LUK MARY v. HONG KONG BAPTIST HOSPITAL

HCPI 151/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 151 OF 2006

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D E C I S I O N

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Background:

1.          Mary Luk, (Ms Luk), sues the Hong Kong Baptist Hospital, (the Hospital), for personal injuries as a result of her contracting Severe Acute Respiratory Syndrome (SARS), in March 2003.

2.          The Hospital now applies to strike out the amended statement of claim, pursuant to O 18 R 19, on the ground that no reasonable cause of action is disclosed.

3.          Mr Bleach accepts, (and Mr Ozorio did not argue otherwise), that the usual ground rules on such an application apply, and that:

(i)      the court must look at the pleading only, and assume that the facts pleaded may be proved;

(ii)     the court is concerned only with the statement of claim as it stands, it being no answer that the statement of claim may be subsequently amended;

(iii)    there should only be striking out in a plain and obvious case;

(iv)    if it is clear that no cause of action is disclosed, the statement of claim should be struck out.

The circumstances of the claim:

4.          The allegations in the amended statement of claim, assumed for the purposes of this application to be capable of proof, are as follows.

5.          On 10 March 2003, Ms Luk’s brother, Luk Hok Wing, (Mr Luk), was admitted to the Hospital suffering from bilateral epididymitis.  He was admitted under the care of a urologist.  During the course of his stay in the hospital, patients in the hospital were infected with SARS.

6.          On 16 March 2003, Mr Luk was discharged home to the care of his wife.  Neither Mr Luk nor his wife were informed that suspected SARS cases were present in the hospital, in particular that such cases were on the same floor upon which Mr Luk had been accommodated.  Neither Mr Luk nor his wife were given any advice or warning of precautions to be taken in relation to SARS.

7.          Ms Luk did not live in the same house as Mr Luk.

8.          SARS is a highly infectious communicable disease and may be transmitted by droplets communicated from one person to another at a distance of less than 1 metre.

9.          Between 16 and 22 March 2003, Ms Luk had daily contact with Mr Luk.  Neither Mr Luk, nor members of his family, nor Ms Luk took precautions against the possible transmission of SARS during this period.  On 22 March 2003, Mr Luk was admitted to Queen Elizabeth Hospital with suspected SARS, which was subsequently confirmed. 

10.          On 24 March 2003, Ms Luk began to have a fever, and isolated herself on 25 March 2003.  On 26 March 2003, she attended the Accident & Emergency Department at Queen Elizabeth Hospital where, after examination she was admitted, and was subsequently confirmed to be suffering from SARS.

11.          On 26 March 2003, Mr Luk’s wife and one of his sons were admitted Queen Elizabeth Hospital and both were subsequently confirmed to be SARS positive.

12.          Mr Luk died from SARS at Queen Elizabeth Hospital on 14 April 2003.

13.          On 28 March 2003 Mr Luk’s brother’s mother-in-law was admitted to Princess Margaret Hospital with SARS, where she died of that condition on 25 April 2003.

The duty of care are alleged:

14.          The allegation made by Ms Luk is that the Hospital owed her, as a member of her brother’s family, a duty of care to take all reasonable steps in precautions so as not to expose her brother’s family to the reasonably foreseeable risk of contracting SARS. 

15.          The essential allegation of breach of that duty of care is an assertion that there was a failure to alert and/or warn Mr Luk that he might have been exposed to SARS, and to advise Mr Luk and members of his family of the appropriate precautions required to be taken to avoid the spread of SARS.

16.          It is common ground between the parties that the Hospital is a private hospital which grants “admitting rights” to doctors in private practice.  The urologist treating Mr Luk was such a doctor, and was neither an employee of nor an agent of the Hospital.

17.          It was the urologist, pursuant to his admitting rights, who caused Mr Luk to be admitted, and who discharged Mr Luk on 16 March 2003.

The Issue:

18.          Mr Bleach correctly puts the issue before the court in the following terms:

“Is it arguable that the Hospital owed a duty of care to advise and/or warn Mr Luk and members of his family:

(a)     that both were at risk of being infected by SARS and/or

(b)     to take precautions to reduce the risk of infecting members of his family including Ms Luk, his sister.”

19.          It will be apparent from this formulation of the issue that two questions arise.  They are, first, the general principle as to whether a duty of care is owed by the facility provider to patients in the facility, generally, and second, whether that duty of care extends beyond the patient, to members of the patient’s family.

The argument for the Hospital:

20.          The argument for the Hospital was twofold.  First, it was argued that no duty of care was owed at all, and that if there were any duty, it was owed by the visiting doctor, the urologist, who was responsible for Mr Luk’s care.  Second, it was argued that even if there was a duty of care to Mr Luk, Ms Luk did not stand within sufficient proximity to the Hospital for a duty of care to extend to her.

Is there a duty of care on the Hospital generally:

21.          In this respect, Mr Bleach placed reliance upon a line of authority commencing with Evans v Liverpool Corporation [1906] 1 KB 160, and culminating in two decisions of Lord Denning in Cassidy v Minister of Health [1951] 2 KB 343 CA and Roe v Minister of Health [1954] 2 QB 66 CA.  There is no doubt that the effect of those decisions is that where hospital facilities are provided in circumstances where an attending doctor is neither the employee nor the agent of the facility provider, then a patient in the hospital of the facility provider, suffering injury as a result of the negligence of the attending doctor, does not have a cause of action against the facility provider.

22.          In the course of argument Mr Bleach was obliged to accept that if, in the course of providing facilities, hospital staff were negligent, an action would lie against the hospital, (the facility provider), at the suit of the patient.  A simple example will demonstrate that that must be right. 

23.          A visiting surgeon, who is not an employee of the hospital, but who has admitting rights, admits a patient to a hospital, which makes its facilities available to that surgeon.  Surgery is undertaken in a surgical suite provided by the hospital, and staffed by nurses employed by the hospital.  If a nurse in the course of the surgery makes an error causing personal injury to the patient there could be no argument at all that the hospital, as the employer of the nurse, would not be liable.  The facility provider would clearly be liable.  If, on the other hand, the surgeon makes an error in the course of the surgery, then it is clear from the authorities relied upon by Mr Bleach that it will be the surgeon, and not the hospital who will be liable.

24.          In my view it is plainly arguable that in the circumstances of a facility provider such as the Hospital, it will be the Hospital, and not a visiting doctor, who will be responsible for the administration of the facility so provided.  The administration of the Hospital will cover a wide scope of matters including the provision of general nursing care, the provision of meals and similar matters.  It must also include any necessary precautions or steps to be taken as a result of there being present in the facility an infectious disease.  In such a circumstance it must be arguable that both patients, and visiting doctors responsible for individual patients, will look to the hospital to take appropriate steps in respect of any infectious disease within the facility.

25.          It is accordingly, plainly arguable, that the Hospital owes a duty of care to a patient admitted to the hospital under the care of a visiting doctor, in respect of all aspects of the patient’s care for which the visiting doctor himself is not directly responsible.  These will necessarily include matters such as the cleanliness of the facility generally, the provision of meals, the hour by hour care of the patient while in the facility when the visiting doctor is absent from the facility, and the general protection of the patient from other diseases.

26.          Mr Bleach correctly focused on the act of discharge as being the crucial act in this case.  It is useful to set out the allegation made in this respect.

“17    On 16^th March 2003, the Plaintiff’s brother was discharged home to the care of his wife, Mrs Ada Li Yuen-ling (“Mrs Li”).  She was with him throughout the 16^th March and during his discharge.  No one informed the Plaintiff’s brother or his wife that there were suspected SARS cases in the Hospital on the 8^th floor nor were they giving any advice and/or warning of precautions to be taken in relation to SARS.”

27.          The act of discharge of a patient from a hospital is arguably not, in my view, solely the act of the attending doctor.  It is right that it will usually be the visiting doctor who will make the formal decision to discharge the patient.  But once the formal decision is made to discharge the patient it will usually be the hospital staff who will attend to the formalities involved in discharge.  These will include matters such as the settling of accounts, checking dressings if necessary, and arguably ensuring that appropriate advice has been given as to any steps the patient might need to take following discharge.

28.          This conclusion in no way detracts from the validity of the decisions in Evans, Cassidy, and Roe.  It remains the position that hospital authorities will not be liable for the negligence of doctors, consultants, or anaesthetists selected and employed by the patient himself.  What will need to be examined in each particular case will be the precise act alleged to constitute a breach of the duty of care.  Each case will be fact sensitive.  There will be plain cases where there will be no involvement on the part of the hospital in the act or event that has caused the injury, equally there will be plain cases where it will be the hospital staff who must carry the responsibility.

29.          The duty of care that arises upon discharge, arguably is a dual duty of care, lying both with the visiting doctor and with the Hospital.  It may be that the Hospital will be able to discharge its duty simply by giving appropriate advice to the visiting doctor of any relevant matter.  That however is a fact sensitive issue.  The pleading set out above, although imprecise, is adequate to encompass the appropriate allegations against the Hospital.

30.          Here the act alleged is the failure of the Hospital to take reasonable steps by way of precautions so as not to expose Mr Luk’s family, including the plaintiff, to the reasonably foreseeable risk of contracting SARS.  It is asserted that had appropriate advice, consequent upon there being an infectious disease in the Hospital, been given to Mr Luk appropriate precautions could have been taken and Ms Luk may not have succumbed to the disease.

31.          At the least, I am satisfied that there is an arguable case that a duty of care exists on the Hospital to inform patients, when there is an infectious disease such as SARS present in the hospital, upon discharge of a patient, to inform the patient of precautions to be taken to ensure that that disease does not spread to members of the patient’s immediate family.

Does the duty extend to Ms Luk?

32.          The real question in this case is whether or not the duty of care owned by the Hospital extends to Ms Luk.

33.          The leading authority on the question as to whom a duty of care is owed is Caparo Industries PLC v Dickman & Ors [1990] 2 AC 605.  The following passages are relevant, first from the speech of Lord Bridge of Harwich at 617H-618A:

“What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of “proximity” or “neighbourhood” and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.”

Lord Bridge added, at 618B-C:

“Whilst recognising, of course, the importance of the underlying general principle, to the whole field of negligence, I think the law has now moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as against to the existence, the scope and the limits of the varied duties of care which the law imposes.”

Lord Oliver said, at 633D:

“‘Proximity’ is, no doubt, a convenient expression so long as it is realised that it is no more than a label which embraces not a definable concept but merely a description of circumstances from which, pragmatically, the courts conclude that a duty of care exists.”

34.          Mr Ozorio presented his case on the basis that it must be arguable that a sister was a person who was likely to visit, or be in contact with, a brother recently discharged from hospital and that accordingly there was a sufficient degree of proximity.

35.          Mr Bleach argued that the duty of care did not extend to Ms Luk.  Principally, he noted that Ms Luk did not live with Mr Luk.  In those circumstances, Mr Bleach submitted that Ms Luk could not be described as being within Mr Luk’s immediate family, a class which he said included only Mr Luk’s wife and children, or those living in the same home as Mr Luk.

36.          Without conceding the point, Mr Bleach accepted that it may be arguable that the immediate members of Mr Luk’s family may be within the appropriate degree of proximity.  But, he arugued, Ms Luk did not fall in that category.  He drew my attention to the pleading in relation to the contact between Mr Luk and Ms Luk in the amended statement of claim.  That read:

“22    Between 16^th and 22^nd of March 2003, the Plaintiff had daily contact with her said brother, both at her brother’s home and when transporting him by car to and from his medical consultations on the 17th, 18th, 20^th and 22^nd March 2003.

24     The Plaintiff, her brother and his family shared food and utensils when eating together.  The Plaintiff did not share meals at her brother’s home but shared meals with him at restaurants when she accompanied him to see doctors during the period between 17^th and 22^nd March 2003.”

37.          Mr Bleach referred to a decision of the Court of Appeal of California in Derrick & Ors v Ontario Community Hospital & Ors (1975) 47 Cal Ap 3d 145, Cal App LEXIS 1006. There, the plaintiff, a minor, contracted a contagious disease from a girl who had been released from the hospital and who, herself, had contracted the disease while in the hospital following an automobile accident.  It was argued that the hospital had failed to inform the girl and her mother that she had the disease, and that it failed to notify the plaintiff or his parents of the hazard inherent in exposure to the girl.

38.          The Court of Appeal rejected the argument that the hospital owed the plaintiff a duty of care in the following terms:

“We turn next to the allegation that Hospital was negligent in failing to warn plaintiff or plaintiff’s parents of Dawn’s contagious, communicable disease.  Based upon the policy considerations mentioned above, including particularly, “the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care,” we have concluded that Hospital owed no duty to plaintiffs to warn them of Dawn’s contagious, communicable disease.  The reason for our conclusion is simple.  It would impose an intolerable burden upon Hospital to notify all members of the public that one of its patients being released from the hospital is suffering from a contagious, communicable disease.  We can think of no way in which Hospital could discharge such a duty.  We therefore decline to impose such a duty.” (sic)

39.          Mr Bleach supported this authority with reference to two English authorities. 

40.          In the first, Palmer v Tees Health Authority [1999] Lloyd’s LR 351, a child had been abducted, sexually assaulted and murdered by a man named Armstrong.  Armstrong lived in the same street as the child.  It was contended that Armstrong, who was under the psychiatric care of the Health Authority, had a history which meant that he was plainly at risk of committing the offence which had occurred.  On a summons to strike out it was held that no duty of care was owed to the child or her parents.  The Court of Appeal upheld the decision that on the facts there was insufficient proximity for a duty of care to arise.  In simple terms, the fact that the child lived in the same street as Armstrong was not a sufficient degree of proximity.

41.          In the second, Goodwill v British Pregnancy Advisory Service [1996] 1 WLR 1397, M. had a vasectomy operation and was informed that the operation was successful and that he was permanently sterile, thereby no longer needing to use any method of contraception.  Three years later he began a relationship with the plaintiff in which no contraception was used, and she became pregnant.  It was held that it was not, and could not reasonably be, alleged that the defendants knew that when their advice to M. about the effect of the vasectomy was communicated to the plaintiff she was likely to act upon it without independent enquiry.  It was further held that since, at the time when the advice was given, the plaintiff was merely a member of an indeterminately large class of females who might have sexual relations with him during his lifetime, and accordingly the defendant was not in such a sufficient or any special relationship with the plaintiff as to give rise to a duty of care.

42.          Mr Bleach reinforced these authorities by reference to the question, discussed in the course of argument, as to whether or not the duty of care on the Hospital could extend to a taxi driver taking Mr Luk home from the Hospital.  Such a person was, it was argued, reasonably foreseeable as a person with whom Mr Luk would come into contact.  In the course of the argument Mr Ozorio, while pointing out that he did not need to go to the extent of dealing with the taxi driver, acknowledged that it was likely that there would be no duty of care.

43.          In an attractively presented submission, Mr Bleach took the question to its logical extreme in an effort to prove its falsity.  First he asked that, if there were a duty of care on the Hospital to Ms Luk, what would be the situation, if upon discharge Mr Luk travelled in a taxi home with Ms Luk, and both Ms Luk and the taxi driver caught SARS.  It was, he said, illogical that there should be liability in respect of Ms Luk, but not the taxi driver.

44.          Then he postulated the situation of Mr Luk going to a restaurant with Ms Luk, a cousin, a second cousin, a friend, and a friend of a friend, they all catching SARS as a result of their association with Mr Luk.  Would, he asked, the duty of care extend to the cousin, as a family member but no further.  Again, in the circumstances, it was illogical that there should be liability for some of the guests at the restaurant, but not others.

45.          The argument was initially attractive and gave me immediate pause on the issue.  But upon reflection I am satisfied that while plainly raising difficult issues, the questions posed did not detract from the proposition that the duty of care arguably exists to the extent submitted by Mr Ozorio.  The questions posed by Mr Bleach are may well be matters that the trial court will wish to take into account in considering whether it is, to adopt the words of Lord Bridge, see para 32 above, “fair and just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of another”.

46.          Inevitably in determining whether the duty of care extends to Ms Luk, a duty for the trial court, not this court which only need to determine whether or not the matter is arguable, local circumstances must be taken into account.  Mr Ozorio is on strong ground when he argues that the concept of family in Hong Kong, including as it does parents, children, siblings, wives or husbands of children or siblings, their children and even parents-in-law, enables him to contend that the determinant cohort of “family” as it may be found to be in Hong Kong may well include Ms Luk.

47.          If it does, and I am satisfied that it is so arguable, then the decisions in Derrick, Palmer and Goodwill, where, in each case the plaintiff fell outside the determinant cohort, are distinguishable.

48.          Having regard to all of these matters I have come to the conclusion that it is arguable that the duty of care upon the Hospital to give the advice pleaded extends to Ms Luk.

Conclusion:

49.          I am accordingly satisfied that the statement of claim discloses a reasonable cause of action.  The Hospital’s summons is dismissed.  There will be an order nisi that costs be plaintiff's costs in the cause, with a certificate for two counsel.