HOI LAI CHAN v. THE HOSPITAL AUTHORITY

HCPI 71/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.71 OF 2001

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J U D G M E N T

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1. Liability has been admitted. The defendant had the control and management of Tung Wah Eastern Hospital which the plaintiff attended and where she was advised to undergo a surgical operation for the purpose of excising from her left breast some tissue. During the operation the left breast was entirely removed and upon recovery the plaintiff was told she had a malignant tumour in the breast and that its removal was the appropriate treatment.

2. This operation took place on 14 September 1993. The plaintiff continued in the belief that she had cancer, the tumour having been excised with her breast, and it was not until November 1999 she made enquiry to the Hospital Authority in respect of follow-up treatment and was advised that, the tumour having been found in her left breast, examination of it had determined that it was benign and not malignant in nature.

3. I have been greatly assisted by counsel who have managed to agree some of the matters to be dealt with by this assessment. Firstly, it is agreed that the sum to be awarded in respect of pain and suffering and loss of amenities shall be the sum of $500,000. The cost of reconstructive surgery is agreed at $188,000. Physiotherapy is agreed at $2,100 and occupational therapy at $4,200. Tonic and nutritious food consumed by the plaintiff is agreed at $15,000. The rate of interest is also agreed. The matters remaining to be assessed are loss of earnings, pre-trial and future, and the cost of future psychiatric and psychotheraputic treatment.

4. In respect pre-trial loss of earnings, I heard evidence that the plaintiff began working as a carer of babies in 1984 and prior to the operation in September 1993, had worked in that position for a period of about nine years. From the end of 1991 up until September 1999, she had cared for two infants at the same time, children being known as the "Ding twins" and had been paid $10,000 per month to do so. These children effectively lived at her home and saw their parents during weekend. The plaintiff did on another occasion in the 1980s care for two infants at the same time but the "Ding twins" were the only assignments for which she looked after the children overnight, five days a week. Prior to that assignment she had earned a sum of between $4,100 and $4,900 per month.

5. The children for whom the plaintiff cared came to her through advertisements she read in supermarket notice boards and it is the argument of the defendant that while she cared for the "Ding twins" at the sum she testified, that was a one-off situation which was not the general rule in the work she had undertaken over a period of nine years. The plaintiff, on the other hand, points to the two-year period prior to the surgery during which the plaintiff testified that she had earned a sum of $10,000 per month and urges me to take that as the level of pre-trial loss of earnings.

6. The plaintiff worked some seven years at an average sum of $4,500 per month and from the end of 1991 to September 1993, say two years, at a sum of $10,000 per month. From these figures, I derive a figure of $5,730 per month as the average earnings for the plaintiff during the period prior to her operation. I am satisfied that the income she received from the "Ding" children was obtained by chance and was not consistent with the level of the earnings over the previous seven years of her occupation and that the sum of $5,730 per month is a fair and appropriate figure for her earnings at the time of the operation.

7. The defendant goes on to argue that other matters should be taken into her account in respect of the pre-trial loss of earnings. Firstly that there would have been various holidays during which the babies would not have been placed with the plaintiff and that there would have been periods during which she would not have had a continuous workload.

8. I am not satisfied that either of these arguments hold any validity. The plaintiff has quoted that she charged by the month and not by the day. It seems to me as with other occupations when you work by the month, there are unlikely to be a specific deductions for days such as Christmas day, etc. Nor is there any evidence that she had periods during which she did not have children to care for, and I am satisfied that the sum which I have determined should apply for the whole of the period from the time of the operation until the date of judgment.

9. The defendant further argues that this is an over-compensation inasmuch as the economy in Hong Kong is in crisis and has been from 1999 to the date of the trial. It is argued that the workflow of the plaintiff would have been affected along with the thinning out of the local job market. This may be so but I cannot assess it and I do not propose to take it into account. The pre-trial loss of earnings, therefore, will be the sum of $5,730 multiplied by 112 months, the period from the date of the operation to the date of judgment, being the sum $641,760.

10. In respect of the loss of future earnings, in the first analysis I adopt the same sum of $5,730 per month. The defendant argues that, given the poor economy and outlook, it would have been just as likely as not that the plaintiff would have found work or would not have found work and that the sum should be reduced by half, given that even handed probability. The defendant further argues that the cost of domestic servants and the rise of unemployment would have made half a more realistic figure.

11. Having considered that argument and having considered the argument of the plaintiff that whilst there has been a slow down of the economy, there is still a substantial market for the type of care given by the plaintiff, I decline to reduce the multiplicand and adopt the sum of $5,730 per month.

12. There is also a sharp difference between the plaintiff and the defendant in respect of the multiplier to be applied in this case. The plaintiff urges that I adopt a multiplier of eight years given that the plaintiff is now aged 54 and would not, under normal circumstances, have retired until the age of 65. That I should take a multiplier of 8. The defendant, on the other hand, said that once the age of 60 is reached, the pace of work would decrease and that work would effectively cease at 60 years of age. This gives a six calendar years and the defendant urges upon me a multiplier of four and a half years. It does not take specific evidence from the parties to be aware that the age of 60 does not, in these times, necessarily mean a cessation of business and whilst the caring of babies is not without stress or physical labour, I can see no reason why the plaintiff could not have carried on with her occupation past the age of 60 years. I do, however, accept that as she approached the age of 65, her efforts may have declined as may have her desire to continue a business such as this. I take as a multiplier, a period of seven years. The gross loss of earnings would be the sum of $5,730 multiplied by 84 months being the sum $481,320.

13. Mr Yu, counsel for the defendant, argues that there are further matters that I must take into account. He referred to the evidence of Dr Cecilia Li indicating that after intensive training in physical strength and tolerance, that the plaintiff would be capable of future work as a part time domestic cleaner and that she could work for three to four hours a day, earning between $30 and $50 per hour. The lack of strength that she exhibited it is agreed may be inaccurate as a true measure of her physical strength and may be due to a lack of confidence or exercise. The plaintiff is clearly mentally fit to undertake work and should do so. He, therefore, argues that rather than taking into account a monthly figure based upon her pre-trial earnings, I should take into account that she would be able to work no more than three to four hours a day as a part-time domestic cleaner earning between $30 and $50 per hour. He further says that, based upon Dr Chung See Yuen's evidence that she will not be mentally fit to resume work until she overcomes her emotional problems which may be several years from now.

14. Whilst I note Mr Yu's very effective argument, I am of the view having had the benefit of seeing and hearing the plaintiff giving evidence that the mental and physical capacities of the plaintiff, although limited to a degree, will not be such as to make a part-time cleaning job the limit of her expectations. It is to be noted that cleaning work involves considerable physical effort and that the caring of young children is unlikely to take a greater effort. From all I have seen and heard in the reports and from the plaintiff that she would be mentally and physically able to continue with her employment as a child carer on the basis which she had been conducting it before the operation. That being so, I adopt as the sum of damages applicable to the loss of future earnings the sum of gross future earnings to which I have previously referred in the sum of $481,320.

15. The last and the most seriously contested head of damages is the amount to be paid in respect of the psychological treatment required by the plaintiff from hereon. I heard at length from Dr Alexander Lo and Dr Chung, both of them well qualified as experts in their fields. Dr Lo for the defendant is a clinical psychologist and Dr Chung for the plaintiff is a psychiatrist. Both were extensively cross-examined. Dr Chung was of the view that the plaintiff is suffering from dysthymic disorder a mental disorder characterized by chronic depression of mood and that her symptoms were a depressed mood, low self-esteem, lack of interest in activities and sex, anxiety when she is reminded of the operation, bad feelings whenever she looks at her chest, and sleep problems. He considered in her need of treatment and considered it would take a few years before she would overcome emotional problems. The treatment, he said, was available in the private sector or the public sector. He did not consider that Madam Hoi, the plaintiff, suffers from posttraumatic stress disorder. That disorder, he says, is characterized by the development of mental symptoms after a person has been exposed to a traumatic event in which the person experienced an event that involved threatened death or serious injury, and the person's response involved intense fear, helplessness or horror. He did not believe that she had suffered such a traumatic event. The definition which he gives is of course that of DSM IV the American and Diagnostic Volume which sets out the means by which diagnosis of various mental conditions can be made. Dr Lo, on the other hand, diagnosed the plaintiff as having posttraumatic stress disorder caused by the unnecessary surgery, dysthymic disorder and sexional disfunction.

16. Both doctors were cross-examined extensively on their opinions and Dr Chung did concede that prior to the point where full posttraumatic stress disorder was reached, there would lesser disorders of a similar nature which would increase in severity as the event reached traumatic proportions triggering the full condition. As to their diagnoses therefore, the two experts are not far apart. As to the required treatment, however, there is a great difference. Dr Chung found that Madam Hoi needed psychological treatment for around one year. He said the frequency of visit should be once a week initially, and gradually the period between visits could be lengthened to about once a month. He would expect about 15 sessions for the year to be given by a clinical psychologist in the private sector at a cost of between $1,200 to $1,500 per session. The total cost, therefore, being between $18,000 to $22,500 per year. In circumstances of this case, I find that private care is appropriate for Madam Hoi and that is not necessary to confine her to the public sector. Dr Lo's opinion as to the length and cost of the care required by Madam Hoi varied. In his report of 1 June 2002, Dr Lo said this:

"Such therapy should include individual, vocational, family and group session. Both clinical psychologist and psychiatrist are recommended to see her and her family on a regular schedule for one year. Her therapist should provide her with weekly individual and group counseling, and her psychologist should assess her each month. The estimated fee for a weekly session of psychotherapy at 1.5 hours each is HK$2,250.00"

17. In a letter to the defendant's solicitors dated 4 October 2002, he said this :

"In regard to the seriousness of Madam Hoi's problem, I could safely and firmly come to the conclusion that psychosocial therapy for her is sensibly life-long. Taking into the following factors, say,

a. Madam Hoi's current age of 54 years old (Born on 26th May 1948)

b. Normal life expectancy : 80 year old for a woman in Hong Kong SAR

c. Frequency of attending psycho-social therapy : once @ week

d. One hour per occasion of therapy

e. HK$2,250.00 / hour (plus prescription) for each therapy

the estimated expenses for Madam Hoi would be some HK$3,000,000.00, ie. (52 weeks x 26 years x HK$2,250.00 = HK$3,042,000.00)"

18. In his evidence when asked concerning the duration of the treatment, Dr Lo said that he recommended that at least 10 years' treatment was of the view that she needed this lengthy period because she may lose family support in that time that the relations between herself and her husband may reduce his support of her. Treatment over that period should be weekly at first and later twice a month and after 10 years once a month. When pressed on the matter, he said that his view was that for the first year, the frequency of the treatment should be one session per week; for the second year once every two weeks; for the third year once every month and that to continue up to a period of 10 years. After 10 years, his view was that once every three months would be sufficient. One of his primary considerations for the length of treatment over and above the lack of support that he speculated Madam Hoi may experience was that he saw a recurring possibility of suicide. In his cross-examination, Dr Lo was unable to explain the difference in his costing of treatment from a one and a half-hour session at $2,250 per session including psychiatric help to his later figure of $2,250 for a one-hour session. These estimates of cost were three months apart.

19. Having heard both witnesses and being concerned that the difference in the amounts testified to by Dr Lo, I am satisfied that I should take the upper figure provided by Dr Chung as being the cost of an one-hour session of clinical psychology in the private sector. The sum of $1,500 per session.

20. It is clear that Madam Hoi has psychological problems. It is clear that they affect her day-to-day life and it is clear that she will need help in dealing with those problems for some time to come. Dr Chung concedes in his report that it may be "several years". It is difficult to assess the frequency of help required from the evidence of Dr Lo. He gave three different versions of that frequency. I am satisfied there needs to be a substantial period of psychological assistance from Madam Hoi and I am satisfied that she ought to have in the first year of her treatment after judgment one session per week at a cost of $1500 per session. In the second year, one session every two weeks at a cost of $1500 per session and from the third to the tenth year, one session per month at a cost of $1500 per session. The longer term care foreseen by Dr Lo after a period of 10 years is based in large measure on his speculation as to what may happen in the relationship between Madam Hoi and her husband and based upon a speculation that her children will marry or otherwise will move from the family home leaving Madam Hoi without support. I am not prepared to base further treatment upon that speculation and this head of damages will therefore be :

Year 1:	52 weeks at $1500 = $78,000
Year 2:	26 weeks at $1500 = $39,000
Years 3 to 10:	12 visits x 7 years x $1500 = $126,000

The damage under this head will therefore be $243,000 being the total of the three periods of treatment.

21. It is further agreed between that the interest will be calculated as follows :

(1) On non-pecuniary general damages at the rate of 2% per annum from the date of the writ 19 January 2001 to the date of judgment

(2) On special damages at half the judgment rate of interest for rating from time to time from the date of surgical operation to the date of judgment.

(3) It is agreed that the judgment rate of interest for the pre-trial period shall be 4.41% per annum.

22. Costs are for the Plaintiff.