Lam Wing Hei (a minor) v Hospital Authority
Court of First Instance
Personal Injuries Action No 1129 of 2015
Bharwaney J in Chambers
28 May 2018

Tort - negligence - child born disabled - claim for medical negligence based on "wrongful life" or "wrongful suffering" - failure to advise mother of material risk of foetus being born severely deformed so that she could consider and choose abortion - all "wrongful life" and "wrongful suffering" claims barred by ss.22A(1), 22B(2)(b) Pt.IVA of LARCO - such claims not recognised under common law of Hong Kong - Law Amendment and Reform (Consolidation) Ordinance (Cap.23) Pt.IVA, ss.22A(1), 22B(2)(b)

Civil procedure - striking-out - claim for medical negligence based on "wrongful life" or "wrongful suffering" - claim struck out for disclosing no reasonable cause of action - Law Amendment and Reform (Consolidation) Ordinance (Cap.23) Pt.IVA, ss.22A(1), 22B(2)(b)

P1 was born in 2012 with severe congenital deformities, disabilities and impairment caused by a chromosomal defect, in a hospital managed by the Hospital Authority (HA). P1 (by her mother and next friend), and her mother, P2, brought claims against the HA for negligent advice and/or breach of duty owed to them in the provision of prenatal care. P1 claimed for "wrongful life" or "wrongful suffering" on the basis that the HA owed a duty, co-extensive with that owed to P2, to P1 in utero (under common law or s.22B of Pt.IVA of the Law Amendment and Reform (Consolidation) Ordinance (Cap.23) (LARCO)) to inform P2 of the chromosomal defect and its associated risks; the HA was negligent in failing to do so; and had P2 been properly advised, she would have terminated the pregnancy. HA applied to strike out P1's claim for disclosing no reasonable cause of action. At issue was whether wrongful life and wrongful suffering claims were barred under Pt.IVA of LARCO. If not, whether such claims were permitted under the common law of Hong Kong. Section 22A(1) of Pt.IVA of LARCO provides that "…, this Part applies in respect of births after … the commencement of this Part [ie 14 April 1978], and in respect of any such birth it replaces any law in force before such commencement whereby a person could be liable to a child in respect of disabilities with which it might be born; …". Under s.22B(1) and 22B(2)(b) of Pt.IVA, if a child is born disabled as the result of "an occurrence" which "affected the mother during her pregnancy, or affected her or the child in the course of its birth, so that the child is born with disabilities which would not otherwise have been present" and "a person … is under this section answerable to the child in respect of the occurrence, the child's disabilities are to be regarded as damage resulting from the wrongful act of that person and actionable accordingly at the suit of the child."

Held, striking out P1's claim as disclosing no reasonable cause of action, that:

Whether wrongful life and wrongful suffering claims barred by Pt.IVA of LARCO

(1) The relevant sections of LARCO were based on, and nearly identical to, those under the Congenital Disabilities (Civil Liability) Act 1976 in England which implemented the recommendations of the English Law Commission in their Report on Injuries to Unborn Children. In light of that Report and other legislative history, on a proper construction, Pt.IVA, in particular, ss.22A(1) and 22B(2)(b) of LARCO, barred all claims for wrongful life, including those for wrongful suffering, caused by a defendant's negligence in failing to advise a mother of the material risk of a foetus being born seriously deformed so that she could consider and choose an abortion.

It was plain and obvious that P1 had no reasonable cause of action against the HA and her claim was therefore struck out on that ground (McKay v Essex Area Health Authority [1982] QB 1166 applied). (See paras.11-16, 39, 42.)

(2) The English Law Commission intended not only to replace any common law providing a remedy to a plaintiff suffering from prenatal injury caused by another's fault and to confer clear legal rights on such plaintiff, but also to prohibit children from bringing "wrongful life" claims. It would not assist those whose disabilities resulted from inherited characteristics, natural illness or pure accident. Otherwise, as stated in the Law Reform Commission Report, it would be necessary to argue that the child would have been better off had he never been born. And it would be difficult to calculate damages. In certain circumstances, the parents themselves might have a claim in negligence. (See paras.14, 17-18.)

Whether wrongful life and wrongful suffering claims permitted under common law of Hong Kong

(3) In case this construction of Pt.IVA of LARCO was wrong, the common law of Hong Kong, as it had developed in light of all the authorities, including other common law jurisdictions, did not recognise a cause of action for wrongful life or wrongful suffering. Such claim by a disabled child involved an assertion that it would be preferable if he had not been born, since there was no option of being born without disability. Such a cause of action, based on a right of a foetus to be aborted or an interest of a foetus in its own termination, did not reflect current values generally, or even widely, held by our community in Hong Kong (McKay v Essex Area Health Authority [1982] QB 1166, Harriton v Stephens (2004) 59 NSWLR 694 applied). (See paras.43, 45-46, 48, 54.)

(4) The most compelling reason for rejecting the cause of action postulated was the "intolerable and insoluble" problem of assessing damages in such cases. If a mother were properly advised and she then decided to abort, the child would not exist. It was necessary to show that no life was more valuable than a disabled one. However, it was impossible to use non-existence as a comparator to establish damage and this was an essential ingredient of the tort of negligence (McKay v Essex Area Health Authority [1982] QB 1166, Harriton v Stephens (2004) 59 NSWLR 694 applied). (See paras.51, 53.)

Determination of issues at interlocutory strike-out application

(5) It was appropriate for the issues in question to be determined at this interlocutory strike-out application rather than at trial. All the facts relevant to the proper construction of the relevant provisions of LARCO were before the Court. As to the

position under the common law of Hong Kong, substantial costs had already been incurred by the parties in preparing detailed submissions presented at the hearing; and all the relevant facts had been pleaded and must be assumed to be true. To direct that the same submissions be repeated at trial or a trial of a preliminary issue would waste costs contrary to the objectives of Civil Justice Reform (AG of the Duchy of Lancaster v L & NW Railway Co [1892] 3 Ch 274, Eugene Chuang and Kevin Ho (HCA 1904/2001, [2002] HKEC 1803) applied; H v Fetal Assessment Centre [2014] ZACC 34 distinguished). (See paras.9-10, 43-44.)

Application

This was an application by the Hospital Authority to strike out the medical negligence claim based on wrongful life or wrongful suffering of the first plaintiff, a child born with congenital deformities, on the ground that it disclosed no reasonable cause of action. The facts are set out in the judgment.

Jurisdictions: 

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