Attorney General v. Ho Hing Mui

CACV000061/1982

Negligence - quantum of damages - whether act of third party not amounting to negligence breaks the chain of causation so as to render ultimate damage suffered too remote - test of foreseeability.

In the course a Caesarean section a Government doctor negligently left a swab in the utero-cervical region of the respondent. In the course of an exploratory operation a private doctor wrongly decided that that a hysterectomy was necessary. He was not guilty of negligence it so deciding. The Crown appealed from a finding that it was answerable for the entire damage suffered and argued that this action broke the chain of causation and rendered the damage suffered by the respondent in consequence of the hysterectomy too remote.

Held - the correct test was whether the damage was reasonably foreseeable essentially a question of fact. Appeal dismissed.

BETWEEN

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Coram: Hon. Leonard, V-P., Cons & Zimmern, JJ.A.

Date: 29 July 1982

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JUDGMENT

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Leonard, V-P.:

1. This is an appeal against the quantum of damages awarded to the respondent for negligence. On the 26th July 1978 the respondent, a married woman then aged 23, was delivered in a Government hospital by Caesarean section of a baby girl. At the time of the delivery, her fallopian tubes were tied at her request. Due to the admitted negligence of those represented by the appellant a surgical swab was inadvertently left in the utero-cervical region at the time of this operation.

2. The presence of the swab led to pain, discharges and other ailments in respect of which the respondent sought medical treatment on at least three occasions from Government doctors other than those per forming the original operation. Those seeing her on these occasions gave her post-natal care but, despite her complaints, failed to detect any illness much less the presence of the swab and did not, so far as can be determined from the record, consult the surgeon who performed the Caesarean section. One could perhaps be forgiven for expecting that reference would be made in him in view of the respondent's repeated complaints. The swab in question contained matter which would have made it immediately visible on X-ray and had it been detected by that method at that early stage the respondent would have been saved considerable suffering and the serious complications which ensued have been avoided.

3. Be that as it may, it has not been pleaded that negligence should be attributed to the Crown by reason of the failure to detect the trouble at that stage, the sole negligence pleaded and admitted being the negligent performance of the Caesarean section in that the swab was left inside the abdomen.

4. Subsequently the respondent, despairing of obtaining assistance at the Government hospital, consulted private doctors, but again to no avail.  In November 1978 she consulted Dr. Leung an obstetrician in private practice. He mis-diagnosed her condition as caused by a tumour, possibly malignant, warned her that an operation was necessary and that hysterectomy might be indicated. To this he obtained her consent. He operated on her in January 1979, founded the offending swab and accompanying abscesses and performed a hysterectomy.

5. In the Court below liability in negligence was not contested and the sole issue was as to quantum, in particular as to whether the disability resulting to the respondent was caused by the swab having been left in her abdomen when the Caesarean section was performed or had been caused by an unnecessary hysterectomy. The learned trial judge who ordered a global figure of 9$85,000 for general damages, regarded the negligence attending the Caesarean section as the sole cause of the ill-health and suffering occasioned to the respondent after it took place, notwithstanding the Crown's claim that they were, in so far as they occurred after January 1979, caused by the drastic surgery performed by the obstetrician Dr. Leung for which the Crown contended it was not answerable.

6. I would pause to remark that the Crown's claim (that it was not answerable because of Dr. Leung's intervention) was not pleaded with any great particularity. The relevant paragraph of the defence reads:-

"It is denied that such of the symptoms of ill-health or injury as the plaintiff may prove to be suffering were (accept as is admitted in paragraph 5 of this offence) caused or contributed to by the piece of gauze left in the abdomen."

7. Paragraph 5 of the defence admits that a pelvic abscess suffered by the respondent was attributable to the swab.

8. I find it surprising that Dr. Leung was not joined as a party to the proceedings either under Order 16 rule 1(c) by the Crown or as a defendant by the respondent herself. Some legal advisers might have regarded the respondent as in somewhat the same position as an innocent passenger in a car involved in a collision whom one would expect to be successful at least against one in a claim against both drivers. In saying this I appreciate that the actions of Dr. Leung had been found non-tortious, a finding against which there has been no appeal and which, the Crown concedes, it must accept.

9. Since the case turned on the question whether the Crown was answerable for damages following on Dr. Leung's intervention it involved a detailed consideration of medical evidence and was a case which a shorthand note of the evidence would have been most useful. The record does not so show but the trial judge apparently dispensed with such an note under Order 68 rule 1 which requires an official shorthand note of any evidence given orally in Court to be taken unless the judge otherwise directs. It seems that due to a dearth of shorthand writers he had little choice. He would have had to adjourn or dispense with the note; this is a most unfortunate state of affairs.

10. In saying this I do not intend to criticise the note taken by the trial judge which was as complete as one could expect. Inevitably however some of the flavour of evidence is lost when it is not recorded verbatim in the form of question and answer. If it is not, the Court of Appeal when considering questions of fact must be even more ready to defer to the hearing and seeing judge than it would be in the normal case. There were four medical witnesses in all. Two, Dr. Leung and Dr. Wedderburn called by the respondent and two, Professor Ma and Dr. Chin by the Crown. It was no part of the Crown's case that Dr. Leung's intervention amounted to actionable negligence but Mr. Little for the Attorney General did contend that removal of the uterus by Dr. Leung was unnecessary and that his decision to perform the hysterectomy was a serious error of judgment and that the respondent's present disability was wholly attributable to his intervention. These contentions were to a considerable extent supported by the evidence of Professor Ma, and of Dr. Chin who agreed with her, but were however contradicted by the evidence of Dr. Leung and Dr. Wedderburn. Mr. Little went on to suggest that Dr. Leung's treatment stigmatised as unnecessary but not negligent broke the chain of causation and absolved the Crown from liability for the respondent's present disabilities, because those disabilities were not, he suggests, reasonably foreseeable.

11. The conflict as to the necessity for the hysterectomy was not the subject of any express finding of fact by the trial judge. In assessing the evidence he has this to say:-

"I now return to the facts, and it is well to state the obvious - the only person who can tell us what was the actual state of the plaintiff's pelvic cavity when the operation was performed was Dr. Leung. I will say at once that I formed a very favourable impression of him and in so far as credibility might be in issue, I entertain no doubt whatever that he told the truth to the best of his ability. Everyone agrees that Dr. Leung was fully qualified and has the requsite experience to perform an operation upon Madam Ho to see what was wrong with her although he did not have the extensive experience of Professor Ma. The Professor  gave her evidence clearly and very firmly and I greatly appreciate her help in this difficult case ......... Towards the end of her testimony she said that Dr. Leung had made his decision to the best of his judgment but that 'It was bad luck for her (Madam Ho) I say this because she might have found another doctor who would not carry out the same procedure. It might have led to a hysterectomy but the chances were very slight.'"

12. Elsewhere the trial judge refers to the "cogent and compelling evidence of Dr. Wedderburn" in relation to the question whether the hysterectomy was necessary. The trial judge observed that Professor Ma's evidence was that the hysterectomy should not have been done unless it was necessary. Professor Ma had gone very much further than this in her evidence. She said it should not have been done except to save Madam Ho's life. It was "absolutely the last resort" and "there was no immediate danger of death even at the time of the operation". Having considered Dr. Leung's report and having heard his evidence, she was of the opinion that there was no reasonable justification for him coming to the conclusion that the patient's life was in danger. There was, she said "no justification for jumping to the conclusion that the uterus was finished and cutting it up. He made the decision to the best of his knowledge and in the patient's interest. I would accept that. He misjudged the primary cause of the infection and he did not totally realise the pathology of the condition. He did not know the seriousness of somebody with a "post-hysterectomy syndrome". [It is to be noted that the post-hysterectomy syndrome is the most serious of the respondent's disabilities.] In cross-examination Professor Ma acknowledged that "it could have happened that the uterus was so infected that it had to be removed but most unlikely." She maintained that "if he thought the patient at the moment was in danger of dying he was wrong. He made the decision to the best of his judgment. It could have happened to any doctor. It was bad luck for her. I say this because she might have found another who would not carry out the same procedure. It might have led to a hysterectomy but the chance was very slight." The whole tenor of professor Ma's evidence as I read it (appreciating my limitations in working with a truncated record) is that the hysterectomy should not have been performed unless the patient was in immediate danger of death and it followed that to perform the hysterectomy when it was performed was wrong although the possibility, that the uterus might have had ultimately to be sacrificed, was present but very slight.

13. Dr. Wedderburn was of the opinion that Dr. Leung's decision was "I think we must accept, the right decision." To some extent he appears to have formed his opinion on the basis that he could not imagine any surgeon carrying out the difficult operation without justifiable ant urgent reason. At the same time he thought the operation could only be justified because "her life was in jeopardy". In one somewhat ambiguous passage he preferred the use of the expression "risk of complications" to the expression "risk of death" and agreed that "the prognosis for a swab case is a complete recovery". Dr. Leung's own evidence was that "the patient's life was quite literally at risk" and that to perform the operation was the only course open to him.

14. Although in face of this evidence there is no finding as to whether the operation was or was not necessary, there are findings that Dr. Leung considered that it was necessary, that another obstetrician of his experience might well have taken a similar decision ant that if it was a mistake it was a reasonable one.

15. Furthermore, one must not lose sight of the fact that, at the very least, an exploratory operation was necessary. Dr. Leung was the first of several doctors consulted to realise this. When he was consulted the swab hat been in situ for some six months and the necessity for exploratory action may have been the more apparent. When in the course of the exploratory operation he found the swab it had to be removed and that itself might not have been and was not unattended by complications.

16. A number of passages in the judgment suggest that in considering whether or not the injury suffered by the respondent was too remote from the original admitted negligence the trial judge tended to favour the test "Was the further damage the direct ant natural and probable consequence of the original wrong?" rather than the test "Was the ultimate damage reasonably foreseeable at the time of the commission of the admitted negligent act?" and there seems to me to be some validity in Mr. Little's claim that there was some confusion in his mind between the two tests. The judge says "Of course, if it can be shown that the operation performed by Dr. Leung was necessitated by the admitted negligence of the defendants then they would have to be liable for the consequences for, on any view, the chain of causation would not have been broken and that further damage was not only foreseeable but a natural and probable consequence of the original wrong". He goes on to consider whether Dr. Leung acted negligently, finding assistance in passages in Bolam v. Friern Hospital Management Committee ⁽¹⁾ and White Tower and Jordan and anr. ⁽²⁾ and after pointing out that the suggestion that Dr. Leung had made an error of judgment was not decisive of the question whether he had been guilty of negligence, he then went on to consider Robinson v. The Post Office. ⁽³⁾ That was a case in which the plaintiff suffered a wound on his leg through the negligence of the Post Office. He was given anti-tetanus serum to which he was allergic and as a consequence he suffered serious damage. The question whether the conduct of a doctor falling short of negligence could amount to a novus actus was considered, but no conclusion was arrived at on that question because there was no finding that the doctor had been inefficient in deciding to inject A.T.S. nor would one have been justified. The Post Office, had to take the victim of its negligence as it found him complete with his allergy. There is, in that case, no true analogy with our case for it has never been suggested that our respondent suffered from any allergy or other peculiarity.

17. That there was some cause for concern as to whether the trial judge adopted the Polemis test rather than the "foreseeability" test appears from a further passage in his judgment in which he said:-

"It is trite to observe that a plainly unnecessary operation will in some (perhaps most) circumstances break the chain of causation and so excuse the original wrongdoer from responsibility for its consequences, as being improbable and unforeseeable, but it seems to me an operation and its consequences cannot be relied upon as an novus actus if it was performed as a result of a reasonable (even if possibly mistaken) decision for such treatment was very much a natural consequence of the wrongdoing."

18. On balance, however, I am not satisfied that the trial judge was applying the wrong test, for having recited the legal arguments and commented on them, he went on:-

"The surgical gauze was negligently left inside Madam Ho after Caesarean section. Madam Ho would surely seek medical help, there was bound to be considerable infection in the pelvic cavity. An operation to remove this swab and clear the infection would have to be performed. The patient might not have the good fortune to come under the care of a surgeon of Professor Ma's great experience but it would be expected that she would be treated by a competent and fully qualified surgeon as Dr. Leung undoubtedly was. I am asked in effect to say that the chain of causation breaks here and that the defendant could not reasonably have foreseen that someone of Dr. Leung's experience might not have come to the conclusion, on grounds that seem reasonable to him or her, that the best interest of the patient demanded that the uterus be removed. If the decision was entirely reasonable  in the circumstances of difficulty created by a wrongdoer, I do not think that he can be heard to say that it was a mistaken decision and absolve himself for responsibility for its expected con-sequences. A reasonable mistake, if such it was, must surely be recognised as a risk incidental to medical treatment - this is inherent in the human fallibility of all practitioners. I find nothing in the authorities to prevent me from reaching what I am bold enough to say is a commonsense conclusion. I hold on the balance of probabilities that it has been established that the defendants are not exonerated from liability in damages flowing from Dr. Leung's intervention."

19. This passage seems to me to contain the ratio of the judgment. I am persuaded by such phrases and words as "surely", "there was bound to be", "would have to be", "might not have the good fortune", "it would be expected" that the trial judge was, as it were, placing himself in the position of the silent but reasonable witness who sees the original negligent act - the leaving of the swab - and contemplates its foresee-ability.

20. When approaching the problem of remoteness I must, as I see it, look somewhat askance at cases between 1921 - the year of In Re Polemis -and 1961 - when Polemis was held to be not good law in the Wagon Mound and the test of "foreseeability" dethroned the test of the "direct and natural consequences". But one may still find comfort in them, when applying the test of foreseeability. One does not wholly discard the notion of novus actus interveniens because the test is foreseeability. One bears it in mind. It is of use just as it was found of use in Hogan v. Bentinck Collieries ⁽⁴⁾ a case where the interpretation of the words "Where ....... incapacity for work results from the accident" in the Workmans Compensation Acts had to be decided. When one is applying the test of foreseeability one must bear in mind that even if the actus emanates from conscious volition it may still not break the chain of causation if it be reasonably foreseeable (see Haynes v. Harwood⁽⁵⁾ where Greer L.J. said as early as 1935:-

"If what is relied on as novus actus interventions is the very kind of thing which is likely to happen if the want of care which is alleged takes place the principle embodied in the maxim is no defence."

21. In a much quoted passage from the Oropesa (1943) page 32 at page 39 Lord Wright indicated that to break the chain of causation there must be something "ultroneous, something unwarrantable, a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extraneous or extrinsic". In Lamb v. Camden Council Lord Denning M.R. doubted if even "reasonably foreseeability" was the valid test and said "The law has to draw the line somewhere! Sometimes it is done by saying that there is a break in the chain of causation. At other times it is done by saying that the consequence is too remote to be a head of damage. All these devices are useful in their way but ultimately it is a question of policy for the judges to decide".

22. The peculiarity of the present case is that while Dr. Leung thought the hysterectomy was necessary and Professor Ma's opinion was that it was not, the trial judge does not decide whether or not it was, he contents himself with holding that it was non-tortious. On the one hand I do not consider that a decision that the act was non-tortious, is in itself sufficient to lead to the conclusion that it did not break the chain of causation. On the other I do not think that performance of an operation which is unnecessary inevitably leads to the conclusion that the damage ultimately suffered is too remote from the original act of negligence to enable those responsible for that original act to escape liability for the ultimate damage caused. I find the suggestion voiced by Stevenson L.J. in Knightley v. Johns⁽⁶⁾ that we should "follow Greer L.J.'s approach in Haynes v. Harwood getting what assistance we can from the epithets used by Lord Wright in the Oropesa" compelling. Adopting that approach I ask myself was the hysterectomy one of the things so likely to arise as a consequence of leaving the swab that a reasonable man would foresee it. Was it "of a class of happening that might well be anticipated as one of the reasonable and probable results of the act" or was it "ultroneous" or "unwarrantable" or such as disturb the sequence of events?

23. I seek to answer this question standing in the shoes of the reasonable man in Hong Kong present when the swab was left in the body. Would he foresee hysterectomy as likely? I think, to some extent, the answer is to be found in the evidence of professor Ma which I have already quoted. It was "bad luck, she might have found another doctor who would not have" performed the hysterectomy. Dr. Wedderburn thought that Dr. Leung had acted correctly. However this difference might have been resolved (had the judge thought it necessary to resolve it) is not crucial. In Hong Kong we have a medical profession in which practitioners come from a variety of backgrounds and have a variety of skills. I conclude, from the disagreement I have mentioned and from the words of Professor Ma I have quoted that a reasonable man would in Hong Kong foresee hysterectomy in such a case as this. It might be "bad luck" but it would be foreseeable. As Steven L.J. said in Kinghtley v. Johns at page 367 "the answer to this difficult question must be dictated by commonsense rather than logic on the facts and circumstances of each case," and later "in the long run the question is, as Lord Reid said in the Dorset Yacht Co.⁽⁷⁾ one of remoteness of damage to be answered, it has so often been stated, not by the logic of philosophers but by the commonsense of plain man". I think that the reference to "plain man" here must be intended to enable judges to arrive as their conclusion after consideration of the entire background of facts and also of the relevant authorities using the "devices" of which they approve. Although the trial judge used expressions which suggest in some places that he was adopting the Polemis rule, I am satisfied that he was exercising that kind of informed commonsense. For these reasons I would dismiss this appeal.

(1) (1957) 1 W.L.R. 587

(3) (1974) 1 W.L.R. 1178

(2) (1981) 1 W.L.R. 246

(4) (1949) 1 All E.R. 588

(5) (1935) 1 K.B. 146

(6) (1982) W.L.R. 347 at 364

(7) (1970) A.C. 1004

Cons, J.A.:

24. The limits of a wrongdoer's liability for his wrongs and how they maybe affected by the subsequent intervention of a third party have long been the subject of judicial anxiety. The last words on the question come from the Court of Appeal in Knightley v. Johns.⁽¹⁾ There in a reserved judgment, Stephenson L.J., after an exhaustive analysis of the authorities, propounded the crucial question in the words - "whether that whole sequence of events" - that is, including the intervening act or acts of the third parties - "is a natural and probable consequence of the first defendant's negligence and the reasonably foreseeable result of it". He then added this advice:-

"In answering the question it is helpful but not decisive to consider which were mere omissions or failures to act; which acts and omissions were innocent mistakes or miscalculations and which were negligent having regard to the pressures and the gravity of the emergency and the need to act quickly. Negligent conduct is more likely to break the chain of causation than conduct which is not; positive acts will more easily constitute new causes than inaction. Mistakes and mischances are to be expected when human beings, however well trained have to cope with a crisis; what exactly they will be cannot be predicted, but if those which occur are natural the wrongdoer cannot, I think, escape responsibility for them and their consequences simply by calling them improbable or unforeseeable. He must accept the risk of some unexpected d mischances: see Baker v. T.E. Ho Hopkins & Son Ltd. ⁽²⁾ per Willmer L.J. and Chadwick's case(3) per Waller J."

25. In that case the original wrongdoer overturned his car one evening in a road tunnel beneath the centre of Birmingham. The following motorist reported by means of the emergency telephone and the police boon came to the scene in the form of an inspector and two constables on motor-cycles. As a result of a combination of errors on the part of the police, one of the constables was injured by yet another motorist. Stephenson L.J. concluded (contrary to the view taken by the trial judge) that the nature and quality of the errors was such that the injury to the constable was too remote to be attributable to the original incident. As he put it ".... too much happened here, too much went wrong, the chapter of accidents and mistakes was too long and varied, to impose on the first defendant liability for what happened to the plaintiff ....."

26. In the present case we have only one error, and it was of such a kind that the doctor who made it was found not wanting in the skill which, as a medical man, he professed to possess. He was misled by the astonishing, and perhaps frightening, state of affairs which he found on opening up the unfortunate patient, a state of affairs which would easily have been foreseen by the original wrongdoer. It was natural that some doctor or surgeon would be called upon to put that right. As to a similar situation, Stephenson L.J. said this:-

"The reasonable hypothetical observer would anticipate some human errors, some forms of what might be called folly, perhaps even from trained police officers, and some unusual and unexpected accidents in the course of their rescue duties."

27. When there is substituted "medical men" for "police officers", that comment becomes in my view decisive of the case before us. There is however another matter to be dealt with. At the end of his reserved judgment the judge drew attention to the recent case of Birkett v. Hayes.⁽⁴⁾ He declined to follow it, thinking it right to leave the question to this Court.

28. In that case the Court of Appeal varied the guideline it had earlier set as to the rate at which interest ought to be awarded upon damages for pain and suffering and loss of amenities. The felt able to do so because although the House of Lords had, in Pickett v. British Rail Engineering Ltd., ⁽⁵⁾ confirmed that interest ought generally to be awarded, it had not considered what would be an appropriate rate, the rate in that instance having already been agreed between the parties. The considerations which in Birkett the Court thought sufficient to justify variation were inflation and the incident of tax.

29. The effect of inflation upon the award of general damages is likely to be the same here as it is in England, although the actual rates of inflation may vary a little. Our provisions as to tar, however, particularly with regard to tax on interest are, I think, quite different. These are matters which were only lightly touched upon before us.

30. In view of the manner in which the point was raised below I am not sure that we ought, as we have now been asked, to deal with the question of interest at all. I am certain though, - and my brothers have told me that they agree - it would not be right to deal with it without the benefit of proper argument.

31. For these reasons I agree that the appeal should be dismissed.

(1) (1982) 1 W.L.R. 349

(2) (1959) 1 W.L.R. 966, 984

(3) (1967) 1 W.L.R. 912, 921

(4) (1982) 1 W.L.R. 816

(5) (1980) A.C. 136

Zimmern, J.A. :

32. The facts of this case have been clearly set out in the judgment of my lord the Vice-President and I shall not repeat them.

33. Mr. Little for the Attorney General submitted that the judge applied the wrong test which ought to have been whether the removal of the plaintiff's uterus was a reasonably foreseeable and natural and probable consequence of the negligence of the doctor who performed the Caesarean section in failing to remove the gauze from the respondent's abdomen.

34. He conceded that the authorities are liable in damages for the negligence of the Government doctor but though surgery was removal necessary for the remeval of the gauze the hysterectomy was something else. He said that the course of treatment ending up with the removal of the uterus if not freakish at least most unusual and the chances of it being done by any other doctor was slight. It was therefore not foreseeable. It was wrong treatment though not negligent treatment breaking the chain of causation otherwise the intervening act between tort and damage.

35. An analysis of Professor Ma's opinion of the operation after having heard Dr. Leung's version of it in the witness box really boils down to this. There is a normal and proper procedure laid down for this type of surgery and Dr. Leung had failed to adopt it and if he had he would not have performed the hysterectomy. Contrary to the evidence of Dr. Leung she was of the opinion that the patient's life was not in danger and that operation might well have endangered it. This, of course, is not enough to found negligence against Dr. Leung for there is still the further question whether any other ordinary competent surgeon specialising in this line of country exercising the ordinary degree of professional skill would have done the same. I am satisfied even on the evidence of Professor Ma that the answer to this question is yes. She said :

"It was necessary to remove the uterus because the abscess was in direct contact with the uterus and that was only way of dealing with infections touching on the uterus - that is what he said. I think that the judgment of that depends on experience.

If Dr. Leung had never seen a patient like that he could easily make a misjudgment because usually abscess walls look very nasty and the uterus is part of the wall and so he might have thought that the uterus was very infected, if he did not understand the pathology of the whole condition. If that was the position I would do the least risky procedure. The majority of gynaecologists would have hesitated. Immediate danger of bleeding. Also basic treatment. Draining and removal of foreign bodies. The patient was only 23. I am surprised at somebody of his experience (he is experienced) to have made this misjudgment. I would not be surprised if someone with 5-6 years experience could have made this misjudgment."

36. Stephenson L.J. only this year reviewed the law in Knightly v. Johns ⁽¹⁾ both pre and post Wagon Mound I and II wherein at pages 366-367 he said :

"The question to be asked is accordingly whether that whole sequence of events is a natural and probable consequence of the first defendant's negligence and a reasonably foreseeable result of it. In answering the question it is helpful but not decisive to consider which of these events were deliberate choices to do positive acts and which were mere omissions or failures to act; which acts and omissions were innocent mistakes or miscalculations and which were negligent having regard to the pressures and the gravity of the emergency and the need to act quickly. Negligent conduct is more likely to break the chain of causation than conduct which is not; positive acts will more easily constitute new causes than inaction. Mistakes and mischances are to be expected when human beings, however well trained, have to cope with a crisis; what exactly they will be cannot be predicted, but if those which occur are natural the wrongdoer cannot, I think, escape responsibility for them and their consequences simply by calling them improbable or unforeseeable. He must accept the risk of some unexpected mischances : see Baker v. T.E. Hopkins & Son Ltd.⁽²⁾ per Willmer L.J. and Chadwick's case (3) Per Waller J. But what mischances?

The answer to this difficult question must be dictated by common sense rather than logic on the facts and circumstances of each case."

37. In applying the test so stated to the facts of the case one may, without charity, come to the conclusion that the hysterectomy was a deliberate choice which act was an innocent mistake or miscalculation without negligence done in an emergency with need to act quickly. Dr. Leung was coping with a crisis and common sense dictates to me as no doubt it dictated to the learned judge that in all the circumstances of this case it cannot be said that the hysterectomy was not reasonably foreseeable, I would dismiss the appeal.

(1) [1982] 1 W.L.R. 349

(2) [1959] 1 W.L.R. 966, 984

(3) [1967] 1 W.L.R. 912, 921

Representation:

Mr. David J. Little and Mr. Harry Macleod, Crown Counsel for Appellant.

Mr. Patrick Woo (Arthur Au & Co.) for Respondent.