FRANK YU YU KAI v. CHAN CHI KEUNG

cacv 433/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 433 of 2006

(on appeal from hcpi NO. 230 of 2004)

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J U D G M E N T

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Hon Rogers VP:

1.  In this case I take the unusual course of considering that leave should be given under the provisions of section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance Cap. 484.  In doing so I am fully aware that it is unusual for this court to grant leave under that subsection because the decisions arising under that subsection are primarily matters for the Court of Final Appeal to decide.  In addition, the other members of this court are not disposed to grant leave.

2.  When giving judgment I said, at the beginning, that the decision had caused me no little anxiety because the maxim res ipsa loquitur had been relied upon.  That anxiety has not waned since the judgment.  In paragraph 5 of my judgment I expressed the view that this case did not involve that maxim in its full sense.  I said so on the basis that it had been the evidence of Nurse Kan, who had been called on behalf of the defendant, that it was the anaesthetist’s responsibility to ensure that the body positioning of the patient was correct.

3.  The immediate question arises as to whether my analysis of the reasoning was correct.  As Mr Coleman SC, argued on this application, as indeed the other members of the court consider, the decision of this court did involve an application of that maxim.  Moreover, the ultimate decision of this court came close to holding that the anaesthetist was, in effect, the insurer of the patient against risks arising in the course of the operation.  In my view the questions sought to be argued, although, perhaps, in the case of the first three questions, putting the matter in alternate ways, do raise matters of great general and public importance.

4.  There can be no doubt that the plaintiff put his case of negligence against the defendant on 2 specific bases.  The first was that his arm had fallen off the arm board on which it had been placed for the duration of the operation and the second was that a non-invasive blood pressure cuff had been used and it was said that that an arterial cannula should have been used.  Right up to the end of the cross-examination of the defendant the questioning was pursued on the basis of the use and positioning of the cuff.

5.  The judge rejected both the allegations.  He had also heard the evidence.  In particular, there was the evidence of the defendant as to the care and attention he took in the course of the operation.  In this regard it is to be noted that the defendant said in evidence that he had known the plaintiff for many years as a colleague.  For that reason he did recall the operation, albeit one of very many that he had taken part in over the years though it might have been.

6.  The application of the maxim in cases of medical negligence has been the subject of considerable judicial discussion.  In this context mention can be made of the case of Ratcliffe v Plymouth and Torbay Hospital Authority [1998] Lloyd’s Rep Med 162.  In that case Brook LJ talked of the limits of the doctrine and Hobhouse LJ (as he then was) went so far as to say that the expression res ipsa loquitur should be dropped from the litigator’s vocabulary and replaced by the phrase a prima facie case.  In another case Delaney v Southmead Health Authority [1995] 6 Med LR 355 Stuart-Smith LJ doubted that the principle was useful in medical negligence actions and Dillon LJ (as he then was) went on to say:

“	I cannot for my part accept that medical science is such a precise science that there cannot in any particular field be any room for the wholly unexpected result occurring in the human body from the carrying out of a well-recognized procedure.”

7.  It was similar considerations that caused the judge below to hold in favour of the defendant.  In this case there were clear difficulties.  The operation was complicated.  It was complicated for the reason that two quite different operations were being carried out.  The procedure was protracted, it took six hours.  The patient had low blood pressure and his low body mass was another factor.  The defendant had given evidence that he had warned the plaintiff of dangers and he said in evidence that:

“	Q.	…. You’re mentioning about the anatomical position of the radial nerve.
	A.	The position anatomically would be around the spiral groove but depends on the soft tissue covering the nerve, namely the muscle, the pressure and the skin.
	Q.	But doesn’t the radial nerve run down the arm as shown in that sketch?
	A.	But as you – can I make it clear that you were asking the question whether pressure on a nerve regarding to the duration of disabilitiy, okay, all right?
	Q.	That’s right, that’s the question.
	R.	So that has relationship if the nerve is more superficial to the skin and muscles covering it, okay, then you have a high chance of damaging it more.  You get a...
	Q.	I get it.
	COURT: in other words, it varies from individual to individual..
	A.	Exactly.”

8.  In my view it is appropriate for the Court of Final Appeal to consider this case and as to whether the doctrine of res ipsa loquitur was applicable particularly in circumstances where this court was differing from the judge below who had seen and heard the evidence, which included evidence from the doctor that he had taken proper care.  I consider there is considerable public importance in the matter.  The importance of the criteria on which medical negligence can or cannot be held in a fault based system of compensation goes far further than the interests of the individual.  Undoubtedly there is always sympathy towards any person who ends up with a disability, but doctors cannot be insurers.  Litigation generated because liability is imposed when none should exist not only generates a situation where the litigation becomes counterproductive to medical practice but it also increases the costs of professional negligence insurance to unacceptable levels: those costs ultimately have to borne by patients generally.

Hon Le Pichon JA:

9.  This is an application for leave to appeal to the Court of Final Appeal made under section 22(1)(a) and (b) of the Hong Kong Court of Final Appeal Ordinance from the judgment of this court dated 24 October 2007.  At the hearing, counsel for the defendant (the applicant) abandoned the ‘as of right’ limb and confined his application to the ‘great general or public importance’ limb.

Background

10.  The defendant was the anaesthetist in attendance when the plaintiff underwent an operation on 26 May 2001 lasting some six hours.  The plaintiff had a perfectly normal and functioning left arm and wrist at the time he entered the operating theatre.  By the following morning, on examination, local tenderness was detected at the musculo-spiral groove.  The plaintiff was found to suffer from radial nerve palsy of the left hand.

11.  The plaintiff brought a claim against the defendant in negligence and sought to establish the cause of the injury by advancing two alternate bases of how the injury occurred and, in the further alternative, relied on res ipsa loquitur.  The judge rejected the two specific bases advanced and found that the injury was caused by external compression at the musculo-spiral groove and that it took place when the plaintiff was under anaesthetic.

12.  This court held that given those findings and the evidence as to the defendant’s responsibility to ensure correct body positioning throughout the operation, the burden of proof shifted and it fell to the defendant to provide a plausible explanation for the presence of external compression in the absence of which negligence was to be inferred.

This application

13.  Mr Coleman SC who appeared for the defendant identified the following matters which were said to be of great general or public importance:

“	1.	Is it appropriate and/or permissible for a Plaintiff to place any reliance on the res ipsa loquitur principle when the claim is put forward on two alternate bases of precisely how it was alleged the injury occurred?
	2.	Is it open to a Plaintiff to put forward two detailed explanations as to how the injury occurred, and subsequently to suggest that a finding of liability is open notwithstanding that both those explanations can be, and are, rejected?
	3.	To put it another way,
		(1)	in a situation where the Plaintiff’s case at trial is expressly based upon the risk of injury being entirely avoidable by the use of reasonable care, and
		(2)	the particular possible causes of the injury are identified and relied upon as having been negligent causes, and
		(3)	where there is evidence called as regards those particular possible causes, and
		(4)	where – except for those possible causes – no other plausible mechanism for the injury arising from any negligence is suggested, and
		(5)	when the causes identified and relied upon are rejected or held not to have been negligent, and
		(6)	it is held that the actions taken and adopted by the Defendant are universally acceptable and not negligent
		is it open to the Plaintiff to invoke the res ipsa loquitur principle as some back up inference for negligence?
	4.	Is it ever appropriate to allow the invocation of the res ipsa loquitur principle in a claim for damages arising from alleged medical or clinical negligence, particularly at or after trial where expert and factual evidence has been called on both sides and its usefulness as a guide to help to identify a prima facie case will have been long since exhausted?”

Questions 1, 2 and 3 are essentially different ways of putting the same point.

14.  The defendant defended the action below on the following bases: first, radial nerve palsy occurred from unknown causes and therefore it was not because of any external compression and, second, the external compression did not occur during the operation but after the plaintiff had left the operating theatre.  No defence was put forward on the basis that external compression causing radial nerve palsy could occur without negligence on the part of the defendant.

15.  The principles governing the alternative plea of res ipsa loquitur are well settled.  This case involved an application of that evidential rule.  The issue which arises appears to be the correctness of its application by the court on the specific facts of the present case.  Whilst this is a matter of importance to the parties concerned, it does not give rise to any question of great general or public importance.  For my part, I am far from persuaded that any matter of great general or public importance arises to warrant leave under section 22(1)(b).

16.  Accordingly I would refuse the application with an order nisi of costs in favour of the plaintiff.

Hon Lunn J:

17.  For the reasons set out in the judgment of Le Pichon JA, I would refuse the application with costs.

Hon Rogers VP:

18.  There will therefore be an order in terms of paragraph 16 above.