Lam Wing Hei and Lam Tsz Kiu v Hospital Authority [2018] 2 HKLRD 1441
The Hong Kong Court of First Instance recently held in the case of Lam Wing Hei and Lam Tsz Kiu v Hospital Authority [2018] 2 HKLRD 1441 that, even if the Hospital Authority failed to advise the mother (the second plaintiff) of the material risk of the baby being born seriously deformed so that she might consider having an abortion, the baby (the first plaintiff) would not have a valid negligence claim for compensation against the Hospital Authority.
The Hospital Authority provided antenatal care to the mother during the pregnancy. The baby and the mother claimed that at the time of the pregnancy the Hospital Authority was already aware of a defect in a chromosome of the foetus and, therefore, knew or ought reasonably to have known that there was a real and substantial risk of the baby suffering or developing serious disabilities of a genetic origin and associated with the chromosomal defect. It was noted that the baby’s disabilities were caused by genetics rather than any negligence on the part of the Hospital Authority. The baby and her mother argued that the Hospital Authority owed a legal duty to both the baby and her mother to inform the mother at the time of the pregnancy of (a) the chromosomal defect and (b) the associated risk of the baby suffering or developing disabilities of a genetic origin. The baby and her mother contended that the mother would have terminated the pregnancy if the Hospital Authority had properly advised her of such defect and risk. They claimed that the failure of the Hospital Authority to inform the mother of matters (a) and (b) above at the time of the pregnancy constituted negligence towards both the mother and the baby resulting in the baby being born with severe disabilities of a genetic origin.
The court held that the provisions of Part IVA of and, in particular, sections 22A(1) and 22B(2)(b) of the Law Amendment and Reform (Consolidation) Ordinance bar all claims for wrongful life, including all claims 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 might consider having an abortion. The baby’s claim was a claim of this nature and, therefore, was barred by the provisions above.
The court further held that, even if the baby’s wrongful life and wrongful suffering claim was not barred by the Law Amendment and Reform (Consolidation) Ordinance, the common law would not recognise a cause of action for wrongful life nor 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 might consider having an abortion. The most compelling reason for the court to take such a view was the problem of assessing damages. Damage caused to a plaintiff by a defendant’s act or omission was an essential ingredient of the tort of negligence which would give rise to a right to compensation on the part of the plaintiff. Because the disabilities of the baby were of a genetic origin, the baby could not have been born without those disabilities even if the Hospital Authority had properly advised the mother of the risk at the time of the pregnancy. If the Hospital Authority had properly advised the mother of the risk and if the mother had then decided to terminate the pregnancy, the baby would not have existed. In order to prove damage caused to the baby by the act or omission of the Hospital Authority, it had to be established that non-existence was preferable to life with disabilities to the baby (given that there was no option of the baby being born without disability). However, it would be impossible to use non-existence of the baby as a comparator for life with disabilities to establish damage caused to the baby. In addition, the court held that the baby’s cause of action was based on a right of a foetus to be aborted or an interest of a foetus in its own termination, which did not reflect current values generally, or even widely, held by the community in Hong Kong.
In light of the reasons above, the court struck out the baby’s claim on the ground that it disclosed no reasonable cause of action. One would note from the reasons for decision that the hearing was for considering whether to strike out the baby’s claim and the court did not decide the mother’s claim.
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