Hong Kong Law of Tort - Essay Example

I. Introduction Facts of the case reveal action on medical negligence and nervous shock. The actionable points of the case can be culled out from the following series of events: Elizabeth, an eight year old patient of Get-well mental Hospital got violent and Dr. Mike, the doctor in charge gives her injection to calm her down. Unfortunately, the drug given produced negative side effects, which led to shortness of breath on the part of the patient. Nurse on duty panicked and pulls out the breathing mask connected to a huge oxygen cylinder, toppling it on Elizabeth face, causing injuries. The mother of the patient saw and heard what happened to her daughter and had s terrible nervous shock. The mother, after witnessing the series of events, called her husband Ben, the stepfather of Elizabeth who came one hour after. He collapsed after seeing the bandages on Elizabeth. John, brother of Elizabeth after being notified, came one day after incident. All three persons, Lucy, Ben and John, suffered from shock after the incident. II. Available Actions 2.1 What is idea of negligence? The idea of negligence is a product of hundred of years of law making. Until the present, the idea of negligence is still very much open to interpretations by the court. Although there have several attempts in the past to come up with criteria for negligence, the‘ categories of negligence are never closed.’1 Although the courts wanted a rule by which to judge conduct, they wanted the rule to be flexible enough so that the rule could be applied in various circumstances. Lord Atkin in Donoghue v Stevenson, the courts were initially quite reluctant to apply it as a criterion of general application in every case of negligence. Instead, they adopted a case by case approach, thus restricting the imposition of liability to only few situations of negligence. 2 Negligence is generally defined as the failure to use ordinary care. A person fails to use ordinary care if he/she does something that a person of ordinary prudence would not have done under the same or similar circumstances. Failure to use ordinary care can also occur by omission, or failing to do something which a person of ordinary prudence would have done under the same or similar circumstances. Negligence, then, is a judgment of both acts and omissions. “Negligence is a legal cause of damage if it directly and in natural and continuous sequence produces or contributes substantially to producing such damage, so it can reasonably be said that if not for the negligence, the loss, injury or damage would not have occurred. Negligence may be a legal cause of damage even though it operates in combination with the act of another, a natural cause, or some other cause if the other cause occurs at the same time as the negligence and if the negligence contributes substantially to producing such damage. In cases involving allegedly defective, unreasonably dangerous products, the manufacturer may be liable even though it exercised all reasonable care in the design, manufacture and sale of the product in question.”3 2.2 Tortuous Wrongs “Tortuous wrongs are broadly classified as intentional and negligent. Where the aggrieved party is a victim of an intentional wrong, the aggrieved party must ground his action in an intentional tort. Where the aggrieved party suffers due to a negligent act or omission of another, the aggrieved party must ground his action in negligence.”4 Where there was no intent on the defendant to cause harm on the victim but the victim was injured anyway, the action can only be grounded on negligence. As expounded by Diplock J in Fowler v Lanning5 that where the only proof is want of reasonable care, the only cause of action is negligence. How then can we determine the proof reasonable care? Ordinary care generally means the degree of care that would be used by a person of ordinary prudence under the same or similar circumstances. Ordinary care is the duty to act reasonably in a given situation. Absent the ordinary care would eventually be a ground for actionable negligence. 2.2 Elizabeth As the primary complainant of this case, Elizabeth can find actions for medical negligence against Dr. Mike, Nurse Jacqueline and Get-well Mental Hospital. However, an action against the manufacturer of the drug may not prosper. 2.2.2 Action against Dr. Mike In the case at bar, the arguments should be whether or not Dr. Mike’s action was intentional or plainly negligence. Facts of the case show that soon after Elizabeth became violent, Dr. Mike gave her drugs to calm and prescribed a drug, which should be taken for the next 3 days. The first doze of the drug prescribed generated adverse reaction from the patient. In the leading case of Kong Wai Tsang v Hospital Authority6,, the principle of Bolam v Friern Hospital Management Committee7, reintegrated in the case of Bolitho v City and Hackney Health Authority8: "(a medical practitioner) is not guilty of negligence if he has acted in accordance with practice accepted as proper by a reasonable body of medical men skilled in that particular art ... merely because there was a body of opinion who would take a contrary view." However, the test was well laid where the standards of a doctor of ordinary skill and as to whether he had acted in accordance with a practice accepted at that time as proper by a responsible body of medical opinion skilled in the particular form of treatment in question. The question would be in the case at bar, “Did the current violent actions of the patient through ‘screaming, shouting and thumping at the door of her room wildly warrant the administration of a drug to calm her down? Furthermore, if such degree of violence in the patient did require the administration of a strong drug, did Dr. Mike comply with the current medical standards, considering the tender years of the patient and the explicit notice on the manufacturer of the drug that it is no well suited for children below 10 years old? ” Considering the flow of events in the case at bar, the administration of a relaxant drug on a violent patient can be logically inferred to be consistent with medical standards. However, the prescription of another strong drug, which should be taken by the patient for 3 days from the date she manifested violence, is highly debatable not to mention the fact that such drug had explicit warning attached thereto. I strongly believe that defendant Dr. Mike did not and could not pass the Bolam test. The degree of care is wanting. The harm inflicted towards the patient was very much foreseeable considering the warnings on the package of the drug administered. With the foreseen risk on the patient, the doctor has the responsibility of care to prevent such harm on the patient. This is sadly not present in the case at bar. However, absent the clear showing that he intentional harmed the patient, the can the action that would prosper against Dr. Mike would only be medical negligence resulting to injuries on the patient. 2.2.3 Action against Nurse Jacqueline An action of negligence against Nurse Jacqueline should be filed in Court. In the absence of intent to cause harm on the patient, and in fact, she was trying to help the patient by putting on the oxygen mark to alleviate her shortness of breath, defendant nurse can only be sued for negligence for want of care, which eventually resulted into injury. In Letang v. Cooper9 it was ruled that where the injury caused was inflicted unintentionally, the plaintiff has no cause of action for trespass. He can only sue on the grounds of negligence for want of reasonable care. 2.2.4 Action Against Get-Well Hospital As the primary complainant in this case, Elizabeth can sue Get-Well Hospital for two counts of negligence. In home office v Dorset Yatch10 the liability for failure to control the conduct of certain classes of persons was established. The proximity of control by the hospital administration over its medical personnel creates a duty of care on the part of the hospital. In the case at bar where the doctor blatantly disregarded the warnings on the labels of the drugs against giving the same to patients less than 10 years old, the hospital may be sued together with the Doctor. In the case of Nurse Jacqueline, the hospital can also be held liable for negligence in not providing safety in the installation of hospital equipment. The fact that the huge oxygen tank was not securely fasten to the wall or to any stable objects to prevent it from toppling over is the primary source of the injury which is foreseeable and controllable. Both the negligent actions of Dr. Mike and Nurse Jacqueline are still within the control and supervision of the hospital administration. 2.2.5 Action against XY Ltd. Manufacturers Unfortunately, an action by the plaintiff against the manufacturer o the drug, the XY Ltd, Manufacturer, may not prosper. Although the drug is new in the market, there was sufficient warning in the package thereof clearly stating “ This is a new medicine. It should only be taken on doctor’s advice. It may not suit children under 10 years old and patients suffering from allergies. The medicine may have some side effects.” It is now therefore the responsibility of the administering doctor to determine whether or not the drug is fit for his patient. In this case, the patient is only eight years old and there was no showing that allergy test had been taken before the drug was administered into the patient. The want of care therefore falls on the medical practitioner administering the drug and not on the manufacturer. 2. 3 Claims for Damages Most scholars agree that tort law has four purposes: (1) compensation for damages, (2) financial responsibility, (3) deterrence, and (4) avoiding self-help. This article discusses the purpose of compensation. There are three kinds of damages in torts. Compensatory damages are damages designed to pay for the actual harm that the victim suffered as a result of a legal injury. Compensatory damages are designed to make the victim "whole." Nominal damages are damages designed to vindicate the victims right to sue were actual harm has not been suffered as a result of a legal injury. Because actual damages are an element of the tort of negligence, nominal damages cannot be awarded in a negligence case. Punitive damages are damages designed to punish the person who committed the tort whether or not actual harm has been suffered as a result of a legal injury. Punitive damages are awarded when the conduct of the person who committed the tort is found to be malicious, wanton, or willful. In the case at bar, Elizabeth can only claim for compensatory as follows: a. Against Dr. Mike. Compensatory Damages including the actual medical expenses connected to the adverse reaction generated by the drugs administered by Dr. Mike. Joint liability with Nurse Jacqueline for medical expenses connected with injuries suffered by Elizabeth resulting from the fall of the oxygen tank on her face and cost of litigation. Actual expenses may include the cosmetic and surgical repairs needed on the face of the victim and therapy. Cost of litigation should also be demanded from the defendant. No punitive and nominal damages can be claimed since the incident was not a product of a wilful act. b. Against Nurse Jacqueline. Compensatory Damages including medical expenses connected with injuries suffered by Elizabeth resulting from the fall of the oxygen tank on her face and cost of litigation. Actual expenses may include the cosmetic and surgical repairs needed on the face of the victim and therapy. Cost of litigation should also be demanded from the defendant. c. Against the Hospital. Joint liability for damages with Dr. Mike and Nurse Jacqueline. d. Compensation for Pain and Sufferings. In addition to the actual cost of medication and litigation, the pains and sufferings of the plaintiff should also be considered in compensatory damages.11 III. Secondary Victim The principle of secondary victims was well established in the words of Lord Oliver in the case of Alcock and Others v Chief Constable of South Yorkshire12 and cited in the case of Wong Fung Sze & Another v Hospital Authority13. In that case, the Hillsborough stadium collapsed as a result of overcrowding, killing 95 people and injuring many more others. The plaintiffs were relatives and friends of the spectators involved in the disaster who witnessed the disaster from other parts of the stadium or who saw the events on television. On this event, the House of Lords distinguished between a primary victim and a secondary victim. A primary victim is a person who was involved, either immediately or immediately, as a participant. He was the person to whom the duty of care was owed. A secondary victim is no more than the passive and unwilling witness of injury caused to the primary victim. He is a third party whose injury was brought about by the infliction of direct physical injury or the risk of physical injury upon the primary victim. The secondary victim therefore can claim damages for nervous. However, certain criteria should be met first before such claim can be upheld in Court. In its decision in McLoughlin v O’Brien14 the House of Lords held that because "shock" in its nature is capable of affecting such a wide range of persons, for policy reason there was a real need for the law to place some limitation upon the extent of admissible claims. Lord Wilberforce identified three elements inherent in any claim for nervous shock. In order to establish a claim in respect of psychiatric illness resulting from shock suffered by a secondary victim it is necessary to show not only that such injury was reasonably foreseeable, but also (1) that the relationship between the plaintiff (i.e. the secondary victim) and the person to whom the duty was owed (i.e. the primary victim) was sufficiently proximate as to be within the class of persons whose claims should be recognised; (2) that the plaintiff had to show propinquity in time and space to the accident, not only through the sight or hearing of the event, but of its immediate aftermath; and (3) that the shock must come through sight or hearing of the events or its immediate aftermath. 3.1 Action of Lucy against Dr. Mike, Nurse Jacqueline and Get Well Hospital The action of the mother Lucy against Dr. Mike, Nurse Jacqueline and Get-Well Hospital for nervous shock would prosper in the case at bar. "Shock," in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. Lucy complied with the three test in McLoughlin. Being the mother, therefore having very close relations to her daughter, she was present during the whole incident, had seen it and heard all that was said during the incident and she suffered nervous shock because of the series of events she witnessed. On the part of XY manufacturers, Lucy do not have a cause of action as she is not the primary victim. 3.1.2 Action of Ben and John Unfortunately, their actions may not hold in Court as both were not present and did not actually witnessed the incident. Although both complied with the first requisite that the relationship between the plaintiff (i.e. the secondary victim) and the person to whom the duty was owed (i.e. the primary victim) was sufficiently proximate as to be within the class of persons whose claims should be recognised the second and third requirement were notably not met. Requirement number 2 so provides that the plaintiff had to show propinquity in time and space to the accident, not only through the sight or hearing of the event, but of its immediate aftermath. Furthermore, requirement number 3 says that, the shock must come through sight or hearing of the events or its immediate aftermath. Although Ben came in an hour after the incident, he did not witness the gruesome event, which would shock the sense. He only saw the bandage on the face of Elizabeth which in itself may not be so shocking so as to warrant some serious nervous reaction. .John on the other hand came a day after and the lapse of time is to be considered. Therefore, it is respectfully submitted that both Ben and John may not have any action against the Doctor, the Nurse, Get-well Hospital and XY Manufacturers. 3.2 Damages Lucy can claim compensatory damages against Dr. Mike, Nurse Jacqueline and Get-Well Hospital. Such damages shall include actual medical expenses connected to the event and the resulting shock including therapy plus legal expenses. 3.3 When to bring action? All actions must be brought within a specified time or else claims thereof will be forever barred from recovery. The position in Hong Kong for negligence causing personal injury or death the period is three years.15 This position has been confirmed by Stubbings v Webb,16 a House of Lords decision interpreting the English Limitation Act 1980, whose provisions are similar to those of the Limitation Ordinance.17 Footnotes 1. Donoghue v Stevenson [1932] AC 562. also mentioned in D K Srivastava The Law of Tort in Hong Kong, (2nd Edition, LexisNexis, 2005) Chapter 4. Intentional and Negligent Torts 2. see D K Srivastava The Law of Tort in Hong Kong, (2nd Edition, LexisNexis, 2005) Chapter 4. Intentional and Negligent Torts 3. The Lectric Law Librarys Lexicon On * Negligence * (online) available : http://www.lectlaw.com/def2/n010.htm - last accessed January 5, 2005 4. D K Srivastava The Law of Tort in Hong Kong, (2nd Edition, LexisNexis, 2005) Chapter 4. Intentional and Negligent Torts with reference to Letang v Cooper [1965] IQB 232. and Wilkinson v Downton [1897] 2 QB 57. 5. Fowler v Lanning (1959) 1 QB 426 also mentioned in DK Srivaste. D K Srivastava The Law of Tort in Hong Kong, (2nd Edition, LexisNexis, 2005) Chapter 4. Intentional and Negligent Torts 6. Kong Wai Tsang v Hospital Authority (2004) CA CACV 76 7. (1957) 1 WLR 582 at 586 8. Bolitho v City and Hackney Health Authority (1998) AC 232 also cited in Kong Wai Tsang v Hospital Authority (2004) CA CACV 76 9. Letang v Cooper [1965] IQB 232. also mentioned in D K Srivastava The Law of Tort in Hong Kong, (2nd Edition, LexisNexis, 2005) 10. Home Office v Yatch [1970] AC 1004 also mentioned in D K Srivastava The Law of Tort in Hong Kong, (2nd Edition, LexisNexis, 2005) 11. see Lee Ting Lam v Leung Kam Ming (1980) HKLR 657 12. Alcock and Others v Chief Constable of South Yorkshire (1992) 1 AC 310 13. Wong Fung Sze & Another v Hospital Authority (2004) DCPI 112 14. McLoughlin v O’Brien (1983) 1 AC 410 15. D K Srivastava The Law of Tort in Hong Kong, (2nd Edition, LexisNexis, 2005) Chapter 4. Intentional and Negligent Torts 16. [1993] 1 All ER 322. also mentioned in D K Srivastava The Law of Tort in Hong Kong, (2nd Edition, LexisNexis, 2005) Chapter 4. Intentional and Negligent Torts 17. Where trespass is committed against a minor, the period of limitation does not begin to run until the minor attains the age of majority. See, further, Chap 34. also mentioned in D K Srivastava The Law of Tort in Hong Kong, (2nd Edition, LexisNexis, 2005) Chapter 4. Intentional and Negligent Torts Read More