Fung Chun Man v. Hospital Authority and Another

HCPI 1113/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1113 OF 2006

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BETWEEN

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Before: Hon Bharwaney J in Chambers (Open to Public)

Date of Hearing: 10 February 2012

Date of Decision: 20 February 2012

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D E C I S I O N

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1.On 11 November 2011, I entered judgment in the sum of HK$1,381,694 and interest in favour of the plaintiff against the 2^nd defendant in this case. I also made a costs order nisi that the 2^nd defendant pays the costs of the action of the plaintiff, and the costs of the 1^st defendant, to be taxed if not agreed. I had granted leave to the plaintiff to discontinue the proceedings against the 1^st defendant at the commencement of trial. The plaintiff did so because the 2^nd defendant made the admission, at the commencement of trial, that there had been a sub-standard negligent diagnosis of the plaintiff which resulted in an unnecessary operation to create a hole in the plaintiff’s heart and which subsequently required closure by a patch. On the basis of the said admission, I entered interlocutory judgment against the 2^nd defendant for damages to be assessed.

2.The claim had been brought against the 2^nd defendant in respect of the matters of complaint during the period from 24 July 1990 to December 1991 and against the 1^st defendant in respect of the matters complained of after 19 December 1991.  There was no suggestion from the 2^nd defendant that the 1^st defendant had caused different, or additional, damage to the plaintiff, when the plaintiff was under its care, for which the 2^nd defendant was not responsible.  On the basis that the 2^nd defendant was responsible for all loss and damage flowing from the admitted negligence, the plaintiff applied for, and was granted, leave to discontinue the proceedings against the 1^st defendant. 

3.In granting leave to discontinue, I reserved all questions of costs to the conclusion of the proceedings.  I had not, in fact, received any submissions from the parties in connection with the costs of the 1^st defendant before I made the costs order nisi that the 2^nd defendant pays the costs of the 1^st defendant, an order commonly known as a Sanderson order which has its origin in the order made by the court in Sanderson v Blyth Theatre Co. [1903] 2 KB 533, CA.

4.By summons dated 24 November 2011, the 2^nd defendant applied to vary my costs order nisi and sought an order that the 2^nd defendant do pay the costs of the plaintiff limited to costs incurred in proceeding against the 2^nd defendant and that the costs of the 1^st defendant be paid by the plaintiff.  The 1^st defendant did not participate at that the hearing of this summons as it made no difference to the 1^st defendant whether its costs were to be paid by the 2^nd defendant or by the plaintiff. 

5.The principles that govern the making of Sandersonor a Bullockorder (i.e. an order that the plaintiff pays the costs of the successful defendant and recovers them from the unsuccessful defendant) are well settled.  The court must, in each case, determine whether or not it was reasonable for the plaintiff to proceed against the successful defendant.  If it was, the unsuccessful defendant may be ordered to pay the successful defendant’s costs, either directly, via a Sandersonorder, or indirectly, via a Bullock order.  As explained by Vaughan Williams LJ stated in Besterman v British Motor Cab Co. Ltd. [1914] 3 KB 181 at p.187, such costs form part of the reasonable costs of the action:

“… The proper way is—do not join any defendant unreasonably; if the facts are such that it is reasonable to join them both and reasonable to be in a state of uncertainty as to which of the two is the really guilty one, then it is part of the reasonable costs of the action that the costs of the action which you have launched against one of those defendants, and who has succeeded in defending himself, should be borne by the man who is to blame.”

As was made clear in the English Court of Appeal decision in Goldsworth v Brickell [1987] 1 CH 378, the authority of the court over costs is very wide and the suggestion in the 1985 Edition of The Supreme Court Practice (repeated at marginal note 62/1/6 of Hong Kong Civil Procedure 2012) that a Sanderson or Bullock order will not be made where there are different causes of action is not sustained by the authority of Mulready v Bell [1953] 2 All E.R. 215 which dealt with a very special case.  

6.The classic case where a Sanderson or Bullock order is made is where the unsuccessful defendant blames the successful defendant and causes the plaintiff either to join the successful defendant or to continue the proceedings against the successful defendant.  However, even absent such circumstances, it may be reasonable for the plaintiff to join the unsuccessful defendant, in cases where the plaintiff is faced with a denial of liability by the unsuccessful defendant and the real risk that the unsuccessful defendant may either be absolved from liability or unable to satisfy any judgment that may be obtained against him.  In such circumstances, if the plaintiff is in possession of evidence that can implicate the successful defendant, evidence that is neither tenuous nor speculative nor far-fetched, it would be reasonable for the plaintiff to join or to proceed against the successful defendant and the court, at the conclusion of such a case, may, in the exercise of its discretion over costs, make a Sanderson or Bullock order.

7.In the context of actions in tort, it does not matter that the claim against the successful defendant was not made in the alternative but was a separate and independent cause of action.  Although a Sanderson or Bullock order is unlikely to be made in a case of successive and unrelated torts by different tortfeasors causing different damage, whether tortfeasors jointly caused the same damage or whether they separately caused different damage or only one of them caused the damage may only be known after a final determination by court. In exercising its discretion whether or not to make a Sanderson or Bullock order, the court would have regard to all the circumstances of the case and the state of the evidence to determine whether or not it was reasonable for the plaintiff to pursue the successful defendant. In making its decision, the court must be careful not to lose sight of the uncertainties surrounding the case before its conclusion (per Bohhary J., as he then was, in Lee Lai Ha & Anor. v. Hong Sau Ling & Anor. [1993] 1 HKLR 86).    

8.In this case, the claim against the 1^st defendant was for negligent treatment of the plaintiff and was based on the expert report of Dr David Hu, a cardiologist, who said in paragraphs 22 and 23 of his report dated 19 August 2009 that:

“22. It is one thing a wrong diagnosis was made but it is another not to deal with the mistake early on. Had this child received corrective surgery before age 6 or 7, the child may have had a healthier childhood and less long term morbidity and limitation to his studies and career.

23.    The PMH doctors seemed to wish that the problem would go away and, even when the patient presented with possible heart failure in 1996, a very passive approach was taken.  That seems inexcusable.”

9.Although there was much common ground, between the plaintiff’s expert, Dr Hu, and the defendant’s expert cardiologist, Dr Ng Yin Ming, on the issue of the negligence of the 2^nd defendant, as regards the many allegations made by the family on the follow-up at the Prince of Wales Hospital, it was stated in their joint report of 31 May 2010 that “both doctors cannot agree on the way follow-up was done at Prince of Wales Hospital”.

10.I had observed, in the course of my judgment, that there was no evidence before me that the plaintiff’s condition would have been any better had the closure of the hole in the heart been performed at an earlier age. However, I had made this observation in a case where this issue was no longer relevant, the 2^nd defendant having accepted responsibility for all loss and damage flowing from the admitted negligence and the plaintiff having discontinued the proceedings against the 1^st defendant at the commencement of trial.

11.Given the state of the expert medical evidence obtained by the plaintiff in support of his claim against the 1^st defendant, it was reasonable for the plaintiff to proceed against, and to continue the proceedings against, the 1^st defendant in this case where the plaintiff was faced with a denial of liability by the 2^nd defendant and the real risk that the 2^nd defendant might be absolved from liability. 

12.This was a proper case for the court to make a Sanderson order and I decline the application to vary the costs order nisi I have made.

13.The plaintiff’s costs of this application are to be paid by 2^nd defendant, to be taxed if not agreed. I also direct that the plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations. 

Mr Neal Clough, instructed by Henry H C Wong & Co., for the plaintiff

Mr Paul Lam, instructed by P C Woo & Co., for the 1^st defendant

Mr Patrick Lim, instructed by the Department of Justice, for the 2^nd defendant