Lee Fai and Another v. Tung Wah Group of Hospitals

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

1996, PI No. 228

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Coram : The Hon. Mr. Justice Seagroatt in Chambers

Date of Hearing: 21 January 1997

Date of Handing down of Reasons for Decision: 27 January 1997

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REASONS FOR DECISION

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1. This is an action for damages by a mother and her child alleging negligence on the part of the hospital and/or doctors at the time of the birth of her child. The child was born in 1982 with brain damage. The writ was issued on the 30th December 1993, the Statement of Claim was served on the 12th May 1994 and the Defence on the 15th July 1994. It is however clearly a stale action.

2. The Defendants issued a Summons on the 27th April 1996 seeking inter alia, leave to issue a Third Party Notice against the parents of the child. In support of this they filed an affirmation by Tam Wai Chiu, Medical Service Secretary of the Defendants, and Chow Chun Bong, Chief of Service of the Defendant of Paechatrics at the Princess Margaret Hospital, no doubt an expert to be called on behalf of the Defendants.

3. That summons was due to be heard on the 28th June 1996 but was adjourned generally by agreement. The Defendants have restored that part of it which seeks leave to issue the Third Party notice.

4. The argument raised by Mr. Mok before me today is that the Defendants are entitled to seek contribution from the parents in respect of one part of the infants claim, namely the damages to flow from the extent of the disability. Put another way, the Defendants contend that had the parents exercised a proper degree of care towards the child he would have been treated by experts and would have been in a much better, or at least better state than he is today. It is not necessary for me to deal with the merits of that contention, if there are any, but simply with the Defendants contention that the issue of the Third Party notice is the proper and essential means of dealing with it.

5. At the forefront of Mr. Mok's argument is the contention that the parents are tortfeasors and therefore potentially joint tortfeasors with the Defendants; that the existing Defendants could be left with the whole of the liability and in the absence of the parents as Third Party, the court would not be able to order them to make a contribution towards the damages which a court may order the Defendants to pay.

6. This is a mistaken argument. The tort complained of is the original insult/injury to the brain. There is no question of the parents being joint tortfeasors in respect of that. Of course, parents have a duty of care towards injured children to save them from further injury, or aggravation of existing injury but what is contended for here is that the Parents failed to mitigate the loss suffered by the child. That is not a tort.

7. Mr. Mok refers to McCallion v. Dodd & Anor [1966] N.Z.L.R. p.710 and Arnold & ors v. Teuo & others 83 D.L.R. 3d p.609. Both these cases were concerned with the extent to which, if at all, a parent's breach of duty of care had led to the tort itself - i.e. the injuries suffered by a child in a collision with a motor vehicle. These circumstances do not relate to this case of alleged medical negligence.

8. The passages in Clerk & Lindsell on Torts (17th Edition) - paragraphs 1-39, 4-54, and 4-56, - are also relied upon by Mr. Mok but they do not advance his case. The essential matter is that these parents are not parties to the original tort.

9. The easiest answer is the practical legal one. The Plaintiff, albeit an infant, is entitled only to recover damages which flow from any tort proved. There is a duty to mitigate loss. If it can be shown that he has not mitigated that loss - or rather if it can be shown that those who have care and control of him have not mitigated his loss, then the Defendants are liable only for the loss that flows directly and inevitably from their tort. They will have to compensate the victim for the disability which could not reasonably be mitigated. This principle is observed in the courts on a daily basis.

10. I note from the affidavit of Tam Wai Chiu, paragraph 15, that it was intended to make the husband of the 2nd Plaintiff a Third Party in respect his wife's claim for his "contribution" to his wife's depressed state. This is entirely misconceived. The 2nd Plaintiff is entitled to recover damages for her injuries (and that includes psychiatric or mental injury) to the extent that the Defendant's tort has caused it. If there is another cause or aggravating cause she will either not recover or will recover proportionately. Civil courts are making such judgements every date.

11. The application is dismissed with costs on a common fund basis to the Plaintiffs, there is an order for the Plaintiff's costs to be taxed under the Legal Aid provisions, if required.

Representation:

Mr. Jeevan Hingorani instructed by Messrs. Simmons & Simmons for the Plaintiffs.

Mr. Johnny Mok instructed by Messrs. Robert W.H. Wang & Co. for the Defendants.