ANDREW GRAHAM YOUNG v. DR HO CHUN KIT PETER

HCPI 583/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 583 OF 2010

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BETWEEN

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REASONS FOR DECISION

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1.  After hearing the parties, I entered Interlocutory Judgment for damages to be assessed in favour of the plaintiff against the defendant upon the admissions contained in Section K.1 of the defendant’s Questionnaire for the Checklist Review Hearing on 8 December 2011 that :-

(i) the advice of the defendant to the plaintiff to undergo the operation referred to in §5(1) of the Statement of Claim was negligent;

(ii) but for the giving of that negligent advice, the plaintiff would not have undergone the operation; and

upon the further admission that the stress incontinence suffered by the plaintiff was caused by the operation, and I ordered that there be an assessment of the loss and damage caused to the plaintiff by the negligent advice and the operation.  I also ordered that the costs of the action on the issue of liability be to the plaintiff to be taxed forthwith on a party and party basis, including the costs of the hearing on 26 April 2012, which I certified to be fit for two Counsel. 

2.  I also directed the parties to fix a Case Management Conference before Master Ng to take place no later than 2 months from 26 April 2012 and I adjourned the issue of whether leave should be granted to the defendant to adduce an expert urological report from Dr Chan Lung Wai, on the condition and prognosis of the plaintiff, to be dealt with by Master Ng at the Case Management Conference, together with any other matters pertaining to the assessment of damages.  I also granted leave to the plaintiff to rely on the 3^rd report of Mr David J Ralph dated 12 April 2012.  In due course, either a joint report would have to be obtained from Mr David J Ralph and Dr Richard Lo on the causation issue, or a without prejudice meeting would have to be arranged to take place between them.  It would also have to be determined, either at a further CMC or at a PTR, whether or not they should be called to give evidence at the hearing of the assessment of damages.  Finally, I directed that the assessment of damages be listed before me.

3.  These are my reasons for entering interlocutory judgment for damages to be assessed.

4.  The plaintiff contracted a urinary tract infection (“UTI”) while on holiday in Australia in late 2007.  He had a fever and he was admitted to hospital in Sydney on 21 November 2007 where he was diagnosed to be suffering from UTI due to e-coli infection and a small kidney stone.  He was discharged with a course of antibiotics on the following day and permitted to fly back to Hong Kong with instructions to present to a hospital or to a doctor if his symptoms worsened.  His symptoms did worsen and he was admitted to the Hong Kong Adventist Hospital (“HKAH’) on 24 November 2007.  He was referred to the defendant, a consultant urologist, for treatment.  On admission to HKAH, the plaintiff was tested for prostatic specific antigen (“PSA”) and, on 25 November 2007, a CT scan CT Urogram was performed as well as a prostate ultrasound.  On 26 November 2007, the defendant informed the plaintiff that he had stones in his prostate that required removal by an operation.  The plaintiff agreed to undergo the operation which consisted of a transurethral resection of the plaintiff’s prostate (“TURP”).  The operation was performed on 28 November 2007.  Following the operation, the plaintiff suffered from urinary incontinence.  The plaintiff brought these proceedings to recover damages for loss and damage which he alleged was caused by the defendant negligently advising him to undergo the operation when there was no indication that such a procedure was required.        

5.  The defendant filed and served a Defence denying that he was liable.  However, in his Answer to the Questionnaire for PI actions dated 23 November 2011, which he filed for the purpose of the Checklist Review Hearing, his solicitors stated as follows :

“Negligence issue no longer in contention

The Defendant will not now contest the allegation that the advice of the Defendant to the Plaintiff to undergo PVP was negligent. Therefore whether the advice of the Defendant to the Plaintiff to undergo PVP was negligent or not will no longer be in issue in this Action.

The Defendant therefore accepts that, had the advice of the Defendant to the Plaintiff to under PVP not been negligent, the Plaintiff would not have undergone the PVP.

For the avoidance of doubt, by not contesting that the advice of the Defendant to the Plaintiff to undergo PVP was negligent, the Defendant is not admitting that the PVP was not indicated or contraindicated or dangerous, or that the Defendant did not or did not sufficiently warn the Plaintiff of the risks of the PVP, or that the PVP was performed negligently. Since the main issue of whether the advice of the Defendant to the Plaintiff to undergo PVPwas negligent or not will no longer be in contention in this Action, and the Defendant accepts that but for the negligent advice the Plaintiff would not have undergone the PVP, it is not necessary for the Court to determine the specific particulars of negligence pleaded in paragraph 9 of the Statement of Claim.

Causation

Causation is however in issue.  The Defendant contends that the effective or major cause of the Plaintiff’s urinary incontinence, which is said to have led to losses allegedly suffered by the Plaintiff including substantial loss of past and future earnings, was not the PVP but bladder overactivity which pre-existed the PVP and which, even without the PVP, would have led in whole or substantially to the urinary incontinence from which the Plaintiff is suffering.”

6.  The above statements contain a clear admission that negligent advice was given to the plaintiff by the defendant to undergo the operation and that, without such negligent advice, the defendant would not have undergone the operation.  However, the passage quoted above does not contain any admission or any sufficient admission that the negligent advice resulted in any damage.  There is no admission in this passage that the plaintiff’s urinary incontinence was caused by the negligent advice. 

7.  If the plaintiff had made an application for judgment onadmissions based solely on the statements in the defendant’s Answer to Questionnaire, the plaintiff might have been able to persuade me to enter Interlocutory Judgment for damages to be assessed for breach of contract, but not for Interlocutory Judgment for damages to be assessed for negligence.  The cause of action in contract is complete upon proof of the agreement and of its breach.  Having received an admission that the defendant was in breach of contract, the court can proceed to assess damages and can award nominal damages even if actual loss flowing from the admitted breach of contract has not been established.  In the case of most torts, however, the cause of action is not complete until it has been established that the negligent act or omission has caused some actual damage which is not, in law, too remote.

8.  In support of his application for Interlocutory Judgment to be entered for damages to be assessed for the defendant’s admitted negligence, the plaintiff also relied upon the opinion of Dr Richard Lo contained in his report dated 31 October 2011 which the defendant’s solicitors had served as the defendant’s expert medical report.  Dr Richard Lo is a well-known and experienced urologist whose opinion has often been received and accepted in these courts.  He explained that there were several types of incontinence, with stress incontinence and urgency incontinence being the most common varieties. In §§7 & 9 of his report, he said : 

“7. Stress incontinence is the leakage of urine when there is additional pressure exerted on the bladder by external forces, such as sneezing, coughing, laughing, and any activities that increases the pressures inside the abdomen. These pressures are transmitted onto the bladder, and the pressure inside the bladder is therefore raised. When this pressure exceeds the sphincter resistance, there will be leakage of urine. This type of leakage is instantaneous, and stops when the coughing or sneezing stops.

…

9.  The second type is urge or urgency incontinence.  There is an uncontrolled contraction of the bladder, and urine leaks out because of the high pressures generated exceeding that from the external sphincter.  Here the person feels the urge, or the signal that the bladder is ‘full’, from the contractions of the bladder wall muscles.  These sensations are intense and usually ascending and cannot be controlled voluntarily.  This type of urgency incontinence falls within the spectrum of ‘Overactive Bladder’, a condition where there is uncontrolled bladder contractions, yet may not necessarily lead to loss of urine control.”

9.  Based on his symptoms and the uro-dynamic studies that had been done, Dr Lo accepted that the plaintiff had both stress and urgency incontinence in 2008.  In his opinion, the operation caused the stress incontinence (by weakening the urinary sphincter) but did not cause the urge incontinence.  In §28 of his report, he said :

“The procedure did not trigger the onset of bladder overactivity. The overactivity most probably was preexisting preoperatively, but controlled and masked by the internal and external sphincters. With the internal sphincter resected by surgery and the external sphincter weakened, the overactivity was unmasked, leading to the incontinence.”

10.  In their written submissions, Mr John Bleach SC and Mr Robin McLeish, counsel for the plaintiff, relied upon §28 of Dr Lo’s report in order to assert that it was common ground that the stress incontinence component in the plaintiff’s case was the result of a weakened/damaged external sphincter that had been weakened/damaged by the operation.  In his written submissions, Mr Russell Coleman SC, for the defendant, agreed that it was common ground that the stress incontinence was caused by the operation. 

11.  Notwithstanding this admission, Mr Coleman opposed the application for Interlocutory Judgment on the ground that he might be precluded, if judgment was entered against the defendant, from raising the defence that the defendant was not liable for the urinary incontinence that was product of the plaintiff’s pre-existing bladder overactivity.  He pointed to the averments in §§10 and 11 of the plaintiff’s Statement of Claim and to the statement in §17 of the plaintiff’s Affidavit to the effect that the operation was the sole effective cause of his condition of severe urinary incontinence in all its aspects. 

12.  In support of his submissions, he cited the statements of principle made by Stuart-Smith LJ at §20 of his judgment in Holtby v Brigham & Cowan (Hull) Ltd [2000] ICR 1086 at pp.1094-1095 :

“… as the passages cited from [Bonnington at p.620, McGhee v National Coal Board [1973] 1 WLR 1, 11-12, Wilsher v Essex Area Health Authority [1988] AC 1074, 1090] show, the onus of proving causation is on the claimant; it does not shift to the defendant. He will be entitled to succeed if he can prove that the defendant’s tortious conduct made a material contribution to his disability. But strictly speaking, the defendant is liable only to the extent of that contribution. However, if the point is never raised or argued by the defendant, the claimant will suceed in full as in Bonnington Castings Ltd v Wardlaw [1956] AC 613 and McGhee v National Coal Board [1973] 1 WLR 1 … strictly speaking the defendant does not need to plead that others were responsible in part. But at the same time I certainly think it is desirable and preferrable that this should be done. Certainly the matter must be raised and dealt with in evidence, otherwise the defendant is at risk that he will be held liable for everything. In reality I do not think that these cases should be determined on onus of proof. The question should be whether at the end of the day, and on consideration of all the evidence, the claimant has proved that the defendant is responsible for the whole or a quantifiable part of his disability. The question of quantification may be difficult and the court only has to do the best it can using its common sense … Cases of this sort, where the disease manifests itself many years after the exposure, present great problems, because much of the detail is inevitably lost … But, in may view, the court must do the best it can to achieve justice, not only to the claimant but also to the defendant, and among defendants.

And, at p.1096, para 23 :

… it is said by Mr May that there is no evidence to … justify the deduction of 25%.  I do not agree.  Although it is only a question of nomenclature I think Mr Goldstaub is right when he submits that it is not so much a question of apportionment between tortfeasors as one of proof of causation in respect of a quantifiable part of his disability by the claimant against the defendant; and further it was not so much a question of discounting the full liability figure, as counting the proportion attributable to the defendant.”

13.  Mr Coleman also relied on §20 on p.952 of the judgment of the Court of Appeal in Allen v British Rail Engineering Ltd [2001] ICR 942 that was delivered by Schiemann LJ :

“20. In our judgment the case law as it now stands establishes five propositions of which the first is concerned with liability and the others with quantifying damages. (i) The employee will establish liability if he can prove that the employer’s tortious conduct made a material contribution to the employee’s disability. (ii) There can be cases where the state of the evidence is such that it is just to recognise each of two separate tortfeasors as having caused the whole of the damage of which the claimant complains; for instance where a passenger is killed as the result of a head-on collision between two cars each of which was negligently driven and in one of which he was sitting. (iii) However in principle the amount of the employer’s liability will be limited to the extent of the contribution which his tortious conduct made to the employee’s disability. (iv) The court must do the best it can on the evidence to make the apportionment and should not be astute to deny the claimant relief on the basis that he cannot establish with demonstrable accuracy precisely what proportion of his injury is attributable to the defendant’s tortious conduct. (v) The amount of evidence which should be called to enable a judge to make a just apportionment must be proportionate to the amount at stake and the uncertainties which are inherent in making any award of damages for personal injury.”

14.  I agree with these statements, which are also applicable to a case such as the present where a tortfeasor asserts that the plaintiff’s condition is partly caused by some pre-existing disease or disability.  Whilst the two passages quoted above speak of competing causes between two or more different tortfeasors, the statements of principle expressed in them would also apply to a case of a pre-existing condition or disability.  The courts often have to determine to what extent the plaintiff’s current condition was caused or contributed to by the tort complained of and to what extent his current condition was caused or contributed to by his pre-existing illnesses or degenerative changes.  Mr John Bleach SC did not take issue with these propositions and readily conceded that the question of causation was alive at the assessment of damages.  I find that Mr Coleman’s concerns are unfounded.  The court assessing damages in this case would have to determine whether the operation was the sole effective cause of the plaintiff’s condition of very severe urinary incontinence, in all its aspects, which is the plaintiff’s case, or whether, the urgency incontinence would have occurred around 2008, or shortly thereafter, even if the plaintiff had not had the operation, which was the opinion of Dr Lo in §30 of his report and is the defendant’s case.

15.  Mr Coleman also submitted that causation is part of the issue of liability and is not something to be left to be determined at an assessment hearing.  He submitted that causation was a question to be dealt with as part of the analysis of the alleged lilability and, given the dispute on causation, that it would be inappropriate to enter judgment on liability now on the plaintiff’s pleaded case alleging that his urinary incontinence was entirely caused by the operation.

16.  I agree that the traditional way of thinking was that issues of negligence and issues of causation were matters to be tried in the course of a trial on liability.  However, issues of causation are commonly dealt with in an assessment of damages.  In my judgment, once it is admitted that there was a negligent act or omission that caused some damage, then the court can enter interlocutory judgment for damages to be assessed and the court assessing those damages would have to undertake the task of determining the extent of the loss and damage that flowed from the admitted negligent act or omission and whether or not the loss and damage actually caused or contributed by the admitted negligent act or omission exceeded the admitted damage.  In the course of argument, I postulated the example of a man who had suffered 2 broken legs and sued the defendant who only admitted that he had broken one of the legs, but not the other. Arguably, in such a case, the issue of responsibility for the second broken leg is a liability issue and not a quantum issue.  However, the present case was akin to a case where the defendant has admitted that he had negligently caused the plaintiff’s leg to fracture but where he also asserted that, because the plaintiff’s leg was so weak and fragile, it would have fractured by itself in a matter of months and that, therefore, any damage the defendant had caused was very limited.

17.  In the course of submissions, I asked what I could do if I had before me a plaintiff who was so upset about what had happened to him that he did not care that the defendant had made an admission that would have enabled him to obtain interlocutory judgment for damages to be assessed, and who wanted his day in court in order to complain about each and every particular of negligence that he believed had occurred, and whether my powers of case management were sufficient to enter interlocutory judgment for damages to be assessed and to bring to an end the proceedings on liability in such a case.  Understandably, Mr Coleman suggested, and I agreed, that the question ought to be answered on the occasion when it actually arose.

18.  In this case, the plaintiff was right to seek a judgment on admissions because he had received the critical admissions that without the negligent advice the operation would not have taken place and that, without the operation, the stress continence would not have occurred. Armed with these admissions, he can recover damages for all loss and damage caused or contributed to by the operation and it is not necessary for the plaintiff to prove that the operation was performed negligently before he can recover such damages.  It would have been more difficult to accede to the plaintiff’s application if the defendant had not admitted that the operation had caused the stress continence and had only admitted that the negligent advice caused the plaintiff to undergo the pain and discomfort of the operation.  Although I do not have to decide this point, I would incline to the view that the latter admission would constitute a sufficient admission of damage to enable interlocutory judgment to be entered for damages to be assessed.  The court assessing those damages would then have to determine what, if any, additional damage was caused by the operation.  The concern that a master should not be burdened with the difficult task of determining complex issues of medical causation can be allayed by the court directing, in the exercise of its case management powers, that the assessment of damages should be conducted by a judge, just as I have directed, in the present case, that the assessment be listed before me.

19.  As I have entered judgment on admissions, the alternative relief claimed for Order 14 judgment to be entered falls away, as does the application, in the further alternative, for a split trial.