Wong Hoi Tang Alexander v. Hospital Authority

CACV000202/2000

CACV202/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 202 OF 2000

(ON APPEAL FROM HCPI 529 OF 1996)

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Coram: Hon Leong, Wong & Woo JJA in Court

Date of Hearing: 28 November 2000

Date of Judgment: 8 December 2000

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J U D G M E N T

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Hon Leong JA (giving the judgment of the court) :

1. In 1993, the plaintiff was negligently given by the hospital staff an excessive dose of lignocaine while receiving treatment at the Queen Mary Hospital, a public hospital under the management of the Hospital Authority, the defendant. As a result, he has been in a permanent vegetative state (PVS). Two months later, he was transferred to the Tung Wah Hospital and he has remained there since. The defendant admitted liability for negligence. The question left for trial is damages. What proper and reasonable care and attendance the plaintiff needs is crucial to the question of damages. It is not in dispute that the plaintiff is insensate, albeit he is sensitive to noise and pain stimulant. It is not certain that he is entirely without hope, but it is clear that he would not be aware of the surroundings. Whether the care facilities are provided to him by a private hospital or by a public hospital such as the Tung Wah Hospital does not appear to affect him. But the cost of obtaining the care facilities in a private hospital far exceeds that in the Tung Wah Hospital. Whether the Tung Wah Hospital or a private hospital is the reasonable place to meet the plaintiff's needs is to be determined at the trial.

2. In a preliminary hearing before Seagroatt J, the plaintiff asked the court to order discovery by the defendant of the detailed costing of all aspects of the care regime currently provided by the defendant in Tung Wah Hospital so as to enable the plaintiff to effect a comparative costing exercise.

3. We might mention in passing that no summons for discovery has been taken out by the plaintiff and no affidavit in support has been filed as required for an application under Order 24 rule 7. But it does not appear that this has been raised as an objection by the defendant at the preliminary hearing. In any case, on 9.6.2000, Seagroatt J ruled that the defendant should not be required to make discovery and he refused the application.

4. In his ruling, Seagroatt J stated that the plaintiff had agreed to have the issue of damages dealt with in two stages. The issue of where the plaintiff should stay in the Tung Wah Hospital or a private hospital will be decided first. The Judge ruled that the discovery the plaintiff asked for was irrelevant to the issue to be decided in this first stage. He considered that if discovery was ordered, it would consume a vast amount of time and effort and it might well be an artificial exercise.

5. For the purpose of the assessment of damages in this case, the Judge did not consider it necessary to require the defendant to take part in a comparative costing exercise. He said this :

"The criterion is not a simplistic one of cost but an assessment of what is in the Plaintiff's interest. What is his need and entitlement? The position is in a way chillingly straightforward in this case. Given his insensate state does the present environment and regimen fall short of the criterion? If it does not why should it be fair, just and in the Plaintiff's interest to move him to an environment of which he will be just as unaware and in a regimen which involves considerable expenses and which on any view must involve more cost than is apparent from the fact that the Defendant can continue to provide him with proper care within its existing organisation and financial administration. It is not in my judgment a comparable costing exercise. ......It seems to me that proceeding from a position, if it be such, that a particular institution is willing to continue to provide a care regimen for this Plaintiff which meets his needs, the costs to that institution is irrelevant, and the only issue is whether that institution does in fact meet his reasonable needs."

6. The plaintiff appealed against this ruling.

7. In the grounds of appeal, the plaintiff attacks the Judge's ruling that the Judge had erred in :

i. assuming the discovery exercise sought by the plaintiff would be an enormous exercise and might become futile;

ii. assuming the provision of an alternative care regime in a private hospital would involve more costs than that provided by the defendant when the defendant has not disclosed such evidence;

iii. holding that the costs to the institution which provides the care regime which meets the plaintiff's need is irrelevant and the only issue is whether that institution does in fact meet his reasonable needs;

iv. giving undue weight to the defendant's difficulty in complying with the discovery order; and

v. failing to consider the wishes of the plaintiff's parents and that the comparative costs exercise will be essential in doing justice.

8. In our opinion, the issue in this appeal is not where the plaintiff should stay. That issue has yet to be decided by the Judge. The question is whether the discovery sought by the plaintiff is relevant to the issue at the trial on damages.

9. In Rialas v Mitchell (17 July 1984, The Times, unreported), on the question of damages, O'Connor LJ referred to the following passage in the judgment of Lord Blackburn in Livingstone v Rawyards Coal Co Ltd [1880] 5AC 25 at 39 :

"The principle of law is that compensation should as nearly as possible put the party who has suffered in the same position as he would have been in if he had not sustained the wrong."

10. Following this, O'Connor LJ said :

"There is no room here for considering the consequences of a high award upon the wrongdoer or those who finance him."

11. Later in his judgment, O'Connor LJ referred to the following passage in the judgment of Megaw LJ in Donnelly v Joyce [1974] QB 454 at page 462 :

"The loss is the plaintiff's loss. The question from what source the plaintiff's needs have been met, the question who has paid the money or given the services, the question whether or not the plaintiff is or is not under a legal or moral liability to repay, are, so far as the defendant and his liability are concerned, all irrelevant. The plaintiff's loss, to take the present case, is not the expenditure of money to buy the special boots or to pay for the nursing attention. His loss is the existence of the need for those special boots or for those nursing services, the value of which for purposes of damages - for the purpose of the ascertainment of the amount of his loss - is the proper and reasonable cost of supplying those needs."

12. And he said :

"Applying the passage to the present case, Mr Fricker submitted that once the need for care and attendance of the infant plaintiff had been ascertained, this loss was limited to the proper and reasonable cost of supply that need, and as it could be supplied properly and satisfactorily in a private institution as a cost which was substantially less than the cost of attempting to supply it at home, it followed that the former was the proper and reasonable cost and the latter was not. This is only another way of putting the argument which I have rejected, that the infant plaintiff's need for care and attendance cannot be divorced from his status; I repeat, the defendant injured a 6-year-old boy living in his family.

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I am content to accept that in a case like the present where the cost of caring for the infant plaintiff at home is substantially greater than it would be in a private institution, the burden of proving that it is reasonable to care for him at home is upon the plaintiff. This is a question of fact for the trial judge which the trial judge decided in favour of the infant plaintiff, as it seems to me he was bound to do, for it was a proposition which was unchallenged."

13. The judge in considering whether the plaintiff should stay in the Tung Wah Hospital or a private hospital will of course consider whether it is reasonable for the plaintiff to choose to stay in one or the other. However, the plaintiff's loss is his need for proper and reasonable care and attendance in a hospital, the value of which is the cost to the plaintiff to obtain them. The cost to the defendant to provide the care services in the Tung Wah Hospital is what the defendant would have to pay in order to have those care services available at the Tung Wah Hospital for the plaintiff. To determine which care regime is reasonable, the Tung Wah Hospital or a private hospital, a comparison of the cost to the plaintiff to obtain the care services is relevant but that is not the same as a comparison of the cost to the institution, whether the Tung Wah Hospital or a private hospital, to make available the necessary care services to meet the plaintiff's needs. In other words how much the Tung Wah Hospital had to pay for such services is not relevant and a discovery as to the details of such costing is not relevant.

14. We agree with the Judge's reasoning in his ruling when he refused the application. But we add this: if the discovery is relevant to the issue to be tried, the extent of the exercise and the expenses involved to comply with the order are not relevant considerations under Order 24 of the Rules of the High Court. We dismiss the appeal with costs to the defendant.

Representation:

Mr Neville Sarony, SC & Mr Raymond Leung, instructed by Messrs Cheung & Yip for Plaintiff

Mr John Bleach, SC & Mr Melvin Wong, instructed by Messrs Deacons, Graham & James for Defendant

Mrs Annie Williams, for Official Solicitor

Remarks: