KONG WAI TSANG v. HOSPITAL AUTHORITY

cacv 76/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 76 of 2004

(on appeal from HCPI No. 1018 of 2002)

_________________________

_________________________

_________________________

REASONS FOR JUDGMENT

_________________________

Hon Rogers VP:

1.  This was an application for leave to appeal to the Court of Final Appeal.  The judgment on the appeal to this court was given on 5 November 2004.  In that judgment this court dismissed the appeal from the judge who had himself dismissed the appeal from the master who had ordered that the statement of claim be struck out.  The facts and background to this case are contained in the judgment of this court and in the court below and it is unnecessary to repeat them here.  At the conclusion of the hearing of this application, leave to appeal was refused with reasons to be given in writing which we now do.

2.  The application for leave to appeal was put up on two grounds.  First that there is a point of law of great general or public importance and in the second place in that the question involved ought otherwise to be submitted to the Court of Final Appeal.  The second question put forward was clearly a make weight and was not argued separately, other than the fact that it was suggested in the skeleton argument that the damages would come to over $1 million.  The question which is said to be of great general public importance is that there was said to be negligence on the part of the defendant “… for its failure to warn or advise, upon specific inquiry, the guardian of a minor patient and the patient herself of the documented side-effects of a drug and/or the material risks of using it …”.  The question continues with the statement “… when it turned out that those side-effects caused or materially contributed to the death of the patient …”.

3.  From that and from the submissions made in Court it is clear that the plaintiff now seeks to put her case on the basis that there was negligent advice.  That is different from the pleading in the case which pleads negligence “… in failing to stop the administering of carbamazepine to the deceased as carbamazepine was a drug which was documented to cause systemic Lupus Eythermatosus (sic) and the deceased had been given the diagnosis of Systemic Lupus Eythermatosus”.  Nor was the way in which the case is now sought to be put argued previously.

4.  In putting forward this question the first difficulty faced by the plaintiff is that she is seeking to pose a question of great or general public importance on the basis of a case which is not pleaded.  Be that as it may, it would seem that the attempt was prompted, at least in part, because there has been a recent House of Lords decision, namely the case of Chester v Afshar [2004] 3 WLR 927.  That was a case in which the House of Lords upheld the Court of Appeal which had decided that a patient who had developed a serious condition as a result of elective surgery could claim damages on the basis that she had not been warned of the risks involved in the surgery.  There was no dispute that the surgeon involved was highly skilled and there was no negligence on his part in performing the operation.  The case was put solely on the basis that the plaintiff should have been warned of the inherent dangers involved prior to her agreeing to undergo surgery.  It was evident in that case that the patient had three choices.  If she had been warned of the unavoidable risk involved in the particular operation she could have chosen either to proceed, not proceed on a permanent basis or to take a further opinion

5.  In the present case the position is quite different.  In the first place, the situation was one of emergency treatment in the absence of which the patient was likely to suffer convulsions and worse.  The doctors involved had no choice but to treat the patient in the best way they saw fit.  In the second place, the premise upon which the question for the Court of Final Appeal is based, namely, that the side effects caused or materially contributed to the death of the patient, is a matter which has been dealt with in the previous judgments and the plaintiff’s failure to be able to adduce evidence to support that lies at the root of the difficulties facing her.

6.  The matter of causation therefore does not arise and there was no ground for considering the question faced by the House of Lords as to whether, if the plaintiff cannot show that she would have taken another course of action had advice been given, an action would still lie.  In this respect it is noted that there was a difference of opinion in the House of Lords, but that difference is not material as regards this case.

7.  In those circumstances the new basis for framing the claim does not assist the plaintiff and there would be no ground for this court to grant leave either on the question as framed or on the “or otherwise” provision.

Hon Le Pichon JA:

8.  I agree.