OR WING CHAK AND ANOTHER v. ATTORNEY GENRERAL

1985 No. A7255

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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RULING

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1. These are applications for leave to amend the statements of claim in 2 separate actions: HCA 7255 of 1985 and HCA 2437 of 1987. Both actions are medical negligence claims. Since the issues raised in these applications are the same, they were, by consent of the parties, transferred by the Master to be heard together before a Judge in Chambers.

2. In HCA 7255 of 1985, the Plaintiff was a patient at the Kwai Chung Hospital. Whilst he was in hospital, on 14th January, 1984, he jumped out of a window from the 6th floor and sustained injuries. He alleged that this incident was caused by the negligence of the doctors, nurses and staff of the Hospital. On 25th November 1985, a Writ endorsed with a Statement of Claim was issued claiming damages against the Attorney General as the proper representative of the then Medical and Health Department. In HCA 2437 of 1987, the Plaintiffs were the administrators of one Madam Chau Sau Ying who was also a patient at the Kwai Chung Hospital. On 23rd June, 1984, she committed suicide by hanging herself in the toilet of the Hospital, and died a couple of days later. Her administrators alleged that this was caused by the negligence of the doctors, nurses and staff of the Hospital. After some pre-action discovery, a generally endorsed Writ was issued on 29th April 1987 claiming damages against the Attorney General. The Statement of Claim was filed on 14th September 1987. Since the commencement of these 2 actions in 1985 and 1987 respectively, there had been site visits, extensive discoveries and inspections of documents including medical notes and records and moreover various interrogatories. While it is correct to say that some of the documents and answers to interrogatories were not readily available or forthcoming until after several requests had been made, I do not think the Plaintiffs can seriously criticize the Defendant for their dereliction since the Plaintiffs did not see fit to press for these documents and answers by means of applications to the Court except one which was not pursued. It is only fair to say that there must be a lot of documents involved. However, it is 6 years after the Writ in HCA 7255 of 1985 was issued and 4 years after the Statement of Claim in HCA 2437 of 1987 was filed that the Plaintiffs now apply to amend the respective Statements of Claim based on the documents disclosed.

3. The proposed amendments are quite substantial; in fact so substantial that it is sought to replace the original Statements of Claim by 2 completely new drafts each running to about 42 to 43 pages (as compared to the original 5 and 7 pages respectively). The new drafts have some common features. They contain, in some paragraphs, remarks which are rarely seen in pleadings and which are embarrassing to say the least. The length of the drafts is also accounted for by the fact that large portions (nearly half) of the drafts consist of verbatim quotations from various documents, and medical notes and records. It appears that many of these are clearly evidence rather than statements of the material facts, and as such should not normally find their way in pleadings. Mr. Marshall for the Defendant quite fairly indicated that while he found these remarks and quotations rather embarrassing or even offensive, they were not his main cause for complaints. His main objection was that the proposed amendments raised a new cause of action which was now statute-barred since the incidents which led to the present actions occurred in January and June, 1984 respectively. Hence, he submitted, unless the Plaintiffs could bring themselves within Order 20 Rule 5(5), their proposed amendments must be refused. He said the Plaintiffs had failed to do so. Counsel for the Plaintiffs argued that the proposed amendments did not raise a new cause of action, but that even if they did, the cases fell within the ambit of the said rule and the Court should exercise its discretion in favour of the Plaintiffs and allow the amendments in order to ensure that all issues in controversy could be determined between the parties at the same time.

4. The relevant rules, namely, Order 20 Rule 5(2) & (5), are as follows:-

5. There are 3 issues I have to decide. First, whether the Plaintiffs' proposed amendments raise a new cause of action. Second, if they do, whether the new cause of action arises out of the same facts or substantially the same facts as the original claims. Third, if the proposed amendments fall within Rule 5(5), whether I should exercise my discretion in favour of the Plaintiffs.

6. The Plaintiff in HCA 7255 of 1985 was admitted as a patient in October, 1983 to the Kwai Chung Hospital. In the original Statement of Claim, he alleges that he was diagnosed to be suffering from schizophrenia; that the medical and nursing staff undertook to provide medical and nursing services for him; that he had once attempted to jump out of the window and that in the premises, the staff ought to have known that he required "such medical and/or nursing services as would prevent him for attempting again to jump out of a window". On 14th January, 1984, he jumped again and injured himself. He alleges that this was caused by the negligence of the Hospital staff. In the Particulars of Negligence, it is alleged that the Defendant had failed to provide any adequate medical and nursing services for and supervision of the Plaintiff and to take any precautionary measures to prevent him from jumping out of the window. No further details are given as to what medical or nursing services should have been provided and what supervision or precautions should have been taken. Looking at the original pleading as a whole, I cannot help but agree with Counsel for the Defendant that the Plaintiff's main if not sole complaint is that the Hospital staff owed him a duty to take precautions to prevent him from jumping and that they were negligent in not doing so. The Statement of Claim in HCA 2437 of 1987 is in a similar vein and contains in fact very much the same wordings. In this case, it is alleged that the late Madam Chau had on several occasions given numerous indications of her suicidal tendency and that the Hospital staff should have taken steps to prevent her from hanging herself. In essence, the alleged negligence in both these 2 claims is based on the failure of the Hospital staff to take precautions to prevent the 2 patients from doing harm to themselves.

7. In the proposed amendments in HCA 7255 of 1985, the Plaintiff sets out his medical history since admission into hospital. He quotes extensively and in some places verbatim from medical notes and records regarding his conditions. It is alleged that the Hospital staff had failed to reconsider the diagnosis of schizophrenia, to detect the deterioration of his conditions and to take sufficient precautions to prevent him from attempting to commit suicide. The proposed amendments in HCA 2437 of 1987 are very much similar in style if not in contents. In some paragraphs, exactly the same wordings are used. Mr. Sujanani for the Plaintiffs submitted that there was always one cause of action, that is, negligence, and that the proposed amendments only extended the original issues and provided particulars. With respect, I am not sure this is entirely correct. In the draft amendments in HCA 7255 of 1985, there are altogether 26 paragraphs of particulars of negligence pleaded. Apart from the reliance on the maxim of res ipsa loquitur, the rest of the allegations can, in my view, be divided into 5 broad categories:

8. An analysis of the 33 paragraphs of particulars of negligence contained in the draft amendments in HCA 2437 of 1987, yields a similar result, that is to say, 5 broad categories of allegations:

9. Mr. Marshall for the Defendant submitted that this was the first time that the allegation of wrong diagnosis was raised. So far, the negligence alleged was that of failing to prevent the suicide or attempt to commit suicide. He argued that the new allegations raised or constituted a new cause of action, i.e. the negligence of wrong diagnosis and involved a new set of facts. He relied on the cases of Weldon v. Neal (1887) 19 QBD 394, Marshall v. London Passenger Transport Board [1936] 3 AER 83 and Batting v. London Passenger Transport Board [1941] 1 AER 228. These cases were decided before the amendments to the rules which brought in Order 20 Rule 5(5). However, I think they are still good illustrations of Mr. Marshall's point that the addition of a new cause of action which is statute barred should not be allowed unless it is covered by Order 20 Rule 5(5). Weldon's case was clear enough - adding assault and false imprisonment to slander. The facts in Marshall and Batting were similar. The original claims were based on the negligent driving of one of the Defendant's drivers. It was held in both cases that amendments alleging negligence in the maintenance of the railway and the tram tracks constituted an entirely new cause of action.

10. On the other hand, Mr. Sujanani relied on Collins v. Hertferdshire County Counsel and another [1947] 1 K.B. 598 and Dornan v. J.W. Ellis & Co. Ltd. [1962] 1 Q.B. 583. In Collins, the statement of claim alleged negligence due to a defective and negligent systems in a hopsital and negligence of its student doctor and a surgeon. The addition of a claim based on the negligence of a pharmacist was held not to be a new cause of action. In Dornan, the original claim was based on negligence of the Defendant, their servants or agents, pleading failure on the part of the Defendant in providing a safe system of work. It was proposed to add particulars alleging negligence of the Plaintiff's fellow-worker. The Court of Appeal, distinguishing Marshall and Batting, held that this did not add a new cause of action.

11. These and similar cases are not always easy to distinguish on the facts. But I think the test must be: whether the amendment involves - "quite a different set of ideas, quite a different allegation of acts ..... quite new considerations". (See Lord Wright M.R. in Marshall at p.88). This is in line with what Lord Esher M.R. in Read v. Brown 22 QBD 128 had said with regard to a cause of action: "(It) is the entire set of facts that gives rise to an enforceable claim". So it is the facts or the allegations which determine whether there is a cause of action and if so what it is. As to Lord Wright's test as applied to the case of a negligence claim, the question to decide is: whether the amendment involves a different case of negligence (per Sir Wilfred Greene M.R. in Batting, at p.229) or whether it alleges the breach of an entirely different kind of duty (per Romer L.J. in Marshall at p.89). In the light of these, I do not think the Plaintiffs can say that since negligence has been pleaded in the Endorsement or Statement of Claim, they are free to add any other allegations of negligence. In my view "negligence" is not a term of art. Nor is it one single cause of action. It is meant to cover a variety of factual situations giving rise to separate causes of action.

12. Prior to the present applications, it is quite clear that the Plaintiffs in both actions complain only of inadequate precautions. From the analysis I have set out earlier they now seek to allege in addition to inadequate precautions, mistaken diagnosis, wrong treatment, incorrect assessment and insufficient medical records. I do not think the proposed amendments merely extend the original issues and provide further particulars. They do not just invite the trial Court to consider their claims from a different approach. They involve a different set of ideas and a different allegation of fact. They plead a different case of negligence. I am satisfied that the amendments do indeed raise new causes of action and that unless they fall within Order 20 Rule 5(5), leave should be refused.

13. The next question therefore is whether these new causes of action arise out of the same or substantially the same facts. On this issue, Mr. Marshall has very helpfully referred me to 2 unreported cases: Grewal v. National Hospital for Nervous Diseases and another, C.A., the Times, 15th October, 1982 and Sayer v. Kingston & Esher Health Authority C.A., 9th March, 1989. Both cases are medical negligence cases and are directly to the point. In the Grewal case, the original allegations were that the operation in question was unnecessary, that the Defendant performed the wrong operation and that they were negligent in performing the operation. The proposed amendments under consideration were that the Defendant had gone outside the consent given by the Plaintiff and that they had failed to inform the Plaintiff of the risks of the proposed operation. The Court held that the proposed amendments related to a new cause of action. On the question of whether that involved the same or substantially the same facts, Dunn L.J. said on p.4:

"That, it seems to me, involves a consideration of the evidence which would be likely to be led in support of the new cause of action. ... (Whether) it would be necessary in support of that cause of action to lead substantially the same evidence as it would have been necessary to lead in support of the Statement of Claim as originally pleaded ....."

14. May L.J. was even more precise when he said at p.5:

"I think it is helpful, in deciding whether proposed re-amendments are within that provision, to ask oneself a series of three questions: first, what facts will have to be investigated on the amended Statement of Claim? Secondly, if the re-amendments are allowed, what facts will have to be investigated on the re-amended Statement of Claim? and thirdly, having answered those two questions and obtained thereby two series of facts, to ask oneself, are the two the same or substantially the same?"

15. The Court of Appeal in Sayer approved and followed this approach. That was a case in which the original claim was based on the negligence of the hospital during a caesarian operation whereas the amendments alleged negligence outside the period of the operation. The Court held that the new complaints radically altered the original case of negligence but took the view that they arose from the same and substantially the same facts.

16. I would respectfully follow the Court of Appeal's approach in those 2 cases.

17. With regard to the original claims in the 2 actions before me, I think the trial Court would have to investigate into a number of issues: what were the conditions of the 2 patients during their respective periods in hospital prior to the 2 incidents; what should have been the precautions taken by the Hospital staff to prevent the 2 patients from doing harm to themselves given their respective conditions; what steps and measures had been taken by the Hospital staff in these 2 cases and were these steps and measures adequate in the circumstances. To ascertain the 2 patients' conditions at the relevant times, i.e. in 1983/84, it would be necessary to rely on the medical notes and records and, if possible, to call the Hospital staff who were involved in taking care of these 2 patients during those periods. These Hospital staff would also be required to give evidence on what steps and measures, if any, had been taken. Unfortunately, because of the long lapse of time, they may or may not have any recollection of the events and may have to rely also on the medical notes and records. It may also be necessary to call some experts to testify as to what precautions should have been taken and to express an opinion on whether the Hospital staff had attained the requisit standards. The internal memoranda of the Hospital pertaining to the care, treatment, management and supervision of patients would be relevant. This would be the exercise the trial Court has to go through if the Plaintiffs were to rely on the original Statements of Claim.

18. If the proposed amendments are allowed, it is obvious, and I agree with Mr. Marshall, that further investigations would have to be carried out. He suggested 5 types of expert or original evidence would have to be called. It would be necessary to call experts on the correctness of the original diagnosis; the possibility of reconsidering the original diagnosis; the correctness of the treatment provided to the 2 patients given the correct diagnosis; the likely course of treatment of patients diagnosed to have suicidal tendency and the eventual care of the 2 patients in these cases. I agree and accept that these additional expert and original evidence would have to be adduced both for the Plaintiffs as well as for the Defendant. However, one cannot lose sight of the fact that one of the 2 patients involved had died and the other was alleged to have been cured of his previous mental conditions. It would seem that any potential witness, be he expert or ordinary, would inevitably have to refer to and rely on the medical notes and records in order to express any opinion on the 2 patients' conditions at the relevant times in 1983/84. Hence, while accepting that more witnesses may have to be called on the new issues, the same medical notes and records will have to be produced. Furthermore, the Hospital staff whose evidence are required in connection with the original Statements of Claim will also be needed for the new allegations of negligence raised in the proposed amendments. I also note that the Plaintiffs do not actually abandon their allegation of the failure on the part of the Defendant to take adequate precautions to prevent the 2 patients from doing harm to themselves although it is now quite clear that the emphasis will no longer be on this issue.

19. Adopting the approach in Crewal and Sayer and having thus considered and compared the potential evidence which may have to be adduced in support of the original and the new allegations of negligence in these 2 actions, I am bound to say that the 2 sets of evidence, or at least a large part of them, are substantially the same. The proposed amendments do fall within the ambit of Order 20 Rule 5(5).

20. Lastly, the question of discretion. The 2 incidents in question occurred in January and June, 1984. The relevant periods of limitation have long expired. I appreciate that the new allegations of negligence came about only as a result of the discovery of documents and interrogatories during these years. Yet the Defendant is not wholly to blame since, as I said earlier, the Plaintiffs did not see fit to press for these documents and interrogatories during the meantime. The long lapse of time does appear to cause some prejudice to the Defendant. However, I bear in mind that the same Hospital staff will have to be called; the same medical notes and records will have to be called; the same medical notes and records will have to be produced and that it is unlikely for the Plaintiff in HCA 7255 of 1985 and impossible for the late Madam Chau to be examined earlier for the purpose of these 2 actions. Considering the nature of the new allegations of negligence, I think the Plaintiffs ought to be given a chance of putting them forth at the trial. Balancing the interests and prejudice which may be caused to the Plaintiffs and the Defendant if the proposed amendments are allowed and if they are refused, I take the view that I ought to exercise my discretion in favour of the Plaintiffs.

21. Subject therefore to the observations which I have made earlier about the style of the proposed amendments, I would grant leave to amend. In the light of the conduct of these proceedings, I see no good reason to depart from the general rule that the party applying for indulgence and leave to amend should bear the costs of and occasioned by the application. So, subject to what the parties may wish to say, I propose to make an order nisi that the Plaintiff in each of the 2 actions do pay the Defendant's costs of and occasioned by their applications with a Certificate for 2 Counsel.