LEUNG SO AND ANOTHER v. CANOSSA HOSPITAL

1984, No. 2006

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

_________

__________

JUDGMENT

__________

1. Madam Leung So, now aged 77, sues the Canossa Hospital for negligence. She claims that when she went into the physiotherapy Department of the Canossa Hospital on 27th March 1981 as part of a continuing treatment of physiotherapy, she suffered a fall, breaking her right thigh and this, she claims, was the result of lack of care and skill on the part of the trained physiotherapist employed there, one Miss Flora Lee.

2. Madam Leung So is not personally able to conduct her case, but does so through her married daughter Madam Lee Wai Fun. In legal terms Madam Lee is referred to as "the next friend". Madam Leung So has to adopt this procedure because she suffers now and has so suffered ever since she had' a stroke on 26th December 1980 from a complete loss of speech. The same stroke also left her paralysed on her right upper arm, the right side of her body, and her right leg. She is now further incapacitated by having completely lost her intellectual powers, being totally uncommunicable and completely out of touch with her surroundings.

3. The appropriate medical terms for the above afflictions of Madam Leung So are as follows. The break in her right thigh was in her case an introchanteric fracture of the right femur. The stroke she suffered in December 1980 and the effects of it are that she suffered a cerebral thrombosis giving rise to rightside hemiplegia and aphasia (loss of speech) and her present loss of intellectual powers is diagnosed as the result of extensive brain atrophy.

4. By way of further additions to these now permanent afflictions, she was diagnosed in August 1979 as suffering from mild diabetes, medically known as diabetes mellitus, and, at least by January 1981, if not earlier, she suffered from a heart problem referred to by her family doctor as Ischemic Heart Disease. Dating back from 1977 she had a healed wound relating to the fact that in that year she broke the upper right arm bone, the humerus.

5. For an old lady with so many afflictions even before the fracture of the right femur in March 1981 to be described as "otherwise in good health" would seem to be highly unrealistic, if not absurd. Yet such was the description applied to her in evidence by Madam Lee, and in the pleadings the distortion is taken even further by pleading "The Plaintiff was aged 71 at the time of the said accident" - it appears that she was actually recorded as being 72, presumably on the word of the family, but the pleading adds "and enjoyed good health save the said diabetes mellitus". What had happened, one might ask, to the after-effects of the stroke?

6. After the cerebral thrombosis on 26th December 1980 with its consequential right-side hemiplegia and aphasia, Madam Leung So was initially treated at St Teresa's Hospital on the Kowloon side. Although she was then living with her daughter and "next friend", Madam Lee, in mid-levels on Hong Kong side, the choice of the Kowloon Hospital was occasioned by the fact that the longtime family doctor, Doctor Au-Yeung, a physician, was also a son-in-law of Madam Leung So and he not only lived on the Kowloon side but also had his surgery on that side and additionally was on the panel of doctors of the St Teresa's Hospital.

7. The treatment at St Teresa's included physiotherapy for the right-side hemiplegia. This was continued up to 22nd January 1981. On that day the family doctor, Doctor Au-Yeung, wrote a referral letter, specifically addressed to Miss Lee, the physiotherapist at the Canossa Hospital, in the following terms:- "I would be grateful if you will give your expert physiotherapy for her residual Rt-sided hemiplegia and aphasia". In the same letter he also alerted Miss Lee to the cerebral thrombosis, the diabetes mellitus and the Ischemic Heart Disease of the patient.

8. Thereafter from 23rd January 1981 until 27th March 1981, the day of the fall, Madam Leung So continued her physiotherapy treatment under the care of Miss Lee at the Canossa Hospital. She was due to have 5 attendances per week, and each attendance would last from 1 to 11/2 hours. She may or may not have missed one or more of these scheduled attendances, but nothing turns on whether she did or did not attend every scheduled session.

9. She was helped to these physiotherapy sessions by three people, namely her daughter, Madam Lee, a private nurse and a brother of Madam Lee who drove the car. "At the beginning she would be seated in a wheelchair and we, that is myself and the private nurse, would push her into the physiotherapy room" was the way Madam Lee described it in her evidence.

10. According to Madam Lee, her mother, improved very well and, after about 2-3 weeks, she was no longer pushed into the treatment room in a wheelchair, but walked with the aid of a "tripole". That was how Madam Lee described it, but more accurately it was a four-pronged walking stick, properly referred to as a quadrupod. By explanation and by demonstration Madam Lee showed that initially the assistance afforded to her mother, when she had reached the stage of using the quadrupod, was that Madam Lee would be holding her mother by the right and paralysed arm, and the private nurse would be holding her on the left side.

11. In the early stages Madam Lee explained that further assistance was rendered in the following way. Because her mother could not lift her right leg, she would "slightly kick her mother's leg forward". This kind of assistance continued up to 25th March 1981, according to Madam Lee. On that date all that was needed, according to Madam Lee, was for her to hold her mother by her right arm and have the private nurse no longer holding her mother but simply walking beside her to assist, if and when necessary. Madam Lee further said that, whilst it was no longer necessary to urge her mother's right leg forward by gently kicking it, her mother was still not able to lift up that leg, but was only able to drag it along.

12. The physiotherapist in describing the right leg movement at about the same date describes it as making a small circle as it was brought forward, a movement known, as I understand it, as circumduction. The physiotherapist pinpoints the patient's ability to walk unaided save for the use of the quadrupod, as a few days earlier than 25th March. The physiotherapist also says that she observed the patient coming to the physiotherapy department untouched by assistance on either side on 27th March, her forward progress being accomplished solely by using the quadrupod.

13. On the day of the fall, 27th March 1981, Madam Lee was herself receiving treatment in the physiotherapy department at the Canossa Hospital, but not in the same area as her mother. She was receiving neck traction in a different area, not apparently walled off, but at any rate out of sight from the area where her mother was receiving her treatment.

14. Madam Lee says that shortly before 2.30 p.m. on that day, whilst she was lying down on her back with her neck in traction, she heard "a loud sound of something falling down - I thought it sounded like a person falling down. " As soon as she was released from the neck traction, she rose from the bed, went into the adjoining area, and there, she says, she saw her mother being placed on an upright chair with no arms and with many people around her. She asked Miss Flora Lee what had happened and says that the answer was, and she quotes, "When I was helping your mother to walk around and make a turn her leg tripped over something and as a result she fell".

15. Madam Lee says that an inspection made by her of the injury after, at her insistence, her mother was carried to a bed, showed her mother's right thigh to be "very swollen" and to have "a sign of redness".

16. There are a number of points at this stage of Madam Lee's evidence disputed by witnesses for the defendant Hospital. Miss Flora Lee's description of the fall precludes any possibility of there being "a loud sound of something falling dorm" because, in her description of the incident, the fall was a very gentle one, more of a crumpling by the patient, rather than any sudden drop to the ground. There is a complete denial that Madam Leung So was ever taken to an upright chair, with or without arms, but that she was conveyed straight away to a bed. Expert evidence was given by Professor Yau, both as an expert in the field of injuries of the sort incurred, and as a witness of fact who came on the scene very shortly afterwards, that there was no swelling nor sign of redness in the area affected.

17. I do not doubt that Madam Lee could have heard some sound of falling but I do not accept it could have been a loud sound. Nothing of importance turns on whether or not a chair was used at an intermediate stage before placing Madam Leung So on a bed. In view of the evidence of Professor Yau on the outward manifestations of the injury, I accept his version and regard Madam Lee's evidence on the area being "very swollen" and to have had "a sign of redness" to have been due to faulty recollection.

18. Madam Leung So was immediately x-rayed, diagnosed by Professor Yau to have suffered a fractured right femur and admitted as an in-patient at the Canossa Hospital. She spent some days in traction and the operation was performed on 2nd April 1981. The delay was partly occasioned by Professor Yau himself wishing to do the operation, but being prevented from doing so immediately because of a forthcoming visit he had to make to the Philippines, and partly because the Hospital in any event wished to have time to perform some standard pre-operation checks. In any event it has not been claimed on behalf of the Plaintiff that this delay was evidence of any lack of care for the patient. In fact an expert witness called by the Plaintiff, the very eminent orthopoedic surgeon and now Medical Director of the Maclehose Medical Rehabilitation Centre, Doctor S. F. Lam, said he had no reason to fault the delay.

19. Evidence was led to the effect that Madam Leung So was initially taken to a very small and poorly equipped room. One day after the fall, however, Madam Leung So was put into private ward Number 511, admitted to have been a very well-equipped room. In fact Ward Room Number 511 had only just on that day become vacant and, according to the Sister in charge of the floor, Sister Wong, now Mother Superior Wong, it was originally reserved for another patient.

20. Conflicting evidence was adduced about the amount of "crying and shouting" of Madam Leung So, both in relation to her pre-operation period, and to her post-operative recovery period. The assertion of such constant crying and shouting comes from Madam Lee, and the family doctor Au-Yeung. In fact these assertions rely for the most part on alleged observations made by the private nurse engaged by the family. This nurse, Miss Lam Yau-Ngan, was not called as a witness, being apparently no longer able to be traced. Thus such evidence of "crying and shouting" depends largely on hearsay evidence only.

21. No such crying and shouting was heard by the Floor Sister, Sister Wong, who gave evidence, and who said that she either would have heard such things or would expect such things to have been reported to her. One searches in vain in the Hospital Records for any signs of excessive restlessness. The nearest one can come to any such evidence is an entry in the Nurses Report for the night of 14th/15th April when librium, a mild painkiller, was delivered 3 times in the course of the night, and on that night Doctor Au-Yeung was telephoned around midnight and prescribed Largactil, a tranquiliser. Although there were other occasions when librium was administered, many days went by without the need for it at all. Evidence of some stomach pains in the days following the operation can be found, but even such references do not reflect anything of great seriousness.

22. It is admitted that an attack of cystitis, an inflammation of the urinary tract, did occur. For this the patient, being already in hospital and quickly diagnosed, was as quickly treated and cured. Some questions were directed to whether this cystitis was caused by the need to insert a catheter, a normal but not inevitable complication from such an operation, or whether it was already an incipient affliction before ever Madam Leung So had her fall. Whatever is the correct diagnosis, I am satisfied from the medical evidence adduced, and from the Hospital Records, that this particular affliction did not give rise to any prolonged or specially painful results.

23. On the whole I accept the expert evidence tended on behalf of the defendant Hospital to the effect that the post-operative recovery period was in the main not specially eventful, and that in fact Madam Leung So showed a better and less restless recovery than other patients in similar circumstances. I do not therefore accept Madam Lee's evidence tending to lend support to the fact that the recovery was a "stormy" one. Such evidence as was purportedly given in support of this theory was another example of faulty recollection.

24. A good deal of evidence was led over the date of discharge. In the Doctor's Reports of the Hospital Records an entry by Professor Yau for 23rd April 1981 noted "Discharge home to-morrow". Beneath that entry followed an entry signed by Doctor Au-Yeung for what has been described as a "TTO" prescription - that is to say a “To-Take-Out" prescription. On the Nurses Records for the same date, after noting Professor Yau's order for the patient to go home, the Nurse had further made the entry "Prof. Yau will be at G. Floor this afternoon, if Dr. Au Yeung has some questions, can see Prof. downstairs. " Doctor Au-Yeung's evidence on this point was that, although it would have been his normal practice to look at both the Doctor's Reports, and the Nurses Records, he had never on that occasion looked at or had drawn to his attention the Nurse's note that he should speak with Professor Yau if he wished.

25. Doctor Au-Yeung felt slighted by the unconsulted reference to discharge the next day, as he considered it was his duty to decide whether the patient should be discharged or not. Furthermore being himself a member of the patient's family, and having heard reports of the "crying and shouting" he was of the view that the patient was not then fit for discharge. So it was that he took two actions. He wrote an angry letter of complaint to the Mother Superior dated the same day, and he presented his fee note to the Hospital for his attendance. This sparked off another argument as to whether he should be charging at all, and so his letter also made reference to what he felt was insulting behaviour on that matter.

26. Professor Yau was firmly of the view that as the patient was in the Hospital for orthopoedic reasons, he was clearly the person to decide on the appropriate day of discharge, but that he was at all times ready to discuss the patient's preference, as expressed through the family appointed doctor, had he so wished. He did not regard per se that evidence of the patient's irritability even if it existed ought to militate against discharge. As things turned out, with Doctor Au-Yeung walking off and disclaiming any further responsibility, Professor Yau noted in the Doctor's Report for 27th April "Dr Ballantyne to see her please". Doctor Ballantyne appears to have seen her, and to have recommended, apparently without any further family objection, for Madam Leung So to be discharged on 30th April, and this was duly done.

27. Insofar as the question of the earlier date of discharge needs any resolution by me, I accept Professor Yau's views, and do not regard Doctor Au-Yeung's complaint as. justified. In any event as the patient did in fact remain until an agreed date of discharge, nothing really turns on this conflict of opinion.

28. Madam Lee said that after discharge Madam Leung So "continued crying and screaming so that it was impossible for any member of the family to sleep", but that after taking some prescription from Doctor Au-Yeung she gradually calmed down after about 10 days.

29. There were two follow-up appointments with Professor Yau. One was on 1st June, and the second and last was on 13th July. On the second follow-up, attended by Madam Lee and her brother, Benjamin Lee, who also gave evidence, Professor Yau expressed the view that there was no need for any further follow-up because the wound had completely healed. It was at this second follow-up that according to Madam Lee and her brother, Benjamin, Professor Yau was reported to have said "I am afraid your mother will not be fit to undergo physiotherapy in future". When asked 'why', he was reported to have said that it was because the right leg was shorter as a result of the operation, and that the broken thigh was on the same side as that affected by the stroke.

30. The difficulty about accepting the first reported reason is that it is totally and completely wrong from the medical point of view, and not one which Professor Yau says he could ever con ceivably have given. The shortening was, according to him, 11/2 centimetres, and in no way an impediment either to walking or to physiotherapy. The misunderstanding on this point was compounded by the fact it was relayed to Doctor Au-Yeung. As a medical man he agreed it was unsound, but never thought fit either to check directly with Professor Yau, or to seek another orthopoedic opinion. His reasons, given in cross-examination, for this inactivity were hardly impressive.

Q.    Did it never occur to you to ask him (Professor Yau)?

A.    No, because the family had seen him.

Q.    Did it occur to you that the family impression of Professor Yau's views might have been incorrect?

A.    No, I trust them.

Q.    You therefore found Professor Yau's views surprising?

A.    Yes, but I thought he might have his reasons for not ordering physiotherapy.

31. In fact Professor Yau said in evidence that he would have thought for that particular patient a wheelchair existence would have been advisable, not because of the shortening of one leg, but because there had been no real recovery from the right-side hemiplegia, and, as I understood his evidence, since there had already been a fall in the course of attempting rehabilitation, there could be a higher chance of another fall on the same spot. He recalled making some offer of further physiotherapy, but, so far as he could remember, the family thought it was too much trouble getting her to the treatment and back.

32. The result has been that devoted care by Madam Lee and a succession of private, but so far as physiotherapy is concerned, untrained nurses has been the sole medical care given to Madam Leung So ever since her discharge from the Canossa Hospital on 30th April 1981.

33. For one reason or another Madam Leung So's physical condition has deteriorated. Not only are the right upper extremities now wasted, but the left upper extremities have also suffered contractures. Both lower extremities are held in flexion at the hip and knee. In addition she has extensive brain atrophy.

34. Further contractures were noticed towards the end of 1981 at which time she also became incontinent of bowel and urine. In early May 1985 she developed what was described as a low-grade fever, which was slow to disappear.

35. Doctor Laurence Shek, a physician called by the defence as an expert witness, produced a report, amplified in oral evidence, to the effect that the most probable causes of her extensive brain atrophy was, as he put it, "due either to generalised degeneration in senile dementia, or to multiple infarcts" or both. That is to say, as I understand it, that old age aggravated by the effects of her stroke in 1980 gave rise to subsequent multiple blockages to the brain cells, typical of someone in her condition at her age at end-1980. He further commented that the onset of further contractures, first noted towards the end of 1981, coupled with the onset of complete incontinence, would indicate to him that the right side of the brain had by then become affected and that probably some form of further stroke had occurred at that stage.

36. Doctor S. F. Lam, who, it has already been noted, was the eminent orthopoedic surgeon called on behalf of the Plaintiff, mentioned in his report ".... the deformities in her paralysed right side could have been prevented or lessened with professional help" and later "though her daughter (Madam Lee) said that she (Madam Leung So) had massage and stretching of her involved limbs it was either not enough or not done well enough ..... ”.

37. It must be galling to Madam Lee to learn after all the loving care and attention that she has given to her ailing old mother, that the continuance of a trained physiotherapist might have made matters better. Perhaps she can take heart from Doctor Shek's evidence which in effect seems to show that whatever treatment the old lady had received, the consequences of the stroke she suffered in December 1980 coupled with the probability of at least some if not many further cerebral blockages would inevitably have left her by now in more or less the same state as she in fact now is.

38. In this regard she should ignore completely the medically unsupported prognosis given by Doctor Au-Yeung of the effects of a stroke. He gave it as his opinion that in 6-9 months after her stroke she had a 100% chance of full recovery, and within a further 6 months after that an equally good chance of recovering her lost powers of speech. I accept the better informed views of Doctor Shek given by him in evidence, and set forth in both the American and Glasgow-based findings in two medical articles, the one entitled "Orthopoedic evaluation and treatment" and the other "Rehabilitation after stroke". These articles put the chances of any full recovery as very slim for someone of Madam Leung's age and pre-stroke history which in her case was diabetes mellitus and ischemic heart disease. She would have to be put very low in the range of full or any recovery in any real effective meaning of the word.

39. It is quite clear from the presentation of the evidence by Madam Lee, her brother Benjamin Lee, and her brother-in-law Doctor Au-Yeung that they blame the Canossa Hospital for the fall suffered by Madam Leung So for the simple and uncomplicated reason that the ailing old lady had been taken to the hospital for recuperative treatment and, so and behold, she ended up with a broken hip. Res ipsa loquitur has been pleaded, and that in legal terminology is their standpoint. Madam Lee and the family take matters further. Not only is the Hospital to blame for the fall, but for each and every facet of the old lady's subsequent physical and mental deterioration.

40. In the case of Cassidy v. Ministry of Health⁽¹⁾ a patient went into hospital for two fingers to be cured and came out with his whole hand rendered useless. As Denning NR picturesquely put it: - The patient would say "I went into the hospital to be cured of two stiff fingers. I have come out with four stiff fingers, and my hand is useless. That should not have happened if due care had been used. Explain it if you can. ".

41. By contrast with his acceptance of res ipsa loquitur in the Cassidy Case, Denning MR dismissed it as the wrong approach in the case of Whitehouse v. Jordan⁽²⁾ in these equally pungent words: -

"When a baby is still-born or dies soon after birth or is born damaged or deformed, the fact is no evidence of negligence on the part of the doctors or nurses attending the birth. It does not speak for itself. The maxim of res ipsa loquitur does not apply. "

42. One case involved the difficulties inherent in childbirth, and the other an operation to effect a cure. A further distinction between the two cases is that in the passage quoted from the Cassidy Case it is followed by another passage "They have nowhere explained how it could have happened without negligence" and later "They did not call any expert evidence at all to say this might happen despite all care. " The contrary was so in the Whitehouse v. Jordan Case where many experts were called by both sides, as has occurred in this present case.

43. If this is properly a case where res ipsa loquitur should be applied, then the burden shifts and there is a burden of disproving negligence on the Defence. If the opposite is the case, and res ipsa loquitur should not apply, then the burden of proof rests as always with the Plaintiff. In both cases the burden is on the balance of probabilities. I will refer to this angle of the case later.

44. A finding of negligence in this case rests solely on consideration of the actions of one witness, Miss Flora Lee, the physiotherapist, and, if so found, a vicarious liability will follow against her employer, the defendant Hospital.

45. Before I come to evaluate her evidence, however, I must first address myself to the proposition advanced on behalf of the defence that, in simple terms, the fracture preceded the fall. In medical terms it amounts to a proposition that Madam Leung So suffered a spontaneous femoral neck fracture before she fell.  It is further suggested that this spontaneous fracture was caused at least in part by a condition endemic in age groups over 70 and more particularly in women of that age group as a result of osteoporosis in the bones. This has been medically described as bones" thin in shell and spongy in texture”.

46. Doctor F. S. Lam was the first witness tackled on this subject. Having been called as an expert witness on behalf of the Plaintiff, he was, in cross-examination, shown certain medical articles, and, in effect, asked whether he agreed with their contents or not. Having been shown an article entitled "Mechanism of Femoral Neck Fracture" he was brought to the sentence "The patient often does not sustain the fracture because of a fall, she fractures the hip first and then falls" and asked whether he agreed. His answer was "This is a contentious area for orthopoedic surgeons. " Later occurred the following exchange: -

In re-examination he reversed this answer as follows: -

47. Professor Yau when shown the same sentence in the same article, said "That was probably the case with Madam Leung So" that is to say a breaking of the hip first. He said later, however, that whilst orthopoedic surgeons believe you can have a break and then fall, there is no way to tell that with certainty. He then went on to describe how with her foot tending to drop and twist, and with toes possibly catching on the ground, that could twist the hip causing the fracture. A twisting hip, he said, was sufficient with an osteoporitic bone to cause the fracture.

48. Having himself performed the operation he says he did notice in fact there was osteoporosis in the bone of the right femur. In cross-examination the following exchange took place: -

Q.    You cannot say with any degree of certainty that the fracture preceded the fall?

A.    I cannot.

49. Doctor Bong Shu Chun, another orthopoedic surgeon called for the defence, was firmly of the opinion that in this case the fracture would have occurred prior to the fall, and he based this on the x-ray seen this year when Madam Leung So was under observation at the Maclehose Medical Centre in June, prior to this trial. He said, in support of this observation, that if in her case the fracture had been caused by the fall, he would have expected the fracture lines to have been more complicated and comminuted. In cross-examination he answered "Yes" to succeeding questions that postulated fracture before fall and then the other way round, but I do not take this as a contradiction, merely that he was in essence saying the same as the above quoted answer of Professor Yau's in cross-examination, namely there can be no certainty.  In re-examination he repeated that after considering the oblique and spiral nature of the fracture from the x-rays it was more probable that the fracture preceded the fall.

50. There is one consistency running through the evidence of all three of these experts - namely that there can be no certainty in any given case as to which came first. There are two factors, however, which in my view entitle me to draw a positive inference.

51. The first of these factors is that Professor Yau observed that the right femur. bone was in fact in an osteoporotic state. The second factor is that the x-ray of the fracture shows not a complicated or comminuted fracture but fracture of an oblique and spiral nature, inconsistent with a heavy fall.

52. I therefore feel that having heard all the experts on both sides on this point and having weighed up the evidence it is right to conclude on the balance of probabilities in the particular circumstances of Madam Leung So that she did suffer a spontaneous femoral neck fracture before she fell.

53. That being my finding on this point, there can be no other conclusion but that the Hospital must be exonerated from blame for Madam Leung So's fall on 27th March 1981 and all the consequences flowing from that fall. It might be argued that, if she did suffer a spontaneous femoral neck fracture before she fell, as I find she did, then she ought never to have tried to walk at all. Merely to postulate that caveat is enough to show that if there was any force in such an argument then the choice to set her out on the walking exercise could not be laid at the door of the defendant hospital or its servants but on those who advised and started such treatment before she ever came into the care of the Canossa Hospital.

54. In case it be thought I am wrong to have drawn such an inference on the balance of probabilities I will approach the issue by disregarding this finding. That is to say I will, for the purposes of deciding the issue, assume that the inference I have just drawn of a spontaneous femoral neck fracture is either too uncertainly based to have been drawn at all, or at any rate not sufficiently firmly based even to make a probable inference along those lines.

55. I must therefore consider the evidence of the physiotherapist, Miss Flora Lee. When evaluating it I bear in mind that, although she does not stand to lose her job with the Canossa Hospital, since she no longer works there, she would inevitably suffer professionally by a finding of negligence against her, and might be expected to do her best to negative any such finding when giving her evidence.

56. I bear in mind also that to a large extent her evidence is unassailable, in that there is no-one available, at least to those acting on behalf of the Plaintiff, to contradict her description of what she actually did on the day in question.

57. Thus I have not only listened with great care to her. evidence, but I have carefully observed her whilst she was giving it, and read over my notes of her evidence several times.

58. With these precautions in mind I find that in no way did she give her evidence in a glib fashion. She paused when there was need to pause, and answered with emphasis when such a response was called for. I therefore find her a wholly reliable witness, and as and where there are conflicts of fact I rely on her evidence to the detriment of any contrary evidence.

59. Finding her a reliable witness is not enough. Her evidence must then be looked at from the viewpoint of accepting that she did what she said she did, no more and no less, does her evidence constitute a lowering of the standard of skill and pare expected of a trained physiotherapist in the particular circumstances of treating someone in the condition of Madam Leung So.

60. Miss Flora Lee was a graduate of physical therapy in the University of Alberta. She had previously worked in a hospital in Calgary, Canada, and at the Matilda Hospital in Hong Kong before becoming the physiotherapist attached to the Canossa Hospital at the beginning of December 1980. She is at present working as a physiotherapist with Cheung Poon and partners at Takshing House in Central.

61. From the referral letter of Doctor Au-Yeung dated 22nd January 1981 she knew that Madam Leung So was an elderly lady suffering from not one ailment but many ailments - diabetes, ischemic heart disease and, most troublesome of all, right-side hemiplegia and aphasia resulting from a cerebral thrombosis. From her age and from the history of her ailments Miss Flora Lee said that she suspected there might be some incipient osteoporosis in her bones. In other words she had to be specially watchful and careful with such a patient.

62. Accordingly she designed a series of exercises, mild in their nature and with well-spaced rest periods. She reported that this careful coaxing approach was rewarded by some improvement in Madam Leung So's movements during the period from 22nd January to 25th March. She found that her patient had increased her muscle strength in the paralysed limbs, she had improved her balance, and lessened her spasticity.

63. She noticed that whereas the patient had originally been brought to the physiotherapy department in a wheelchair, there were several occasions, prior to the date of the accident, when she was able to walk with the aid of her quadrupod, being merely accompanied by her daughter, Madam Lee, and a private nurse, without either of them touching her. The distance she was observed covering in this manner was about 50 feet from the main entrance to the Hospital to the Physiotherapy Department.

64. The walking exercise designed for her by the physiotherapist was, as she put it, 'quite mild' because she understood her patient's heart problems. Initially both the physiotherapist and an assistant held on to her. The next cautious progression was for the physiotherapist alone to hold on to her, with an assistant by the other side but without touching her.

65. On the day of the fall the walking part of the exercise was done by the physiotherapist alone holding the patient, using her strong right hand to support the patient under her left armpit, and using her left hand on the good left arm of the patient guiding her use of the quadrupod. By that day the assistant on the other side was no longer standing right beside the patient. This had been the case for about 4-5 days preceding the 27th MarCh.

66. Miss Flora Lee explained her choice of standing by the left side of the patient by noting that, because the movement of the right foot was done by bringing it forward in a small circle, she felt she could best assist by maintaining her support on the patient's other side. This positioning was approved of by the witness Doctor Laurance Shek, an expert physician well versed in the rehabilitation of stroke patients.

67. Originally the Plaintiff's attack on the physiotherapist's method of treating the patient was on two points. Madam Lee said in evidence that the physiotherapist was wearing an unsuitable sandal on the day in question, and produced a pair similar to the one seen to have been worn. Miss Flora Lee gave evidence that both in her training and experience the special Scholl sandals she wore, indeed similar to the exhibit produced by Madam Lee, was accepted footwear for carrying out physiotherapy treatment. No more was made on this point in final submissions on behalf of the Plaintiff, and rightly so in my view and in face of the unchallenged explanation given.

68. The main and only complaint was that there was no assistant near enough on the unguarded right hand side. At one stage counsel for the Plaintiff seemed to be saying that the close presence of the right hand assistant should never under any circumstances have been dispensed with. Later, however, it was conceded that, when the proper time comes, it would be in order to dispense with the right hand assistant. This is in my view the more reasonable and correct approach. It prompts the following rhetorical questions, to which I would supply the obvious answers.

69. When would be the proper time to do away with the right hand assistant? Suggested answer - when the patient has reached a sufficient range of movement and balance to justify it. Who is the person to decide when that stage has been reached? Suggested answer - the professional physiotherapist in attendance. How is the physiotherapist to decide this? Suggested answer - the same as the answer to the first rhetorical question.

70. When Doctor Laurence Shek, a physician well experienced in rehabilitation of stroke patients, gave evidence, he was asked "Would it be advisable for an additional person to be always standing nearby?" His answer made a number of points. Ideally he agreed this would be the case. Not only, however, was it not standard practice anywhere in the world, but, he suggested, a continuance of too close an attendance always by two helpers, when the patient was seen to be making progress, would prevent the patient from ever regaining confidence and inhibit the rehabilitation from achieving the desired modicum of independence. In his words "a small but acceptable risk of accident is inevitable, otherwise there would be no chance of attaining any independence in rehabilitation. "

71. In fact what Doctor Shek said in evidence reflects the words used in one of the judgments in the Whitehouse v. Jordan Case already cited. That was a case of a difficult childbirth involving the use of forceps in assisting the birth. At first instance the application of forceps as applied by the expert obstetrician, Mr Jordan, was found to have been too long and too hard. Although Donaldson LJ gave a dissenting judgment in the Court of Appeal, upholding the view taken by the trial judge, he had this to say: -

"If he (in that case the obstetrician) exercised that skill to the full, but nevertheless takes what, with hindsight, can be shown to be the wrong course, he is not negligent and is liable to no one ....... "

Or, as Denning MR, in one of the majority judgments said:-

"........ even accepting the Judge's view that Mr Jordan pulled too hard and too long it was not negligent. It was at worst an error of judgment. "

72. Similarly with this case. Even if it could be right, with hindsight, and with a counsel of perfection, to say that Miss Flora Lee dispensed with the close presence of the right hand assistant too early, it was at worst an error of judgment. I would hold that she had in fact used due care and skill in the attempted rehabilitation of Madam Leung So, and ought not to be found negligent or liable for the fall which occurred on 27th March 1981.

73. For the sake of completeness I would add that whether I approach the case from the point of view of the burden resting with the Plaintiff or vice versa, in either case the result would be the same. In other words, if res ipsa loquitur ought not to be adopted in this case then I would find that the Plaintiff had not discharged the burden of proof of proving negligence. If, on the other hand, res ipsa loquitur ought to be the path adopted, then I would find that the Defendant had more than discharged the burden of proof necessary to rebut the prima facie evidence of negligence.

74. I would also add that I agree with Counsel for the Defendant and say that putting liability on the Defendant on the grounds of his duties under the Occupiers Liability Ordinance adds nothing to the allegation of negligence. In fact the Plaintiff, wisely in my view, did not even address me on this point.

75. If I had found negligence against the defendant hospital I would have assessed damages along the following lines.  On general damages for pain suffering and loss of amenities I have been given a range by the Defendant's counsel of $35,000 - $50,000, and by the Plaintiff's Counsel of "$45,000 - $70,000. In any given range there must be a reason both for the lower and the upper ends. This was a case where the fractured femur not only occurred in hospital and was therefore immediately dealt with, but in a hospital where there was rapidly available perhaps the most eminent orthopoedic surgeon in Hong Kong. Under his skillful care there was, as I have already found, an uneventful recovery. The fracture was not a comminuted one as claimed, and three weeks after the operation the patient was fit for discharge. I would have assessed this head of damages at the lower end of the scale and would have awarded $40,000.

76. Doctor Au-Yeung's fees are claimed at $8,960.00. There was no way he would have charged his mother-in-law for his professional attention, but I would have found it right for the Hospital, if found negligent, to have reimbursed the physician, whom they invited to attend, on a quantum meruit basis. I would have assessed this at half the room rate, bearing in mind that the requested physician had to spend more time than would normally be expected by reason of him having to come over from Kowloon. This head would therefore have amounted to $4,480.00.

77. A fractured femur would not normally require the attendance of a full-time nurse after discharge. In the circumstances of Madam Leung So, however, the Hospital, if found negligent, would have had to accept the victim talem qualem and thus would have had to reimburse the victim for a full-time nurse. This obligation would have ceased on and after the second follow-up in July 1981, 13th July to be exact. After that the effects of the orthopoedic injury would in my view have ceased. I would have found the subsequent physical and mental deterioration of Madam Leung So to have been partly due to the family's own failure to employ professional nurses, and partly to the inevitable effects of old age and the pre-existing stroke effects. Taking it in broad and easy calculable terms I would have taken 4 months of Miss Lam Yau Ngai's wages plus Miss Chan Fung Yee's remuneration, plus some replacement nurse's costs making, say, $14,000.00. For nourishing food I would have awarded $1,000.00 to take care of that period up to mid-July, and the agreed sum of $200.00 travelling expenses. The total thus reached would have come to $59,680.00. To that figure would have had to have been added interest at the normal rates applicable to general and special damages.

78. Accordingly Plaintiff's claim is dismissed.

(1)    [1951] 2 K. B. p.343 at p.365

(2)    [1980] 1 A.E.R. p.651 at p.653