KONG WAI TSANG v. HOSPITAL AUTHORITY

FACV No. 16 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 16 OF 2005 (CIVIL)

(ON APPEAL FROM CACV NO. 76 OF 2004)

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Court: Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Sir Noel Power NPJ and Lord Woolf NPJ

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J U D G M E N T

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Mr Justice Bokhary PJ:

1.  These are our reasons for the result announced at the conclusion of the hearing of this appeal which shows what care must be taken to avoid striking out a pleading curable by amendment.  We keep these reasons brief to avoid the risk of saying anything that might prejudice the trial of the action which we have reinstated.

2.  The case arises out of a tragic event.  On 25 January 2002 a teenaged girl died at the hospital where she was receiving medical treatment.  Her mother, as the personal representative of her estate, commenced an action on 11 November 2002 against the Hospital Authority (“the Authority”) which operates that hospital, among many other hospitals.  Originally the claim was based on an allegation of negligent treatment, namely that the attending doctors had been negligent in their treatment of the daughter thus causing her death.  Then on 18 July 2003 the mother took out a summons for leave to amend her Statement of Claim by adding negligent failure to warn as an basis of claim.  The essence of this basis of claim is that (i) the attending doctors had negligently failed to warn the family of the adverse side-effects of the drug which they were administering to the daughter in increased dosages; (ii) the family would not have agreed to the use of that drug or the increased dosages if they had been so warned; and (iii) the drug caused the daughter’s death.

3.  As things turned out, no order was made on that summons to amend.  It was overtaken when, at a checklist hearing on 10 December 2003, Master Kwan acceded to the Authority’s application that the mother’s Statement of Claim be struck out and her action be dismissed on the ground that the medical reports before the court disclosed no reasonably arguable case of any negligence.  The Master’s decision striking out the Statement of Claim and dismissing the action was affirmed by Suffiad J whose decision was in turn affirmed by a two-member division of the Court of Appeal (Rogers VP and Le Pichon JA). 

4.  After the Court of Appeal refused the mother leave to appeal to us, she went to the Appeal Committee for such leave.  The Appeal Committee considered it plain beyond reasonable argument to the contrary that there is indeed no reasonably arguable case of negligent treatment, but granted the mother leave to appeal to us to seek the reinstatement of the action for her to plead and pursue a case of negligent failure to warn. 

5.  The availability of negligent failure to warn as a basis of claim is widely recognised.  It was recognised by the Supreme Court of Canada in Reibl v. Hughes (1980) 114 DLR (3d) 1, the High Court of Australia in Rogers v. Whitaker (1992) 175 CLR 479 and the House of Lords in Chester v. Afshar [2005] 1 AC 134.  Even so, it represents what is very much a developing area of the law.  As such, it is an area in which it is somewhat more difficult than usual to form a confident pre-trial view, one way or the other, of a claim’s prospects of success.  And, as we have seen, the mother has not yet been afforded a trial.  Very properly the Authority did not dispute that the mother’s negligent failure to warn claim is reasonably arguable.  It did, however, put forward an argument which it invited us to consider for the purposes of deciding (i) whether the appeal should be allowed and (ii) what should be done about costs even if the appeal were allowed. 

6.  Shortly stated that argument is that the mother’s negligent failure to warn claim was abandoned when the oral submissions presented on her behalf to Suffiad J and the Court of Appeal were confined to negligent treatment.  We do not think the evidence shows any such abandonment although the emphasis in argument below lay heavily on the negligent treatment issue.  Justice between the mother and the Authority does not call for her to be defeated on that basis.  The action has yet to be tried, and the Authority’s opportunity to meet the negligent failure to warn claim is intact.

7.  There remains, before coming to costs, the issue of what particulars the mother should be permitted to plead in support of her negligent failure to warn claim.  For that purpose she wishes to amend her Statement of Claim in terms of the draft annexed to her printed case.  The Authority submitted that if her action were reinstated and she were permitted to amend, that should be in terms of her draft except for items (g) and (h) of the particulars to paragraph 15 of that draft, which items read:

“(g) Failing to familarise themselves with the Drug, in particular, its documented or possible side-effects, risks inherent in or associated with its use on patients suffering from SLE or exhibiting symptoms of leukopenia and thrombocytopenia, so as to discharge their duty to give proper advice or warning.

(h)   Failing to observe and analyse the signs and symptoms of Cheung Kong’s condition and her past medical history so as to discharge their duty to give proper advice or warning.”

The Authority’s objection to those items is well founded.  Neither item is necessary to a negligent failure to warn claim.  Both items stray towards alleging negligent treatment

8.  It is for the foregoing reasons that we allowed the appeal, reinstated the action and granted the mother leave to amend her Statement of Claim in terms of her draft except for items (g) and (h) of those particulars.  In so doing we made two consequential procedural directions proposed by the Authority and accepted by the mother.  These directions give the Authority 28 days from the service of the Amended Statement of Claim to file an Amended Defence and the mother 21 days thereafter to file and serve a Reply (if any). 

9.  After announcing that result, we heard the parties on costs, and then announced our decision on costs, as follows.  The mother do have her costs of the appeal to us and of the applications to the Court of Appeal and the Appeal Committee for leave to appeal to us.  She do have half of her costs of the proceedings before the Master and of the appeals to Suffiad J and the Court of Appeal flowing from those proceedings.  And the costs of the action so far not covered by any specific order be costs in the cause of the action.

10.  We consider those costs orders just in all the circumstances including in particular the following facts.  On the one hand, the mother had to come here for the reinstatement of her action which had been wrongly dismissed on the Authority’s application.  But, on the other hand, such reinstatement is limited to pleading and pursuing a negligent failure to warn claim.