1.  Practice Direction 18.1 issued by the Judiciary requires a Plaintiff to obtain an expert opinion on liability and causation in support of a claim in medical negligence.

2. In very limited circumstances such a report on breach of duty and causation might not be required, if a claimant can plead a case of res ipsa loquitur.

3. Res ipsa loquitur is a Latin phrase which means "the thing speaks for itself". In personal injury law, it operates as an evidentiary rule that allows plaintiffs to establish a rebuttable presumption of negligence on the part of the defendant through circumstantial evidence.

4. There are three requirements before it can be inferred that the defendant's negligence caused the harm in question.

   1. The event would not usually occur unless there has been a negligent act;

   2. The evidence rules out the possibility that the actions of the plaintiff or a third party caused injury; and

   3. the type of negligence falls within the scope of the defendant's duty to the plaintiff.

5. The leading and persuasive case in Hong Kong is a decision of the Court of Final Appeal in the case of Frank Yu Yu Kai v Chan Chi Keung (FACV No. 11 of 2008). This concerns an appeal following trial of a claim by the plaintiff, who, following surgery to his lower body, was found to have severe nerve injury to his left arm. The trial judge found the nerve injury was sustained while the patient was under anaesthesia in the operating theatre and was an injury from which the anaesthetist was duty-bound to protect the patient as far as possible.

6. The trial judge had found that the nerve injury was sustained as a result of external compression whilst the patient was unconscious in the operating theatre under the care of the anaesthetist. However, the trial judge did not infer negligence from this finding by reason of absence of evidence as to how the external compression came about.

7. The Court of Final Appeal set aside the judge's decision and were of the view that as the judge found the external compression came about while the patient was unconscious and under the anaesthetist's care, it was for the anaesthetist to explain. The doctrine of res ipsa loquitur was relevant since it was not in dispute the defendant anaesthetist owed the plaintiff a duty of care to exercise reasonable skill and care in managing anaethesia and protecting the plaintiff from harm while he was unconscious, since the nerve palsy was caused by prolonged and excessive localised external compression during the operation which would not have occurred in the ordinary course of events.

8. If the requisite skill and care had been exercised by the defendant, the injury would not have occurred and therefore negligence could be inferred.

9. The Court of Final Appeal referred to the doctrine of res ipsa loquitur as a classic statement of the evidential rule going back to 1865.

10. "… where the thing is shewn to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care" (Scott v London and St. Katherine Docks Co.).

10. In a UK case, the doctrine of res ipsa loquitur was described as no more than a convenient Latin phrase to use to describe the proof of facts which are sufficient to support an inference that a defendant was negligent and therefore to establish a prima facie case against him.

11. The Court of Final Appeal pointed out that where the plaintiff is unable to say exactly how his injury was caused, it would need to be shown that it is consonant with the defendant's duty of care and that the evidence has raised a prima facie case against the defendant.

12. There have been issues raised in past cases as to whether such an approach is applicable to medical negligence cases. The Court of Final Appeal said there was no reason in principle why this should not be so, as it enables justice to be done when the facts bearing on causation and the care exercised by the defendant are within the knowledge of the defendant but unknown to the patient. This doctrine will be indispensable in medical negligence cases where the patient is unconscious when the injuries occurred.

13. To dispel a prima facie case, the defendant would have to point to evidence supporting a plausible explanation consistent with the absence of negligence. In this particular case, the court distinguished between the cause of the injury and the cause of the compression causing the injury. The cause of the injury was found to be prolonged localised pressure which compressed the radial nerve at the musculo-spiral groove. All the experts concluded it was a classic case of radial nerve palsy caused by prolonged external pressure. The trial judge unequivocally found, on the evidence, external compression was the cause of the injury. How prolonged external compression came to be applied to the patient in the course of the operation was not identified in the factual investigation conducted at the trial.

14. The Court of Final Appeal concluded that, on the evidence, a prima facie case of negligence against the defendant was disclosed which the defendant was required to answer. Whilst it was not possible for the plaintiff to prove precisely what was the relevant act or omission on the defendant's part resulting in injurious pressure on the arm, he was entitled to say on the evidence his injury was an untoward outcome which would not have occurred in the ordinary course without a negligent failure to exercise due care on the part of some person. In this case, the person responsible was the attending anaesthetist who had a duty to protect an unconscious plaintiff from harm including harm from the known hazard of compression trauma to the radial nerve, circumstances raising a prima facie inference of negligence.

15. The defendant had been unable to provide any plausible explanation to dispel that prima facie case and liability therefore followed.

16. There was only one dissenting judge who observed that it was dangerous to resolve the case based on the court's own appreciation of medical literature which might be incomplete as the court could only come to a conclusion guided by the experts' understanding of material as expressed by their evidence in court.

17. This decision of the Court of Final Appeal is binding so that if the conditions of the doctrine are met, unless a defendant can provide an explanation for an injury which would preclude negligence on his part, he will be liable in damages to the claimant (although such circumstances will be rare). 

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