NG KAM CHUEN AND OTHERS v. THE ATTORNEY GENERAL

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JUDGMENT OF THE COURT

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Macdougall, J.A.:

1. On 20 February we dismissed these two appeals with costs and said that we would hand down our reasons later. This we now do.

2. The appeals were against the decision of Deputy Judge Patrick Chan to grant leave to the plaintiffs in two separate actions against the Attorney General to amend their statements of claim. Both actions involved claims for medical negligence and, since the issues raised in each application for leave to amend were the same, they were, by consent of the parties, transferred by a master to be heard together by a judge in chambers.

3. The plaintiff, Mr. Ng Kam-chuen in HCA 7255 of 1985, and the deceased Madam Chau Sau Yung, the administrators of whose estate had commenced the action in HCA 2437 of 1987, were both patients at the Kwai Chung Hospital at the relevant times.

4. Mr. Ng's claim arose out of injuries he sustained on or about 14th January 1984 when he attempted to commit suicide by jumping out of the window of the ward in which he was a patient on the 6th floor of the hospital.

5. The claim of the administrators of the estate of Madam Chau arose from her death on 25 June 1984 as a result of an act of suicide in which she hanged herself in a showercubicle at the hospital on 23 June.

6. In his statement of claim dated 25 November 1985, Mr. Ng pleaded that his action arose out of the negligence in the performance of their duties of three doctors, a psychiatric nurse and staff of the hospital; that he had been diagnosed at the hospital to be suffering from schizophrenia; that at all times the medical and nursing staff of the hospital had undertaken to provide him with medical and nursing services; that, having had knowledge of the fact that on 7th December 1983 he had attempted to commit suicide by jumping from a window of the same ward of the hospital, the Medical and Health Department knew or ought reasonably to have known at all times after that attempt that he required such medical and nursing services as would prevent him from again attempting to jump from a window; and that his act of jumping from the window was caused and/or contributed to by the negligence of the doctors, psychiatric nurse and staff of the hospital.

7. Mr. Ng then pleaded the following particulars of negligence

(i)    Failing to provide any or any adequate nursing services for the Plaintiff.

(ii)    Failing to provide any or any adequate medical services for the Plaintiff.

(iii)    Failing to take any precautionary measures or any adequate precautionary measures to prevent the Plaintiff from jumping out of the window at all or alternatively to prevent the Plaintiff from jumping out of the window at any time after the first incident.

(iv)    Failing to provide any or any adequate supervision of the Plaintiff."

8. In their statement of claim dated 29 April 1987 the administrators of Madam Chau's estate claimed that their action arose out of the negligence of three doctors, a nursing officer and a senior nurse of the hospital; that Madam Chau had been diagnosed at the hospital to be suffering from schizophrenia; that at all material times the medical and nursing staff of the hospital had undertaken to provide medical- and nursing services for her; that she had been admitted to the hospital pursuant to a referral memo dated 11 May 1984 from South Kwai Chung Polyclinic in which it was stated that she had repeatedly threatened to kill himself and had complained that she was unhappy, worthless and helpless; and that her death was caused and/or contributed to by the negligence of the doctors, two nurses and staff of the hospital.

9. The particulars of negligence that were pleaded were:

(i)    Failing to provide any or any adequate nursing services for the deceased.

(ii)    Failing to provide any or any adequate medical services for the deceased.

(iii)    Failing to take any precautionary measures or any adequate precautionary measures to prevent the deceased from hanging herself.

(iv)    Failing to provide any or any adequate supervision of the deceased.

(v)    Ignoring or failing to pay proper or any attention to any or all of the symptoms more particularly described in paragraph 5 and 6 above."

10. The symptoms described in paragraph 5 were those referred to in the memo from the South Kwai Chung Polyclinic. Those described in paragraph 6 were:

"(i)   'Dull and flat affact' (sic)

(ii)    'Poor attitude or approach'

(iii)    'Poor contact to nurses and co-patients', sitting alone

(iv)    'Lazy' and dozing off most of the time, tired and sleepy

(v)     Uncooperative and mute on approach

(vi)    'Lack of volition'

(vii)    'Anxious for being pregnant' (she was not)

(viii)   'Claimed her head to be a bomb'

(ix)     'Feeling of hopelessness'

(x)      'Self care needed supervision'

(xi)      'Worried she might die', 'worried about future'."

11. The Attorney General, who is sued as the representative of the Medical and Health Department, admitted in both his defence and his amended defence to Mr. Ng's action that Mr. Ng had been admitted to the hospital on 25 October 1983 pursuant to the Mental Health Ordinance; that he had been diagnosed there as suffering from schizophrenia; that on 7 December 1983 he had attempted to jump out of a window of the ward on the 6th floor, and that the three doctors and the psychiatric nurse were employees of the Medical Health Department.

12. He also admitted in his defence to the action by the administrators of Madam Chau's estate that she had been admitted to the hospital on 11 May 1984 pursuant to the Mental Health Ordinance; that she had been diagnosed there as suffering from schizophrenia; that her admission had been pursuant to a referral from the South Kwai Chung Polyclinic; that the referral memo dated 11 May 1984 from that polyclinic had stated that she had repeatedly threatened to kill herself; and that the three doctors and two nurses were members of the staff of the hospital who cared for her.

13. By summonses dated 4 June 1991 Mr. Ng and the administrators of Madam Chau's estate both sought leave to amend their respective statements of claim. The proposed amendments were extremely lengthy. It is agreed however that they were succinctly summarised by the judge as follows:

" 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:

(1)    failure to reconsider the diagnoses of schizophrenia: Paragraphs (i), (ii), (iii), (v), (xii) & (xiii).

(2)    failure to give the correct treatment: Paragraph (iv).

(3)    failure to take adequate precautions to prevent the Plaintiff from jumping out of the window: Paragraphs (vi), (vii), (x), (xiv) which is a repetition of (vi), (xix), (xx), (xxiii) and (xxv).

(4)    failure to assess the risk of suicide: Paragraphs (vii), (ix), (xi), (xv), (xvi) which is similar to (vii), (xvii), (xviii) and (xxiv).

(5) failure to keep a proper medical record: Paragraphs (xxi) and (xxii).

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:

(1)    failure to reconsider the diagnosis: Paragraphs (i), (vi), (xiii), (xviii), and (xxx).

(2)    failure to give the correct treatment: Paragraphs (ii), (iii), (iv), (v) and (xxviii).

(3)    failure to take adequate precautions to prevent the deceased from committing suicide: Paragraphs (vii), (xiv) which is a repetition of (vii), (xvi), (xix), (xx), (xxv) and (xxxii).

(4)    failure to assess the risk of suicide: Paragraphs (vii), (ix), (x), (xi), (xii), (xv), (xvii), (xviii), (xxiii), (xxiv), (xxvi), (xxix) and (xxxi).

(5)    failure to keep a proper medical record: Paragraphs (xxi) and (xxii)."

14. We think it proper to observe that the proposed amendments, which consisted of 42 and 43 pages respectively whereas the statements of claim consisted of 5 and 6 pages, were justifiably criticised by the judge for containing offensive remarks and for being largely composed of the evidence proposed to be adduced instead of consisting, and consisting only, of statements in summary form of the material facts on which the plaintiffs sought to rely for their respective claims, contrary to R.S.C. O.18, r.7. However, that was not the objection that was pursued either before the judge or in the grounds of appeal by Mr. Marshall, counsel for the defendant both in this court and the court below. His objection was that the allegations contained in the proposed amendments raised or constituted a new cause of action, namely, the negligence of a wrong diagnosis, and that the addition of a new cause of action which is statute barred should not be allowed unless it can be justified under R.S.C. Order 20 r.5 (5).

15. In support of this contention Mr. Marshall cited Weldon v. Neal (1887) 19 QBD 394, Marshall v. London Passenger Transport Board [1936] 3 All ER 83 and Batting v. London Passenger Transport Boardu[1941] 1 All ER 228.

16. While accepting that these cases had been decided before the amendments to the rules which resulted in the introduction of Order 22 r.5(5), the judge treated them as good illustrations of Mr. Marshall's contention. Having also considered two authorities cited by Mr. Sujanani for the plaintiffs - Collins v. Hertforshire County Council [1947] 1 KB 598 and Dorman v. J.W. Ellis & Co. Ltd. [1962] 1 QB 583 - he concluded:

"      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."(our emphasis).

17. Having come to that conclusion, however, the judge decided that the proposed amendments came within the ambit of Order 20, r.5 (5). He therefore allowed them.

18. In his notice of appeal the Attorney General contended that the judge erred in law in granting leave to make the amendments. The plaintiffs contended in a respondent's notice that the judge's decision should be affirmed on the ground that the proposed amendments did not raise new causes- of action but merely extended the original pleaded issues and allegations of negligence and provided further particulars of the defendant's negligence.

19. It was agreed at the outset of the hearing of these appeals that we should first hear argument on the respondent's notice. Mr. Marshall presented his submissions in much the same way as he had done before the judge. He contended that the proposed amendments introduced three new causes of action in the form of three new torts of negligence arising from the allegations of (1) failure to give a proper diagnosis (2) failure to give correct treatment and (3) failure to keep proper medical records.

20. Since each case must be decided on its own facts, we do not consider it profitable to embark on an analysis of the cases that were cited to the judge and again to us. On a consideration of the statements of claim and the proposed amendments we find ourselves unable to agree with the judge's conclusion that the amendments give rise to new causes of action. It seems to us that he fell into error by thinking that the plaintiffs "complain only of inadequate precautions". Having thought that that was the plaintiffs' sole complaint, it is not surprising that he then arrived at the conclusion which he did. Although there is no specific reference in the statements of claim to diagnosis, correct treatment or the keeping of proper medical records, it is plain that in each case one of the particulars of negligence alleged against the doctors was a failure "to provide any or any adequate medical services for [Mr. Ng and Madam Chau]."

21. In our view providing medical services clearly involves the making of diagnoses, the giving of correct treatment and the keeping of proper medical records. Had the defendant requested further and better particulars, the particulars that have now been provided in the proposed amendments could then have been given. We do not accept Mr. Marshall's submission that the statements of claim were so drafted that any reasonable person would have been led to the conclusion that the only allegation of negligence was that of failing to take precautionary measures to prevent the Mr. Ng and Madam Chau from attempting to commit suicide. There were four particulars of negligence given in Mr. Ng's statement of claim and five in that of the administrators of Madam Chau's estate. The fact that in each case there were separate particulars relating to the failure to take adequate precautionary measures on the one hand and the failure to provide adequate medical services on the other, made it plain that medical services relate to hospital care other than the taking of precautionary measures. The material in the proposed amendments of which the defendant complains consists essentially of further and better particulars of the negligence already alleged.

22. Mr. Marshall readily conceded that if we found against the plaintiff on the respondent's notice it followed that the appeal must be dismissed and that the judge's decision to allow the.amendments should be upheld notwithstanding that it was given for the wrong reason.

23. Having heard counsel on the question of costs of the proceedings below, we reserved our decision on that issue. We think that justice would be best served by ordering that the costs of that hearing be plaintiff's costs in the cause and that the costs of the summonses be to the defendant. We so order. The plaintiff's own costs shall be taxed in accordance with the legal aid regulations.