for wrongful life and wrongful suffering.  The fact that he did not reinforce his point, by going further to say that even if a cause of action existed under the common law for damages for wrongful life and wrongful suffering, the effect of clause 1 and, in particular, clause 1(2)(b) thereof, and of clause 4(5) of the Bill was that any such cause of action for children born after the passing of the Act was extinguished, does not make it arguable that the provisions of 1976 Act and sections 22A–C of LARCO do not bar a claim for wrongful life and wrongful suffering.

32.  Mr Leung submitted, fourthly, that the 1976 Bill was one of limited scope and objective, namely, to give children who were victims of the thalidomide tragedy (where there was perceived doubt as to whether they could sustain a claim in negligence at common law) with a right to compensation for the disabilities they sustained; and that the 1976 Bill simply did not intend (or purport) to deal with any other situation of congenital disability such as that arising from natural causes. I do not accept this submission.  The 1976 Bill was of limited scope and objective in the various senses identified in §17 above, none of which impacted on the combined effect of clause 1 and, in particular, clause 1(2)(b) thereof, and of clause 4(5) of the Bill to bar any such cause of action for damages for wrongful life and wrongful suffering for children born after the passing of the Act.

33.  Mr Leung submitted, fifthly, that, in any event, section 1 of the 1976 Act did not expressly use the word ‘wrongful life’ and does not purport to deal with cases of the instant kind; at the very least, the scope of section 1 was not entirely clear: the only plain matter was that the section provides a cause of action for children (born alive) to sue for pre-natal tortuously inflicted injuries. In support of this submission, Mr Leung relied on the views expressed by Michael A Jones[40] and Emily Jackson[41].

34.  Whilst acknowledging that the wording of section 1 of the 1976 Act “was intended to exclude so-called ‘wrongful life’ actions in which a child was born with non-tortiously inflicted disabilities claims[42], Mr Jones proceeded to offer the opinion that the Court of Appeal in McKay v. Essex Area Health Authority had misread the legislation:

“The Congenital Disabilities (Civil Liability) Act 1976 replaces the common law for births after its commencement, but curiously only in respect of a defendant’s potential liability for causing the child’s disabilities.⁴⁵⁴ Accordingly, although it is not possible to bring a wrongful life action under s.1 of the Act, it is arguable that the legislation did not remove the possibility of bringing an action at common law.  Such a claim is not an action in “respect of disabilities with which it might be born,” but rather a claim not to have been born at all, which theoretically could be brought by a healthy child. The Court of Appeal in McKay, however, took the view that the Act did prevent all wrongful life claims for births after its commencement. With respect, this seems to misread the legislation, particularly s.4(5).

⁴⁵⁴   “…in respect of any such birth it replaces any law in force before its passing, whereby a person could be liable to a child in respect of disabilities with which it might be born…”; Congenital Disabilities (Civil Liability) Act 1976 s.4(5).  The Act came into force on July 22, 1976.”[43]

35.  The passage quoted above appears to be more relevant to the next submission made by Mr Leung which I deal with below.  The fact that the 1976 Act did not expressly contain the words ‘wrongful life’ does not make it arguable that the provisions of 1976 Act and sections 22A–C of LARCO do not bar a claim for wrongful life and wrongful suffering. As Viscount Colville said during the debate in the House of Lords, the “Bill is very closely and cunningly constructed”[44]. The combined effect of clause 1 and, in particular, clause 1(2)(b) thereof, and of clause 4(5) of the Bill was to bar any such cause of action for damages for wrongful life and wrongful suffering for children born after the passing of the Act.  The Court of Appeal in McKay v. Essex Area Health Authority did not misread the legislation.  Ms Jackson made the point that the Court of Appeal in McKay v. Essex Area Health Authority placed considerable emphasis on the sanctity of human life which may exert less force today than in 1982[45]. That may well be so.  However, the “sanctity of life principle” played no part in the statutory interpretation of the 1976 Act by the Court of Appeal.  I am unable to accept this submission of Mr Leung.  If the reasons for the recommendations of the Law Commission and the Royal Commission are outdated, it must be for the legislature to make changes to section 22A(1) and the other provisions of LARCO: what the legislature has prohibited, only the legislature can permit.

36.  Mr Leung submitted, sixthly, that there was academic support for the Baby’s contention that, on the proper construction of the 1976 Act, a ‘wrongful life or ‘wrongful suffering’ claim was still possible under common law (and hence a viable ‘alternative’ to the construction given by the judges in McKay v. Essex Area Health Authoritywho arguably misread the legislation: as stated by Fortin[46], with the support of Scott[47] [P#37], Jones at §2-143[48] and Kennedy and Grubb[49], two matters were arguable:

(a)   Neither section 1, nor any part of the 1976 Act itself, referred to liability which might arise in situations where the disability itself was neither caused by nor could have been prevented by medical intervention, e.g. disablements occurring naturally, for example as a result of an infection such as rubella (this lies at the heart of a ‘wrongful suffering’ claim);

(b)   A doctor’s liability to a child does not arise “in respect of disabilities” (these words are taken from section 22A(1) of LARCO, which is equivalent to section 4(5) of the 1976 Act), rather, as the Baby contends, it arises solely due to the failure to advise on the unborn child’s potential quality of life, in the light of those disabilities.

37.  The submission set out in §36(a) above is a rephrase of the fifth submission which I have already dealt with above. The submission set out in §36(b) above turns on the proper construction of the phrase “in respect of disabilities” appearing in section 22A(1) of LARCO and in section 4(5) of the 1976 Act.  I accept the submission of Mr Coleman that the fact that the liability arises as result of failure to advise the mother does not mean that it is not in respect of disabilities.  Indeed, the whole claim rests on the fact that the child is disabled and the damages sought are to compensate for those disabilities, whether it be for suffering and/or for additional expenditure arising from the disabilities.  Mr Leung’s attempt to reclassify the claim from ‘wrongful life’ to ‘wrongful suffering’ merely serves to reinforce the point that the suffering arises from the disabilities and that the ‘wrongful suffering’ claim is a claim that the doctor is “liable to a child in respect of the disabilities with which it might be born” as provided in section 22A(1) of LARCO and section 4(5) of the 1976 Act.

38.  Mr Leung submitted, seventhly, that whilst sections 22A–C of LARCO adopted wholesale the equivalent provisions of the 1976 Act, it could not properly be said that the policy of the 1976 Act was adopted by the legislature in Hong Kong: there appeared to have been no consultation on these provisions and it could not be suggested that the provisions in Part IVA of LARCO registered the result of the necessary medico-social and legal discourse on this subject in Hong Kong.  However, it is clear to me that the fact that there was no consultation of these provisions and no medico-social and legal discourse on this subject in Hong Kong did not prevent Part IVA of LARCO from becoming the binding law of the land covering this area.

39.  Mr Leung submitted, eighthly, that it was evident from the proceedings in the Legislative Council that, arguably, there was a failure to appreciate (a) that the 1976 Bill in the UK was not the same as the earlier draft Bill contained in the Report, and (b) the speeches of the members of both Houses before the 1976 Bill was passed into law (as above) and, therefore, it was not strictly correct when the Solicitor General stated:

“… this Bill clarifies the law relating to the rights of an unborn child under the ordinary civil law. It will, if enacted, add to the Law Amendment and Reform (Consolidation) Ordinance, a new Part based on the Congenital Disabilities (Civil Liability) Act 1976, of England, which implemented the recommendations of the English Law Commission in their Report on Injuries to Unborn Children.” (emphasis added)[50]

I accept Mr Coleman’s submission that the premise of Mr Leung’s criticism was that there were material differences between Law Commission’s draft bill and the 1976 Bill.  However, those differences came about by way of improvements to the draft Bill and were done to give effect to the recommendations of the Law Commission that were contained in its Report, as was expressly made clear in the Explanatory Memorandum to the 1976 Bill. Accordingly, it was entirely appropriate to say that the 1976 Act implemented the Law Commission’s recommendations. In any event, any differences between the Law Commission’s draft bill and the 1976 Act were wholly immaterial so far as ‘wrongful life’ or ‘wrongful suffering’ claims were concerned.  On this issue there was sustained and determined consistency, which continued after the passing of the 1976 Act with the Royal Commission’s Report also recommending that such claims be barred.

40.  Mr Leung submitted, ninthly, that no court in Hong Kong had yet ruled on the scope of sections 22A–C of LARCO and the equivalent provisions in the 1976 Act, particularly in the light of the submissions that Mr Leung had made.  That is correct. It appears that I am the first one to rule on the point in question.

41.  Finally, Mr Leung submitted that any argument that a ‘wrongful suffering’ action was not within section 1 of the 1976 Act (or section 22B of LARCO) needed to be considered against section 1A, that was introduced by way of amendment to the 1976 Act in 1990, and which appeared to provide a statutory action for ‘wrongful life’ to children born disabled (who would otherwise not have been born) as a result of damage to an embryo or to gametes in the course of selection in infertility treatment, thereby creating an inconsistency in the policy of the legislation. In support he relied on  Jones[51], Jackson[52], Scott[53] and Kennedy and Grubb[54]. The short answer to this submission is that Part IVA of LARCO has not been amended to include section 1A of the 1976 Act. If there is an inconsistency in the English legislation so be it, there is no inconsistency in our legislation.

42.  I am satisfied, on my construction of the provisions of Part IVA of LARCO and, in particular, sections 22A(1) and 22B(2)(b) of LARCO, that that these provisions bar all claims for wrongful life, including all claims for wrongful suffering, caused by a defendant’s negligence in failing to advise a mother of the material risk of a foetus being born seriously deformed so that she may consider having an abortion.  It is plain and obvious that the Baby has no reasonable cause of action against HA.  I conclude that I ought to strike out the Baby’s claim on the ground that it discloses no reasonable cause of action.

Should the issue, whether or not the common law of Hong Kong, as it has developed in the light of all the authorities including those from other common law jurisdictions, permits wrongful life and wrongful suffering claims, be determined at an interlocutory strike out application or at trial

43.  To cater for the event that I am wrong to find that Part IVA of LARCO bars all claims for wrongful life, including all claims for wrongful suffering, I proceed to consider the issue whether or not such claims are recognised by the common law of Hong Kong.  In this regard, the first point I have to decide is whether an interlocutory hearing is the proper forum to determine the important legal and policy issues that may have a decisive bearing on whether the common law of Hong Kong may be developed to recognize such claims.  Bearing in mind the observations of Griffiths LJ in McKay v. Essex Area Health Authority[55],  my initial reaction was to dismiss the application to strike out on the ground that whether or not a claim for wrongful life or wrongful suffering can be brought under the common law of Hong Kong ought to be determined at the trial or at the trial of a preliminary issue.  However, upon further reflection, I have come to the conclusion that I ought to decide the issue on this strike out application.  Substantial costs have already been incurred by the parties in preparing for this hearing, making detailed submissions and presenting me with authorities from around the world on this issue.  I am satisfied that all the relevant facts bearing upon the issue have been pleaded and are before me.  As stated above, I have to decide the matter on the assumption that these pleaded facts are true.  The legal and policy issues have been thoroughly canvassed by counsel for the parties in their detailed submissions, and in the authorities and the academic literature bearing upon the subject that have been cited to me. To direct that the same submissions be repeated at trial or at a trial of a preliminary issue would be to waste costs which would not further the objectives of the Civil Justice Reform to ensure cost-effectiveness and procedural economy. Indeed, the Civil Justice Reform expressly gave the court power to strike out of its own motion[56].

44.  In H v. Fetal Assessment Centre[57], the High Court in Cape Town had dismissed H’s claim for damages for wrongful life on the basis that it was not recognized in law (under the “exception” procedure, which aimed to weed out cases with no legal merit).  H appealed directly to the Constitutional Court. In granting leave and allowing the appeal, the Court held that the exception procedure was not the proper procedure to determine the important factual, legal and policy issues that might have a decisive bearing on whether the common law may be so developed[58].  The Court emphasised that all it had determined was that a child’s claim for wrongful life may potentially be found to exist and whether the cause of action did exist and in what form was for the High Court to decide within the constitutional imperative that the decision must accord with constitutional rights and values, which must include considering the best interests of the child which the Constitution protected.[59]  That the [South African] law must conform to the values of the Constitution and that its development must promote the “spirit, purport and objects of the Bill of Rights” was the given starting point for determining the viability of the child’s claim in the circumstances of the case[60].  We do not have a similar constitutional right under our laws.  The rights of our children are protected under article 20 of the Bill of Rights, as set out in section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383, which provides that every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State[61].  The issue whether or not the common law of Hong Kong ought to be developed to recognise a cause of action for wrongful life and wrongful suffering is unaffected by this provision in our Bill of Rights.

Does the common law of Hong Kong, as it has developed in the light of all the authorities including those from other common law jurisdictions, recognise a cause of action for wrongful life or wrongful suffering

45.  Having carefully considered the submissions of counsel and the authorities that have been cited to me, I am satisfied that the common law of Hong Kong, as it has developed in the light of all the authorities, including those from other common law jurisdictions, does not recognise a cause of action for wrongful life nor for wrongful suffering caused by a defendant’s negligence in failing to advise a mother of the material risk of a foetus being born seriously deformed so that she may consider having an abortion.  My brief reasons for so deciding are set out below.

46.  Mr Leung submitted that the common law has developed and matured since the decision of the Court of Appeal in McKay v. Essex Area Health Authoritysuch that it is able to recognise a cause of action for wrongful life or wrongful suffering.  As I have stated in §6 above, it is not in dispute that the Mother is entitled to bring her claim.  It is also not in dispute that the disabilities suffered by the Baby are congenital in nature, and those disabilities themselves were not caused by any negligence on the part of the HA.  Further, there is no assertion of any negligence in the treatment of the Baby after she was born.  The cause of action by the disabled child that has been postulated, as opposed to a cause of action by the mother which is well recognised, involves an assertion by the disabled child that it would be preferable if she or he had not been born, given that there is no option of the child being born without disability[62].  As Crennan J recognised in his judgment in the High Court of Australia in Harriton v. Stephens[63], this raises the difficult question of whether the common law could or should recognise a right of a foetus to be aborted or an interest of a foetus in its own termination as distinct from the recognised right of a foetus not to be physically injured[64].

47.  Spigelman CJ noted, in the New South Wales Court of Appeal decision in Harriton v. Stephens[65], that a legal duty recognised by the law of negligence must reflect values generally, or at least widely, held in that community and that the cause of action that had been postulated raised ethical issues of the same character as those involved in the debate over euthanasia which were highly contestable and strenuously contested. He concluded that the duty that was asserted before him should not be accepted as it did not reflect values generally, or even widely, held in that community and that the law of negligence should not, therefore, recognise a legal duty to the child.  His conclusion echoes the reasoning of Stephenson LJ in McKay v. Essex Area Health Authoritywho stated that to impose such a duty towards the child would make a further inroad on the sanctity of human life which would be contrary to public policy. It would mean regarding the life of a handicapped child as not only less valuable than the life of a normal child but so much less valuable that it was not worth preserving[66].

48.  The sanctity of life principle is not paramount, as is demonstrated by cases involving cessation of life support facilities. In such cases, the law has recognised the existence of circumstances in which life could be terminated. The decision between continuing medical treatment prolonging life or discontinuing medical treatment that may hasten death is always made by reference to the best interests of the child or person who is unable to decide the matter for himself and by undertaking a balancing exercise in respect of these 2 possible causes of action[67]. I conclude that the common law of Hong Kong does not recognise the cause of action that has been postulated. I do not so conclude based on the sanctity of life principle but on the ground that the cause of action that has been postulated, based on a right of a foetus to be aborted or an interest of a foetus in its own termination, does not reflect current values generally, or even widely, held by our community in Hong Kong.

49.  The fact that the cause of action that has been postulated is dependent upon the subjective of decision of a third party, the mother, whether or not to terminate the pregnancy upon being informed that the foetus is likely to be born with congenital deformities, does not lead me to conclude that such a cause of action ought not to be recognised. I agree with the judgment of Hayne J in the High Court of Australia in Harriton v. Stephens[68]that, in a case where it is shown that the mother would have terminated the pregnancy, the subjective nature of the considerations which inform the mother’s choice about termination may well be thought to be insufficient reason to conclude that the doctor’s failure to tender proper advice was not a cause of the child being born, the only relevance of the element of the mother’s choice being that there would be a significant number of cases where, because the mother would not have decided to terminate the pregnancy, the doctor who negligently failed to properly advise the mother of the risks of continuing with the pregnancy would not be liable to the child.

50.  I do not pay any heed to any argument that raises the fear of opening floodgates should such a cause of action be recognised, nor to the concern voiced by the English Law Commission in their Report on Injuries to Unborn Children[69] that claims of this kind might lead to doctors coming under subconscious pressure to recommend abortions in doubtful cases, through fear of an action for damages brought subsequently by a disabled child.  As Griffiths LJ rightly noted in McKay v. Essex Area Health Authority[70], the decision whether or not to have an abortion is made by the mother and not by the doctor so the concern voiced by the Law Commission was not a convincing reason for denying the existence of a cause of action for wrongful life or wrongful suffering. I would add that the doctor is already under a duty to advise a mother of the material risk of the child being born with serious deformities[71]. There has been no suggestion that such a duty has encouraged defensive medicine.

51.  By far the reason which compels me the most to reject the cause of action that has been postulated, as it also compelled Griffiths LJ in McKay v. Essex Area Health Authority[72], is the “intolerable and insoluble” problem of assessing damages in such cases. As Spigelman CJ noted in Harriton v. Stephens[73], if the doctor had properly advised the mother and if the mother had then decided to terminate the pregnancy, the child would not exist. In such a case, in order to constitute damage, an essential ingredient of the tort of negligence which gives rise to a right to compensation, it must be established that non-existence is preferable to life with disabilities to the child. Unless that is so, there is no damage, of the character which constitutes the gist of an action in negligence, for the purposes of an action by the child.

52.  Is non-existence more valuable than a life with disabilities? In the words of Ackner LJ in McKay v. Essex Area Health Authority[74]:

“But how can a court begin to evaluate non-existence, “the undiscovered country from whose bourn no traveller returns?” No comparison is possible and therefore no damage can be established which a court could recognise. This goes to the root of the whole cause of action.”

In the same vein, Stephenson LJ said in McKay v. Essex Area Health Authority[75]:

“But how can a court of law evaluate that second condition [of non-existence] and so measure the loss to the child? Even if the court were competent to decide between the conflicting views of theologians and philosophers and to assume an “after life” or non-existence as the basis for the comparison, how can a judge put a value on the one or the other, compare either alternative with the [disabled] child’s life in this world and determine that the child has lost anything, without the means of knowing what, if anything, it has gained.

…

To measure loss of expectation of death would require a value judgment where a crucial factor lies altogether outside the range of human knowledge and could only be achieved, if at all, by resorting to the personal beliefs of the judge who has the misfortune to attempt the task. If difficulty in assessing damages is a bad reason for refusing the task, impossibility of assessing them is a good one.”

53.  As Stephenson LJ held in his judgment quoted above, and as Ipp JA held inHarriton v. Stephens[76], so too do I hold that it is impossible to use non-existence as a comparator to establish damage which is an essential ingredient of the tort of negligence. As I have stated in §48 above, in cases involving cessation of life support facilities, the law has recognised the existence of circumstances in which life could be terminated. The decision between continuing medical treatment prolonging life or discontinuing medical treatment that may hasten death is always made by reference to the best interests of the child or person who is unable to decide the matter for himself and by undertaking a balancing exercise in respect of these 2 possible causes of action.  As noted by Crennan J in Harriton v. Stephens, such comparisons involve matters of degree and are not dependent upon making a comparison between a life with disability and death[77].

54.  For these reasons, I conclude that, notwithstanding its evolution with changing times, attitudes and values, the common law of Hong Kong, as it has developed up to today, does not recognise a cause of action for wrongful life or wrongful suffering.

Orders

55.  I order that the 1^st plaintiff’s claim against the defendant be struck out on the ground that it discloses no reasonable cause of action. I dismiss the 1^st plaintiff’s action against the defendant.  I make a costs order nisi that the 1^st plaintiff pays to the defendant the costs of the action incurred by the defendant that were over and above the costs incurred to defend the 2^nd plaintiff’s claims, to be taxed if not agreed; and, further, that the 1^st plaintiff pays the costs of the strike out application and of the hearing on 16 March 2018 to the defendant, to be taxed if not agreed, with Certificate for 2 Counsel; and, finally, that the 1^st plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations.

56.  I cannot conclude without expressing my gratitude to counsel for their detailed submissions and extensive researches which spanned the greater part of the common law world as well as many European jurisdictions.

Annex

Comparison of Relevant Statutory Provisions