KONG WAI TSANG v. HOSPITAL AUTHORITY

FAMV No. 3 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

 MISCELLANEOUS PROCEEDINGS NO. 3 OF 2005 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 76 OF 2004)

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1.  This is our determination which we reserved at the conclusion of the hearing of this application on the 10^th of this month.  The applicant seeks leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision affirming that of the Judge who had affirmed the Master’s order striking out her Statement of Claim and dismissing her action.  She is the personal representative of the estate of her teenaged daughter who, tragically, died on 25 January 2000 at the hospital where she had been receiving medical treatment.

2.  The action was commenced on 11 November 2002 against the respondent authority which operates that hospital.  As originally pleaded, the action was based on an allegation that the attending doctors had been negligent in their medical treatment of the daughter thus causing her death.  Then, on 18 July 2003, the applicant took out a summons seeking leave to amend her Statement of Claim by adding an alternative basis of claim.  This is that 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; that the family would not have agreed to the use of that drug if they had been so warned; and that the drug caused the daughter’s death.

3.  No order has been made on that summons to amend.  It was overtaken by the striking out of the applicant’s claim and the dismissal of her action.  The striking out and dismissal by the Master took place at a checklist hearing on 10 December 2003.  It was on the ground that the medical reports before the court disclosed no reasonably arguable case of negligent treatment, of negligent failure to warn or of death resulting from either.

4.  On the materials before us and the arguments which we have heard, we are of the following opinion.  It is plain beyond reasonable argument to the contrary that there is indeed no reasonably arguable case of negligent treatment.  But the applicant should have ¾ and we grant her ¾ leave to appeal to the Court of Final Appeal to seek an order that her action be reinstated and that she do have leave to plead a case of negligent failure to warn.  Mr Paul Loughran for the applicant accepts that his client is able adequately to pursue a case of negligent failure to warn without pursuing a case of negligent treatment.

5.  Since that appeal will only concern whether a case of negligent failure to warn is reasonably arguable and can therefore be pursued, the respondent may, upon legal advice, consider it appropriate ¾ as soon as the applicant has filed her Notice of Appeal thereby bringing her appeal to the Court of Final Appeal into existence ¾ to indicate that it will not resist the appeal.  If so, the parties can agree terms.  And they are at liberty to take out a notice of motion jointly inviting the Court of Final Appeal to deal with the matter on paper i.e. without an oral hearing and to allow the appeal on those terms.  Precisely how the applicant proposes to plead her case of negligent failure to warn should be set out.  In this regard her legal advisers should not assume that the proposed amendments annexed to her summons of 18 July 2003 are adequate.  They should consider the position afresh and carefully.

6.  None of the foregoing would involve an appeal being allowed merely by consent. The Court of Final Appeal can study the papers already filed in this leave application, and satisfy itself that it would be right to allow the appeal.