MICHAEL CHARLES LEONARD v. JULIAN WEI CHANG

HCPI 959/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 959 OF 2003

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J U D G M E N T

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1.  The plaintiff, a former professional goalkeeper, claims damages which he is said to have suffered as a result of negligent treatment rendered to him by the defendant, an orthopaedic surgeon.  Both the issues of liability and quantum fall to be determined.

Liability

2.  The allegations of negligence set out in the Statement of Claim encapsulate the comparatively narrow time span during and the circumstances in which it is alleged liability arose:

“The defendant was negligent and in breach of contract in that he failed to use a reasonable skill, care, diligence and competence in his attendance, management and treatment of the plaintiff.

Particulars

i.	On the 17 October 2000 failing to notice or observe that the plaintiff presented symptoms of septic arthritis;
ii.	Failing to properly investigate the plaintiff’s symptoms on 17 October 2000 or in time or at all;
iii.	Failing to immediately aspirate the right knee and test the turbid fluid for culture, sensitivity, microscopy for crystals and Gram stain;
iv.	Instituting intravenous antibiotic treatment without first aspirating the need with the result of suppressing the infecting bacterium thereby preventing identification of the bacterial organism staphylococcus aureus;
v.	On 18 October 2000 failing to perform gram stain case when aspirating the knee;
vi.	Performing or causing to be performed arthroscopic surgery too late on 19 October 2000 when it should have been performed by 18 October 2000 at the latest;
vii.	Failing to perform arthroscopic surgery on 17 October 2000 whereby 18 October 2000 at the latest;
viii.	In all the circumstances failing to give the plaintiff appropriate attendance, management and treatment, with which he would have made a full recovery from septic arthritis and been able to resume playing full-time professional football no later than November 2000.”

The Witnesses

3.  In addition to the plaintiff, one expert witness, Mr Derek Bickerstaff, consultant orthopaedic surgeon, testified as an expert on his behalf.  The medical records of Canossa Hospital were formally produced by a third witness.  The manager of the football team for which the plaintiff played gave evidence in regard to the plaintiff’s performance and potential future employment.  The witness statement of a fifth witness was agreed.

4.  The defendant testified on his own behalf and called, as an expert witness, Professor John C Y Leong, orthopaedic surgeon, Honorary Professor and formerly Head of the Department of Orthopaedics and Traumatology of the University of Hong Kong. 

5.  There was, in addition, a medical report prepared at the joint request of the plaintiff and defendant by Dr Barry Tietjens, orthopaedic surgeon, practising in New Zealand, who examined the plaintiff in October 2005.

6.  There was, understandably, no challenge to the expertise of either of the two expert witnesses.  Each was an impressive witness, obviously highly experienced in his field.  I am satisfied that each was sharing his knowledge and experience with the court with a view to facilitating the decision-making process rather than championing the cause of the party who called him.  Mr Bickerstaff’s field of speciality is knee and ankle surgery: he testified that he performs some 500 to 600 operations a year of which the overwhelming majority are on knee joints.  Professor Leong had a more general experience with some 50% of his practice relating to the spine, 25% to children and 25% to general orthopaedics:  he pointed out, however, that as a teacher/trainer he performed comprehensive ward rounds on a regular basis and that it was incumbent upon him to keep up-to-date with the latest techniques and developments.

7.  It was plain that each adopted a different approach to the early stages of diagnosis and resulting treatment:  where even a differential diagnosis of septic arthritis is indicated Mr Bickerstaff favoured the earliest possible intervention, stressing what he saw as the urgency of the situation given the pernicious nature of the infection; Professor Leong advocated what I would describe as a less interventionist approach, rejecting the suggestion that was put to him that even a suspicion of septic arthritis is sufficient to trigger immediate surgical intervention, preferring to have greater certainty in the diagnosis before determining the precise course to follow. 

8.  Each acknowledged that there exist two viable courses: the options may be summarised as being either repeated aspiration of the joint or lavage of the joint, ideally by way of arthroscopy.  Indeed, acceptance of these alternative courses appears from the medical literature presented by the plaintiff:  see, for example, Orthopaedic Surgery – Nugent, Ivory & Ross, Bios Scientific Publishers Ltd.

“Repeated aspiration of subcutaneous joints has been recommended as a safe procedure  in children over 1 year of age and in adults.  If the response is not favourable in 24-48 hours then arthrotomy is indicated.  This regime may avoid unnecessary arthrotomy.  Arthroscopic washout of the joint in adults is popular but may have a higher recurrence rate.”

and Turek’s Orthopaedics Principles and Their Application – Weinstein & Buckwalter, 6th edition, Lippincot Williams & Wilkins, p. 386

“Drainage may be performed by needle aspiration, arthroscopy or formal arthrotomy.  Authors disagree about which method is best… A trial of needle aspiration in joints other than the hip is probably warranted, but if no signs of improvement are seen within 24 – 48 hours, arthroscopy or open surgical drainage should be performed.”

9.  There was agreement that either course would be accompanied by the administration of antibiotics in order to combat the infection itself.  It was Mr Bickerstaff’s position that an antibiotic regime should only be started after the knee joint had been aspirated for analysis whilst Professor Leong testified that, in the circumstances of this matter given the way the plaintiff presented to the defendant, it was proper to commence immediately with antibiotics.

10.  Mr Bickerstaff firmly favoured the lavage approach expressing the view that this was a simple and straightforward procedure which had minimal risk with maximum benefits.  He accepted that repeated aspiration could be an alternative approach but is one which is more appropriate in the case of children rather than adults: it was an approach which he plainly did not favour, falling not far short of rejecting it entirely, coming down strongly on the side of lavage.  He made reference to a number of medical texts which were supportive of the views he expressed.

11.  Professor Leong did not appear to regard either course as almost always the preferable course to follow.  The tenor of his evidence was that either course may be a feasible option and that the decision as to which to pursue would depend entirely upon the circumstances pertaining to the individual patient.  He, too, made reference to a number of medical texts which were supportive of the views he expressed.

12.  Where they were in agreement was that each would make his decision on a case-by-case basis depending, primarily, upon the manner in which the patient presented clinically as well as, secondly, the results of any tests.  In essence they were in agreement that the result of any one test would be unlikely to be definitive, especially where the result itself was negative, but that in arriving at a diagnosis and consequent course of treatment it would be necessary to consider the totality of the information available.  That appeals as a realistic and commonsense approach.

13.  Given the commonality of their evidence, it is necessary to determine just how the plaintiff presented to the defendant on 17 and 18  October 2000.  Certainly insofar as 17 October is concerned, there is considerable dispute of fact between the plaintiff and the defendant which it is necessary to resolve.

14.  Mr Bickerstaff’s position is that if the plaintiff presented to the defendant on 17 October in the manner in which the plaintiff claims, a reasonable and competent orthopaedic surgeon in the position of the defendant would have immediately apprehended the potential of septic arthritis and would have followed a course very different from that followed by the defendant.  He went on to say that even if the plaintiff had presented in a somewhat different manner he still would have pursued the septic arthritis line and intervened surgically at, at latest, the morning of 18 October.  It was his opinion that the reasonable and competent surgeon would always treat for a “worst-case scenario” which was septic arthritis.

15.  Professor Leong’s approach differed.  He expressed the view that having been presented with a patient in a condition as described by the defendant the reasonable and competent surgeon would have acted just as did the defendant by commencing an intravenous antibiotic regime, monitoring the patient’s condition and obtaining the results of various tests before deciding upon further treatment. 

16.  There is an additional feature in this matter.  The defendant was scheduled to leave Hong Kong early on the morning of 18  October.  The plaintiff fairly acknowledges that he was told this at some stage on 17 October and appreciated that his care would be handed over to another orthopaedic surgeon, Dr P C Lee.  This is what happened. 

17.  It is effectively the defendant’s case that on 17 October the plaintiff presented with insufficient signs to justify surgical intervention but when he saw him on the morning of 18 October the plaintiff’s condition had sharply deteriorated.  He then performed an aspiration of the knee joint and dispatched the aspirate for analysis.  As he was leaving Hong Kong very shortly thereafter and as the patient would be under the care of Dr Lee he regarded the future course of treatment as Dr Lee’s decision.  Dr Lee saw the plaintiff early on the morning of 18 October.  He decided to perform an arthroscopy on the evening of 19 October.  There is thus no question of the defendant having decided to follow either of the recognised courses.

The Test

18.  It is common cause that the test to be applied to the issue of negligence, generally, is that as set out in Bolam v Friern HospitalManagement Committee (1957) 1 W.L.R. 582 where appears, at p. 586,

“... where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of the Clapham omnibus, because he has not got this special skill.  The test is the standard of the ordinary skilled man exercising and professing to have that special skill.  A man need not possess the highest expert skill;  it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”

with the further observation at p.587

“... he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.... putting it the other way round, a man is not negligent if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.  At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion.”

19.  In Maynard v Midlands Regional Health Authority [1984] 1 W.L.R. 634 the following appears at p.639

“... in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another.  Failure to exercise the ordinary skill of a doctor (in the appropriate speciality, if he be as specialist) is necessary.”

20.  The expert witnesses, as well as the defendant, expressed the view that the decision on the form of treatment to be applied involved an assessment of competing risks.  This is dealt with in Bolitho v City and Hackney Health Authority [1998] AC 232, approving BOLAM, in the following terms at p.243

“... in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant’s conduct, the defendant can properly be held liable for negligence...  In my judgment that is because, in some cases, it cannot be demonstrated to the judge’s satisfaction that the body of opinion that relied upon is reasonable or responsible.  In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion.  In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions.  But if, in a rare case it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.

I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by competent medical experts are unreasonable.  The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence.... It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant’s conduct falls to be assessed.”

The Background

21.  Much of the background material to the days upon which the defendant was alleged to have been negligent is not in dispute.  It is worth relating in a little detail as it demonstrates the history of the relationship between the plaintiff and defendant and, thus, the defendant’s knowledge of the plaintiff’s condition at the time of the alleged negligence:

21.1  in around 1992 the plaintiff underwent an arthroscopy on his right knee joint in the United Kingdom; 

21.2  the plaintiff first consulted the defendant for an unrelated injury in November 1997;

21.3  the plaintiff again consulted the defendant on 10 April 2000 with the complaint that since playing a game of football on 6 April  he had suffered pain in the right knee.  On examination the defendant observed, inter alia, that there was “effusion +” in the right knee. The defendant concluded that the plaintiff was suffering from osteoarthritis of the lateral compartment of the right knee with a possibility of a lateral meniscus tear.  He gave the plaintiff an intra-articular injection and prescribed oral anti-inflammatory medication;

21.4  the plaintiff again consulted the defendant on 12 May 2000 with a similar complaint: a further intra-articular injection was administered.  On this occasion the defendant observed what he recorded as “? cystic lesion” on the right knee joint which he recorded and sketched in his notes;

21.5  the plaintiff again consulted the defendant on 9 August 2000 complaining of another injury to his right knee.  During this consultation he referred to an MRI scan of the right knee.  On examination the defendant observed, inter alia, “more swelling” in the right knee joint.  The plaintiff declined an operation, aspiration of the joint, advised by the defendant.  A further intra-articular injection was administered;

21.6  the plaintiff consulted another doctor but found that the waiting list for surgery in a government hospital by that doctor was not to his liking. The plaintiff again consulted the defendant on 27 September 2000 indicating no improvement to the condition of the knee.  The defendant recommended an arthroscopic examination of the right knee joint under general anaesthetic to which the plaintiff agreed;

21.7  on 3 October 2000 the plaintiff was admitted to the Hong Kong Adventist Hospital as a day patient.  The defendant performed an arthroscopic chondroplasty and a partial lateral meniscectomy of the plaintiff’s right knee. The plaintiff was discharged the same day;   and

21.8  on 7 October 2000 the defendant examined the plaintiff. 

22.  There are two areas of conflict in the evidence in regard to events on 7 October.  The plaintiff says that on that occasion he noticed an egg-like swelling on one of the portal sites and questioned the defendant about this: the defendant had replied that this was normal.  The plaintiff further says that he was told that he should commence isotonic and isometric exercises as well as using a static bicycle.

23.  The defendant’s recollection of that consultation is that he found no swelling or pain in the right knee joint.  The arthroscopic portals all appeared healthy.  The right knee had a full range of movement.  The dressing was changed. 

24.  The defendant maintained personal notes in regard to his various consultations with the plaintiff.  On 7 October there is an entry “Start isometric and isotonic exercises”:  It was his evidence that he did not tell the plaintiff to start using a static bicycle, nor is it his practice to make such a suggestion at that stage of recovery to a patient who has undergone this type of surgery.  He testified further that he had told the plaintiff to return in a stipulated period whereupon he would reconsider the question of whether the plaintiff could resume visiting a gymnasium: this evidence is supported by his note which reads, in part, “Return 2/21 -> ? light gym”.  It was further the defendant’s evidence that had the swelling described by the plaintiff been present not only would he, the defendant, have noticed it but he would have noted it. 

25.  It is fair to say that in many instances the plaintiff was uncertain or unclear in his evidence:  it seems to me probable that he has confused the suspected cystic lesion observed in the consultation on 12 May 2000 as having been something else observed on 7 October.  I accept the evidence of the defendant in regard to the events on 7 October. 

26.  No complaint is made by the plaintiff about any of the treatment he received from the defendant up to this stage. 

17 October 2000

27.  The plaintiff says that on the 15 October he attended a football match in which the team for which he usually played as a goalkeeper was participating.  It is worth saying at this stage that the plaintiff had originally related, in his witness statement, that this occurred on 16 October.  He has now testified, and I accept, that he was simply in error about that date, that he has checked the date of the match and that he has ascertained the correct date to be 15  October.  I accept this explanation.

28.  On the topic of dates, there are several entries in the notes made by the defendant which have been altered.  It was his evidence that each alteration was made simply so as to correct an error, that there is nothing sinister in the alterations.  I accept this explanation.

29.  The plaintiff says that he attended the match on 15 October purely as a spectator.  During his attendance he felt a popping sensation in his right knee.  He observed a trickle of fluid emerging from under the dressing.  He approached a physiotherapist who was in attendance with the football team.  The dressing on his right knee was changed.  His evidence was that, after this occurrence, he had no further problems until 17 October: if anything, he generally felt “better”.

30.  However, when he awoke on the morning of 17 October he felt “quite ill”.  His knee was very inflamed and swollen, “considerably inflamed”.  He felt like he had influenza, feeling hot and sweaty.  He telephoned the defendant’s rooms and was advised to go there.  Such was his condition that when he was on the ferry from Discovery Bay, where he lived, he was unable to bend his knee to sit.  His feeling of influenza worsened and he walked only with considerable difficulty.  He then walked from the ferry terminal adjacent to the Star Ferry on Hong Kong Island to St George’s Building where the defendant practiced.  This walk, which usually would take him approximately five minutes, took between 30 and 40 minutes.  Why he chose to walk did not emerge in evidence.

31.  His evidence was that upon his arrival he spoke to a member of the staff of the defendant who looked at his knee:  she appeared to be shocked by what she saw.  She took him into a side room where he lay on a couch and the defendant was summoned to see him.  The plaintiff described his condition at that stage as being feverish, hot and sweaty with his knee being red and inflamed and swollen, all around, by some 7.5 cm as indicated in court.  His presentation formed one of the important bases of the opinion expressed by Mr Bickerstaff.  The defendant came into the side room and examined him.  In his witness statement the plaintiff said that the defendant had “injected [his] right knee”:  in cross-examination he accepted that this was not correct but claimed that the injection had been into the mid portion of the front of his thigh. 

32.  It was the defendant’s evidence, which was not challenged in cross-examination, that the injection had been administered into the upper right buttock of the plaintiff.  I accept that evidence.  Whilst this aspect may not go directly to liability, it does further illustrate the inaccuracy of the plaintiff’s rendition of events:  he may well have confused this incident with the treatment rendered to him on 10 April, 12 May or 9 August 2000.

33.  It is the defendant’s case that whilst he accepted that the plaintiff had said he was in pain and whilst he apparently had difficulty in walking his general appearance, and the appearance of his right knee in particular, was far from that claimed.  Again, the defendant makes reference to his contemporaneous note.  This records the fact that the plaintiff had been “doing well” until what is recorded, erroneously, as 14 October when there was a discharge from a portal. 

34.  The plaintiff’s condition on 17 October is specifically recorded by the defendant as “Without fever. Self dressing.  Pain ++.  Unable to walk.”   It must be, because of what appears next in the note, that, as the defendant says, these entries relate to what he was told by the plaintiff.  Next appears

“Exam[ination]:  trace effusion right knee:  swelling and erythema anterolateral portal: without fever: range of movement ↓↓ because of pain: Voltaren 75 mg. IMI.  Admit for IV antibiotics/analgesic”.

35.  The defendant testified that when he used the expression “trace effusion” what he was conveying, for his own later reference, was that whilst there was something notable about the knee joint he was uncertain as to whether there was actually an effusion as opposed to, for example, inflammation of the synovium.  Both expert witnesses accepted that the symbols and expressions used by medical practitioners when recording observed or related symptoms, such as these, are peculiar to the medical practitioner concerned, do not conform to any recognized system and are not intended as any formal quantification.  The defendant’s entry of ”effusion +” relating to the examination on 10 April 2000 highlights the distinction he relates.

36.  Mr Bickerstaff testified that what he understood to be meant by “trace effusion” was that there was a small but palpable quantity of fluid in the knee joint.  He opined that this fluid would be detectable by touch and, by inference, capable of aspiration.  However, he accepted that “…if one were to stand and just look, superficially look at a knee, it might not be immediately evident that the knee was swollen.”.  The plaintiff’s description of his condition and the staff member’s reaction is entirely inconsistent with this evidence.

37.  It was suggested to the plaintiff that after his arrival at the defendant’s rooms a nurse had taken his temperature and found it to be within the normal range.  The plaintiff was unable to recall that having been done but accepted that it may have been the case.  The defendant’s evidence was that the entry “no fever” under the heading “Exam[ination]” in his notes related to the taking of that temperature.  Thus, not only had the plaintiff himself related that he had not suffered from any fever but no elevated temperature had been detected.

38.  There are several other aspects of the evidence which relate to the plaintiff’s condition on 17 October.  Firstly, in his medical report dated 28 May 2002 Mr Bickerstaff relates “[The plaintiff] also tells me that since the surgery he had a flu-like illness, which he thought was mild and did not think anything unusual”:  Mr Bickerstaff confirmed that the reference to “the surgery” was a reference to the arthroscopy on 3 October 2000.  Plainly this evidence is at variance with the plaintiff’s testimony to the effect that the feeling of influenza started on 17 October. 

39.  Secondly, when the plaintiff was admitted to Canossa Hospital shortly before 17h00 on 17 October a nursing assessment record was completed: this shows his “general condition” as “satisfactory”; his temperature was recorded as 36.5°C;  his skin was described as “normal” as opposed to other conditions including “sweating”. 

40.  Thirdly, the “Doctor’s Clinical Notes” of Canossa Hospital as completed by the defendant when he saw the plaintiff post-admission on 17 October bear the entry “without fever chills”:  whilst a fever may be measurable by a raised temperature fever chills are a subjective assessment by a patient.  It was the defendant’s evidence that it was the plaintiff himself who had conveyed to him that he had not experienced fever chills.  Moreover, those same notes contain an entry relating to the defendant’s visit to the plaintiff on the morning of 18 October which commences with the words “remained afebrile” which, given that the defendant’s visit was at approximately 06h30, is largely supported by the temperature chart maintained by Canossa Hospital.  Whilst I acknowledge that that temperature chart does thereafter show a spiking pattern, that obviously would not have been information available to the defendant on 17 or 18 October.

41.  There is a common theme to be found in the various medical works to which reference was made by one or other of the witnesses as to what may be expected to be observed in a patient with septic arthritis.  As an example, Orthopaedic Surgery, supra, refers to “The classical signs of fever, erythema, effusion and severely restricted range of movement…” although there is the observation that those signs may be masked in the elderly or those on steroid therapy whilst other works made it clear that some of the signs may be absent.  Apsley’s Concise System of Orthopaedics and Fractures – Solomon, Warwick & Nayagam, 3^rd edition, Oxford University Press describes the “typical features” of a patient presenting with septic anaemia as “... acute pain and swelling in a single large joint... The patient becomes ill, with a rapid pulse and swinging fever... The skin looks red, the joint is held flexed and it is swollen.  There is superficial warmth, diffuse tenderness and fluctuation.”

42.  I accept the evidence of the defendant as the plaintiff’s condition on 17 October.  I am satisfied that the notes which he made accurately reflect the plaintiff’s condition when the plaintiff consulted him.  I find that whilst there may have been a “trace effusion” present in the plaintiff’s right knee joint that joint was not red and grossly inflamed as suggested by the plaintiff.  I find that the visible condition of the plaintiff’s knee was not such as to have caused the defendant and/or one of his staff members to appear shocked.  I further find that the plaintiff had no detectable fever and told the defendant that he had not had a previous fever.

43.  I  return to the events of 17 October.  The plaintiff testified that after the defendant had administered the injection in the side room, the defendant visited him there on several occasions.  The defendant says that, at this stage, all physical findings were confined to the outside of the knee joint around the anterolateral portal:  the wound was dry, with no discharge.  It was his evidence that at this stage he was of the view that the plaintiff had “at least” a wound infection: he considered that the plaintiff had a “significant” infection and was concerned that it may spread - either to the knee joint, which he recognised as a possibility, or into the blood - so decided to admit the plaintiff to hospital where the problem could be treated and tests conducted.  Late in the afternoon the plaintiff was transported to Canossa Hospital by ambulance where he was admitted close to 17h00. 

44.  The plaintiff’s evidence was that, that afternoon in the defendant’s rooms, the defendant had said to him words to the effect that this was the first occasion upon which he had seen such an infection following upon an arthroscopy.  It was the defendant’s evidence that whilst he had passed such a comment, for it was so, this had been only on 23 October after his return from Sydney and once it was apparent that there had been infection internal to the knee joint.  Given the plaintiff’s general unreliability of memory, I accept the defendant’s version.

45.  When arranging the plaintiff’s admission to hospital the defendant described his diagnosis as “septic right knee”.  Mr Bickerstaff adopted the position that was this was not a specific, medically recognised term but that it only could mean the presence of septic arthritis.  With respect, I am of the view that that approach is too categorical. The defendant’s testimony was that, at that stage, he knew that he was dealing with at least a portal wound infection but was not certain of the focus of infection.  By using the expression he was seeking to convey an infection “… about the knee” but external to it.  He chose this expression to indicate the area of the problem, rather like one may use the expression “lower back pain”.  I accept that.

46.  The defendant was cross-examined about one particular paragraph, 20, of his witness statement which reads

“At that stage, my opinion was that Mr Leonard had a septic right knee: the differential diagnosis was Mr Leonard had a superficial portal wound infection with or without a septic arthritis.”

47.  This paragraph was invited to his attention when, during cross-examination, he had testified that what he was dealing with at that stage was “…a significant wound infection.” and said “…there weren’t [sic] any other differential diagnosis at that point…”.  His response to this was to testify that his “... first informal diagnosis was the established facts were he had a wound infection.  [He had] no evidence that he had a septic arthritis.”  When he was questioned as to whether his differential diagnosis was, rather, superficial portal wound infection his response was “Right.  It was an infection about the knee, which means I don’t know the extent of that infection both lengthwise and depth wise, all right?  So you have to consider how deep the infection has penetrated.”  He went on to deny, when it was specifically put to him, that he had considered the possibility of septic arthritis on the afternoon of 17 October, going on to explain that by the expression “with or without” he was indicating that he did not want the infection to go into the joint.  In the circumstances, that was not entirely satisfactory answer but, overall, I am satisfied that the defendant was a reliable witness.

48.  It is not in dispute that upon the plaintiff’s admission to hospital the defendant requested that blood tests be conducted:  these were a “Complete Blood Picture” and “Erythrocyte Sedimentation Rate”.  These were carried out.  He testified that because there was no discharge from the portal wound it was not possible to obtain material for a culture.  The defendant also prescribed the administration of intravenous antibiotics together with various other drugs, including pethidine, which was done.  The defendant visited the plaintiff in Canossa Hospital at approximately 19h00 that night.

49.  Three specific complaints are made about the defendant’s conduct up to this stage.  These are, firstly, that he failed to observe or diagnose on 17 October that the plaintiff had septic arthritis:  the basis of the plaintiff’s case for this complaint is his claimed presentation to the defendant which I have indicated I do not accept, as a consequence of which I find no substance in this allegation; secondly, that he failed to aspirate the plaintiff’s right knee; and, thirdly, that he commenced a regime of antibiotic treatment prior to aspirating the right knee.

50.  Insofar as the issue of aspiration of the right knee is concerned, the defendant’s evidence is that at that stage he was unsure whether in fact fluid was even present in the knee joint.  It was his evidence that, because of this, he was unwilling to make an attempt to aspirate the knee.  He gave as his main consideration for this stance, apart from a general reluctance to simply go poking about in the knee, the danger of introducing infection into the knee joint where none was proven to exist - when he was satisfied that there was positive evidence of infection external to the knee joint.  He was concerned about the danger of actually introducing infection.  He also wished to obtain the results of the tests which he had ordered earlier.

51.  The evidence of Mr Bickerstaff is to the effect that there would have been some fluid present if indeed there had been a trace effusion:  it was his evidence that approximately 5 ml of fluid would be sufficient aspirate upon which to perform the tests which he regarded as essential, particularly that known as a “Gram stain”.  However, it is right to say that Mr Bickerstaff regarded this particular test as being necessary where there was a possibility of the existence of septic arthritis:  his opinion seems to me to be predicated on an acceptance of the plaintiff’s version of his presentation, which I have rejected.

52.  Mr Bickerstaff was also critical of the defendant’s concern regarding the possible introduction of infection into the knee joint.  The defendant’s approach to this issue was supported by Professor Leong: each emphasised the desirability of avoiding any form of trauma to the knee joint with its associated risk, even though that risk may be comparatively low.  Mr Bickerstaff’s observation was that the external infection would not have spread sufficiently far as to have rendered unsafe aspirating the joint from a site away from the obvious infection.  That was contrary to the view of Professor Leong.

53.  Given the plaintiff’s presentation, the defendant’s description of which I accept, I am satisfied that the defendant’s decision not to attempt to aspirate the knee joint on the evening of 17 October was not negligent.

54.  Insofar as the commencement of the regime of antibiotics is concerned, Mr Bickerstaff was adamant that, absent being on what he chose to describe as “a desert island with absolutely no facilities”, it was his opinion that one should always aspirate prior to commencement of an antibiotic regime.  The reason for this, he contended, is that the antibiotics, if effective, may mask or otherwise affect the outcome of the tests conducted on any aspirate thereafter obtained. 

55.  It is necessary to bear in mind that the defendant, at this stage, was concerned with what he had concluded upon the plaintiff’s presentation as a wound infection.  He was concerned not only to conduct further tests but also to prevent the spread of that infection by the simple process of commencing antibiotics.  It was Professor Leong’s opinion, again supportive of that of the defendant, that the application of antibiotics at this early stage was an appropriate course to follow which would not adversely have affected the test results.

56.  The results themselves are somewhat equivocal.  It can be seen that although positive results were obtained from the cultures performed on the material obtained from the portal wound on 19 October, none was obtained at any stage on the material obtained during any of the several aspirations of the knee joint performed on the following days.  Mr Bickerstaff says that the absence of any positive results indicates the effect of the antibiotics whilst Professor Leong says that the positive results in respect of the portal wound indicate that the antibiotics had no effect on the results overall.

57.  None of the witnesses claims specialist ability in the field of microbiology.  On the evidence before me, I am unable to say that the plaintiff has established that it is more probable than not that the early application of an antibiotic regime would have adversely influenced the test results.  In my judgment, given the plaintiff’s presentation and the defendant’s initial assessment of his situation, the defendant was not negligent in commencing administration of antibiotics at that stage.

58.  Some considerable time was spent in cross-examination of the two experts and defendant in regard to the interpretation to be placed on the results of various tests.  I do not intend to traverse that in any detail as it seems to me that, in the end, there was not much difference in their respective positions.  They effectively agreed that where the results were positive they were indicative of infection - or, according to the defendant and Professor Leong, inflammation or infection - but a lack of positive results could not be taken as an indicator of an absence of infection.  They commonly held the view that the results of a test alone, in circumstances such as these, would not be definitive but would be simply part of the overall matrix upon which the diagnosis would be based with the plaintiff’s physical presentation being the overriding consideration.

18 October 2000

59.  The defendant was scheduled to depart Hong Kong on an early-morning flight on 18 October to Sydney.  He testified that he went to visit the plaintiff in hospital that morning, having visited several other patients.  The nursing notes, about which more later, show that this visit occurred at approximately at 06h30.

60.  The defendant does not dispute that by this time the plaintiff’s condition had changed markedly.  The notes which the defendant made at Canossa Hospital show Pain ++, WBC↑, ESR N, right knee effusion++, ↑  warmth, aspirated turbid greenish yellow fluid ?Gout.  The defendant sent the aspirate, some 60 ml, for analysis requesting a “Culture And Sensitivity Test” as well as a “Smear for organism” (or Gram stain).  When doing so he indicated that the plaintiff was already receiving antibiotics.  He also requested that additional tests be performed to see whether the plaintiff was suffering from gout or pseudo gout, conditions which, it appears, are able to coexist with septic arthritis.

61.  The first ground of negligence which deals specifically with 18  October alleges that the defendant was negligent in failing to order a Gram stain test to be performed on the aspirate.  This was a matter which attracted notable criticism by Mr Bickerstaff in his report.  It appears that Mr Bickerstaff may have been given erroneous information as it is quite plain that the defendant did request such a test.  There is no substance in this ground.

62.  Two further grounds of negligence are, effectively, two ways of stating the same complaint - that the plaintiff failed to do more than simply aspirate the knee and send the aspirate for analysis on the 18th October, rather than intervene surgically.  There is finally a comprehensive allegation of negligence that the defendant failed to give the plaintiff “appropriate attendance, management and treatment”.

63.  In regard to events on 18 October Mr Bickerstaff’s view was that the plaintiff’s condition had deteriorated so markedly overnight and that his presentation had changed so noticeably - neither of which is in dispute - that any reasonable and competent surgeon in the position of the defendant would immediately have performed a lavage at that stage.  He opined that the defendant should not simply have aspirated the knee and then awaited the results of the tests on the aspirate.

64.  When Professor Leong was being cross-examined regarding the aspirate he testified that a greenish yellow turbid aspirate could result from either an inflammatory condition or an infective condition whereas Mr Bickerstaff seemed to adopt the stance that that fact alone would indicate the presence of infection, specifically septic arthritis.  Professor Leong’s evidence accords with that of the defendant. 

65.  In cross-examination Professor Leong accepted that in the circumstances then prevailing he would regard there as being “… a high chance of infection ... in the joint”.  He was asked whether he would then immediately perform a lavage.  His response to this was

“I would like to... be sure about the [uric acid] crystals.  I would like to try to get a gram stain, but I would certainly tell the patient that there may be need for arthroscopy.”

That answer puts into context his subsequent answer “... at that stage, I would certainly advise a lavage”.  As is now known Dr Lee told the plaintiff precisely that on the afternoon of 18 October and performed that procedure on the late evening of 19 October.

66.  It was generally accepted that the result from a Gram stain test may be obtained quite quickly: Mr Bickerstaff suggested that it should be available in approximately 1 hour.  It was the defendant’s evidence that the result would be telephoned through to the ward when it became available:  it was his further evidence that he aspirated the knee but that the results would be made known to Dr Lee upon which Dr Lee would base his decision on how to further treat the plaintiff. 

67.  In my judgment it is then instructive to see the course adopted by Dr Lee who saw the plaintiff only some three hours after the defendant had seen him:  the defendant saw him at 06h30;  Dr Lee saw him at 10h00.  It is clear from the note that then appears on “Doctor’s Clinical Notes” of Canossa Hospital that by the time Dr Lee saw the plaintiff results were available in respect of, at least some of, the tests performed on the aspirate, which is supportive of the defendant’s evidence.  This appears from the entry “No uric acid crystals.  WBC= 51,000/mm^3”.  That note then goes on to read “Patient informed of possibility of septic arthritis and need for drainage operation”.

68.  No operation was performed by Dr Lee that day. 

69.  It seems he next saw the plaintiff at 09h00 on 19 October and directed that the then treatment, that is the antibiotics regime and monitoring of the patient’s condition, be continued but with the qualification that “If patient still complains of pain and swelling knee, may do knee aspiration this afternoon”.  At 14h00 there is a note that “Knee swelling persisted.  Knee pain persisted.”  There is a further note that at 15h00 Dr Lee had called, directed that the plaintiff be given nothing orally after 15h10 and “... may do some investigation tonight about 8 p.m. in O.T.”  At that time he performed an arthroscopic lavage.

70.  Whilst it is not, of itself, probative of any of the issues before me in this matter it is certainly notable that whilst the defendant’s conduct during the period of approximately 15 hours the plaintiff was under his care on 17 and 18 October is categorised as negligent, no criticism is made of the fact that Dr Lee only saw fit to perform surgery on the plaintiff on 19 October, some 34 hours after he had taken over the plaintiff’s care and at a time when, on any version, the plaintiff presented very differently and test results were to hand.

71.  Without having had the benefit of hearing evidence from him it seems that Dr Lee adopted a similar, less interventionist, course of management of the plaintiff as did the defendant.

72.  In view of

·	the defendant’s imminent departure from Hong Kong;
·	the plaintiff’s consent to treatment thereafter by Dr Lee;
·	the very short delay which would be necessitated by waiting for the test results which test results, or some of them, were actually available to Dr Lee when he saw the plaintiff;
·	the fact that it was known to the defendant that Dr Lee would be seeing the plaintiff very shortly thereafter;  and
·	Professor Leong’s evidence as to the acceptability of the course followed by the defendant

I am not satisfied that the reasonable and competent orthopaedic surgeon in the position of the defendant would have followed any other course.

73.  In the circumstances the plaintiff has failed to discharge the onus upon him to satisfy me on a balance of probabilities that, on the facts of this case, the defendant was negligent as alleged or at all.

74.  Where a plaintiff succeeds in proving a breach of duty of care the burden still lies upon him to establish that that breach caused the injury: Bonnington Castings Ltd. v Wardlaw [1956] A.C. 613; Wilsher v Essex Area Health Authority [1988] A.C. 1074.  Consequently, the issue of causation, particularly in the light of Dr Lee’s intervention, is an area into which I need not venture. 

Quantum

75.  I propose, for the sake of completeness, to indicate briefly the award I would have made had I been satisfied that the defendant were liable.

76.  In respect of PSLA the plaintiff has claimed $500,000.00.  Reference has been made to had a number of previous awards. In the interests of brevity I do not intend to repeat them.  I am conscious of the adjustments made in Chan Pui Ki v Leung On [1996] 2 HKLR 401 to the award levels as categorised in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657.  In my judgment, the appropriate award would be one of $300,000.00.

77.  Insofar as loss of earnings is concerned, I am satisfied that the plaintiff established that his average income at the time was $66,917.00 per month.  The defendant points to the plaintiff’s income-tax returns for the years 1997 to 2000 which shows an average income of $61,963.19 per month.  The plaintiff originally claimed that, with his acquisition of Hong Kong permanent residence, he would have had improved prospects and anticipated that his income would increase to be some $75,000.00 a month.  The witness, Leung Shou Chi, whom he called concerning his future loss of income and the contractual arrangements which he enjoyed did not support this view.  I accept the figure of $66,917.00.

78.  There was a real conflict between the plaintiff’s evidence and that of his witness.  It was the plaintiff’s case that he had actually been offered a further contract, subject to his attaining an appropriate standard of fitness, by way of letter which he had submitted to the Immigration Department in support of his application for permanent residence without keeping a copy. Mr Leung testified that although he would have kept the plaintiff on had he “stayed on form” he could see that the plaintiff would not be able to play again.  Consequently he did not offer him any contract, conditional or otherwise.

79.  Although I do not accept the plaintiff’s evidence regarding the conditional offer, it does not seem to me, at the end of the day, to be particularly material other than in the context of the plaintiff’s credibility.  Mr Leung’s evidence is that he would have kept the plaintiff on:  his evidence as well as that of the witness whose statement was produced by consent demonstrates that the plaintiff was held in high regard for his goalkeeping abilities.  There seems to me to be no reason to conclude that the plaintiff would not have retained his employment.

80.  In so far as future loss of earnings is concerned, it is common cause that the plaintiff was already suffering from osteoarthritis which would have brought his career to an end.  The plaintiff claims three years loss of income recognising the inevitability of the end of his career.  However, Mr Bickerstaff expressed the view that the plaintiff would have ceased to play after one or two more seasons: I regard that as reasonable and would award 24 months loss of income at a rate of $66,917.00 per month:  $1,606,008.00 in total. 

81.  The plaintiff received no income for the first 10 months of the notional two year period whereafter he received a salary of GBP20,000.00 per annum for the remainder of the notional two year period. Applying an overall exchange rate of 12, that equates to a monthly salary of $20,000.00 with a gross income over the remaining 14 months of the notional two year period amounting in all to $280,000.00.  That falls to be deducted from the loss of income resulting in a net amount of $1,326,008.00.

82.  The plaintiff would be entitled to pre-trial MPF benefits at a rate of 5% of his lost income which amounts to $66,300.40.

83.  I am satisfied that this is a matter in which the plaintiff has shown it to be appropriate to make a Smith v Manchester award:  despite his pre-existing osteoarthritis I recognise that in the future he may be placed at a minor disadvantage in the labour market in which he finds himself.  Assessments of this nature are notoriously difficult:  I judge that the plaintiff should receive an amount of $75,000.00, a little over one month’s salary.

84.  The defendant does not dispute the plaintiff’s claim in respect of special damages in an amount of $8,190.00.

85.  In summary the aggregate amount I would have awarded the plaintiff would have been

PSLA	$300,000.00
Loss of earnings	$1,326,008.00
Loss of MPF contributions	$66,300.40
Loss of earning capacity	$75,000.00
Special damages	$8,190.00
Total	$1,775,498.40

together with the usual interest.

Conclusion

86.  In the circumstances, the plaintiff’s claim is dismissed.  There is also an order nisi that the plaintiff pay the defendant’s costs, as taxed or agreed.  Liberty to restore for argument on costs or any consequential matters on notice given within 14 days of this judgment.

87.  There remains one other matter.  The bundles prepared for the trial included what purported to be the entire set of notes maintained by Canossa Hospital.  It emerged only at the conclusion of Counsel’s closing speeches that the bundles were incomplete with certain significant parts of the hospital notes missing – although they were present in the original set of notes produced in evidence.  It must be that none of those representing either party at this stage had observed the elementary precaution of comparing the originals and copies in the bundles.  In this matter, fortunately, it had no effect on the outcome.  It should not have occurred.