Andrew Graham Young v Dr Ho Chun Kit Peter HCPI1583/2010
The claim relates to negligent advice given to the Plaintiff to undergo an operation, which allegedly led to the Plaintiff’s urinary incontinence. The Defendant admitted in his Questionnaire for the Checklist Review hearing that the advice given to the Plaintiff was negligent, and had the advice not been negligent, the Plaintiff would not have undergone the operation. However, causation was still in issue and the Defendant’s position was that the effective or major cause of the Plaintiff’s urinary incontinence was attributable to his pre-existing condition. Based on the Defendant’s admission of negligent advice, the Plaintiff applied for interlocutory judgment with damages to be assessed. The Defendant opposed such application on the ground that he might be precluded from raising the defence that he was not liable for the urinary incontinence. The Defendant referred to case laws which stated that the onus of proving causation should be on the claimant; and in order to succeed, the claimant has to prove that the defendant’s tortious conduct made a material contribution to his disability. The Defendant further submitted that the issues of causation should be dealt with at the trial of liability and not at the assessment hearing. The Judge disagreed with the Defendant’s arguments and held that issues of causation are commonly dealt with in an assessment of damages. Given that there were admissions on a negligent act and that the act had caused some damage, the court can enter judgment leaving damages to be assessed. The court would, at the assessment hearing:
"Undertake the task of determining the extent of the loss and damage that flowed from the admitted negligent act or omission and whether or not the loss and damage actually caused or contributed by the admitted negligent act or omission exceeded the admitted damage."
Further, the court said that if there were complex medical causation issues in dispute, the parties can always apply for the assessment of damages to be heard before a Judge rather than a Master.
By finding that medical causation is not a liability issue, the court appears to be saying that defendants can admit liability without fearing that they are also admitting medical causation. If there is no dispute on liability for the accident but there is an argument on whether the plaintiff’s current condition was caused or contributed to by pre-existing illnesses or degenerative changes, defendants can consider admitting liability to save costs.