LAMYIN BOK BOSCO, A MINOR BY LAM PO YEE, HIS MOTHER AND NEXT FRIEND v. DR CHAN YEE SHING also known as DR CHAN YEE SHING ALVIN

HCPI 369/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 369 OF 2010

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HCPI 62/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 62 OF 2011

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ASSESSMENT OF DAMAGES

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I.  INTRODUCTION

1.  Lam Po Yee (“Mother”) and Law Yiu Wai Ray (“Father”), ie the plaintiffs in HCPI62/2011 (“Parents Action”), are the parents (“Parents”) of Law Yin Bok Bosco (“Bosco”), ie the plaintiff in HCPI369/2010 (“Bosco Action”).[1] The Mother gave birth to a daughter on 19 August 2010 (“Daughter”). The Father and Mother (collectively, “Parents”) claimed the former was a freelance hairstylist at a hair salon in Central (“Central Salon”) who served his customers by appointment and earned about $20,000/month, and the latter was a housewife and part-time shop‑keeper during weekends at a stationery/gift shop (“Shop”) ran by her cousin Lam Kit Ming (“Cousin”) earning about $2,000-$4,000/month, but after the index incident the Mother was unemployed and the Father later worked as a part-time hairstylist at a hair salon in Ma On Shan earning initially about $4,000/ month and later about $6,000/month, and still later as valet parking attendant / security guard (“Attendant”) of Wilson Parking (Holdings) Limited (“Wilson”) earning initially about $12,000/month and in 2014 almost $14,000/month.

2.  When Bosco was 14 months old, he was brought to Prince of Wales Hospital (“PWH”) after sustaining a cut wound to his right 4^th finger (“Finger”). After the Father contacted Dr Chan Yee Shing Alvin (“Doctor”), Bosco was admitted to Baptist Hospital (“BH”) under the Doctor’s care. Some days after application of a surgical adhesive, the Finger turned gangrenous. Bosco was admitted to Queen Elizabeth Hospital (“QEH”), but despite remedial measures part of the Finger had to be amputated. This is referred to as the “Incident” in this Judgment.

3.  Bosco by the Mother as next friend sued as primary victim for the Doctor’s negligent treatment/management, and the Parents sued as secondary victims for nervous shock due to the Incident. The Doctor admitted liability in the Bosco and Parents Actions (“Actions”). The Actions were consolidated in 2011, and the assessment of damages (“1^st Trial”) was to be heard in November 2012. On 28 September 2012, application was made to adjourn the 1^st Trial due to the Parents’ psychological setback following receipt of a letter dated 13 September 2012 from The Medical Council of Hong Kong (“Council”) (“Council Letter”). On 11 October 2012, DHCJ Seagroatt (“DHCJ”) dismissed such application (“Adjournment Decision”). On 31 October 2012 the Court of Appeal (“CA”) in HCMP2256/2012 refused leave to appeal, and on 2 November 2102 handed down its reasons (“CA Reasons”).

4.  On 14 November 2012, the 1^st Trial was heard by the DHCJ. By his Judgment handed down on 20 November 2012 (“Bosco Judgment”) which practically deconsolidated the Actions, Bosco was awarded damages in the sum of $314,608 with interest/costs. The DHCJ ordered the claim for value of care by the Father calculated by his loss of earnings (“Father Care Claim”) to be considered in the context of the Parents Action. So, by my decision handed down on 20 August 2013 (“PTR Decision”), leave was granted for transfer of the Father Care Claim and also the claim for foreign domestic helper (“FDH”) expenses from the Bosco Action to the Parents Action. The Re-Revised Statement of Damages (“RRSoD”) and Answer thereto (“Revised Answer”) in the Parents Action were filed in 2013.

5.  Bosco appealed against the Bosco Judgment. In a judgment handed down on 19 February 2014 in CACV276/2012 (“CA Judgment”), the CA allowed the appeal to (a) increase the award for pain, suffering and loss of amenities (“PSLA”) from $175,000 to $275,000, (b) increase the award for future cost of prostheses from $20,000 to $125,000, and (c) adjourn Bosco’s Father Care Claim to be heard with the Father’s claim in the Parents Action. In light of (c) above, on the 1^st day of the assessment of damages in the Parents Action (“2^nd Trial”), joint application was made to reinstate the Father Care Claim in the Bosco Action that had been transported to the Parents Action. I granted leave to reinstate the pleaded claim/answer for the Father Care Claim in the Bosco Action on the basis the Father would not claim for loss of earnings on his own account over the same period in the Parents Action.

6.  The issues for the 2^nd Trial were the Father Care Claim in the Bosco Action and the Parents’ respective claims on his/her own account in the Parents Action. This was a hard fought case. The opening and closing written submissions of Mr Huggins SC, counsel for the Doctor, and Mr Ko, counsel for Bosco and the Parents (“Plaintiffs”), totalled 87 and 127 pages respectively, and all pleading, legal, factual and evidential points were raised and resisted. On the 1^st day of the 2^nd Trial, the Doctor applied to strike out the Parents’ claims for loss of earnings, and the Father’s claim for loss of congenial employment. After hearing counsel, I dismissed such application with Reasons for Decision handed down on even date.

II.  WITNESSES

(a)  Parents

7.  The Parents gave evidence. In assessing witnesses’ credibility, I bear in mind not only their demeanour in court but also the intrinsic value of their evidence upon considering the totality of their evidence against the chronology of events, the available documentary evidence and the inferences based on inherent probabilities and/or undisputed facts.[2]

8.  I accept there was a core element of truthfulness in the Parents’ evidence, especially as to their emotional sufferings during and shortly after the Incident. On those matters they gave unhesitating answers under cross‑examination (“XXN”), which answers echoed the available medical reports and expert evidence. I also give every allowance for the Parents who were personally claimants in the Parents Action and who still suffered from psychiatric symptoms/condition. It would be remarkable if there were not occasional signs of discomfort/guardedness. I also bear in mind that XXN, even as politely phrased and delivered by Mr Huggins SC, may still be considered as hostile by a truthful witness. Whilst I make full allowance for that in the Parents’ case and for some nervousness upon being subjected to rigorous but fair XXN, certain aspects of their evidence were unduly defensive, evasive and/or argumentative which were not characteristics of truthfulness. I have reservations about reliability on certain aspects of their evidence.

9.  There were times when the Father was asked about matters which could have been dealt with by simple answers, but he did not attempt to answer straightforwardly. There were times when a point (perhaps thought to be disadvantageous) was not conceded until there was no option but to do so. There was also unhappy attempt to deflect uneasy questions with barely relevant answers. The Father claimed he was confused by XXN questions, and Mr Ko tried to explain this by saying the Father had not received the psychological treatment recommended by the Experts that might assist in treating his cognitive issues identified in the 1^st psychology counselling session at QEH on 25 August 2009 during the Incident. But those issues were more related to the Father’s cognition of his self-blame and guilt reaction rather than to his understanding of questions put to him. My impression of the Father (who had since attained some improvement and was less depressive) was that he was unduly unresponsive/evasive on certain aspects of his evidence.

10.  Even in the difficult early days in August/September 2009, QEH’s clinical psychologist Ms Iris Wong (“Ms Wong”) assessed the Parents as “ready to talk and easy to engage. Speech was coherent and relevant. They were forthcoming, responsive and cooperative throughout”. The Father “volunteered information spontaneously” at the Experts’ joint examination in August 2012, and Dr Venus Tang (PWH’s clinical psychologist, “Dr Tang”) in her report dated 31 December 2014 stated the Father’s speech and articulation were clear, coherent and relevant with spontaneous reaction, he was willing to express his thoughts and ideas, and his thought processes remained logical and sensible at large (albeit slightly preoccupied with perceived stress).

11.  On balance I reject the Father’s claim under re-examination (“RXN”) that he became so slow/numb after the Incident he worked very poorly, was unable to recall his customers’ preferred hair styles/colouring, and was not as creative as he used to be. This did not sit well with the Experts’ joint report dated 6 September 2012 that noted the Father remained interested in and had been keeping up with latest hairstyling knowledge/techniques. Observations of confusion and muddled-thinking became prominent after the Parents suffered psychological setback upon receipt of the Council Letter (which was objectively irrelevant to the Parents’ claims) (see paragraphs 133-134, 136-137 and 140 below), but by May 2013 the Parents’ condition improved (see paragraph 177 below).

12.  The Mother also was not above embroidering some of her evidence, eg by saying she would have placed her new-born Daughter with a day-time nursery service in order to return to full-time work, which did not sit well with the Father’s evidence and which was quite improbable even on her own case. I am also unconvinced the Parents’ heightened emotions in relation to the Council Letter abated/subsided by early 2013.

(b)  Cousin

13.  The Parents served a witness statement of the Cousin. On the 1^st day of the 2^nd Trial, the Parents applied by summons for such witness statement to be admitted as hearsay evidence as the Cousin had to go abroad on business even though she (a) had been notified of the trial dates quite some time ago and (b) was ready to give evidence if her schedule could be accommodated. As it happened, the 2^nd Trial was adjourned part-heard after 3 days of hearing (“Initial Hearing”), and both this court and Mr Huggins SC offered to accommodate the Cousin’s availability when fixing the resumed hearing (“Resumed Hearing”). But the Parents declined such offer, decided not to call the Cousin to give evidence, and applied to withdraw their summons for which leave was granted accordingly.

14.  Question arose as to whether adverse inference ought to be drawn by reason of the failure to call the Cousin to give evidence.  I adopt (but not repeat here) the legal principles in paragraphs 33-35 of DBS Bank (Hong Kong) Limited v Sit Pan Jit.[3] I disagree the sole effect of the Parents not calling the Cousin to give evidence was to debar them from adducing her witness statement as evidence, and further disagree it was for the Doctor to subpoena the Cousin to cross-examine her. As the Parents’ summons was withdrawn, the Cousin’s witness statement was not hearsay evidence, and Order 38 rule 21 of the Rules of the High Court was not applicable.

15.  The Revised Answer put the Mother to strict proof of her pre‑Incident work/earnings, and her alleged plan/agreement with the Cousin to work full-time at the Shop by the time Bosco (2 years old) went to kindergarten. The Mother claimed she had asked the Cousin for her earnings record at the Shop, but was told there was none. Still, the Cousin was an obvious witness who could have spoken on her arrangements with the Mother and on the Mother’s usual workdays/month, her daily rate (if any) and/or her average monthly income, and her evidence was important as (a) there were no tax/other written record to support the Mother’s allegations, and (b) the Doctor would not have knowledge of these matters.

16.  Given the weaknesses of the Mother’s evidence in this respect seen in Part IV below, a prima facie case was made out for drawing adverse inference that was not rebutted by any plausible explanation put forward by the Parents. Mr Ko’s explanation from the bar table for not calling the Cousin to give evidence was to save time and  costs and to obviate the risk that the Cousin might again be unavailable even if the Resumed Hearing was fixed to suit her. These reasons wore thin given the apparent significance and narrow compass of the Cousin’s evidence and her claimed willingness to give evidence. It is open for this court to infer the Cousin’s evidence, even if adduced, would not have assisted the Parents, and to take such inference into account in deciding whether to accept any particular evidence with respect to which the Cousin could have spoken.

(c)  Experts

17.  The Parents’ and the Doctor’s clinical psychological experts were respectively Profs Peter WH Lee and Wong Chee Wing (collectively, “Experts”), who jointly examined the Parents and made various joint reports/letters. The Experts had no disagreement in their opinion.

III. PARENTS’ BACKGROUND

18.  The Mother’s father (“Grandfather”) carried on a garment business, and her mother (“Grandmother”) was a part-time school-bus attendant. The Mother studied up to Form 5, and did clerical work for the Grandfather’s business before leaving to work initially as a clerk and later as a beauty shop saleslady. After studying up to Form 4, the Father became a hairdressing apprentice, and gradually worked his way to become a hairstylist. He claimed to have an optimistic personality and enjoyed his service-oriented profession. The Parents married in November 2006, and lived in Ma On Shan. The Mother alluded to some communication problem with the Father, but their overall relationship was close and satisfactory. They liked sports, outdoor activities and travelling.

IV.  MOTHER’s PRE-INCIDENT AND NOTIONAL WORK/EARNINGS

19.  The Father helped the Mother set up a garment wholesale shop in Lai Chi Kok, and she was its shop-keeper. The Mother had a miscarriage in April/May 2007, and was medically advised to reduce her workload when she conceived again. At the Father’s suggestion, she closed down the shop (which lasted 4-5 months). The Mother conceived again in/ about August 2007, and Bosco was born in June 2008. From about 3 months after Bosco was born (ie September 2008) until the Incident, the Mother looked after Bosco during weekdays and worked as part-time shop-keeper at the Shop during weekends when the Shop was busy and the Grandmother could look after Bosco.

20.  The RRSoD pleaded the Mother earned $2,000-$4,000/month for her part-time job, but her statement evidence asserted it was $2,000-$3,000/month. The Mother said her workdays varied: sometimes on Saturdays, sometimes on Sundays, but not every Saturday and Sunday, so logically her workdays/month could vary from 4 to 8 days, and her earnings (at $300-$400/day)[4] could vary from $1,200 to $3,200 per month. Under XXN the Mother disagreed she could have earned as little as $1,200/month because she claimed (a) there was no agreement on her daily rate (and she might be paid an extra $100 for working a couple more hours on a busy day) and (b) she might work on public holidays as the Grandmother could look after Bosco on those days too, but these matters were not alluded to in her 4 witness statements made in 2010-2012.

21.  Bosco was much loved by his Parents, and despite the Grandmother’s willingness to look after him during weekends I find on balance the Mother would not be working every Saturday/Sunday when he was so very young. Even without drawing adverse inference, I find on the evidence the Mother’s pre-Incident monthly income from her part-time job was $2,000-$3,000 (or on average $2,500/month). But if it were necessary, I am prepared to infer the Cousin’s evidence (if adduced) would not have assisted the Mother in establishing a higher income than I have found.

22.  The Mother claimed when Bosco was born the Parents planned for her to continue with her part-time job at the Shop during weekends until mid-2010 when Bosco (by then 2 years old) would attend full-time nursery/ kindergarten and she would return to full-time work. It was also said the Mother had agreed with the Cousin that after Bosco started schooling she would work at the Shop on weekdays from 9am to 5pm at $300-$400/day or $6,000-$8,000/month, so she could be with Bosco during weekends when he did not have to attend kindergarten. Consequently, the Mother asked her youngest aunt (a full-time working mother who used day‑time nursery service for her children) for information on such service near her home.

23.  But the Mother fell pregnant again in November 2009. I find on balance if the Incident had not happened the Mother would probably have ceased work when she realised she was pregnant. Although she had an uneventful pregnancy with Bosco, there was a previous miscarriage and she was medically warned to reduce her workload should she conceive again. In my view, the Mother (being pregnant and having to care for Bosco during weekdays) would probably have followed such medical advice (as she did when she carried Bosco) and ceased her part-time work for some respite when the Grandmother helped look after Bosco during weekends. The Mother was a careful mother, and I find that without the Incident she would have adopted the same prudent approach with her 2^nd pregnancy and ceased to work part-time at the Shop from January to October 2010, ie until 3 months after birth of the Daughter in August 2010 when she would continue to look after Bosco/Daughter (collectively, “Children”) during weekdays and the Grandmother would care for them during weekends if/when she was at work.

24.  I also find on balance that without the Incident the Mother would not have considered full-time work at least until August 2012 when the Daughter would be 2 years old and ready to attend nursery/ kindergarten and there was no reason to believe the Parents would have treated her differently from Bosco. Indeed, the Mother’s plea for loss of earnings during this period was based on her notional return to part-time work, which coincided with the Father’s evidence that August 2012 would be a right time to enrol the Daughter in a nursery. But the Mother alleged under XXN she would not have waited until August 2012 to take up full-time work as (a) even before the Incident the Grandmother had planned to retire completely to look after Bosco (but such assertion was not alluded to in the Mother’s statement evidence), and (b) the Mother could have placed the new-born Daughter with a day-time nursery service (but this contradicted the Father’s evidence). I find this to be a poor attempt to bolster the claim for loss of earnings, which on balance I reject.

25.  Even though I have found the Mother would not have returned to full-time employment until at least August 2012, so it was doubtful (and there was no evidence) the Cousin (despite her closeness to the Mother) would have kept a full-time saleslady/shop-keeper position at the Shop open for the Mother for 3 years after their alleged plan/agreement. But retail shops are infinitely varied and salesladies/shop-keepers do not require specialised skills, and also the Mother had experience in such work (and possessed clerical skills too), so the Mother should be able to secure such full-time employment. But there was no evidence of usual work hours and/ or usual wages of retail market salesladies/shop-keepers, and she would be less competitive given her intention to work during weekdays (when the Children would be at school) but stay home with them during weekends (busy time for retail shop). Taking into account the overall situation, I am unconvinced the Mother would have earned on average $7,000/month (ie $6,000-$8,000/month), but am prepared to accept she could have earned on average $6,000/month as a full-time saleslady/ shop-keeper in/after August 2012 had the Incident not happened.

V.  FATHER’s PRE-INCIDENT AND NOTIONAL WORK/EARNINGS

26.  Statement evidence  The Father’s statement evidence asserted he had worked as a hairstylist at the Central Salon for about 13 years serving his own customers at/near Central who paid higher price for quality service, and his average income was quite stable at about $20,000/month. This formed the base line for the Father’s claim for loss of earnings and Bosco’s Father Care Claim. As there were no tax/other records of such pre-Incident earnings, the court had to make findings based on the available evidence (including witness and collateral evidence). [5]

27.  The Father’s pre-Incident earnings were plainly within his (not the Doctor’s) knowledge and/or power to seek proof/confirmation (eg from tax authority and/or employer(s)), so it behoved him to be straightforward and forthcoming. Mr Ko submitted there was no delay in responding to the Doctor’s enquiries, but in fact the Father only divulged the names/addresses of the hair salons where he worked, ie China for Hair and Hom, upon compulsion by court order on 14 September 2012 (2 months before the 1^st Trial). In my view, the Father’s overall reticence did little to help his case and spoke ill of his credibility on the matter of his work/earnings.

28.  China for Hair and Hom  China for Hair’s business registration records showed it commenced business in December 1996 as a partnership between Yam Yat Cheong Erich (“Yam”) and Sin Kam Heng (also known as Ben, “Sin”). Sin ceased to be a partner on 18 July 2003 and was replaced by Suen Kam Man (“Suen”). China for Hair ceased business on 31 March 2009, and Yam passed away on 16 March 2010.

29.  The Father knew Yam was China for Hair’s boss/proprietor, but claimed not to know Suen at all. Sin was a hairstylist colleague for over 10 years at China for Hair (but the Father claimed not to realise Sin had been a partner/boss) and for a shorter period at Hom. Hom was a small hair salon with 4 seats whilst China for Hair had double the capacity with 8 seats. The Father’s evidence on China for Hair wavered uncertainly between having no junior stylist at all and having some junior stylists to serve walk-in customers, but he eventually confirmed China for Hair had 3 hairstylists (Yam, Sin and the Father), 2 junior stylists (Jam and Ah Wai) and some assistants, and Hom had 3 hairstylists (Sin, the Father and Jam) with no junior stylist or assistant. The Father claimed he split customer takings with China for Hair and Hom at the same ratio of 60:40.

30.  The Father gave evidence Yam became ill at the beginning of 2009, and 1-2 months before China for Hair ceased business upon expiry of its tenancy Sin and Jam looked for, found and renovated premises for a new hair salon that eventually became Hom. Although Hom took over some of China for Hair’s tools/equipment, it was Lam Bo-yin Jenny’s new/ independent business. The Father joined Hom about 1-2 weeks after China for Hair ceased business (ie April 2009) and worked there until the Incident. He continued to serve his own customers earning on average $20,000/ month, and was paid every 1-2 days by Sin after he calculated the percentage split.

31.  Father’s case  Mr Ko submitted the Father’s alleged earnings were reasonable as he had over 10 years’ experience and 100‑200 customers, but there was no evidence on, say, the charges for various types of hairdressing services, the average number of customers he served each workday and/or the frequency at which his customers sought his service, all of which must be pertinent in working out his earnings. Further, even though the Father through the Plaintiffs’ solicitors Ip, Kwan & Co (“IKC”) knew the Doctor pressed for information/records of his pre‑Incident work/ earnings, his 3 witness statements in 2010-2011 were silent on his transition from China for Hair to Hom, which was not disclosed until September 2012. Mr Ko suggested (but I disagree) the Father was confused. In my view, any confusion in evidence was due to the Father’s poor attempts to avoid difficult points, but when the fuller picture came out under assiduous XXN there did not appear to be any sound/reasonable justification for his reticence.

32.  Mr Huggins SC suggested it was deliberate obfuscation to hide the full picture and to confine evidence on the Father’s pre-Incident work/ earnings to the thin and unsatisfactory material in his 2^nd witness statement dated 28 January 2011 (“28/1/11 Statement”). To properly understand this argument, I first turn to the 28/1/11 Statement:

“3. Since I have worked in the hair salon of Central for several years, I am also well acquainted with one of the partners of the salon. Therefore, my sharing with that salon at that time was 60%. At that time, my boss would calculate and pay my share after working a few days. The hair salon would pay me in cash. Since (my) share was paid in cash, I have not kept any record of the amount I have received. After the commencement of these proceedings, I have also tried contacting the hair salon where I worked with in Central and enquired with them if they had kept the record of my share of takings when I worked there. However, the [response] I received was that the partner concerned had passed away because of illness. That hair salon had already been transferred to someone else for operation. Therefore, they cannot provide me with information about my share of takings at the time I worked at that salon.”

33.  But the Father went on to suggest his earnings could be proved collaterally, ie (a) he was the breadwinner of the family, (b) the Mother ceased working a few months before she conceived Bosco, (c) she took up part-time work at the Shop only 3 months after Bosco was born, (d) her part-time earnings were spent on herself/Bosco and he was solely responsible for household/family expenses, and (e) he had to pay for his own personal expenses and family holiday expenses, so his earnings could not have been less than $20,000/month:

		HK$
1	Mortgage payment	3,400
2	Electricity charges	190
3	Gas charges	275
4	Water charges	80
5	Insurance premiums[6]
	(a) savings plan for Bosco’s future studies	2,500+
	(b) medical insurance for the family	624
	(c) supplementary medical insurance (for Mother)	600
	(d) supplementary medical insurance (for Father)	600
6	Management fees	358
7	Telephone charges	50
8	Home internet fees	110
9	Cable TV fees	300
10	Rates	123.70
11	Vehicle expenses (eg parking fees, fuel charges etc)[7]	2,600
12	Food expenses and cost of sundry items (including diapers, milk powder etc)	4,500-6,000
	Total:	16,310.70-17,810.70

34.  Collateral evidence  But the Father’s reliance on such collateral evidence was doubtful as there was clear evidence that the family’s monthly expenses did not derive solely from his earnings. In fact, the family was living partially on debt. The Father had 2 credit cards issued by Hang Seng Bank Limited (“HSB”) and Hongkong and Shanghai Banking Corporation Limited (“HSBC”). In August 2009, the HSB and HSBC credit cards respectively had debit balances of $20,549.55 and $38,165.96 (equivalent to almost 3 months of the Father’s alleged earnings). The debit balance for the HSBC credit card grew substantially from $23,832.94 to $38,165.96 during the period from March to August 2009, which showed the Father had not been able to keep up with payments. Further, insurance premiums were debited from such credit card account, and a quick review of the available credit card statements showed other items such as utilities (eg gas, cable TV fees, PCCW fees, rates etc) were also settled by credit card payments. Thus, the family’s expenditure would not provide sound basis for assessing the Father’s income. In the circumstances, it was also highly probable the Mother (who had a close/ supportive relationship with the Father) contributed at least some of her modest earnings for family expenses. So proper proof of the Father’s pre‑Incident income remained important, and in the absence of supporting documents/witnesses his overall veracity took on significance.

35.  Father’s earnings On 17 February 2011, the Doctor’s former solicitors Reed Smith Richards Butler (“RSRB”) wrote to IKC for all documents relating to the Father’s employment from 2007 up to then. IKC’s reply drew attention to the 28/1/11 Statement, and its tenor was since 2007 until the Incident the Father worked at the Central Salon for several years[8] and was well acquainted with a partner of that hair salon,[9] but he could not get his earnings record from that hair salon because the proprietor had passed away[10] and the business of that hair salon had been transferred to someone else for operation.[11] Any reasonable reader would have understood the Father was saying he worked at one Central Salon from 2007 until the Incident, but we now know the Father also worked at Hom.

36.  The Father’s witness statements were silent even on the names/ addresses of the Central Salon and the “transferee” of such business even though he readily disclosed Wilson as his post-Incident employer. I do not accept the Father said he worked in Central because he was merely asked where he worked, and find he was consciously reticent as he knew the purpose of the 28/1/11 Statement was to give information about his workplace/earnings. His explanation under RXN for not mentioning Hom was also telling:

“Because in fact, we work in Central and when we would not tell the work place, we would just give them our mobile phones and then they will just come and look for us in Central. We would not tell them the name of the salon. Because I work in Central, just at those several streets, so it make no big difference.”

In my view, this was a poor attempt to deflect an uneasy point. I find the Father knew his earnings at Hom were pertinent to his civil claim since China for Hair had ceased business months before the Incident, and if (as he claimed) he served the same customers, made the same level of earnings, and could not retrieve his earnings record at both hair salons, there was no reason for him to be reticent about Hom. His reserve over this and over China for Hair’s particulars was doubtful, especially when he confessed he had no problem recalling the full name, address and telephone number of China for Hair where he worked for a long time.

37.  When IKC talked to the Father about RSRB’s requests, he tried to call Yam who could not be reached, so he talked to Sin who told him Yam had passed away.[12] Since Sin had been his colleague at both China for Hair and Hom, the Father could not have forgotten he too worked at Hom, and there was little reason, in view of RSRB’s requests, not to ask Sin there and then for Hom’s name/address and his earnings record and/or not to tell the Doctor he also worked at Hom from April to August 2009. The Father tried to sidestep this by suggesting he (a) only worked at Hom for a few months, (b) was too confused to remember Hom’s address, (c) did not have Hom’s telephone number, and (d) did not have his business cards for China for Hair and Hom in his possession.

38.  First, I find the Father could not have forgotten China for Hair had ceased business and he went to work at another hair salon across the street. The Father did not satisfactorily explain why he never mentioned he worked for/at 2 hair salons in Central when IKC asked him whom he worked with/for before September 2012.

39.  Secondly, in my view, it was not as if the Father had forgotten Hom’s location. He claimed (a) he was too confused in September 2012 to recall Hom’s address,[13] (b) all he could remember was that Hom was located on the street opposite the H&M shop or Lane Crawford Building, and (c) as he had to work (at Wilson) so he had to find time to walk around Central to jog his memory about Hom’s address. But the Father’s evidence actually wavered uncertainly between he knew Hom’s address (XXN) and he remembered Hom’s physical location but not the written address (RXN), but on either basis he would not have to wander around Central to jog his memory about Hom’s whereabouts. Even if the Father failed to recall Hom’s written address, there was no convincing reason why he did not clarify this much earlier, say, when he made his 3^rd witness statement dated 25 July 2011. Further, his attempt under XXN to underline his alleged confusion was unconvincing:

“Because I did not express myself very well on the last court appearances, so I went, walked around Central once so as to jog my memory. …… I went to Central and I walk around once, in order to jog my memory. …… No, because on the last occasion, I did not express myself very well. My answers were not very good. I was a bit confused things, so I went there, I took a walk so that I hoped I could give better answers this time.”

On balance, I do not accept the Father was confused nor had need to walk around Central in late 2014 or early 2015 (after the Initial Hearing) to jog his memory. By then, he knew Hom’s address which had been disclosed to the Doctor’s Solicitors Howse Williams Bowers (“HWB”) in October 2012.

40.  Thirdly, the Father claimed he never mentioned “Hom” to his customers and never knew/kept Hom’s telephone number, and instead he would just tell them “I work here and then I will give him or her name cards”. Mr Ko submitted that as the Father’s customers would call him for appointments Hom’s landline telephone meant nothing to him, his colleagues or his customers, especially when there were just 3 hairstylists and no receptionist. But the existence of such allegedly “superfluous” landline telephone when Hom did not even serve walk-in customers spoke against such contention, especially when the Father’s business cards (which were distributed to his customers for their reference/use) boldly stated the hair salon was called Hom and gave its landline telephone numbers. Further, on the Father’s case that he had no use for the landline telephone whether at China for Hair or Hom and there was no receptionist at either hair salon, it was strange for the Father (despite his alleged confusion) to recall China for Hair’s “superfluous” landline telephone number before sight of his old business card (see paragraph 45 below). Still further, the Father would have to direct his customers to Hom’s new hair salon on 9^th floor of a commercial building (see paragraph 46 below), so more probable than not he would have told his customers Hom’s name to help them locate the new premises. I agree there was no need to tell them Hom’s telephone numbers not for the reason the Father put forward but because (as evident from the Father’s business cards) Hom took over China for Hair’s telephone numbers (which numbers the Father knew), which fact clearly highlighted their commercial significance.

41.  Anyway, the Father knew he was dealing with the Parents Action (and not his customers) when he made his witness statements, and he confirmed he knew then he had worked at Hom. And he could easily have obtained Hom’s address and telephone number from Sin whom he did/could contact, but he tried to sidestep this by saying he was confused and it did not occur to him (XXN), and Sin found him troublesome and became impatient with him when he first approached Sin for his earnings record so he preferred to walk around Central to jog his own memory rather than to ask Sin (RXN). This must be contrasted with the allegation by HWB that Sin was helpful and willing to meet with their representative (after the Father revealed the existence of Hom to them in September 2012). Indeed, the Father gave evidence Sin even telephoned him to say HWB had been in contact asking for information, and he told Sin “[if Sin had] any information, give it to the doctor’s solicitors” (my emphasis). In giving such explanation the Father did not say Sin was irritated with him or remonstrated him for being troublesome, and on balance I reject the Father’s contentions otherwise.

42.  Fourthly, the Father’s business cards for China for Hair and Hom set out the hair salon’s name, address and telephone numbers as well as his own name and mobile telephone number, and he kept a few such cards in his wallet. He claimed he looked in vain for his business cards when HWB pressed for tax/other records of his earnings, so he was unsure about Hom’s address. But the Father did not explain why he did not approach his former customer(s) then for his business cards as he did between the Initial and Resumed Hearings when (a) he knew he distributed business cards to his customers, (b) he retained contact details of customers who had become his friends, and (c) he had no apparent difficulty in retrieving his business cards from his former customer(s) in December 2014 / January 2015.

43.  In my view, none of the reasons the Father put forward was convincing given his awareness of his own work history (irrespective whether he could recall Hom’s contact details or not) and the Doctor’s concern for records/information about his work/earnings. In fact, those reasons undermined the veracity of his evidence.

44.  Returning to the events that unfolded in 2012, HWB wrote to IKC on 4 September 2012 (about 2 months before the 1^st Trial) for specific discovery of the following:

“3. Any document showing the names, addresses and telephone numbers of …… [the Father’s] employers from 2006 to date, and/or any documents showing the names and contact details of any key contact person at any such place of employment.”

One would have expected a straightforward reply on the particulars of China for Hair which the Father still remembered, and the existence of Hom even if (on his case) he was unsure of its contact details, but IKC’s reply merely referred to the 28/1/11 Statement. The Father confirmed under XXN IKC did put the Doctor’s request to him, but he merely said he worked in Central. Plainly, the Father was stonewalling the Doctor’s queries.

45.  Things came to a head on 14 September 2012 when the DHCJ ordered the Plaintiffs to inter alia disclose (a) any documents pertaining to the Parents’ employment and showing sums of money paid, and (b) the names/addresses of the places where the Father worked prior to the Incident. Only then did IKC confirm for the first time the Father would provide “contact details of the salon and the responsible person where the [Father] worked before the accident”, and on 17 September 2012 IKC replied that:

“2. Before the accident, the hair salon with which [the Father] worked is called China for Hair. The address is 3^rd Floor, 85, Queen’s Road Central, Hong Kong. The telephone number is xxxx. The deceased partner is called 任日昌 (transliteration Yam Yat Cheong). According to the Father, the deceased partner ran the salon business in partnership with someone who however did not work or return to the salon. Therefore, [the Father] does not know the partner.” (my emphasis)

The above italicised part suggested no further information/records could be obtained because one partner died and the other partner never showed up. The Father initially gave evidence that before he died (on 16 March 2010) Yam told the Father he had a partner who did not work at or return to the hair salon. He later back peddled to say Yam just told him he had a partner but “not other things”, but did not explain how he came to know the “other things”, ie such partner was not Sin but one who never showed up.

46.  On 18 September 2012, IKC volunteered more information:

“We are instructed that a few months before this medical negligence incident, father changed to work for another salon called “Hom” which is also located in Central. [The Father] cannot now recall its detailed address. But [the Father] said he would find time to visit the salon again so as to record down its address. He said he would provide us with the address soon.

The operator of Hom is called ‘Jenny’. [The Father] has not kept her contact details as he only worked in this salon for a short time.”

It was obvious the Father coughed up such information because of the DHCJ’s order. HWB was understandably surprised by such revelation and demanded an explanation. On 18 September 2012, IKC replied as follows:

“2. [The Father] has not kept the phone number of the second salon in Central. [The Father] said it was located opposite to Lane Crawford Building, [The Father] will make enquiry regarding the address and phone number of the salon. ……

3. [The Father] has not changed jobs a few months before the [Incident]. He still worked as a hairdresser, but he moved to a new salon because 任日昌 in about the beginning 2009 turned ill. [The Father] did not consider changing salon a significant event because he was still serving his own “Central” clients. The 2 salons are not far away from each other, Furthermore, he only worked in this salon for a few months then [the Incident] occurred.”

On 18 October 2012 (about a month before the 1^st Trial), IKC gave Hom’s address as 9/F, Coda Commercial Building, 57 Queen’s Road Central, Hong Kong. On balance, I do not accept the Father was too confused to recall Hom’s address (see paragraph 39 above) or he had any need to walk around Central to jog his memory about Hom’s address (see paragraphs 39 and 41 above). Anyway, the Father could not have been confused for over 2 years since his 1^st witness statement made in 2010, and he admittedly knew he worked at Hom and was in fact thinking of Hom when he made the 28/1/11 Statement (see paragraph 48 below).

47.  On 25, 29 and 30 October 2012 (about 2 weeks before the 1^st Trial), HWB sought the Father’s authorisation to enable them to discuss his earnings with the 2 hair salons in Central. IKC replied they had no instructions. To complete the picture, on 1 November 2014, HWB enquired whether the DHCJ would approve issuance of a subpoena against Sin. Correspondence from HWB suggested that immediately thereafter Sin had an about-face from his initial helpful attitude, but as Mr Huggins SC fairly pointed out, it was not for this court to speculate about that.

48.  Reasons for no records  The Father still relied on the 2 reasons offered in the 28/1/11 Statement for not being able to access documents to substantiate his earnings, so I deal with them briefly. The first reason that Yam had passed away was irrelevant as he was not involved with Hom. At Hom it was Sin who calculated the Father’s share of customers’ takings and paid him, but Sin was contactable so the first reason fell away. The other reason was the hair salon where the Father worked had been transferred to someone else for operation, but apart from some tools/equipment China for Hair’s business/operations had not been transferred to Hom. Moreover, this reason showed the Father must have had Hom on his mind when he made the 28/1/11 Statement, so there was no justification for him to just refer to the Central Salon (China for Hair) in the 28/1/11 Statement.

49.  The Father disclosed under XXN at the Resumed Hearing that Sin kept a book at Hom for recording customer takings from which he calculated the percentage split, but he alleged Sin told him he did not have it anymore. The Father went on to say in RXN he did not mention this previously because he did not think it was important, but I find it unconvincing as he knew China for Hair had ceased business and Hom was clearly relevant for ascertaining his pre-Incident earnings. Anyway, irrespective of such record book, Sin would have been able to describe or at least give useful impression of (a) the Father’s work/earnings at Hom, (b) Hom’s practice for calculating and paying his remuneration and/or (c) (to some extent) the situation at China for Hair where Sin also worked for a long time. The Father conceded Sin could have given such evidence, but claimed he did not ask Sin to be his witness because “some people really don’t like to provide me with so much information and that’s that” and “[because Sin] did not want troubles and he did not want to get involved in this matter”. I disagree and refer to my findings in relation to Sin’s attitude in paragraph 41 above.

50.  Despite strong temptation, I find it unnecessary to draw adverse inference against the Father for not calling Sin to give evidence. After all, the evidence the Father adduced on his pre-Incident earnings was itself inherently unreliable, and showed strong hallmarks of attempt to play down reference to Hom which he must have known was the relevant establishment for ascertaining his pre-Incident earnings. I find on balance Hom was a start-up business with no established track record. The Father claimed he still served his regular customers, but customer retention/ growth (which commercial common sense suggested must be important for maintaining a customer network) would not have been assisted by customer realisation that the Father had gone down in the world to a downsized establishment with no junior stylist or assistant. Taking all circumstances into account, I find on balance the Father’s average earnings at the time of the Incident were about $15,000/month.

51.  Father’s notional earnings  The RRSoD and Mr Ko’s written opening submissions adopted $20,000/month as the Father’s notional earnings for claiming loss of future earnings, but Mr Ko’s written closing submissions adopted $20,000/month x 1.17 = $23,400/month by applying the percentage increment since 2012 in respect of the Father’s actual earnings as an Attendant at Wilson. But I cannot see how employment as an Attendant on roster duty had any bearing on a freelance hairstylist who served his own network of customers and who shared customers’ takings with the hair salon. There was no plea/evidence for such extrapolation, and to allow this now would cause forensic prejudice to the Doctor who, lulled by the Parents’ pleadings and Mr Ko’s opening submissions, had not sought to cross-examine the Father on the subject let alone adduce rebuttal evidence. In my view, if the Father’s claim for loss of future earnings is viable, the relevant notional earnings would remain at $15,000/month.

VI.  PRE-INCIDENT CIRCUMSTANCES

52.  The pre-Incident circumstances were immaterial, but they enable proper understanding of the Incident. Bosco was a normal/healthy boy. On 10 August 2009, when he was taken home by the Mother, he put the Finger into a hole in the metal gate just as she moved the push-cart forward. Bosco suffered a cut to the Finger, and was taken to PWH where the doctor advised wound suturing under general anaesthesia (“GA”). When the Mother told the Father, he became concerned over possible adverse effects of GA and contacted the Doctor’s clinic. When the Doctor returned call to say a surgical adhesive could be used to close the wound without GA, the Father agreed to place Bosco under his care. Bosco was admitted to BH, and the wound was sealed with surgical adhesive and dressing that evening. The Mother stayed overnight with Bosco who was somewhat uncomfortable/restless.

53.  On 11 August 2009, the Doctor examined the wound. Blood oozed when the dressing was removed, so surgical adhesive was applied again. On 12 August 2009 the dressing was not changed, and on the following day Bosco was discharged. The Mother stayed with Bosco during his hospitalisation whilst the Father and other relatives made frequent visits. Bosco had fitful nights at home, so medication was prescribed to settle him on 15 August 2009. The Mother claimed the Finger was swollen with blister formation at its base but the dressing was kept intact. Bosco was still petulant/grumpy on 18 August 2009 when the Father asked the Doctor to remove the bandage (as the Finger appeared to be quite swollen),[14] but eventually deferred to the Doctor’s wish to wait for a few more days.

VII.  NERVOUS SHOCK: PLEADINGS

54.  The Statement of Claim in the Parents Action and the RRSoD pleaded the Parents suffered initial shock at the Doctor’s clinic on 21 August 2009 (a) upon sight of Bosco’s gangrenous Finger after the bandage was removed and the Doctor’s reaction of being astonished and dumbfounded and (b) receipt of the news it was likely the Finger would have to be amputated, which shock was prolonged and aggravated by the Parents witnessing the remedial treatment given to Bosco, and they suffered psychiatric illnesses as a result. The Parents also pleaded they suffered further shock on 29 September 2009 when (i) they were advised by QEH doctors that amputation was inevitable which shattered any hope of saving the Finger, and (ii) they made the difficult/painful decision to proceed with surgical amputation which dealt a heavy blow to their mental well-being.

55.  The Doctor agreed the Parents (a) were exposed to the sight and sound surrounding discovery of the gangrenous Finger, (b) shocked by sight of the Finger, the Doctor’s reaction (but denied he was dumbfounded) and the news that amputation was likely, (c) witnessed the consequent clinical course, and (d) were eventually informed by QEH doctors amputation was inevitable so they decided to proceed with the surgery. The Doctor accepted the Father and Mother respectively developed adjustment disorder and depressive disorder.

VIII.  INCIDENT

56.  On 21 August 2009, the Parents/Grandfather brought Bosco to the Doctor’s clinic for follow up. When the bandage was removed, they saw the distal part of the Finger had atrophied and turned greyish black, but the wound had not healed. The condition of the Finger had deteriorated, the blood supply had been severely restricted, and gangrene had started to develop. The Parents were shocked/stunned, and the Mother claimed the Doctor looked “dumbfounded”. I find on balance the Doctor was surprised/ astonished as he thought the wound would have healed in/about 7-10 days, so the Finger’s presentation was quite out of his expectation. He immediately brought Bosco to see orthopaedic surgeon Dr Chan To Man Joseph at the adjacent clinic. The Mother was anxious, worried and crying, and on hearing Dr Chan say the Finger had to be amputated she wailed and became apprehensive/agitated. She told the Experts she was so shocked by the abrupt bad news she could not accept the possibility of amputation.

57.  The Doctor took Bosco (with the Parents/Grandfather) to QEH for treatment. Bosco was admitted to QEH’s orthopaedic ward, and a paediatric surgeon advised there was ischemia and placed him on antibiotic intravenous drip. I find the QEH doctors said (a) the chances of Bosco keeping the entire Finger was slim, (b) amputation would be likely if the tissues would not re-vascularise, and (c) amputation would have to be done immediately if there were fever and/or signs of infection. The Mother cried even more, and fell into a state of agitation/collapse. The Parents agreed to keep the Finger under observation in the hope of warding off amputation.

58.  Bosco remained at QEH from 21 August to 1 September 2009 to (a) ascertain whether the tissues would re-vascularise, (b) observe progress of demarcation of normal and gangrenous tissues, (c) receive antibiotic intravenous drip, and (d) undergo daily dressing and wound care. The Mother, who was at QEH almost all the time, stayed by Bosco’s bedside through the night but could not sleep. She lost weight, had repeated intrusive negative thoughts, and blamed the Doctor for “messing up” Bosco. The Father made frequent visits, was saddened by the sight of the Finger, and regretted he did not insist on removing the bandage on 18 August 2009. The Parents blamed themselves for not taking good care of Bosco, and were sad as almost every doctor who examined Bosco and whom they consulted for second opinion considered amputation inevitable.

59.  During Bosco’s hospital stay, QEH medical staff noticed the Parents exhibited significant emotional distress over Bosco’s injury complicated with anger/frustration against the Doctor, so on 24 August 2009 they referred them for psychological counselling. The Parents were seen together by Ms Wong on 25 and 31 August 2009. At the 1^st session, the Parents could not accept the trauma to Bosco, and the Father blamed himself for putting Bosco under the Doctor’s care. The Parents cried and displayed anger towards the Doctor, and worried over possible amputation. On 27 August 2009, the Grandmother expressed concern about the Parents’ emotions, and disclosed they were in financial difficulties. At the 2^nd session, the Parents were a bit relieved as they trusted QEH’s intensive wound care for Bosco, but the Mother mentioned communication problem between the couple in the past (see paragraph 18 above) and problem with in-law relationship.

60.  On 1 September 2009, Bosco was given home leave. The Finger turned pink up to the distal interphalangeal joint and the middle part had grown slightly, but the QEH doctors warned amputation would be necessary if there was bone protrusion. The Mother attended QEH psychological follow up on 8 September 2009. She was distressed/worried by Bosco’s injury, but noted a positive change in the Father who was supportive and more willing to listen to her. The Mother declined further follow up as she was busy looking after Bosco. In my view, her decision was understandable as this was a critical time for Bosco and she was busy/ stressed. There was no failure to mitigate on the part of the Mother.

61.  The Father administered medication for Bosco at home as the Mother was in poor mental state and suffered psychological anxiety. The Father also drove Bosco (with the Mother) to QEH for daily ward follow up and wound inspection/dressing. The Parents ached for Bosco who cried during the procedure, and they were fraught with fear/uncertainty about Finger growth. On 26 September 2009, the Parents were told there was bone protrusion and amputation was likely. On 29 September 2009, the Parents, Grandmother and Bosco’s aunt saw the doctor-in-charge Dr Chang who said amputation could not be delayed. The Mother was shocked/stunned and became so agitated she had to be taken out of the consultation room, leaving the Father and Bosco’s aunt to discuss with Dr Chang. Although the Father claimed he made the decision to agree to surgical amputation, I find on balance it was the Parents’ joint decision (and the Mother signed the consent form). I accept the whole family, especially the Parents, was saddened by this turn of events. The Father claimed he handled the admission and pre-operation procedures as the Mother (who cried, had irrational thoughts and blamed herself) was unable to deal with them. But I find both Parents took care of Bosco, and the Mother stayed overnight with him but could not sleep. Amputation of the Finger at the level of middle phalanx was done on 30 September 2009, and Bosco was discharged on the following day.

62.  The Father brought Bosco (and the Mother) to QEH for daily wound dressing. From/about 5 October 2009, Bosco went to a Ma On Shan health centre for wound dressing, but returned to QEH each week for wound inspection. The Father checked the Finger daily, and helped Bosco with home mobolisation exercises. Bosco was subsequently diagnosed with wound infection, and was re‑admitted to QEH from 9 to 15 October 2009 for antibiotic intravenous drip. The Mother stayed with him. The wound healed after 3 weeks of antibiotics/dressing. On 29 October 2009, the scab on the stump end of the Finger came off spontaneously. Bosco continued with orthopaedic follow up, and started physiotherapy and occupational therapy in November 2009.

63.  Subsequently, the soft tissue of the stump showed hypertrophy which necessitated use of pressure garment, and the doctors conveyed the possibility of bone lengthening in future. The Mother worried that the pressure garment would come loose, so she sewed pressure garment herself. Bosco consulted orthopaedist Dr Pun Kam Wa (“Dr Pun”) from 2010 to 2012. The Finger was bigger in girth, the middle phalangeal bone was bigger on palpation and the joint movements were full range with no finger curving, no bony impingement, no stump hypersensitivity and no scar hypertrophy. Bosco was noticed to use his right hand satisfactorily.

IX.  LEGAL PRINCIPLES: RECOVERABLE LOSS AND DAMAGE

64.  “Shock”  The legal requirements for recovery by secondary victims as established by the authorities were: (a) the claimant must have a close tie of love and affection with the person who was killed, injured or imperilled, (b) the claimant must have been close to the incident in time and place, (c) the claimant must have directly perceived the incident rather than, eg, hearing about it from a third person, (d) the claimant’s psychiatric illness/injury must have been induced by a sudden shocking event.[15] The proximity requirement in (b) above covered not only the sudden appreciation by sight and sound of a horrifying event that violently agitates the mind[16] but also the immediate aftermath that comprises events that follow which are so bound up with the index incident that they can be regarded as part of an “entire event”. Mr Ko, citing North Glamorgan NHS Trust v Walters,[17] suggested the “immediate aftermath” may be more elastic than was once thought.[18]

65.  Whilst I accept the Parents were saddened by the final amputation of the Finger, it was not put forward as the “immediate aftermath” of the initial shock at the doctor’s clinic on 21 August 2009 when the Parents abruptly sensed something had gone seriously wrong with Bosco upon seeing the Finger being black in colour and the Doctor’s own shock reaction, but as another significant shocking event. Mr Huggins SC submitted the Doctor might well have queried whether this amounted to a sudden “horrifying catastrophe” rather than an accumulation over a period of time of more gradual assaults on the nervous system as a result of the continuing/elongated process of gradual dawning of realisation via medical advice that Bosco was going to lose the Finger and eventually he did, but Mr Huggins SC fairly accepted that since the Doctor admitted liability and did not contest whether the proximity requirement was met on the facts of the present case, this court was not required and was not asked to comment on that. He agreed I should proceed on the basis all necessary requirements for liability had been fulfilled.

66.  Compensatable grief  There is no dispute that in the absence of a recognisable psychiatric disorder a person cannot recover for feelings of grief, sorrow and emotional distress, no matter how unpleasant, suffered as a result of injury to someone else caused by the tortfeasor’s negligence.[19] Mr Huggins SC submitted compensatable shock-induced psychiatric injury must be distinguished from non-compensatable grief/sorrow. In Hinz v Berry,[20] a mother suffered psychiatric shock on seeing her husband and children seriously injured in a road accident. In affirming the trial judge’s award, Lord Denning MR said obiter a line must be drawn between sorrow and grief (for which damages are unrecoverable) and psychiatric illness (for which they are). Lord Oliver in Alcock & ors v Chief Constable of South Yorkshire Police[21]said Hinz was “a useful illustration of the extreme difficulty of separating the compensatable injury arising from the presence of the plaintiff at the scene of an accident from the non-compensatable consequences flowing from the simple fact that the accident has occurred”.

67.  On the other hand, Mr Ko drew attention to Vernon v Bosley (No 1).[22] The issue there of whether pathological grief disorder (PGD) on its own was actionable had no relevance here,[23] but the English Court of Appeal did consider the issue of causation[24] and Evans LJ said at pp 600-605 as follows:

“ So the inquiry becomes whether the plaintiff’s symptoms of illness were exclusively referable to grief and bereavement. If the evidence fails to establish that they were not, and that they were at least partly referable to his traumatic experience, then despite the apparent likelihood of the plaintiff being unaffected by the experience his claim for compensation must fail.

……

Damages for mental injury do not include compensation for feelings of grief and bereavement which are not themselves symptomatic of illness; indeed, they are identified as the ‘normal’ consequences of such a bereavement, when it occurs. That the damages are limited in this way was established, in my view, by Hinz v Berry. This is not the policy-induced rule, recognised in McLoughlin v O’Brian and later decisions, which limits the scope of the duty of care, but rather a restriction on the heads of damage which may be recovered by a successful plaintiff. In technical legal terms, damages for ‘normal’ grief and suffering may be said to be too remote to be recoverable in law.

What if the plaintiff, who was a secondary victim and was owed a duty of care by the defendant, has suffered mental illness which properly should be regarded as a consequence both of his experience as a bystander and of an intense ie more than normal grief reaction to the bereavement which he suffered? This presupposes that the mental illness can be ascribed to both causes by medical science, rather than to one, and that the causes can be regarded as independent, or several, rather than joint ie combined causes of the resulting mental state. In such a case, are the damages limited to compensation for that part of the mental illness which can be ascribed to the experience rather than to the grief? As it has tended to be expressed in the present case, must the damage be discounted for grief and the consequences of bereavement, even if the plaintiff’s illness was partly so caused?

In my judgment, this particular issue is not covered by the authorities, and I would hold that the damages for mental injury should not be discounted in this way. Hinz v Berry held that damages are not recoverable for feelings of grief and bereavement, but it was not suggested there that those feelings had worsened into illness or were partly the cause of the plaintiff’s illness. In Calascione v Dixon (1993) 19 BMLR 97 the illness causes by grief (PGD) was found to have a subsequent post-accident cause. The question, in my view, is one of remoteness of damage and of the kinds of injury for which damages may be recovered. Mental injury suffered in consequence of witness at first hand an accident involving a loved one as its primary victim is actionable in law. In principle, damages are recoverable for injury caused partly by the negligence of the defendant, even if there was another cause and the negligence was only a contributory cause: Bonnington Castings Ltd v Wardlaw [1956] 1 All ER 615, [1956] AC 613 (this leads to the proposition that the plaintiff is entitled to recover damages for an injury caused or contributed to by the negligence of the defendant, provided that it was a ‘substantial’ or ‘significant’ contributory cause). Mental illness, as distinct from grief and other emotional sufferings resulting from bereavement, is a kind of injury which is recognised by the law. Therefore, I would hold that damages are recoverable for mental illness caused or at least contributed to by actionable negligence of the defendant ie in breach of a duty of care, notwithstanding that the illness may also be regarded as a pathological consequence of the bereavement which the plaintiff, where the primary victim was killed, must inevitably have suffered.

If this is a correct view of the law, then it has the following advantages for the trial of cases such as this. First it is unnecessary to research into the niceties of psychiatric medicine in order to discover whether part, and if so what part, of the plaintiff’s illness should be ascribed to bereavement rather than to the traumatic experience of witnessing the accident. Perhaps these are questions which even the experts find it difficult to answer – Dr Cuthill said more than once that he finds it impossible to do so, even now more than ten years since he first treated the plaintiff and after much research has been published. And it must be remembered that the only reason for making the inquiries, if they are necessary, is to set a limit to the damages which are recoverable by a plaintiff who has established the right to sue. The number of such persons is restricted, for policy reasons, in order to limit the exposure of defendants to claims by those who were only indirectly affected by their acts. I do not see any policy reason for limiting the damages in the way suggested, particularly when the line between recovery and non-recovery would or might depend upon a detailed psychiatric inquiry in every case. If the plaintiff was owed a duty of care, then he should recover, in my view, damages for the injury which he has sustained ie the illness from which he suffers. After all, even if his illness if partly attributable to the pathological consequences of grief and bereavement, it was nevertheless caused by the defendant’s negligent act, and the policy reasons which limit the scope and number of those to whom a duty is owed do not provide equal justification for limiting the damages recoverable by those who can sue (see also Clerk and Lindsell on Torts (17^th edn, 1995) para 7-51 ‘Policy and flexibility’).

Secondly, the practical consequence of the submission for the defendant seems to be this. Only a plaintiff who had a close and loving relationship with the primary victim can recover damages, but the damages would have to be assessed so as to exclude the consequences of the bereavement which the plaintiff must have suffered, if the loved one was killed. This in my view would be an unrealistic and artificial exercise, just as the judge found that he could not do better than make an ‘educated guess’ as to what the extent of the plaintiff’s grief reaction would have been if he had been a person of normal fortitude and not particularly vulnerable in circumstances of stress. If the law is, simply, that a plaintiff who is entitled to sue (who was owed a duty of care) can recover damages for mental illness caused or contributed to by his involvement as a secondary victim of the accident, notwithstanding that his illness may also be described as, in part, a pathological grief reaction to the bereavement which he has suffered, then it is unnecessary to embark on the process which the judge, not surprisingly, found both abstract and difficult in the present case.” (my emphasis)

68.  Mr Huggins SC submitted there was a policy rationale to limit the law’s remedial protection for secondary victims (see Alcock at page 932). In my view, even though policy considerations may drive the control mechanisms for finding a valid claim by a secondary victim of another’s tort, what damages are properly recoverable (as explained by Evans LJ in Vernon) “is not the policy-induced rule, recognised in McLoughlin v O’Brian and later decisions, which limits the scope of the duty of care, but rather a restriction on the heads of damage which may be recovered by a successful plaintiff”, so the rationale for not compensating “normal” grief/ suffering on its own is not a policy distinction between primary and secondary victims, but an application of the ordinary principles of causation and remoteness of damages in law.

69.  Once this is understood, there is no real conflict between Hinz and Vernon. In Hinz, there was no suggestion the mother’s feelings of grief and bereavement “had worsened into illness or were partly the cause of the [mother’s] illness” (see Vernon at page 604). The first instance judge found (as supported by medical evidence) that but for the incident the mother “was of so robust a character that she would have stood up to that situation; that she would have been hurt, sorrowful, in mourning, yes, but in a state of morbid depression, no”, and hence it was for that separate and distinct state of morbid depression illness brought about by the nervous shock she was entitled to be compensated. In my view, if the constellation of symptoms suffered by a plaintiff stems from a number of different distinct extrinsic causes, then a sensible attempt should be made to apportion damages.[25] It is no more than an illustration of the principle, as put by Clerk & Lindsell on Torts, that “[where] it is possible to identify the extent of the contribution that the defendant’s wrong made to the claimant’s damage then the defendant is liable only to that extent, and no more”.[26]

70.  But the situation discussed by Evans LJ in Vernon is different. Where the harm is indivisible amongst cumulative factors, whether as confirmed by medical evidence or whether medical science is inadequate to establish the relative potency of the causes, the tortfeasor who has made a material contribution to the disability is liable for the whole. Since psychiatric illness is injury recognised by law, damages are recoverable for psychiatric illness caused or at least contributed to by the tortfeasor’s actionable negligence, and a secondary victim can recover damages for recognisable psychiatric illness arising from nervous shock of witnessing the accident or its immediate aftermath and for pathological consequence of grief, sorrow and suffering that such victim must inevitably have suffered but which have become so severe as to give rise to psychiatric illness. It was on such basis that the majority in Vernon held the whole of the claimant’s psychiatric injury triggered by the accident in which his 2 daughters died was recoverable.[27]

71.  This was applied in Galli-Atkinson v Sudhaker Seghal,[28] where psychiatric expert evidence suggested the claimant’s psychiatric illness was contributed to by her proximity to the accident but was mainly (80%) the result of her bereavement. In allowing the appeal, the Court of Appeal held that on the psychiatric evidence the shock was not caused merely by being told of the death of the primary victim but also by the immediate aftermath. On such basis, “the whole of the sequence of events” played a part in producing the claimant’s psychiatric illness, and she was entitled to recover. It is also useful to refer to Dickins v O2 Plc[29] cited in Charlesworth & Percy on Negligence:[30]

“…… In Dickins v O2 Plc, where the claimant had suffered a seriously damaged mental state following mental breakdown, but with more than one cause, there being causes for which the defendant was not responsible, the starting point was that she was entitled to recover damages in full. Smith LJ said that this was a case where more than one factor had causative potency in the development of the claimant’s illness. The obvious inference was that the claimant was “tipped over the edge” from suffering stress into suffering a complete breakdown when nothing was done to recognise her need for rest and a change to work requirements. While a percentage deduction from damages, to take account of so-called constitutional causes of mental illness was not appropriate, it would always be important to bear in mind non-tortious factors when considering particular items of damage, to reflect the risk that the claimant might in any event have suffered a breakdown at some time in the future and would then have suffered some loss of earnings or incurred some expense.” (my emphasis)

72.  Parents Action  Here, the Experts opined (and I accept) the Parents’ psychiatric illnesses were triggered by witnessing/experiencing the initial shock that finally led on to the painful decision to amputate, and their grief and sense of loss for Bosco, their stresses/worries over Bosco’s prognosis and future, and their regret and self-blame that arose out of and were continuation of the initial shock served to maintain their psychiatric illnesses. Indeed, the Parents were in such poor mental state they were referred for psychological counselling at QEH on 24 August 2009 (a few days after the initial shock and more than a month before the amputation). On balance I find the Parents’ psychiatric illnesses were triggered/caused by the nervous shocks they experienced, but their grief, frustration, regret and anger had become so severe that they evolved as signs/symptoms (and hence part) of their psychiatric disorders.

73.  Mr Huggins SC suggested that a host of matters were non‑compensatable, so no matter how difficult this court should carve out and ignore those matters, but I disagree in light of the analysis in paragraphs 66-71 above:

(a)	The Father noticing friends avoided them and no longer invited them The Experts explained adjustment disorder was characterised by impairment in social functioning, and I am not persuaded this was a divisible matter that ought to be carved out of the scope of compensation.
(b)	Inconvenience connected with Bosco’s future treatment and the Mother’s resentment at having to attend various outpatient follow ups  Mr Ko readily accepted there would not be compensation for pure inconvenience, but the Experts’ joint report on the Mother dated 10 December 2010 explained she was still feeling tortured by Bosco’s disability, which was manifested by her resentment of Bosco still having to attend various outpatient follow ups and feeling the “problem will never end”. Plainly, the nervous shocks remained material contributing causes that led to inability to accept the consequences of Bosco’s injury. I cannot see why this would not be compensatable.
(c)	The Father’s increased worries about “the daily hassles in life”, the Mother’s condition and/or his feeling that his own needs were not met by the Mother  But being irritable and worrisome were symptoms/facets of the Father’s psychiatric condition brought on by nervous shock, and his feelings of isolation and being sorry for himself were part of his guilt reaction of acting strong but feeling vulnerable. Indeed, the Experts opined the Father functioned at a more subservient level when faced with the Mother and Grandmother as a result of his self-blame.
(d)	The stress/strain of caring for Bosco over a prolonged period  But the Parents plainly suffered psychiatric illnesses upon the initial shock, and it was maintained, prolonged and perpetuated by the stress/strain of Bosco’s injury, remedial treatment and uncertain prognosis. On the above analysis, I cannot see why such stress/strain would be non-compensatable.

X.  BOSCO’s CONDITION: PROPORTIONALITY

74.  Bosco lost half of the Finger on his dominant hand. The treatment, surgery and hospitalisation were an unhappy/painful time with discomfort and troubled sleep, and there would be further discomfort, anxiety and immobility of the right hand if he had to undergo cosmetic/ revision surgery for stump and bone growth. But young children are resilient, and Bosco was bright/amiable with good academic progress but without signs of psychological distress. The DHCJ found Bosco’s experience of the Incident would have dimmed in time, and whilst he might be puzzled/sensitive about curiosity over his shortened Finger, indications were he used both hands normally and well, had no problem in putting out his right hand to shake hands, and got on well with his peers. The DHCJ concluded this really was not a serious injury. He preferred Dr Ip Wai Tak’s view that bone and soft tissue growths would occur at the same rate, but still made provision for the risk of further revision operations, and the CA did not disturb the award. The DHCJ also accepted Bosco might need some psychological handling for any embarrassment and/or self-consciousness about the appearance of his right hand and his wondering why this happened in his adolescence and a little beyond, and the DHCJ’s award on this head of claim was upheld on appeal. Although the CA Judgment increased the award for PSLA for Bosco, the CA accepted the first instance findings and was satisfied the DHCJ was aware of Bosco’s injury, his pain and suffering, the likely psychological impact at later stages of his life, and the possibility of future surgery being required.

75.  Mr Huggins SC submitted this court should not lose a sense of perspective or proportion about the injury to Bosco and injury to the Parents, so any award for PSLA for the Parents should reflect this was not a case of serious/grievous physical or psychological injury. In my view, the Doctor by admitting liability plainly accepted some form of psychiatric injury was foreseeable, so ordinary rules of causation and remoteness of damages in law would apply, and he would be liable for all injury of that kind even if it was worse than could have been expected.[31] In principle it is not impossible for a secondary victim to suffer more psychiatric damage than a primary victim with greater fortitude, or for adult parents to have more psychiatric fears/worries than babies with little thought of the wider implications of their injuries. But whether that was so with the Parents and Bosco would be a fact-sensitive determination.

XI.  PARENTS’ CONDITION UP TO SEPTEMBER 2012

76.  As a result of the nervous shocks, the Mother and Father developed depressive disorder and adjustment disorder respectively. But they made gradual and steady recovery in the period up to September 2012.

77.  Aftermath  Before the Incident the Mother (who was Bosco’s principal carer) was able to handle housework/childcare and also a part‑time job, and the Father never thought of ceasing to work as a full-time hairstylist. The Mother could not let go of the Incident and was often sad, unhappy and pessimistic with negative thinking. She displayed emotional disturbances, worried unfortunate things might happen to her fetus (she was pregnant in November 2009), found it hard to accept the serious sequelae to Bosco’s minor injury, became excessively concerned with Bosco’s every move, became suspicious without reason, amplified every small matter, and worried about Bosco’s future functioning. The Father had more stable mood, but suffered from self-blame and guilt feelings behind a stoic façade.

78.  Initial 5 months  The Parents were focused on Bosco during the 5 months following the Incident until January 2010 (“5 Months”). On balance I accept it was mainly Bosco who needed the Father’s care during the 5 Months, and even though the Father comforted the Mother it was more to help her (who was intensely worried about Bosco) look after Bosco.

79.  As seen in Part VII above, both Parents were involved in Bosco’s medical treatment. The Mother was with Bosco throughout his initial hospitalisation at QEH, but the Father also made regular visits. Both of them dealt with the doctors/nurses (except on 29 September 2009 when the Mother was too distraught by the final medical advice to amputate), and after amputation the Father drove Bosco (with the Mother) to the hospital/ clinic for wound dressing and orthopaedic monitoring. Both Parents were involved in Bosco’s re-hospitalisation for wound infection (ie the Mother stayed with Bosco and the Father visited him). The entries in the QEH clinical notes for Bosco did not show the Father dealt with treatment issues singly. In fact, pre-operation instructions and eventual discharge summary were given to the Parents, and it was the Mother who signed the home leave and consent forms. The Parents also brought Bosco to QEH for physiotherapy and occupational therapy.

80.  In my view, the Father was more involved at home. Due to the Mother’s unstable emotions, and bearing in mind she was pregnant (which added to her worries) but had no psychology help after 8 September 2009, I find on balance she was wholly unable to take care of Bosco on her own or to face the ordeal of bringing him to attend follow ups and medical consultations without the Father’s help. Consequently, the Father had to take charge of Bosco’s home care and/or support the Mother to ensure she took proper care for Bosco. The Father was the one who checked the Finger’s condition and dealt with Bosco’s home dressing and mobolisation exercises, and he usually cooked for and fed Bosco. Both Parents helped to dress/undress Bosco and give him his daily bath (in order to keep the Finger dry), but the Mother liaised with QEH’s occupational therapy department about the pressure garment.

81.  The Father claimed he ceased work altogether during the 5 Months, and told his colleagues at Hom he had a family problem. But the written opening submissions of the Plaintiffs’ former counsel for the 1^st Trial (“Opening”) stated the Father “had practically stopped his work in Central apart from catering to a small handful of selected customers. During hospitalization, he had only worked every 10 days or so because he had to take [Bosco] back to QEH every day. He lost over 90% of his clientele” (my emphasis). Nevertheless, the Father insisted under XXN he did not work during the 5 Months, and it was only in 2010 when he worked at the hair salon called Co-Cut in Ma On Shan that he occasionally invited his customers to patronise him. Mr Ko submitted the Opening was “rectified” by written supplemental opening submissions that put forward a case that the Father did not work during the 5 Months. But what was stated in the Opening actually came from the Father when the Experts interviewed him on 25 October 2010. Their joint report dated 10 December 2010 (which clearly referred to events during the 5 Months) stated as follows:

“8.1 Since Bosco’s material incident, [the Father] practically stopped his work in Central apart from catering to a small handful of selected customers. During Bosco’s hospitalisation in [QEH], he only worked once every 10 days or so because he had to take Bosco back to QEH everyday in a car borrowed from his brother. In the process he said he had lost over 90% of his regular customers.

8.2  He had stopped working in Central in January 2010, and sought sporadic part-time work in salons around Ma On Shan where his family lives. ……”

I find on balance that although the Father was truly busy caring for Bosco, he found time now and then during the 5 Months to cater to some selected customers. But I accept his work/earnings were drastically reduced by 90% (as he was only able to work every 10 days or so and to serve a handful of customers) to about $1,500/month during this period.

82.  Mother’s complaint On 6 January 2010, the Mother submitted to the Council her complaint against the Doctor in relation to the Incident (“Mother’s Complaint”). On 12 January 2010, the Council acknowledged receipt of such complaint. On 8 February 2010, the Council reported her complaint had been passed to the chairman of the Council’s Preliminary Investigation Committee (“PIC”) for consideration.

83.  Move to Co-Cut  The Father decided not to return to work at Hom and told Sin/Jam so as he felt he could no longer work so far away from home in case he might be needed for an emergency, and he did not have the heart to work as he used to because he was being preoccupied with guilt/worries of further bad things happening to his family. He asked around for opening for hairstylist in Ma On Shan, and in January 2010 started to work as a part-time hairstylist at Co‑Cut in Ma On Shan located about 10 odd minutes’ walk away from home. He shared customers’ takings with Co-Cut at the ratio of 50:50. At that time, it was close to Chinese New Year so many of his customers contacted him, but he told them there was some family matter and invited them to patronise him at Ma On Shan.

84.  The Father claimed he had to look after Bosco/Mother in their vulnerable state: (a) he had to support the Mother who remained unstable, anxious, prone to think too much, susceptible to negative thoughts and was in such poor mental state she could not deal with even trivial matters let alone look after Bosco or administer his medication, (b) although Bosco’s condition was more stable by mid-2010 the Mother had a pervasive sense of danger, dread and mistrust and was over-anxious over potential sources of harm to the Children that she could not look after them on her own, (c) he would be at home helping the Mother look after Bosco (and later the Daughter) and attending Co-Cut whenever a customer asked for his services, (d) sometimes he had to interrupt his work at Co-Cut and go home to see to Bosco’s/Mother’s needs which could happen several times a day as the Mother would call him whenever she had difficulty in minding Bosco on her own, and (e) he had to take Bosco (with the Mother) for regular orthopaedic follow ups and for physiotherapy and occupational therapy sessions that continued well into mid-2010 as the Mother was in no state to do so without his help.

85.  I have no doubt Bosco still required the Father’s care and attention from January 2010 to March 2011 so the Father had to make himself accessible (hence his work as part-time hairstylist at Co-Cut in Ma On Shan). From January 2010 to mid-2010 Bosco required various medical attendances with need for home exercises and pressure garment that caused the Mother much stress/distress (see paragraphs 62-63 above), and the Father had to take care of Bosco directly and also indirectly by supporting the Mother in her efforts in looking after Bosco. By June 2010, the Mother was still beset by over-anxious parenting and fear/worries that Bosco might suffer another injury, and she was barely able to manage housework and childcare (see paragraph 97 below), which condition was exacerbated by lack of psychology help from September 2009 to June 2010.

86.  From mid-2010 until March 2011, Bosco’s condition became more stable and the Mother’s condition gradually improved with counselling by Ms Wong (see paragraphs 97-98, 103 and 105 below), but the Experts’ joint report dated 10 December 2010 showed she was still distressed, anxious, worried and amplified every small matter (see paragraph 99 below), and unable to manage childcare on her own (as she did before the Incident). But Bosco as a baby still required full-time home care and also help with medical attendances and home exercises. In view of the Mother’s psychiatric disability in caring for Bosco on her own, the Father had to be available for such purpose either directly and/or indirectly as aforesaid. But with psychology help in/after June 2010 the Mother’s condition was somewhat better, and I find the Father would have been able to resume a bit more work in Ma On Shan in the latter period up to March 2011.

87.  There was a further distinctive feature. Given the Mother’s anxiety, vigilance, sense of danger/dread and vulnerable state, she mainly trusted the Father with whom she had a close/supportive relationship (and to a lesser extent her relatives) in taking care of Bosco. On balance I find that during the time when the Father worked at Co-Cut the Mother would not have accepted assistance from a stranger (eg helper/FDH) in looking after the Children although when some interim payment became available in October 2010 the Mother (who had resumed counselling with Ms Wong for some months) became receptive to the idea[32] but remained wary of entrusting Bosco to any helper (see paragraph 99(c) below). The Mother’s pervasive sense of dread, danger and mistrust was still evident in March 2011 although she became better at childminding by then (see paragraph 107 below). Indeed, she was still not confident in leaving the Children with the 2^nd FDH even by September/October 2011 (see paragraphs 115-116 below), and it was only by July/August 2012 (after she had a period of psychology help from Ms Wong and private clinical psychologist Dr Amy Fung (“Dr Fung”) at Hong Kong Sanatorium & Hospital) that she felt able to entrust the Daughter to the 3^rd FDH for short periods when she herself looked after Bosco (see paragraph 117 below) and she became increasingly confident in delegating housework to the 3^rd FDH (see paragraphs 128 and 130 below).

88.  In my view, up to March 2011 the Mother had yet to acquire/ master coping skills to trust a domestic helper in looking after Bosco, so the Father needed to be accessible in order to provide close supervision over Bosco’s home care. In any event, as seen in paragraphs 98-99 and Part XIX below, the Parents did not act unreasonably in taking steps to engage a FDH in/about October 2010. But the 1^st FDH, who was due to arrive in February 2011, did not come for reasons outside the Parents’ control (see paragraph 105 below), and the 2^nd FDH did not join them until May 2011.

89.  In my view, it was reasonable for the Father in his then familial situation to work at Co-Cut in Ma On Shan from January 2010 to March 2011 in order to look after Bosco. But that said, the Father’s home care for Bosco did not take up all his time, and he was able to work as a part-time hairstylist in Ma On Shan near his home.

90.  Father’s earnings at Co-Cut  I accept on balance some (but not many) of the Father’s loyal customers came to Ma On Shan for his services, but most of them disappeared. I also accept a customer patronised another hairstylist he/she was practically lost. At Co-Cut the Father mainly served neighbourhood customers (who paid less for services and also less tips), and (in my view) at least up to mid-2010 he did not stay long enough at the hair salon to serve walk-in customers. Further, he only shared 50% of the customers’ takings. The Father claimed his earnings, which turned unstable, were initially about $4,000/month[33] and later about $6,000/month, so had to (a) cut down on some expenditure (eg he surrendered some insurance policies – see footnote 6 above – and his brother paid all carparking fees and fuel charges), and (b) resort to his savings and also loans from family (about $70,000-$80,000). But several matters appeared at odds with the Father’s assertions.

91.  First, at the time of the Incident the Father’s HSB accounts[34] and HSBC account[35] only had negative/minor balances and no savings to speak of. The net debit position of his HSB integrated account xxx-xxxxxx-888 enlarged between September 2008 and May 2009, the balance of his HSB savings account xxx-x-xxx119 from January 2009 to January 2010 ranged from less than $100 to just above $4,000, and the balance of his HSBC account xxx-x-xxx353 from December 2007 to December 2009 ranged from $400 to $0. Given the Father’s asset trend, I find on balance that when the Grandmother told Ms Wong on 27 August 2009 the Parents had financial difficulty (see paragraph 59 above), she was referring to the fact that the Parents living partially on debt for some time before the Incident. I find the Father could hardly have resorted to savings after the Incident.

92.  Secondly, the Father’s financial records showed an average of $4,930/month was spent on Jockey Club betting (“JC Betting”) from June 2010 to February 2011 (when he worked at Co-Cut in Ma On Shan) and $3,346/month was so spent from March 2011 to October 2012 (when he worked at Wilson). On 30 October 2014 HWB enquired whether the Father would confirm such fact to save XXN time, but IKC’s reply queried how the JC Betting (most of which were incurred after the Incident) would be relevant as it “only tend to show that [the Father] had suffered serious personality changes”.  But it transpired (a) all JC Betting was incurred after the Incident (but IKC suggested otherwise), (b) the Father told IKC he agreed to HWB’s figures (but this was not conveyed by IKC to HWB), and (b) the Father told IKC in meeting the JC Betting was his nephew’s (which was not mentioned to HWB even up the 2^nd Trial). When pressed, all the Father could say was he was confused at the time, which on balance I do not accept.

93.  Under XXN the Father claimed he did not have much work (and his earnings were unstable), “so when [he] walked past the Jockey Club, so casually [he] opened an account” and gambled several hundred dollars, but the rest was his nephew’s. Such explanation did not sit well with IKC’s reply that implied the JC Betting was the Father’s as being caused by his personality change. But nothing in the treatment and expert psychology/psychiatry reports indicated betting were features of the Father’s post-Incident personality despite efforts made to explore, elicit and document his pre- and post-Incident personality/ behaviour.

94.  I disagree the Father was forensically prejudiced because HWB only raised the JC Betting issue shortly before the 2^nd Trial. The Father knew his earnings were hotly debated, and as he relied on collateral evidence to prove his earnings he was expected to be able to address his own finances/expenditure in both the pre- and post-Incident period. The JC Betting was evident from his own financial records that had been available since at least 2013. HWB sought the Father’s agreement on summarised facts elicited from his financial records merely to save time in XXN, but there seemed to be misapprehension the Doctor was obliged to forewarn about XXN topics to enable the Father to adduce new evidence to bolster his own collateral evidence as to credit in relation to his earnings. Further, the Doctor had no obligation, as Mr Ko suggested, to check/verify the Father’s earnings at Co-Cut, especially when the Father declined to provide any letter of authorisation (see paragraph 47 above).

95.  But the JC Betting was not the only strange thing. The Father’s HSB securities account xxx-xxxxxx-085 showed he engaged in sale and purchase of securities from August 2007 to December 2008 (when his equities portfolio was liquidated), and from January to November 2010 and September 2011 to September 2012 (when his portfolio was again liquidated).[36] Although the Father relied on collateral evidence to demonstrate his earnings, there was no explanation for such transactions via his securities account in the post-Incident period. It was also unclear whether any alleged loans from family members went to the JC Betting and/or acquisition of securities.

96.  In my view, the overall evidence on the Father’s earnings at Co-Cut had an unsatisfactory ring, and I am not satisfied he provided a full picture of his earnings/assets. There was obvious attempt to downplay his income from Co-Cut. Whilst I accept the Father had lost a significant portion of his own customers and his business was necessarily reduced, and Bosco needed home care by the Father up to March 2011 although in the period after mid-2010 the Father could have resumed a bit more work, I find on balance the Father’s clientele could not have been hopelessly thin for at one stage in December 2010 he intended to develop new customer network in Ma On Shan area by spending more time at work and serving more customers (see paragraph 102 below). I disagree the Father could only earn on average $6,000/month, and find on balance he earned on average $7,500/month as a part‑time hairstylist at Co-Cut, which was about half of his earnings as a full-time hairstylist in Central.

97.  June 2010  By June 2010, the Mother would have been heavily pregnant, but her emotional state was such the Father arranged outpatient counselling appointment at QEH for her. The Parents were seen on 10 June and 15 July 2010 by Ms Wong. The Mother was tearful in recalling the Incident, anxious/worried over her pregnancy, worried how others saw Bosco’s shortened Finger, blamed herself for Bosco’s injury, feared Bosco would hurt himself, and was stressed by litigation. She reported sleep impairment, poor appetite and dysphoric mood, and she could barely manage housework/childcare. Ms Wong found the Mother had adjustment disorder due to multiple stressors related to Bosco’s injury. As for the Father, Ms Wong found him to be more settled in mood, and he sometimes stayed home to assist in childcare as he was worried about Bosco’s/ Mother’s condition. But there were signs for positive improvement, ie the Parents “anticipated their mood would gradually improve as they would eventually get over the stressors”.

98.  October 2010  The Parents saw Ms Wong on 19 October 2010. The Mother was anxious/dysphoric, and tearful when recalling the trauma and talking about her worries over Bosco. She was still angry with the Doctor. The Father’s mood was dysphoric but appeared settled. The Parents worried about future Finger growth/development, Bosco’s physical functioning, and evaluation by his peers at school. They tried to be less protective of him, but felt stressful in childminding and dealing with litigation. With some interim payment they hoped to hire a FDH to lessen the childcare burden.

99.  Experts’ 1^st report  Pursuant to their interview with the Parents on 25 October 2010, the Experts in their joint report on the Mother dated 10 December 2010 opined she was severely strained/traumatised by Bosco’s problems. She was depressed/sombre, had poor concentration/ memory, had difficulty in decision-making and suffered some physical malaises. She was quite depressed, displayed vegetative symptoms of depression, could not come to terms with Bosco’s injury, worried about his future, and was bothered by others’ curiosity by others about Bosco’s Finger. But there were positive signs: (a) her mood had tapered and she tried hard to pull herself together, (b) she avowed a keen commitment to look after Bosco but less so with the Daughter, (c) she had made some plans to hire a FDH to give more time to herself (but was unsure about leaving Bosco with the FDH should she go out), and (d) her amicable relationship with the Father remained untarnished despite her easy agitation and periodic harshness towards him. The Experts opined the Mother still suffered from depressive disorder with unresolved grief towards Bosco’s injury caused by her witnessing/experiencing the nervous shocks and Bosco’s clinical course that led to the amputation, and maintained by a sense of loss/damage to Bosco with worries about his future abilities/adjustment.

100.  The Experts noted the Father was calm but showed signs of distress when speaking about the Incident. He was exhausted, stressed and strained with increased worries about Bosco and also worries about the Mother’s health, but knew he had to stay strong for the family. But the more worries he had, the more guilt-conscious he became. He lost weight, cut off social contacts, and was guilt-ridden. The Grandmother blamed him, and he sensed the Mother (who scolded him more) also blamed him, but he stoically accepted it as his “punishment”. However, the Parents enjoyed support, care and affection towards each other, and the Father treated the Mother with greater patience/support as he felt she would not be able to take care of the Children in her condition. The Experts opined he remained emotionally vulnerable and suffered from adjustment disorder with mixed anxiety, depressive and guilt reactions of a mild to moderate intensity triggered by the initial shock and duress over Bosco’s prognosis, followed by inability to accept what had happened to Bosco, and maintained by intense regret, self-blame and blame by the Grandmother.

101.  The Experts suggested (a) the Mother should have bi-weekly psychological help for at least 12 months at $1,500/session to help her improve her mood state and attain further resolution to her psychological distress, and (b) the Father should have 15 sessions of psychological therapy at $1,500/session to help him deal more effectively with his then/ future stresses, lessen his undue sense of guilt, alleviate his anxiety and depressive feelings, and learn to regain his self-confidence, sense of self-efficacy and enjoyment of future life.

102.  December 2010  The Father confirmed under XXN that despite his psychological condition he could still handle the work of a hairstylist, and but for the need to look after Bosco he could have spent more time at work and served more customers at Co-Cut. This reinforced my view that the Father’s move to work in Ma On Shan was for looking after Bosco and giving support to the Mother in necessary childcare for Bosco (and later the Daughter too). The Parents showed gradual signs of improvement. They took steps to employ a FDH to ease the childcare burden (although the Mother had yet to master the relevant coping skills to delegate housework and childcare to the FDH – see paragraphs 87-88 above), and the Father had some concrete plans of working during weekends/evenings and building a new customer network in the Ma On Shan area.

103.  January 2011  The Mother signed a FDH agency contract in January 2011, and was told the 1^st FDH would arrive in/about mid‑February 2011. The Parents attained further improvement by the time of the QEH counselling session on 3 January 2011. The Mother’s sleep quality improved. The Parents felt more relaxed/relieved, their moods were settled (but the Mother still burst into tears when talking about others’ reaction to Bosco’s Finger), and they became less anxious/protective of Bosco. Although the Parents worried about future revision surgery, they “perceived hope that [the Finger] would get better”. In my view, the Parents had a more positive outlook by December 2010 / January 2011.

104.  Change of work  Notwithstanding (a) the Father’s plans to work more and to build a new customer network (see paragraph 102 above) and (b) the expected arrival of the 1^st FDH to lessen the childcare burden, the Father made enquiries about other jobs that would provide more steady income in the long term. Through his friend’s introduction, he intended to work as an Attendant for Wilson after the arrival of the 1^st FDH.

105.  February/March 2011  The 1^st FDH became pregnant and did not come to Hong Kong in February 2011, so the Parents arranged for a 2^nd FDH to come in May 2011. At the counselling session on 7 March 2011, Ms Wong noted the Parents were still busy/stressful in childcare, the Father was worried about decrease in income and the Parents were stressed by litigation, but their moods were generally settled. Bosco adjusted well to his daily tasks without being much bothered by the Finger.

106.  On 14 March 2011, the Father signed his employment contract with Wilson (60 workhours/week on 6-day week with roster duty), and he started work right away before the 2^nd FDH’s arrival. The Father told Dr Tang “…… he was unable to work again as a hairdresser since they had lost almost all his previous clients. It was also difficult to re-enter the same field after a year of suspension ……” The Father wanted to work close to Shatin or Ma On Shan, but was posted at a West Kowloon carpark with long workhours from 1pm to midnight.

107.  The Mother mostly stayed home and seldom saw her friends as she worried about leaving the Children at home. She could not help being attentive over everything Bosco did even though she recognised it was unfair to neglect the Daughter. She was worried Bosco would soon ask her why he had a shortened Finger, and feared Bosco would blame her. She was disturbed by inquisitive curiosity of friends/neighbours, and worried how Bosco would deal with such curiosity. She feared Bosco might suffer another accident/injury, might not get along with other children or might be butt of jokes/teasing by classmates. The Parents previously planned to enrol Bosco in a full-time nursery/kindergarten in September 2010 but decided to defer his schooling for a year. In my view, although the Mother was still somewhat anxious and prone to “think too much”, her condition had improved and she was better at childminding (with the help of relatives) with the Father away from home most of the day.

108.  May/June 2011 After the 2^nd FDH arrived in May 2011, the Mother was busy settling/training the 2^nd FDH with other family members taking turns to help her in childcare until the 2^nd FDH became familiar with her work (by which time the Mother hoped to have more free time for herself). When the Parents attended counselling at QEH on 16 May 2011, Bosco was active/cheerful and the Father’s mood was settled, but the Mother’s mood fluctuated. She was anxious/dysphoric, shed tears when describing her difficulty in dealing with curiosity about Bosco’s Finger, and expressed worry over what would happen after Bosco went to school. The Parents were also busy with the litigation with frequent meetings with lawyers. At the session on 20 June 2011, the Parents were better as they were “[emotionally] stable and calm in general”. They attended a meeting for the litigation, but was angry with the Doctor whom they felt did not respect Bosco in his apology. Both Parents felt better as the 2^nd FDH helped with household/childcare, and the Father coped well in his new job.

109.  August 2011  The Experts jointly examined the Parents on 8 August 2011. The Parents exhibited lingering psychiatric sequelae and unresolved depressive/adjustment symptoms despite improvement. The Mother broke down in tears when talking about her worries/unhappiness over Bosco’s injury/amputation, and the Father showed distress when talking about the Incident and his grievances. But the Parents maintained a satisfactory relationship.

110.  Even though the Mother was still strained by residual symptoms of a depressive disorder with unresolved guilt towards Bosco’s injury, her mood state improved mildly. She still had reduced interests, anhedonia and social isolation, weight loss, poor sleep and physical symptoms reflective of anxiety/tension. She cried easily when her attention was focused on Bosco’s Finger, subjectively harbouring a pervasive sense of dread/fearfulness of further mishaps and unwanted accidents happening to the Children, and maintaining a high state of alert in monitoring their behaviour. She still had difficulties in coming to terms with Bosco’s injury, had multiple worries about his future handicap/hardship, was anxious in looking up literature/news on prostheses and rehabilitation, harboured an unrealistic wish the Finger would be restored and the Incident reversed, and felt anxious/embarrassed in answering queries about Bosco’s Finger. The Experts maintained the Mother should continue to seek private psychological help to mitigate her abnormal vigilance towards the Children’s safety and strengthen her ability to deal with enquiries from Bosco/others, and with such psychological help the Experts envisaged she would gain further improvement in her mood state and attain further resolution to her psychological distress.

111.  As for the Father, the Experts opined that despite putting up a brave front, suppressing his own emotional needs and tolerating the Grandmother’s blame, he harboured a strong sense of isolation, lack of support and being misunderstood, resulting in emotional drain/exhaustion. He fretted over Bosco’s future, worried whether Bosco would blame him, and worried about others’ curiosity. His non‑acceptance of Bosco’s injury led to continued pursuit/hope for unrealistic solution, unresolved grief and continual mood instability. He ceased to socialise, and his friends no longer asked him out. He also gave up on sports which made him feel physically unfit. Save for visiting Disneyland and going swimming with the Children once, the Parents usually spent their spare time at home as the Mother’s only concern/interest was the Children. But the Father had good relationship with the Children who clinged more to him as he was more patient with them than the Mother.

112.  Although the Parents told Ms Wong in June 2011 the Father coped well in his new job at Wilson, the Experts’ joint report on the Father dated 14 September 2011 noted he felt it was inferior work and he was embarrassed to meet people he knew. He was concerned about Bosco’s future, and had ruminations about how Bosco’s injury affected his career (he did not like the poor work environment at Wilson’s carpark) and daily life (he could not sleep well and the long workhours made him tired). The Experts found the Father still suffered from an adjustment disorder with mixed anxiety, depressive and guilt reactions of a mild to moderate intensity. He remained guilt-ridden and emotionally burdened with Bosco’s problems.

113.  The Experts opined the Parents’ insecurities served to potentiate/maintain an atmosphere of danger/dread at home. The Mother thought she had become more mellowed towards the Father but she did not know how to ease the Grandmother’s anger/blame against him. But the Father said the Mother tended to micro-manage everything when stressed, and he had to tolerate her scolding and insecurity,[37] and he became so insecure/guarded he installed remote web-cam to check on the home situation. The Experts felt the Mother made some further improvement with psychology help, but the Father needed timely professional help, and they maintained their recommendation of a substantial course of psychological therapy for the Father.

114.  Bosco going to kindergarten  Before Bosco started to attend kindergarten in August/September 2011, the Mother informed his teachers of his injury and possible psychological issues. There were a few reported incidents regarding Bosco being questioned about his Finger, but his adjustment was largely uneventful/satisfactory, and the Mother was generally pleased with the teachers’ professional management. The Father was upset about the teasing incidents, but Dr Fung considered so long as Bosco continued to attend this kindergarten it was likely Bosco/Parents would not be unduly stressed.

115.  In the Experts’ joint report dated 13 October 2011, they reiterated the Mother required psychological help to overcome her difficulties, which need arose out of her experiences in handling Bosco’s injury and its aftermath. The Experts hoped intensive private psychological treatment at bi-weekly intervals for the following 12 months would cause the Mother’s impending sense of danger and over-concern of risks to taper, and she would feel more confident in leaving her Children with the kindergarten/FDH, thus freeing herself to pursue her own social/vocational needs.

116.  Termination of 2^nd FDH  The Parents eventually found the 2^nd FDH’s work performance unsatisfactory. She made the Mother more stressed/nervous, and they were not confident in letting her look after the Children. The Mother would use a web-cam to check on the home situation whenever she had to be away from home for a short while, and other family members still had to help in looking after the Children. The Mother dismissed the 2^nd FDH on 4 October 2011, and approached another agency to hire a 3^rd FDH with childminding experience.

117.  3^rd FDH  The Mother signed the employment contract with the 3^rd FDH on 26 January 2012, and until the 3^rd FDH’s arrival in March 2012 the Mother managed domestic chores with help from relatives. The Mother was quite satisfied with 3^rd FDH, and by July 2012 the Mother felt she could entrust the Daughter’s care to the 3^rd FDH for short periods when she took Bosco to/from kindergarten. In my view, this reflected a step forward in the Mother’s childcare ability.

118.  Private psychology help  The Mother found Ms Wong’s counselling sessions helpful but they were of short duration with long intervals. When Ms Wong went on maternity leave and the Parents received some interim payment in July 2011, they looked for private psychology help. The Mother made enquiries with Ms Wong and Dr Chang, but did not get any referral. Finally, both Parents went to see Dr Fung in September 2011. The Mother attended alone on 22 October and 3 December 2011 and 6 January and 22 May 2012, the Parents attended on 4 February 2012, and on 10 March and 12 April 2012 the Father spent most of the time with Bosco outside the counselling room.

119.  Failure to mitigate?  Mr Huggins SC submitted although the JC Betting showed the Parents could have afforded earlier and more intensive private psychology treatment they failed to follow the Experts’ recommendation until 2 years after the Incident with Dr Fung but still not at the recommended intensity, and had they done so there was every expectation they would have attained earlier/better resolution of their psychological problems. But the Mother claimed her counselling sessions were more spaced out because: (a) after she dismissed the 2^nd FDH in early October 2011 she could not leave the Children for long, (b) she was responsible for taking Bosco to/from kindergarten, and (c) it was Dr Fung who determined the frequency of the counselling sessions.

120.  In paragraphs 90-96 above, I have considered the Parents’ post-Incident finances in finding the Father’s earnings at Co-Cut in Ma On Shan were on average $7,500/month. Although the JC Betting and securities transactions raised doubt as to the Father’s veracity as to his assets/earnings, his earnings as found were still significantly less than what he earned as a full-time hairstylist in Central, he had little savings to speak of, he lived partially on debt (which increased after the Incident), and he had to support a family of 4 (and at times a FDH too). In my view, the Parents were justifiably wary of committing to a course of intensive private psychological counselling (at $3,000/month for bi-weekly sessions for the Mother and double that amount if the Father were to have similar intensive sessions), and it was not unreasonable they preferred to rely on the interim payment in July 2011 to embark on private psychological counselling. Further, there was no delay as the Parents made reasonable enquiries with Ms Wong and Dr Chang and took appropriate time to identify a suitable clinical psychologist before starting with Dr Fung in September 2011.

121.  I further find the intervals between counselling sessions were clinical decisions by Ms Wong and Dr Fung, and the Parents should not be criticised for the more spaced out sessions. For a busy public hospital like QEH, the frequency would be tempered by constraints of public resources and patient volume. In fact, it was the Mother who was worried over short durations and long intervals of Ms Wong’s counselling sessions (see paragraph 118 above). Dr Fung said the Mother showed good initiative in setting up regular appointments with her, and it was Dr Fung who recommended more spaced out sessions for the Mother (see paragraph 126 below). Thus, the Mother could not be faulted for following treatment decisions.

122.  As for the Father, he was busy at work at Wilson and found it difficult to take leave for attending counselling due to manpower shortage at his workplace and sometimes his employer did not approve his requests for time off. It was probably not difficult for the Father to get time off for treatment of his epitasis as he could hardly work with a nosebleed, but a short-staffed employer might be less understanding when an employee’s psychiatric condition did not grossly affect his work. This was not helped by the Father having to take time off to bring Bosco (with the Mother) to hospitals/clinics for medical follow ups, and he had to spend time with lawyers to deal with the litigation. There was also an interval between departure of the 2^nd FDH (October 2011) and arrival of the 3^rd FDH (May 2012) that the Father might feel he should keep an eye on the home front when the Mother went for counselling. And when the Parents could attend counselling together, they sometimes brought Bosco with them (and left the Daughter in the care of a relative), so the Father would spend most of the time with Bosco outside the consultation room. In my view, the Father’s occasional defaults in attending counselling sessions were due to understandable exigencies and not any unreasonable failure to mitigate.

123.  In any event, both Parents recognised the need for private psychological help. The Mother wished for more concrete help from professional psychologist in dealing with Bosco’s problems, and the Father wished for more counselling as he saw the benefits the Mother gained from hers. In my view, the Parents acted reasonably in their situation, and did not fail to mitigate loss by delaying private counselling and/or spacing out the sessions. I bear in mind in mitigating his loss a claimant victim of a wrong is only required to act reasonably and the standard of reasonableness is not high in view of the fact that the defendant is an admitted wrongdoer.[38] Further, despite the spaced out counselling sessions, the Mother and Experts acknowledged Dr Fung’s counselling had been helpful to the Parents (see paragraphs 125 and 129 below).

124.  March/May 2012  In March and May 2012, there were teasing incidents by Bosco’s classmates over his pressure garment, and the boys were asked to apologise. The Mother was satisfied with the kindergarten’s professional management, but was distressed and worried by Bosco’s reluctance to talk about the incidents. She worried about Bosco starting K2 in the following year, and insisted on taking Bosco to/from school so she could talk to the class teacher as needed. I accept the Mother had lingering worries about Bosco’s interaction with classmates and sensitivity over the shortened Finger, but she had confidence in the teachers’ professional management. On a separate note, the Father underwent surgery for his epitasis in May 2012, and the operation was successful.

125.  June 2012  The Mother found Dr Fung’s counselling sessions helpful, and was clearly calmer and in better control of her emotions. According to Dr Fung’s report dated 7 June 2012, the Mother showed good progress in her emotional control, and was more relaxed/composed even though she remained touchy and easily tearful. She showed good motivation to learn, responded positively to psychological advice, had improved mood with reduced worries/apprehension about Bosco’s school adjustment, and made satisfactory progress in respect of her negative moods and excessive worries. Her skills in dealing with queries about Bosco’s injury improved but it would take time to master. She still found herself frustrated/upset when Bosco did not respond to her, and was worried about Bosco going to primary/secondary school and about future surgery and reconstruction when Bosco grows older.

126.  Dr Fung noted even though the Father was unhappy (but had to bear) with his job at Wilson, the Parents felt the Incident brought them closer together. The Mother was better aware of the psychological implications of parental behaviour on the Children, and was vigilant (and cautioned family members) about the risk of spoiling Bosco and creating undue reaction from the Daughter, but the elders did not change much in their attitude and the Father still pampered Bosco. Dr Fung considered the Mother should continue psychological treatment (preferably with the Father joining in more consistently) in view of (a) the Daughter’s competition for attention and need for proper handling of both Children, and (b) anxiety about Bosco’s adjustment on moving to primary school in 2 years’ time and his future surgery. Dr Fung suggested counselling for the remaining time in 2012 could be spaced out to once every 6-8 weeks and in 2013 once every 3 months to manage any untoward difficulties, but it would be beneficial for Bosco to have counselling in 2014 to ready for primary school.

127.  Bosco’s orthopaedic follow up  In May/June 2012, the QEH occupational therapist suggested shortening the time for wearing pressure garment. At the end of July 2012 the Mother noticed the tip of the Finger became marble-shaped, and Dr Chang said he might recommend cosmetic surgery. The Mother was upset about another surgery. Second opinion from Dr Pun suggested the swelling was due to progressive bone growth which indicated future surgery might be required, but revision/cosmetic surgery could be deferred until Bosco is older.

128.  Experts’ further report  The Experts jointly and separately examined the Parents in early August 2012. The Mother agreed by then she was showing good improvement, and both Parents confirmed their marital relationship was satisfactory. The family managed a trip to Bangkok which was happy/relaxed. According to the Experts’ joint report dated 6 September 2012, the Mother seemed at ease / forthcoming, and reported no problem in appetite/sleep. She had learned/accepted the importance of building up Bosco’s self-confidence and followed the advice of treating the Children fairly. Although there was still evidence of prevailing anxiety, the Mother “impressed the [Experts] as being calmer and in better control of her emotions. She appeared stronger and had more confidence in dealing with the various domestic and child‑minding challenges”. The Mother went to see her friends occasionally, but might occasionally feel isolated and unsupported because the Father and other family members would spoil/ favour Bosco and pay less attention to the Daughter, which caused the latter to present with occasional tantrums and attention-seeking behaviour that were sometimes a handful to handle. The Experts noted the Mother became more positive/proactive in homemaking and childcare, and increasingly confident in dealing with the school/teacher, and in having support/help from a FDH to whom she could delegate house chores. But she was stillplaguedby occasionalworries/anxietiesaboutfuturechallenges such that her depressedmoodwas“buriedmomentarily ratherthanresolved”.

129.  The Experts revised the Mother’s diagnosis to adjustment disorder of a chronic nature with mixed anxiety and depression at mild intensity range, and opined she should continue with psychological treatment to further consolidate her emotional control and forward-looking mentality. The Experts reiterated she should receive bi-weekly psychology sessions for the following 12 months, ie about 26 sessions in total. The Mother had attended 8 sessions with Dr Fung which she found helpful, so she would benefit from the remaining 18 sessions in learning ways of (a) coping with enquiries about Bosco’s Finger from strangers, (b) assuming a more leading role in supporting/educating Bosco on how such enquires should be handled and ways of protecting himself when being teased/ bullied, and (c) viewing future surgery as necessary and helpful which would be instrumental in helping Bosco’s adjustment further.

130.  The Father was also at ease during the examination, but was emotionally burdened with Bosco’s problems, and still harboured guilt feelings and self-blame that would intensify when the Grandmother made provocative comments about the Incident. He occupied himself with work so as not to ruminate about his guilt/worries, and could not help being over‑indulgent towards Bosco at home which caused friction with the Mother. He worried about the Mother’s psychological state and the teasing incidents to Bosco at school. He also had occasional insomnia and other life issues that required psychological help. But he appeared less preoccupied with worries than a year ago, entrusted the Mother and the 3^rd FDH to look after housework and childcare, and felt the Mother was more capable in running the home. But the Father only managed to see Dr Fung briefly 3 times with the Mother. He agreed he needed psychological help to deal with his intense guilt and job dissatisfaction, to learn how to deal with daily problems in a positive/constructive manner and to handle his worries about Bosco’s future surgery. The Experts opined the Father still suffered from adjustment problems with emotions of anxiety, depression and guilt reactions of a mild to moderate intensity, and they were more concerned with his rather than the Mother’s psychological status. The Experts maintained their opinion he should receive 15 psychology sessions.

131.  Summary  The above clearly showed positive motivation and satisfactory progress of the Parents, especially the Mother, in achieving better emotional control and enhanced ability to deal with psychological issues related to Bosco’s injury such that Experts were able to revise the Mother’s diagnosis to adjustment disorder of a chronic nature with mixed anxiety and depression. Although the Father had yet to resolve his self‑blame and guilt feelings, he was better able to grasp and understand his situation. In my view, despite remaining psychiatric symptoms, the Parents made gradual/steady improvement so that by August/September 2012 they had mild to moderate symptoms of adjustment disorder. In my view, but for the psychological setback upon receipt of the Council Letter discussed below, the Parents (with continued psychology help) could have expected progressive improvement and better resolution of their anxiety, guilt feeling and emotional/psychological burden.

XII.  PARENTS’ CONDITION AFTER SEPTEMBER 2012

132.  Council Letter  In September 2012, the Parents were about to engage in pre-trial preparations for the 1^st Trial in November 2012. On/ about 17 September 2012, the Mother received the Council Letter that advised the Mother’s Complaint was not made out and no further disciplinary action would be taken against the Doctor (“Council’s Decision”). It distressed, dismayed and devastated the Parents, and made the Mother so helpless, angry, desperate and emotionally unstable that she expressed irrational thoughts of suicide. The Father too could not accept such devastating/shocking blow, and shared the Mother’s feelings. They claimed that discovering from such letter the Doctor misled the Council by making untruthful statements (ie he claimed he was not the one responsible for putting the bandage on Bosco’s Finger) was the biggest blow to them.

133.  Dr Fung  On 18 September 2012, the Father informed Dr Fung the Mother was greatly distressed/dismayed after reading the Council Letter, and was reportedly highly emotional, tearful, could not eat/sleep, and was seemingly confused with muddled thinking and negative thoughts. The Father took leave on 20 September 2012 to keep a close eye on the Mother, but had to resume work on 24 September 2012. He was tired and it affected his concentration during the day. Dr Fung saw the Parents on 20 and 25 September 2012.

134.  The Mother looked pale/gaunt and was more disturbed/restless than Dr Fung ever saw her before. The Father appeared defeated and in low mood. Although the Mother was calmer at the 2^nd session, she presented with persistent clinically significant symptoms of emotional disturbance, and she had actually asked the Father to die together with her, which thought was triggered by her sense of helplessness/hopelessness in fighting for justice for Bosco. She was deeply aggrieved, emotionally unstable, tearful and angry/agitated. She was convinced the Doctor lied to the Council, and the Council was unfair in being partial to the Doctor’s perspective and not considering the information she submitted with due attention/respect. So although the Mother “demonstrated the ability to benefit from appropriate psychological treatment given to her in the past year”,

“…… the recent incident of the Council has clearly brought about a significant setback in [the Mother’s] psychological condition. The [Council Letter] served as an acute blow and undermined her previous progress attained in therapy in dealing with the emotional anguish associated with her son’s trauma; the anxiety in relation to the uncertainty for her son’s treatment, recovery and adjustment in the future; and preparation for the trial hearing. Currently her psychological condition is overwhelmed by anger, upset, powerlessness, helplessness, despair, sense of injustice, and guilt (for being unable to fight for fairness for her son).” (my emphasis)

135.  Plainly, the Parents held the belief justice would be done and the Doctor would be sanctioned, but the Council Letter was “like a slap to their faces” and “a major blow” to them, which precipitated a significant worsening of their distress. Dr Fung opined the Mother’s persistent emotional disturbance and hyper-physiological arousal indicated a need for psychiatric intervention with pharmacological management and intensive psychological monitoring/treatment, and the Father also needed psychology help/support in such highly stressful situation, so Dr Fung urgently referred the Parents to private psychiatrist Dr Josephine Wong (“Dr Wong”) and supported an adjournment of the 1^st Trial.

136.  26 September 2012  Dr Wong saw the Parents on 26 September 2012. The Mother was preoccupied with the Council Letter and angry/frustrated their efforts to seek justice for Bosco were futile with the Doctor getting away with lies to the Council. She felt so desperate that she thought of dying with the Father, and was ashamed/guilty in not getting justice for Bosco. Her concentration was impaired, and she had difficulty in childcare. Dr Wong opined whilst the Mother gradually got better with Dr Fung’s psychological treatment, “receiving the [Council Letter] had led to a major setback in her emotional state. [Dr Wong’s] impression is that she was reacting to acute stress, with a diagnosis of an adjustment disorder, with a mixed anxiety and depressive reaction ……” (my emphasis). Dr Wong started the Mother on medication.

137.  As for the Father, he worried about the Mother’s emotional instability, was upset/angry/frustrated with the Council Letter, did not sleep well as he had to watch over the Mother, and felt shame/guilt in not being able to seek justice for Bosco. He had been preoccupied/worried about work performance, could not concentrate well and felt exhausted/confused. Dr Wong noted “[the Council Letter] hit him hard psychologically since it seemed to indicate that their efforts had been futile. It had shaken his beliefs in the justice system. [Dr Wong’s] impression was that he was reacting to an acute stress, with a diagnosis of an adjustment disorder, with a mixed anxiety and depressive reaction ……” (my emphasis) Dr Wong also started the Father on medication to help him sleep.

138.  Dr Wong was concerned the Parents might develop depressive episode that might require longer treatment with anti-depressants, and supported adjournment of the 1^st Trial. She suggested ongoing psychiatric follow up and evaluation for the Mother, and further psychological treatment for the Father to work through his guilt regarding Bosco’s injury.

139.  3 October 2012  When Dr Wong saw the Mother on 3 October 2012, she could sleep better with medication, and she took medication from time to time in the day for her anxiety symptoms. She still had major preoccupation with Bosco’s injury, the Council Letter and guilt feelings, and a lot of worries about Bosco’s future psychological adjustment, and her concentration was poor. The Parents applied for adjournment of the 1^st Trial, but the DHCJ refused their application. The Mother was upset but claimed under XXN it did not make her angrier. The Father felt aggrieved by the refusal to adjourn the 1^st Trial which he thought was unfair. The Plaintiffs appealed, but were unsuccessful.

140.  17 October 2012  When Dr Wong saw the Parents on 17 October 2012, neither of them was able to grasp her explanation that the court’s decision in civil litigation would not be influenced by the Council’s Decision. The Parents were preoccupied with the Council Letter, which came as a devastating shock to them, and as the Doctor got away with lies to the Council they feared the chances of getting justice for Bosco was very slim. The Mother was tearful/upset, unable to concentrate, absent‑minded on daily matters, and irritable/impatient with the Children. Her sleep was poor and she was tired all the time. The Father reported persistent significant depressive symptoms, and felt undue pressure as he had to maintain a strong front for his family. He started smoking and his work performance deteriorated. In view of the persistence/severity of their symptoms, Dr Wong revised their diagnosis to a moderate depressive episode, started them on anti-depressants, and advised them to continue with psychological counselling.

141.  31 October 2012  Dr Wong saw the Mother on 31 October 2012 when she received news (a) the CA dismissed her application for leave to appeal against the Adjournment Decision and (b) the Director of Legal Aid (“DLA”) would not support her intended application for judicial review against the Council’s Decision. The Father felt upset about (a) above, but the Mother claimed she was not particularly distressed/angry about (a)-(b) above. The Mother had poor sleep and low mood despite medication, had no energy, could not concentrate, and had no enjoyment in anything:

“She felt worse than when Bosco’s finger was first injured because the finding of the [Council] made her think that justice would not be done and all their efforts had been futile. She was particularly aggrieved by the fact that the [Council] had exonerated the [Doctor] on the latter’s statement that he was not the one responsible for putting the bandage on Bosco’s finger which had caused it to be gangrenous. She was adamant that the statement was not true. She felt helpless and depressed. …… She reported that [the Father] was also struggling. …… She was depressed and tearful on examination.” (my emphasis)

142.  1 November 2012  Dr Wong saw the Father (who was on medication) on 1 November 2012. His sleep was poor after the Adjournment Decision, and he was worried about Bosco’s case and the Mother’s confused state. “[He] felt that all their efforts seemed futile for the [Doctor] could get away by making untruthful statements. He felt that they were being oppressed” and harassed. They were then under pressure to disclose bank records (although he did not understand their relevance). He could not burden the Mother or talk to his friends about his unhappiness, reported low energy and muddled thinking, and was tearful and despondent. His anti-depressant was changed due to side effects.

143.  5 November 2012  On 5 November 2012, Dr Wong saw the Parents who had a tough weekend preparing for the 1^st Trial. The Mother could not think/concentrate, felt negative as the system was against them, and was tearful/despondent. The Father’s guilt feeling was aggravated, and he could not sleep well, felt upset/hounded as some colleagues complained when he took 3 days off work for the 1^st Trial, and felt “punished” despite not being in the wrong.

144.  15 November 2012  The Parents next saw Dr Wong on 15 November 2012. The 1^st Trial was difficult when they had to change their lawyers (and appoint the DLA as their lawyers) during its course, and they had the impression the DHCJ favoured the Doctor. The Father felt overwhelmed/stressed, especially as they felt the DLA was unhelpful. The Parents were particularly upset the court allowed the Doctor access to their bank records covering many years, which made them feel like prisoners/ defendants. But they were relieved the 1^st Trial was over even though there were adverse media reports implicating them as greedy parents. Their sleep was fair, and they “seemed calm and seemed euthymic during the session”.

145.  Bosco Judgment  According to Dr Wong’s report dated 8 April 2013, the Parents decided to appeal against the Bosco Judgment because they were disappointed with the low award. The Mother agreed it was a blow but claimed it was not any greater than the order for disclosure of her private financial information even though she did not appeal against the latter order. But she agreed her mental condition at the end of 2012 was poor, and she was heavily weighed down by a sense of injustice/unfairness as a result of the Council’s Decision and Bosco Judgment. The Father also felt a sense of unfairness/injustice in respect of the Bosco Judgment as the award was perceived to be too low.

146.  2 January 2013  The Parents did not see Dr Wong until 2 January 2013 when they were busy trying to appeal against the Bosco Judgment. They were frustrated with the DLA who they felt did not give timely assistance so they had to engage another solicitor just before the deadline. On examination, the Mother was tearful, distressed and depressed with guilt feelings for not being able to seek justice for Bosco, and there were lack of pleasure, irritability, poor sleep/appetite, thoughts (but no plan) of suicide, and worry about the ability of Bosco to cope with teasing incidents. The Father was also depressed in mood with sense of struggling each day. He did not want to plan too far ahead, and reported they intended to terminate the services of the 3^rd FDH due to financial reason. He had thought (but had no plan) of suicide, and felt pressure from having to be strong for the Mother who was more upset/distressed. Dr Wong prescribed medication and wrote referral letters to public psychiatric clinic for continuing care.

147.  Failure to mitigate?  In my view, the Parents did not fail to mitigate by deciding to revert to the public sector for continuing psychiatric care. They alluded to financial constraints. I note their psychological setback in September 2012 led to intensive/costly psychiatric intervention. But the Parents were not unaware of their treatment needs. Despite request for referral to the public sector, they responsibly followed up with Dr Wong until March 2013 (see paragraphs 148 and 171-172 below) before the expedited appointment in April 2013 at PWH’s department of psychiatry (see paragraph 173 below), and the Mother returned for psychiatric help from Dr Wong on 23 May 2013 and 8 July 2014 as needed (see paragraphs 177 and 190 below).

148.  23 January 2013  At the follow up with Dr Wong on 23 January 2013, the Mother was depressed and tearful with insomnia and poor concentration. She was upset Bosco was more aware of his injury and difference from other children, and worried about his future functioning. She was more emotional because the interview the Parents gave to Next Magazine (about the Incident and Council’s Decision) came out in print that day, which reminded her of all adversities that happened since Bosco’s injury. The Mother said “ …… she could not stop crying even in a bus full of other passengers when reading the report ……”, but I do not accept her allegation she was merely upset by Bosco’s photos in the magazine report. In my view, as the Parents volunteered the interview that led to the publication, their distress as a result of such publication was a separate and distinct matter that was objectively irrelevant to the present assessment of damages, and in any event it was not pleaded as a material facet of the Doctor’s tort.

149.  Early 2013  The Mother admitted the Council’s handling of her complaint (which she considered was wrong/unfair) affected her seriously and caused her low mood, but she claimed that by early 2013 (a) she “was able to relax and to breathe again” with the publication of the Next Magazine report which made more people aware of the Incident and the Doctor’s wrongdoing, and (b) her mind had eased and she had let go of the Council’s Decision which was “no longer a concern for [her]” since she (i) came to know they could make another complaint to the Council against the Doctor and (ii) she had talked to some people and learned the Council’s Decision had nothing to do with the civil litigation. But she did not mention this easing of mind and letting go of the Council’s Decision to any doctor/therapist in 2013/2014, and she tried to explain away this silence by saying she mentioned the Council’s Decision at the 1^st session with her treatment psychiatrist/psychologist to give information on her psychiatric history, but she only talked about Bosco’s problems and her personal emotions in subsequent sessions.

150.  The Father claimed there was “a period of intense emotional distress soon after [Bosco’s] treatment and the associated medical legal issues”, and even when he came to know the Council’s Decision had no bearing on the civil litigation it did not have much effect on him as he was still very upset. But he improved after receiving treatment by Drs Fung and Wong, and by early 2013 he started to feel more relieved/relaxed as in 2012 both Drs Fung and Wong advised/encouraged the Parents to lodge another complaint against the Doctor, so his anger and sense of injustice were no longer against the Council but essentially for Bosco who had to face lifelong problems due to injury to his Finger. The Father claimed that by the time he lodged his fresh complaint to the Council on 4 January 2013 (“Father’s Complaint”) he had let go of his strong feelings towards the Council, and by the time of the 2^nd Trial his feeling was “[well], now there’s okay, there’s nothing.” The Father claimed he subsequently mentioned the Council’s Decision to Dr Lam Ho-bun (“Dr Lam”) of PWH’s department of psychiatry as part of his psychiatric history, but by that time his main concern was Bosco.

151.  Objective irrelevance  The Parents plainly suffered psychiatric injury as a result of the Incident so there was no question over primary causation. Up to August/September 2012 the Parents made gradual but steady progress with improvement of mood state and coping skills. Indeed, the Experts were able to revise the Mother’s diagnosis from depressive disorder to adjustment disorder of a chronic nature with mixed anxiety and depression. Drs Fung and Wong agreed she demonstrated ability to benefit from appropriate psychological treatment that she received. There was no dispute the Parents (especially the Mother) suffered psychological setback in September 2012 as a result of reading the Council Letter that set out the Council’s Decision, which was variously described as an “acute blow” that undermined progress in therapy, a “crisis” situation with reaction to “acute stress”, and “a slap to their faces” that precipitated significant worsening of their distress. The Parents were so devastated by such turn of events that in mid-October 2012 Dr Wong revised their diagnoses to moderate depressive episode and started them on anti‑depressants. In my view, the Parents’ then condition was largely maintained by preoccupation with the Council’s Decision and Council Letter.

152.  Further, it was the Parents’ “persistent emotional disturbance and hyper-physiological arousal” upon receipt of the Council Letter that required psychiatric intervention and pharmacological management. This must be contrasted with their condition prior to such letter when they responded positively to psychological counselling without need for psychiatric intervention (see also paragraph 17 of the CA Reasons). It was the clear professional opinion of Drs Fung and Wong (which on balance I accept) that the setback caused by the Council Letter and Council’s Decision was separate and distinct from the Parents’ previous psychiatric sequelae arising from their nervous shocks. Indeed, at the PTR on 12 July 2013, Mr Ko conceded the Parents would not rely on any argument insofar as their psychiatric condition was caused or contributed to by the Council’s Decision not to pursue disciplinary proceedings against the Doctor or by their receipt of the Council Letter.[39]

153.  Grievance over Council’s Decision  The Parents were clearly aggrieved by the Council’s Decision because it made them think justice would not be done and all their efforts had been futile, and they felt guilty and ashamed in facing Bosco when he grows older (see paragraphs 132-137 above). I find on balance the Parents were also aggrieved by what they perceived to be the Council’s unfairness in being partial to the Doctor’s perspective and not giving proper attention/respect to the information they submitted (see paragraph 134 above). In my view, the Parents’ core grievance over the Council’s Decision was their pervasive sense of hopelessness/helplessness in seeking justice for Bosco and their strong sense of unfairness in being unable to do so despite their efforts, but such grievances were objectively irrelevant and not compensatable. I also find on balance that whilst such grievances gradually tapered with psychiatric/ psychological treatment, their persistence was still evident albeit less aroused, and they precipitated the Father’s Complaint.

154.  Doctor’s alleged “lies”  The Parents believed the Doctor misled the Council by making untruthful statements to the effect he was not responsible for putting the bandage on Bosco’s Finger, which lies were allegedly discovered from the Council’s Letter and formed the biggest blow to them. The Mother claimed the Doctor’s lies “were more cruel to [the Parents] than the result, because he obviously had done it [ie bandaged Bosco’s Finger], yet he denied it, so [she] could not accept the contents”. But as seen in the above paragraph, apart from such alleged lies, the Parents also had other grievances in respect of the Council Letter.

155.  Mr Ko submitted the “Parents’ reasonable perception of [the Doctor] having told a lie to exonerate himself, which caused Parents a blow” was compensatable as “the blow flowing from that does not break the chain of causation of the injury caused by [the Doctor]”, but this court was not asked to find that the Doctor actually told lies. As Mr Huggins SC submitted, this was a hopeless argument.

156.  First, the Parents’ pleaded case is for damages as a result of the nervous shocks that occurred in 2009. The Mother’s Complaint and/or the Doctor’s response to the Council on such complaint were not part of those nervous shocks nor even their immediate aftermath, but were separate and distinct matters. The Parents’ severe psychological reaction to the Council’s Decision and Council Letter were not attributable to the psychiatric illnesses that resulted from the nervous shocks, which illnesses were at that time on the mend towards better resolution and recovery, but a separate setback that required psychiatric intervention and pharmacological management. In my view, since it was conceded the Council’s Decision and receipt of the Council Letter were objectively irrelevant (see paragraph 152 above), I cannot see how the Parents’ reaction to discovery of certain contents in the Council Letter (ie the Doctor’s alleged lies) would be relevant and compensatable.

157.  Secondly, even if the separate and distinct deterioration of the Parents’ psychiatric condition caused by the Doctor’s alleged lies were relevant and compensatable (which I disagree), it must be a material fact that had to be pleaded before the Parents could rely on such “aggravation of Parents’ condition flowing from [the Doctor’s] conduct”. There was no such plea, and it could not be slipped in by evidence.[40]

158.  Thirdly, Mr Ko referred to McKew v Holland & Hannen & Cubitts (Scotland), Ltd[41] in which Lord Reid held as follows:

“In my view the law is clear. If a man is injured in such a way that his leg may give way at any moment he must act reasonably and carefully. It is quite possible that in spite of all reasonable care his leg may give way in circumstances such that as a result he sustains further injury. Then that second injury was caused by his disability which in turn was caused by the defendant’s fault. But if the injured man acts unreasonably, he cannot hold the defendant liable for injury caused by his own unreasonable conduct. His unreasonable conduct is novus actus interveniens. The chain of causation has been broken and what follows must be regarded as caused by his own conduct and not by the defender’s fault or the disability caused by it. Or one may say that unreasonable conduct of the pursuer and what follows from it is not the natural and probable result of the original fault of the defendant or of the ensuing disability. ……”

Mr Ko submitted the Parents in making the Mother’s Complaint was a natural act given the Doctor’s negligent treatment/management of Bosco’s Finger and their feelings of guilt/grief. “What was unexpected was [the Doctor’s] answer to [the Council] that he was not responsible for the bandaging, an answer which was completely inconsistent with his admission of liability in [the Parents Action]” (and the Doctor had not denied the bandaging was done by him in the Defence which was verified by his statement of truth).

159.  I cannot see how McKew could be of assistance. In that case, the question of reasonableness or otherwise was not about walking down the stairs, which was an ordinary activity for a person still ambulatory after leg injury. The question of reasonableness or otherwise went to the act that caused the second accident/injury (ie the manner in which the pursuer in McKew descended the stairs) that would crucially determine whether the chain of causation was broken. In McKew, the House of Lords concluded the unreasonableness was in the pursuer walking down steep stairs without handrail in the normal manner and without adult assistance when his leg had previously given way on occasions. Here, the Mother’s Complaint was not an ordinary daily or work-related activity but the Parents’ considered decision to complain to a professional body for professional misconduct. More importantly, the question of reasonableness or otherwise was not about making the Mother’s Complaint. Even on the Parents’ case, the relevant act that caused the blow was the Doctor’s alleged lies to the Council, but such alleged act was separate and distinct conduct by the Doctor long after the nervous shocks in 2009.[42] In any event, this further “act” had not been pleaded to enable the Doctor to respond thereto by pleadings and/or evidence.

160.  Fourthly, quite apart from the above analysis, I cannot see how Mr Ko’s submissions in paragraph 158 above could be supported without calling upon this court to determine whether or not the Doctor actually lied to the Council. If the Doctor objectively did not lie to the Council, I cannot see how the Parents’ subjective perception that he did would enable recovery for emotional turmoil caused by such misconceived subjective perception. Indeed, Mr Ko had to rely on the contention that the Doctor’s answer to the Council was completely inconsistent with his admission of liability and non-denial in his Defence in the Parents Action. But since neither Mr Ko nor Mr Huggins SC asked me to make any finding as to whether the Doctor actually lied (and I am unable to do so given (a) the absence of any plea by the Parents so the Doctor was not called upon to plead or adduce evidence in response, and (b) the paucity of evidence in this respect before this court, eg the Council Letter was not even in evidence), Mr Ko’s arguments fell away.

161.  Fifthly, Mr Ko relied on Lai Yuk Shim v Hung Ling Kwok (Practice Note)[43] to suggest the aggravation of the Parents’ condition as a result of D’s alleged lies to the Council was not a separate cause. In that case, Bharwaney J said a relapse of a psychiatric condition as a result of anxiety generated by ongoing litigation is unlikely to be regarded as a new cause unrelated to the tort. The learned judge drew support from his earlier judgment in Fung Chun Man v Hospital Authority[44] in which he said a tortfeasor who prolongs litigation by failing to admit his responsibility at the first opportunity and, thereby, permits the victim’s loss and damage to continue, or to be aggravated, is responsible for the entire loss and damage suffered. But here, the Doctor admitted liability at an early stage of the Parents Action leaving damages to be assessed. The Mother’s Complaint as well as the Doctor’s response thereto and the Council’s consequent investigation/decision were extraneous to the Parents Action, and any anxiety arising therefrom was not general litigation stress or anxiety generated by ongoing litigation attributable to the nervous shocks. The situation here was a far cry from that in Lai Yuk Shim and Fung Chun Man which concerned resistance to the plaintiff’s ongoing litigation in respect of his rightful claims for loss and damages for personal injuries. For all of the above reasons, the Parents could not claim for aggravation of their psychiatric condition as a result of the Doctor’s alleged lies.

162.  Alleged letting go of Council’s Decision and/or Council Letter The Parents alleged the Council’s Decision ceased to be an important issue for them by early 2013 after they became aware in 2012 (a) it would not affect their civil claim for damages against the Doctor and (b) they could make a fresh complaint to the Council against the Doctor. On the Parents’ case, their minds must have eased before 4 January 2013 when the Father lodged the Father’s Complaint. Mr Huggins SC submitted this was a contrived/orchestrated attempt to nullify/neutralise the difficult point that the massive grief the Parents suffered was due to separate and independent event for which the Doctor could not be held liable. On balance, I do not accept the Parents’ grievances had eased and/or they had let go of the Council’s Decision and/or Council Letter by January 2013 even though I accept with psychiatric/psychology help their grievances/mood eventually tapered but not extinguished.

163.  First, notwithstanding the views expressed by the DHCJ in paragraph 4 of the Adjournment Decision (and later by the CA in paragraph 16 of the CA Reasons), as at 17 October 2012 (ie a month after receipt of the Council Letter and after having seen Drs Fung and Wong) the Parents still could not grasp Dr Wong’s explanation as to the irrelevance of the Council’s Decision to their civil claim against the Doctor, and they remained preoccupied by the Council Letter (see paragraph 140 above). Dr Wong was careful in eliciting the Parents’ condition during consultations and in recording her findings/recommendations in her reports, but there was nothing in her reports to show they subsequently grasped the essence of her earlier explanation. The Parents’ evidence was vague on their “talking to someone” from whom they learned the Council’s Decision would not affect their civil claim. As seen in the paragraph below, I find the Parents’ grievance over the Council’s Decision was still evident in late January 2013.

164.  Secondly, the Parents took the initiative to approach Next Magazine about the Incident and the Doctor’s wrongdoing as they felt a need to report the “unfair outcome of the [Council]” to the press “as the system had been disappointing them”, and the report came out in print on 23 January 2013. I find the Parents volunteered the interview and provided information to the magazine because they remained aggrieved against the perceived injustice/unfairness of the Council’s Decision, and the Mother gained some relief in venting such frustration by publicising/revealing the “unfair outcome” of the Council and finally revealing the Doctor’s wrongdoing. I find on balance the Council’s Decision still weighed on her and the exposé in the magazine was part of her alternative fight for justice on behalf of Bosco that had been stonewalled by the Council’s Decision.

165.  Thirdly, I find on balance that because the Mother’s Complaint failed to bring about a satisfactory outcome for the Parents, the Father made a fresh complaint on 4 January 2013. I do not accept the Father’s allegation that Drs Fung and Wong both advised the Parents they could lodge a fresh complaint to the Council against the Doctor. The Parents last saw Dr Fung on 25 September 2012 (about a week after the Parents read the Council Letter) when their frustration, anger, grievance and dismay about the Council’s Decision and Council Letter were very intense (see paragraph 134 above). Dr Fung recommended psychiatric/pharmacological intervention and made urgent referral to Dr Wong. I find it most unlikely Dr Fung advised/encouraged making fresh complaint when the Parents were still highly aroused, emotional, confused and aggrieved, and when the Mother had suicidal thoughts. Dr Fung’s report dated 27 September 2012 set out in detail her own “psychological opinion and recommendation”, but there was nothing to even hint she recommended making fresh complaint to the Council. Further, the Parents saw Dr Wong the following day on 26 September 2012 and they were still intensely aggrieved by the Council’s Decision and Council Letter (see paragraphs 136-137 above), and remained so on 3, 17 and 31 October and 1 November 2012 (see paragraphs 139-142 above). The information gathered by Dr Wong in her history-taking did not show Dr Fung had given such advice/encouragement. This seriously undermined the Parents’ allegation that they had let go of the Council’s Decision due to such advice.

166.  Mr Ko’s closing submissions seemed to suggest Dr Fung’s / Dr Wong’s alleged advice to make a new complaint was psychiatric/ psychological “treatment” for relieving the Parents’ psychiatric condition aggravated by the Council Letter, and such “treatment” worked well in that the Parents were relieved. I reject such argument as there was no medical basis to support such advice as psychiatric/psychological “treatment”.

167.  I am also unable to accept Mr Ko’s suggestion that Dr Wong’s report dated 8 April 2013 supported the Parents’ allegation that Dr Fung / Dr Wong advised/encouraged them to make a fresh complaint. If Dr Wong had done so, I find it strange/unconvincing she did not follow up during consultations in November 2012 and in January to March 2013 to ascertain whether the Parents acted on such advice and whether there was tapering of mood as a result. Dr Wong’s report dated 8 April 2013 was silent even though she made clear she would report on her findings each time she saw the Parents, and she carefully spelled out the treatment given on each occasion. Indeed, Dr Wong in her report dated 8 April 2013 concluded inter alia that:

“25. …… The [Council Letter] that no disciplinary hearing would be conducted on the [Doctor] was a major blow to both of them. It precipitated a significant worsening of their distress, …… up till that point (i.e. receipt of the [Council Letter]), regardless of the difficulties and sadness regarding Bosco’s injury, they held the belief that justice will be done. They took appropriate action in reporting the [Doctor] to the [Council] and also in pursuing damages in civil court.[45] They believed that the [Doctor] would be sanctioned for his wrongdoing. But the [Council Letter] was like a slap to their faces. They began to realize that things might not be that simple especially if the [Doctor] was prepared to make untruthful statements. Their faith in the justice system was tarnished. ……

26. Both [Parents] found this all these experiences very hurtful and added to their sense of frustration, distress and helplessness. …… Despite all this, both [Parents] have devoted themselves to the care of their children and are committed to pursuing justice for Bosco even when the odds are against them.” (my emphasis)

Although the above extract referred to other difficulties the Parents faced, their grievance and distress over the Council’s Decision and the Council Letter still featured with no suggestion they had abated. I find on balance that in March/April 2013 the hurtful sense of unfairness/injustice caused by the Council’s Decision still drove the Parents’ commitment to pursue justice for Bosco, which was also reflected in the Father’s Complaint in January 2013. I find the Father’s Complaint was due to maintenance rather than letting go of the Council’s Decision and Council Letter.

168.  Also in/about April 2013, Dr Lam interviewed the Parents, and his clinical formulation of the Parents’ psychiatric illness at that time was depression after Bosco’s injury and anger or persistent anger towards the Doctor, Council and the court (see paragraph 173 below). The Father claimed he did not understand the Doctor’s clinical formulation as his feelings towards the Council’s Decision had eased, his feelings towards the court were “okay” and his major dissatisfaction was against the Doctor who caused Bosco to suffer so much, and the Mother gave evidence she mentioned the Council’s Decision, civil litigation and 1^st Trial to Dr Lam as part of their previous history only. But I find it strange and unconvincing even on the Parents’ case that they would give details of their psychiatric history (including their anger or persistent anger against the Council) to Dr Lam at the 1^st session in April 2013 without telling him such stressors had disappeared months ago in early 2013, and their remaining grievance was merely against the Doctor.

169.  On balance, I reject the Father’s evidence that he had let go of the Council’s Decision but omitted to tell Drs Lam and Tang. Whilst I accept Dr Lam’s medical records/reports wrongly recorded various matters, eg Bosco’s alleged ADHD (see paragraphs 188 and 192 below), I find on balance his record of the Parents’ psychiatric condition and clinical formulation (being core matters of his records/reports) were correct in light of the available evidence. Although the Father said the Mother did most of the talking to Dr Lam, the Mother did not suggest Dr Lam’s record of the Father’s persistent anger against the Council was inaccurate nor did she ask for such record to be corrected (as she did with Dr Lam’s erroneous reference to Bosco’s alleged ADHD).

170.  In my view, whilst the Parents’ aggravated mood had somewhat tapered by April 2013 as compared with the severity soon after the receipt of the Council Letter, they were still preoccupied by a sense of injustice/unfairness over the Council’s Decision and Council Letter. I do not believe they had accepted or had let go of such matters in January 2013, which allegation was undermined by the weaknesses in their evidence as analysed above.

171.  18 February 2013  On 18 February 2013, the Mother attended follow up whilst the Father looked after the Children (as the 3^rd FDH was laid off in February 2013). The Mother did not understand and felt oppressed by DLA’s application to have the Official Solicitor replace her as Bosco’s next friend when the Official Solicitor’s office told her there was no apparent conflict of interest. She felt attacked as a mother despite all she did for Bosco and was worried she would have no say over Bosco’s case if she were replaced. She was in a low mood and tearful/depressed, she could not sleep (for which her hypnotic dose was increased), and her appetite was poor. The Mother also collected medication for the Father.

172.  18 March 2013  At the follow up with Dr Wong on 18 March 2013, the Parents brought along the Daughter. The Mother was upset/frustrated with the uncertainty of pending outcomes from her 2 court appearances. She reported being irritable/impatient with the Children. Dr Wong opined the Mother continued to suffer from a moderate depressive episode despite some improvement after medication. “The uncertainties over the judicial process of the ongoing legal action (stemmed from their experience since the [Council Letter] in mid-September 2012) and other subsequent litigation matters (eg regarding whether she can continue to act as Bosco’s next friend, whether they need to disclose more of their personal information to the [Doctor]) are perpetuating her depressive illness”. As for the Father, he reported trying to drown himself in work and avoiding thought about the litigation. He had to deal with his own depressed mood and support the Mother in the litigation even though he also faced depressed feelings, stress from work and uncertainties over the litigation himself. His guilt reactions worsened with the Parents being pressurised at court. But the Father had shown some response (eg being less preoccupied with the litigation, sleeping and focusing a bit better) to medication. Dr Wong opined the Parents still suffered from moderate depressive episode, and would have to be on medication for at least 6‑9 months even after they got better, and they would likely need medical/psychological treatment at least for another year or more.

173.  29 April 2013  The Parents first consulted Dr Lam on 29 April 2013. His reports dated 23 September 2013 noted the Parents became more depressed after the Doctor “was adjudged innocent in 2012” (ie the Council’s Decision). At that 1^st session, the Mother was still depressive, angry and agitated with poor sleep, but she had no suicidal idea or psychotic feature. The clinical diagnosis was moderate depressive episode, and the clinical formulation was “depressive after son got injured and angry towards medical council and civil court as she considered she was treated unfairly”. The Father presented with depressive mood, irritability and insomnia, and the clinical formulation was “depressed after son’s finger was amputated and persistent anger towards GP, medical council and civil court”. The Parents were put on pharmacological treatment, and prognosis was fair.

174.  Grievance about courts/DLA  General stress/anxiety generated by ongoing litigation as a result of a defendant’s resistance to a plaintiff’s rightful claim for loss and damages does not break the chain of causation, but I cannot see how the Parents’ unhappiness, dissatisfaction and sense of grievance/unfairness over (a) the Adjournment Decision and CA Reasons, (b) the DLA’s failure to support the Mother’s application for judicial review against the Council’s Decision, (c) the Parents’ difficulties with change of their own legal representation and with the DLA, (d) the Bosco and CA Judgments and upset over the perceived low award in favour of Bosco, and (e) DLA’s application to have the Official Solicitor replace the Mother as Bosco’s next friend could be laid at the Doctor’s door (see paragraphs 98-99 of the PTR Decision). Those matters were not general litigation stress from the Doctor’s “wrongdoing”, but stemmed from different aetiology, ie judicial decisions by the courts or conduct of the DLA. I agree with Mr Huggins SC that the Parents failed to establish the upset/grievance in respect of these matters were caused by the Parents’ nervous shocks, and there was no need for psychiatric evidence to address this obvious issue of causation.

175.  Mr Ko submitted the effect of such grievances was brief because the Parents had let go of their anger against the courts when they learned on 23 April 2013 that this court and not the DHCJ would be the trial judge for the 2^nd Trial. Whilst I can see a different judge might give some relief for the Parents over a prospective event, it was a far cry from having let go all grievances against past decisions of the civil courts. In my view, such submissions did not sit well with Dr Lam’s clinical formulation of the Parents’ psychiatric condition a week later that reflected anger or persistent anger against the civil courts (see paragraph 173 above). Further, when the CA Judgment came out in February 2014, the Father felt a continuing sense of injustice against what he perceived to be a low award (see paragraph 179 below). The Mother also gave evidence her current worries included cost of future surgeries/prostheses given the low award of Bosco (see paragraph 198 below). I disagree the Parents had completely let go of their dissatisfaction with the civil courts by April 2013. They might have gradually recognised the finality of Bosco’s award, but I find there was some lingering upset/unhappiness over what they considered to be judicial outcomes that were unfair for Bosco.

176.  But that said, the Parents’ other worries about the ongoing civil litigation, including their worry and stress arising from preparation for and attending the 1^st and 2^nd Trials, their strain in meeting discovery requests, their need to turn out their private financial information etc, are compensatable. Mr Huggins SC suggested the discovery process concerning the Parents’ financial information was perfectly proper, and there were no appeals from the relevant court orders for disclosure/ discovery. But I do not see why strain in dealing with relevant legal processes in ongoing litigation in respect of damages for personal injuries suffered should be ignored.

177.  23 May 2013  Dr Wong assessed the Mother (who was then  under public psychiatric care) on 23 May 2013 and found “she was relaxed, smiling, normal in mood and effect”. There was good improvement, and according to Dr Wong’s report dated 30 May 2013,

“…… She reported that her mood was improving overall. There are no suicidal ideas. She takes hypnotics to sleep about 2 nights a week. On the other nights, she could sleep reasonably well without medication. Her appetite was normal. She was particularly relieved to hear that the parents could choose their own lawyers for Bosco’s appeal and that there would be a different judge to hear their own case in seeking compensation. She was able to discuss various aspects of Bosco’s litigation in detail. She expressed worries about upcoming challenges in Bosco’s litigation process. The level of worry is understandable and reasonable. She is not overwhelmed by such worries. She was confident she could be Bosco’s next friend …… On examination of her mental state, she was relaxed, smiling, normal in mood and affect. She showed good understanding of the legal process in Bosco’s litigation and had Bosco’s interests as her prime concern. Based on [Dr Wong’s] assessment, her depressive illness appeared to be well-controlled. [Dr Wong concludes] that she is capable of being her son Bosco’s next friend in litigation.” (my emphasis)

178.  30 May to 12 December 2013  At the follow up with Dr Lam on 30 May 2013, the Mother had better sleep, normal appetite and “coped with household chores”. Although the Father was irritable at times and had poor sleep, he had normal appetite and coped with his job despite long workhours. The Parents were depressive but not suicidal/psychotic. On 11 July 2013, the Parents’ condition was similar but less depressive. On 12 September 2013, the Mother had good sleep / normal appetite and coped with household chores, but was stressed by the litigation. She complained of chest tightness, and was depressive/angry but not suicidal/psychotic. The Father’s condition was similar, but less depressive albeit worried about court hearing in November 2013. On 12 December 2013, the Parents’ condition was similar.

179.  CA Judgment  The CA Judgment handed down on 19 February 2014 slightly increased the award for Bosco, but was still less than what the Mother was led to expect, which the Mother claimed was a blow but not a great blow. The Father claimed he felt better with the CA Judgment, but considered the increase in award was still insufficient. He felt a continuing sense of injustice that Bosco did not receive as much compensation as he felt Bosco was entitled, but disagreed he still had any sense of injustice over the Council’s Decision. He claimed he was more concerned with how Bosco would deal with his disfigurement.

180.  Dr Tang  Dr Lam referred the Parents to Dr Tang for psychological management of their depressive symptoms. The Mother was first seen on 29 January 2014 (but the Father claimed he had to work so his appointment was rescheduled to 10 December 2014). But the Parents were seen together on 23 April and 8 October 2014.

181.  29 January 2014 Dr Tang took detailed history from the Mother at the 1^st session. It was noted the Mother’s symptoms emerged since the Incident. “She held a strong belief that her son was being mistreated and she filed complaints to the [Council]”, and her anger and mood symptoms elevated further after she came to know the Council’s Decision. She reacted with intense anger and was preoccupied by a sense of injustice. She was also bothered by Bosco’s adjustment at school, perceived strong stigmatisation by Bosco’s classmates, and worried he would be unable to cope with his “disability” in future.

182.  Father’s Complaint  The Father agreed he was upset by the lack of reply (holding or substantive) to the Father’s Complaint, but alleged those feelings “become less”. The Mother agreed it was unjust the Council did not reply. I find on balance both Parents felt it was unjust the Council did not reply at all to the Father’s Complaint, and they tried to downplay the perceived injustice by saying they expected a long wait for a reply (as it took a year for the Council to reply to the Mother’s Complaint). But in fact for the Mother’s Complaint, in less than a week the Council acknowledged receipt of such complaint and in less than a month the Council informed the Mother it had been passed to the chairman of the PIC for consideration (see paragraph 82 above). The total silence/inaction that met the Father’s Complaint was quite different, and I find on balance the Parents were upset by the lack of reply.

183.  The Father suggested he did not chase the Council for a reply because he intended to wait for the outcome of the 2^nd Trial (even though he had been told it had no effect on the civil litigation). I accept the Parents were then engaged in progressing the Parents Action towards the 2^nd Trial, but the Father did not even wait for commencement of the 2^nd Trial when he chased the Council on 5 February 2014. When there was still no reply after 2 months, the Parents approached legislator Ms Emily Lau (“Ms Lau”) who made enquiries with the Council. In my view, this reflected the Parents’ concern over the Father’s Complaint and their continued determination to fight for justice for Bosco. About a month later the Council replied to Ms Lau with copy to the Father, which upset and disappointed the Mother as it was not a direct reply to the Parents. In my view, this together the Mother’s worry it might take years to seek the Council’s outcome to the Father’s Complaint (see paragraph 190 below) served to (a) show she set much store by the Council’s proper recognition of their renewed effort to fight for justice on behalf of Bosco, and (b) fuel the Parents’ perceived injustice. On balance I find the Father’s allegation that he did not even pay attention to or read the Council’s reply to Ms Lau to be a poor attempt to downplay the impact of the Father’s Complaint and the Council’s response on him. In any event, the Father’s alleged disinterest was at odds with his anxiety in chasing the Council for a reply in February 2014 and (together with the Mother) in approaching Ms Lau for help to elicit a reply from the Council. Anyway, the Father agreed the Parents were upset the Council still took no action against the Doctor.

184.  The Father’s Complaint was mentioned in Dr Wong’s medical notes of 8 July 2014 (see paragraph 190 below). Mr Ko suggested (but on balance I disagree) Dr Wong raised this with the Mother as she was the one who advised such course. I am unable to say from the notes it was Dr Wong who raised this topic. It appeared Dr Wong and the Mother started talking about the Council Letter and information was then elicited/ gathered on the Father’s Complaint. But like the Mother’s Complaint, I am unable to see how the Father’s Complaint, the ensuing correspondence, the Council’s eventual substantive reply and the Parents’ emotional reaction thereto (see paragraphs 196-197 below) would be objectively relevant to the present assessment of damages.

185.  Prostheses and future operations  The Mother desired for Bosco to be fitted with a prosthesis as she was tired of explaining to others what happened to Bosco’s Finger, but the CA Judgment observed the evidence did not really suggest it was more probable than not Bosco as a child would be fitted with a prosthesis given its lack of functionality, and concluded it was unlikely Bosco would make use of prostheses for his whole life (especially when he was young and less able to deal with one), but he would probably use one from youth to middle-age.

186.  On 29 March 2014, the Mother brought Bosco to the clinic of prosthesist/orthotist Leung Wai Kin Keith (“Mr Leung”) to fix a cosmetic prosthesis for the Finger, but Mr Leung warned Bosco’s enlarged stump might cause discomfort and reduce the cosmetic effect. The Mother appeared emotional when Mr Leung asked her to seek orthopaedic advice on stump condition for better cosmetic effect, but she told him the orthopaedic opinion was to have cosmetic/revision operation when Bosco is older. Although Bosco reportedly liked a prosthesis finger, he had to take it off after wearing it for an hour because of pain on the red and severely swollen stump, and the prosthesis had to be re-made to fit the Finger.

187.  In my view, the possibility of future cosmetic/revision surgery was recognised in the Bosco/CA Judgments, and the Parents’ concern was understandable. But such surgery if required would only take place when Bosco is older, and there would be time for the Parents to benefit from psychology help to deal with their anxieties and to achieve a more positive outlook. Further, Mr Leung’s report did not alter the observations in the Bosco/CA Judgments that prostheses might not be useful when Bosco was young. I do not set much store by Bosco in his young age appearing to like a prosthesis for the Finger. The practical position was (a) a natural-looking prosthesis might require cosmetic surgery of the stump but Dr Pun advised it should be deferred until Bosco is older, and (b) a comfortable/wearable prosthesis would not look natural as the middle part would be noticeably bigger, which of itself might attract curiosity and defeat the purpose of a cosmetic prosthesis. In my view, whilst the Mother’s concern about Bosco’s disfigurement was understandable and she might not wish to deal with curiosity about Bosco’s Finger, psychology help in coping skills would better help her instead of dwelling on less than probable solutions.

188.  3 April 2014  At the follow up with Dr Lam on 3 April 2014, it was recorded the Mother had good sleep / normal appetite, was less depressive, coped with household chores, but was still stressful in childcare, and “son will FU ADHD child psy 8/14”, and the Father coped with job (long working hours), was euthymic and not irritable, had good sleep (but over-sedation) / normal appetite, and “son will see ADHD child psy 8/14”.

189.  23 April 2014  The Parents attended psychology session with Dr Tang on 23 April 2014. The Mother had negative thoughts, including “sense of hopelessness and preoccupation of unfairness”. She had compromised sleep and barely maintained appetite. Dr Tang’s impression was “adjustment disorder; rigid preoccupation with a sense of unfairness; worries about son’s suffering; worrisome; medical legal issues”. Under XXN, the Mother denied she still felt injustice or was preoccupied with unfairness over the Council’s Decision, and claimed her sense of injustice/ unfairness was over Bosco’s injury/suffering when he was innocent of any fault. As for the Father, Dr Tang noted:

“In 2009, [Bosco] was injured accidentally. …… After the Incident, he became depressive and sued [the Doctor]. He blamed himself for choosing [the Doctor]. He quitted his job as a hairstylist as he had to take care of son. Eventually he changed job to a carpark worker. He complained of depressive mood, smoked excessively and had binge drinking of a bottle of red wine, eg the night before the court hearing. [The Mother] always bothered him about the child care issue. He also complained of insomnia, anger towards [the Doctor], civil court and medical council as he felt the verdicts were unfair to him. He sometimes scolded children but did not hit the children. He had vague suicidal ideas and sense of worthlessness initially. …… However, after the medical council judged that the doctor was innocent, he felt more depressive and then consulted private psy [Dr Wong] ……”

The Father claimed the above psychiatric history given at this consultation did not contradict his evidence that his feelings in respect of the Council’s Decision had eased. When pressed on whether he was still angry with the civil courts, all the Father said was he had difficulty in remembering things and the questions put to him were confusing. On balance, I do not accept the Father’s allegations, and find that whilst his grievance over the Council Letter had tapered with psychological help, he had not completely let go of the Council’s Decision.

190.  8 July 2014  The Mother consulted Dr Wong alone on 8 July 2014. Bosco was about to start primary school, and he would have clinical psychology session at Alice Ho Miu Ling Nethersole Hospital (“AHNH”) the following week, but she was worried about how to manage if he was teased or picked on as he tended to be avoidant when asked about the Finger. The notes went on to state:

“Also talked about Med Council complaint (re Dr Chan giving false evidence)

She sent in complaint beg of 2013, no reply for 1 yr. Ray sent in another complaint in beg. 2014.

Still not reply for 2 months. So they approached legislator Emily Lau, who wrote to enquire. About 1/12 later, Emily Lau got a reply which was copied to them. Letter was addressed to Emily Lau not to them.

Upset and disappointed about this.

Worried Bosco’s case will be like the Lau Mei Kuen case. Took 9 years to get an outcome in Med Council.”

Dr Wong found the Mother’s mood to be mostly euthymic. She advised the Mother not to make the Finger an “unmentionable” topic, and should encourage Bosco to talk about his experience at school and how he would handle others’ questions.

191.  21 August 2014  At the follow up with Dr Lam on 21 August 2014, the Mother expressed difficulty in childcare, especially if Bosco displayed temper, but her mood was less affected by the Father’s mental condition which was relatively stable recently. As for the Father, his mood was easily affected by the Mother’s/Bosco’s mental condition. The Mother was diagnosed to suffer from moderate depressive episode, and the Father was diagnosed to suffer from depressive disorder.

192.  ADHD  Dr Lam’s reports on the Parents dated 5 and 14 November 2014 stated Bosco “suffered from Attention deficit hyperactivity disorder (ADHD) and follows up in the psychiatric clinic of Alice Ho Miu Ling Nethersole Hospital”. But Dr Lam, who had never seen Bosco, only referred Bosco for psychology counselling at AHNH in preparation for primary school. On 5 and 12 December 2014, Dr Lam issued 2 fresh reports with the same contents as the 2 earlier ones except for omission of reference to Bosco suffering from ADHD. In my view, this was an unfortunate error. Dr Lam’s earlier reports in November 2014 that referred to ADHD in the context of psychological counselling for Bosco was probably drawn from the erroneous record of “son will FU ADHD child psy 8/14” in the consultation notes of 3 April 2014 (see paragraph 188 above) which in fact should be “follow up” (FU) at Alice Ho Miu Ling Nethersole Hospital (AHNH and not ADHD).

193.  Primary school Bosco entered Primary 1 in September 2014. The Mother said he had some problem in writing and had to take breaks in doing his homework. He still preferred to use spoon rather than chopsticks for feeding. The Mother was concerned about his classmates’ curiosity about the shortened Finger, and was distressed when Bosco adopted an avoidant attitude over the teasing incidents. The Father said the Mother was anxious/agitated with negative thoughts whenever the school called about Bosco, and at times he worried whether she could cope with 2 Children. The Father said in fact family members assisted the Mother in housework and the Mother’s parents helped in childcare.

194.  October/December 2014  According to Dr Tang’s report dated 28 November 2014, the Mother’s mood was low and she would burst into tears intermittently when her worries were discussed. She reported psychological disturbances featured by subjective sadness, reduced motivation, spontaneous crying episodes, worries, disturbed sleep, sense of hopelessness/helplessness, agitation, unresolved anger and fleeting brief suicidal ideation (without attempt). Dr Tang concluded the Mother presented signs/symptoms compatible with a clinical depression, and her condition was likely to be precipitated by Bosco’s injury which led to the amputation and “[her] thought was maintained by her rumination, catastrophic negative thought and anger associated with the perceived injustice. Her coping skills had been adaptive so far with family support”, but she was motivated to engage in treatment. The Mother agreed under XXN in none of the 3 consultations with Dr Tang did she say her anger and sense of injustice directed at the Council had gone away, and at the last session she was still expressing anger associated with perceived injustice.

195.  According to Dr Tang’s report dated 31 December 2014, the Father was seen alone on 10 December 2014. His mood was stable but he appeared tense when the upcoming court hearing was mentioned. When he accompanied the Mother on 2 other visits, he remained rather passive but appeared supportive to her condition and psychological needs. “In the clinical interview, he reported psychological disturbances featured by disturbed and non-refreshing sleep that had been persisted for over a year, subjective sense of stress related to the upcoming court hearing (reported to be in January 2015) as well as fluctuating worries about his son’s adaptation in school with an amputated finger. ……” Dr Tang concluded the Father presented with signs/symptoms suggestive of a major depressive disorder, currently in partial remission and with a mild severity. His coping skills had been adaptive so far with adequate family support, and he appeared motivated to engage in treatment. The Father claimed under XXN he did not think of telling Dr Tang his anger and sense of injustice had subsided and he had let go of the Council’s Decision in early 2013 because she already knew the Parents’ background. He also complained Mr Huggins SC’s XXN questions confused him. On balance I do not accept he was confused, and it was unclear on the Father’s case how Dr Tang would have deduced he was no longer aggrieved by the Council’s Decision.

196.  Council’s reply  On 8 January 2015, the Council replied to the Father that the PIC took the view the Father’s Complaint did not provide new information to prove the Doctor committed professional misconduct, so the original decision was maintained and no disciplinary hearing would be held. The Mother claimed that after reading such reply she ignored it (except to give it to her solicitors on the same day of receipt) as she had no control over the result. “…… [it’s] just that it is the same result, so I’m a little bit upset.  It was like the last occasion, the last matter which has cost me more unhappiness, because of the contents.” The Father said in RXN he was disappointed but had become numb to it. He claimed to realise from reading the Next Magazine report the Doctor was familiar with members of the Council, and the Mother also gave evidence this was common knowledge but she did not know whether there was any improper influence.

197.  Whilst I accept the Parents’ reaction to this outcome was not as aroused as when they received the Council Letter and the psychiatric/ psychology treatment received since then had enhanced their coping skills, I am unconvinced they blithely ignored the Council’s reply. In my view, the Mother was upset and the Father was disappointed about the Council’s substantive reply that again thwarted their continued fight for justice for Bosco. The Parents believed the Doctor was familiar with members of the Council, and even without hard proof of any improper bias I find they were still preoccupied with a sense of injustice towards the Council for not taking action against the Doctor. But such feelings about the Father’s Complaint and its outcome (like the Mother’s Complaint, the Council’s Decision and the Parents’ reaction thereto) were objectively irrelevant to the assessment of damages herein.

198.  2^nd Trial  The Mother claimed that by the time of the 2^nd Trial she had not fully overcome her tendency to amplify the seriousness of every minor matter and her nervousness/overprotection, but agreed she was much better with the psychology help she had received. She remained worried about Bosco’s future surgery, cost of future surgery/prostheses given the low award for Bosco, and how Bosco’s injury might affect his studies and future functioning.  The Father acknowledged under XXN both Parents made substantial progress although he still suffered from some of the initial symptoms, but in RXN he claimed it was the Mother who had improved a lot and he made no progress at all. He claimed to be “very confused and [his] memory is very poor. Very often [he] cannot concentrate”.

199.  In my view, the Parents made some recovery in 2013 from the setback since September 2012, but they were upset (though less severe) with maintenance of sense of injustice when the CA Judgment was handed down. With further psychiatric/psychology help, the Parents’ condition became more stable by early April 2014. Upon more detailed exploration by Dr Tang in April/October 2014, the Mother was still affected by “sense of hopelessness and preoccupation of unfairness”, “rigid preoccupation with a sense of unfairness” and “perceived injustice”. Mr Ko submitted such perceived injustice and preoccupation with unfairness concerned Bosco’s injury and its lifelong sequelae. I accept the Parents were angry/aggrieved by the Doctor’s treatment and management of Bosco’s Finger, but I am unconvinced this was the only reason for their perceived injustice. On the totality of the evidence, I find their sense of injustice (still evident in the reports by Dr Tang in April and November 2014) was to some extent also attributable to grievances over the Council’s Decision and Council Letter and with the civil courts, which feelings had lessened but not fully abated.

200.  I also disagree the Father made no progress at all. Rather, both Parents’ mood had tapered by the time of the 2^nd Trial, and indeed Mr Ko submitted “the condition as recorded in the recent medical notes and records kept by PWH shows that Parents’ conditions had reverted back to before the [Council Letter]”. The Parents clearly came some way in attaining better resolution of their condition despite lingering psychiatric symptoms, worries/concerns about Bosco, and some sense of injustice over Bosco’s predicament and unfair outcomes by the Council/courts. But for the intervention of objectively irrelevant factors discussed above, I am persuaded the Parents would have attained better though not complete recovery. But that said, they had been through difficult psychiatric journey, and their condition was also maintained by worries over Bosco’s present/ future condition. Mr Ko submitted the Parents’ psychiatric condition would last for a long time because Bosco would require long-term treatment, would continue to experience teasing incidents, would face adjustment issues on reaching adolescence, and might have future revision operation. On balance I do not agree. The Parents were motivated to engage in treatment, and they had demonstrated ability to improve. With further psychiatric/psychology help, they should expect better resolution of their reactions, anxieties and worries over Bosco, and acquire and be able to implement better coping skills. Indeed, the Experts opined that bettered psychological adjustment on the part of the Parents would also help Bosco accept and adjust to his injury/disfigurement.

XIII.  MOTHER’s CLAIM FOR PSLA

201.  The Mother initially suffered depressive disorder with unresolved grief. By August 2011 she was better but still had residual symptoms of depressive disorder with unresolved grief. The Experts’ joint report dated 6 September 2012 before receipt of the Council Letter noted her good improvement in emotional regulation, and (with psychology help) her significant/positive improvement in mood state. Her diagnosis was revised to adjustment disorder of a chronic nature with mixed anxiety and depression at mild intensity range. Although I have found the Mother did not fail to mitigate her loss by seeking timely/intensive psychology treatment, certain aspects of her psychiatric condition (most notably her severe psychological setback in reaction to the Council Letter that led to the diagnosis of moderate depressive episode) could not be laid at the Doctor’s door. But for such psychological setback, I am persuaded her improving trend would have continued and she would have attained better resolution of her emotional/psychological state. Still, with psychiatric/psychology help actually received and despite the objectively irrelevant stressors discussed above, the Mother did improve so that by October 2014 she presented with signs/symptoms of a clinical depression.

202.  Mr Huggins SC questioned whether the Mother’s early complaints of physical malaises (occasional headaches, indigestion, stomach ache and reflux) were caused by her depressive disorder. But considering the nature of her nervous shocks and the course of her psychiatric illness, I accept they were physical signs of the stresses/ anxieties of her depressive disorder. But the silver lining to the Mother’s psychiatric illness was (a) the Incident brought the family members closer together, (b) the Father was more understanding/supportive, and (c) the Parents’ amicable relationship remained untarnished.

203.  Mr Huggins SC suggested Bosco (who had to live with the injury for the rest of his life) was the one who suffered the most injury, so the Mother’s award for PSLA would not be in the “serious” category[46] (and the claim of $550,000 was extravagant) and it should not be more than a third of Bosco’s award of $275,000 (rounded up to $100,000 in the Revised Answer). But for reasons explained in Part X above, I decline to make an award on PSLA on the “proportionality” approach. Each case turns on its own facts. Bearing in mind the discussions/findings in Part XI and XII above, the authorities Mr Huggins SC cited eg Fu Cheung Chun Tom (an infant) suing by his mother and next friend Wong Lai Nga v MTR Corporation Limited[47] that helpfully discussed Lily Tse Lai Yin & ors v The Incorporated Owners of Albert House (various plaintiffs),[48] Ng Ka Ho (an infant) by her mother and next friend Kong Sio Fan v Yeung Kwok Leung,[49] and Limbu Saram Kumar v Cheng Man Chung,[50] the further authorities Mr Ko cited eg Francine Louise Collins v The Star Ferry Company Limited,[51] Lam Wai Chun v Tam Chi Wai & anor[52]and Li Yuet yee & ors v Ng Chi Hang,[53] and taking into account the Mother’s experience of the nervous shocks and Bosco’s clinical course, her rehabilitation so far, her symptoms/disabilities, her treatment history, the views of the treatment psychiatrists/psychologists and the findings/opinion of the Experts, but putting aside non-compensatable matters, the appropriate award for PSLA for the Mother is $270,000.

XIV.  FATHER’s CLAIM FOR PSLA

204.  The Father initially suffered adjustment disorder with mixed anxiety, depressive and guilt reactions of a mild to moderate intensity. The Experts’ joint report dated 6 September 2012 before receipt of the Council Letter indicated he made reasonable improvement. Whilst I do not accept the Father failed to mitigate his loss by seeking timely/intensive psychology treatment, certain aspects of his psychiatric condition (most notably his severe psychological setback in reaction to the Council Letter that led to the diagnosis of moderate depressive episode) could not be laid at the Doctor’s door. But for this severe psychological setback the Father could have expected continued improvement in achieving better resolution of his emotional and psychological state. Nevertheless, with psychiatric/ psychology help actually received and despite the aforesaid objectively irrelevant stressors, the Father was better by October 2014 when he presented with signs/symptoms of major depressive disorder then in partial remission and with a mild severity.

205.  The Experts found the Father’s adjustment disorder was triggered by the initial nervous shock and duress over uncertain prognosis while Bosco was at QEH, followed by inability to accept what happened to him, and further maintained by intense regret and self-blame over the perceived “wrong” decision to place Bosco under the Doctor’s care and by the Grandmother’s blaming attitude. The family’s reaction to Bosco’s injury (eg the Grandmother’s blaming attitude and the Parents’ close marital support) was part and parcel of the Father’s post-Incident life. Such being the familial state the Father found himself in, this court should not, as Mr Huggins SC suggested, ignore the blaming attitude of the Grandmother for it did not detract from the causative potency of the nervous shocks and consequent psychiatric illness.

206.  I do not understand the Father to claim for his nosebleeds, susceptibility to flu and/or other physical malaises as Mr Huggins SC feared. But I disagree with Mr Huggins SC’s suggestion that the Father chose to spend his spare time looking after the Children at home and looking up information to find a way to restore Bosco’s lost Finger rather than to engage in sports. I find the Father looked for an unrealistic solution because of the intense regret, unresolved grief, guilt reaction and non-acceptance of Bosco’s injury that were facets of his psychiatric illness, and his giving up on sports and spending time looking after Bosco were also psychiatric symptoms of a need to “compensate” Bosco and being tired and socially withdrawn. These matters were clearly part of the Father’s psychiatric condition.

207.  Mr Huggins SC submitted Bosco suffered the most injury, so the Father’s claim of $500,000 for PSLA was disproportionate. The Revised Answer proposed a sum of $80,000. But each case turned on its own facts. Taking into account the discussions/findings in Parts XI and XII above, the authorities in paragraph 203 above, the Father’s experience of the nervous shocks and Bosco’s clinical course, the Father’s rehabilitation so far, his symptoms/disabilities, his treatment history, the views of the treatment psychiatrists/psychologists and the findings/opinion of the Experts, but putting aside non-compensatable matters, the appropriate award for PSLA for the Father is $250,000.

XV. MOTHER’s LOSS OF EARNINGS AND LOSS OF EARNING CAPACITY

208.  Claim for pre-trial loss of earnings  The Mother claimed pre‑trial loss of earnings (a) on part-time basis from August 2009 to July 2012 in the sum of $3,000/month x 36 months = $108,000, and (b) on full-time basis from August 2012 to November 2014 in the sum of $7,000/month x 28 months = $196,000.

209.  August 2009 to July 2012  According to the Mother, she ceased work after the Incident as she was anxious over Bosco, and she did not take up part-time work after Bosco went to kindergarten as she was afraid something might happen to him at school and she had to go quickly to him. According to the Experts’ joint report dated 14 September 2011, the Mother told them she felt unable to leave the Children in the care of the 2^nd FDH without her close supervision, and she could not cope with the incessant worries/anxieties if she went to work, and the Experts opined that so long as her depressed mood, heightened alertness, anxieties and fearfulness of further mishaps remained it would be difficult for her to resume work. Also, the previous plan for the Grandmother to look after Bosco could not materialise as contact between the Grandmother (who was angry with the Father and scolded him whenever they met) and the Father had to be minimised to reduce family conflict, and it was only after the Father started working at Wilson that the Grandmother would come more often to their home to help as she would not run into the Father.

210.  In their joint letter dated 16 September 2011, the Experts could not say when the Mother would be able to work given her fickle emotional condition and pervasive sense of danger concerning the Children’s safety and well-being, which would be further compounded as the Children faced up to the outside world (eg meeting friends, attending school etc), but it was hoped her impending sense of danger and over-concern of risks would taper with the recommended private psychological treatment, and with more taught assertiveness in explaining Bosco’s injury her restricted social circle would be widened to the point she might contemplate taking up some limited part-time work while leaving Bosco in the trusted hands of the school/FDH. The Experts suggested re-assessment a year later after an adequate/effective course of psychological treatment. Such view was reiterated in the Experts’ joint report dated 13 October 2011.

211.  The Mother did not complete the recommended course of private psychology treatment at the indicated intensity, but I have found she did not fail to mitigate her loss. According to the Experts’ joint report dated 6 September 2012, the Mother was engrossed in looking after the Children and preparing Bosco for K2, so she had no plan/intention of returning to work. The Experts noted despite improvement in her mood state after psychological treatment, the Mother was adamant about not returning to even part-time work as she was occupied by Bosco’s daily schedules (70% of her time) and need to look after the Daughter (30% of her time).

212.  Mr Huggins SC submitted the Experts did not say the Mother was “unable” to work, and the fact she did not see herself going back to the workforce as distinct from inability to work on medical grounds because of nervous shock would not form a basis for claim. I disagree. In my view, it was plain that despite improvement her preoccupation with and anxiety/ vigilance over Bosco/Children (being signs/symptoms of her psychiatric illness) caused her not to see herself going to work and leaving them in the care of others. Indeed, the Experts opined that even though the Mother was at that point more competent in handling daily matters in face of occasional challenges, her inherent anxieties stemming from the Incident continued to instil a prevailing strong sense of anxiety/vigilance so she could not see herself reducing her maternal attention in looking after the Children to return to work.

213.  Dr Fung’s report dated 7 June 2012 recorded that “[the Mother] might not be able to resume work in the near future, as [the Daughter] is also quite difficult to manage”.  But the Daughter being difficult to manage was due to the Parents’ psychiatric condition which caused them to focus on (and at times spoil) Bosco, which created undue reaction from the Daughter who tended to be active, non-compliant and deliberately attention seeking (see paragraphs 126 and 128 above).

214.  On balance, I am satisfied the Mother could not return to work during this period due to psychiatric illness from the nervous shocks, but she would not have worked anyway from January to October 2010 (see paragraph 23 above). Thus her loss of earnings for this period was $2,500 x (36 – 10) months = $65,000 (see paragraph 21 above).

215.  August 2012 to November 2014  Mr Huggins SC contended there was insufficient plea/evidence that the Mother was incapable of working during this period due to the nervous shocks she received and the psychiatric symptoms caused by such shocks. Mr Ko submitted the Mother’s continued follow up with Dr Lam and her referral to Dr Tang for psychological counselling showed she was still in need of treatment. But Mr Huggins SC reminded the Mother suffered psychological setback in September 2012 and had other grievances in the period thereafter due to objectively irrelevant matters, and by May 2013 she was relaxed and smiling, and feeling a lot better. She was able to discuss the litigation with her doctors, and her depressive illness was well-controlled.

216.  I agree the Mother’s psychological setback was severe, and she herself recognised it was worse than experiencing Bosco’s injury. In my view, during the period from mid-September 2012 to mid-May 2013 (ie 8 months), she would not have been able to work in any event due to her intense reactions to these objectively irrelevant stressors. But I accept she was better after mid-May 2013, and whilst I have found she had not let go all these grievances which still lingered to some extent, they have tapered after treatment received.

217.  The reports/notes by Drs Wong, Lam and Tang showed that quite apart from the psychological setback caused by receipt of the Council Letter and other non-compensatable grievances the Mother still had underlying anxieties, vigilance, difficulties and reactions attributable to her psychiatric illness due to the nervous shocks during this period. In my view, the Mother could not return work as yet given these lingering psychiatric signs/symptoms over Bosco’s injury. Even though her mood tapered with treatment received and she had picked up some coping skills, her condition had not resolved.  In the circumstances, her loss of earnings during this period would be $6,000 x (28 – 8) months = $120,000 (see paragraphs 25 and 216 above). Thus, the Mother’s pre-trial loss of earnings would be $65,000 + $120,000 = $185,000.

218.  Future loss of earnings  The RRSoD claimed future loss of earnings from August 2014 onwards at $7,000/month x 116 months[54] = $812,000. Mr Ko’s written closing submissions put the Mother’s future loss of earnings at $7,000/month x 12 months x 13.8 = $1,159,200 on the basis of 38 years for trial age and 55 years for retirement age with corresponding multiplier table and multiplier[55] in line with the guidance by Bharwaney J in Chan Pak Ting v Chan Chi Kuen & another (No. 2).[56]

219.  Mr Huggins SC submitted it could not fairly be inferred from the medical evidence (including the recent reports from PWH) that the Mother was still not able to return to work, and at the 2^nd Trial she was much calmer, more confident and her concentration levels were excellent. He argued there were too many uncertainties/imponderables to justify a multiplier and multiplicand approach. But Mr Ko submitted the Mother’s psychiatric condition still persisted, and she could not leave Bosco at home alone. Dr Tang’s report dated 28 November 2014 showed she still presented with signs/symptoms compatible with a clinical depression, and her condition precipitated by Bosco’s injury that led to amputation of the Finger was maintained by her ruminations, negative thoughts and anger associated with perceived injustice (see paragraph 194 above). Mr Ko suggested the Mother’s condition would continue for a prolonged period given Bosco’s future development especially in his adolescence.

220.  On balance I do not accept the Mother would be unable to return to work at all. The Experts advised she should receive the remaining sessions of the recommended psychological counselling sessions to help her improve her mood state and attain further resolution of her psychological distress (see paragraphs 101, 110 and 129 above), and to learn ways of (a) coping with others’ curiosity about Bosco’s Finger, (b) assuming a more leading role in supporting/educating Bosco on how to handle such enquiries and protecting himself when being teased/bullied, and (c) viewing the future surgery as necessary and helpful which would be instrumental in helping Bosco’s further adjustment (see paragraph 129 above). The Mother was motivated to seek psychology help, she clearly found her sessions with Ms Wong, Dr Fung and Dr Tang helpful, she did benefit and showed real improvement by August/September 2012 with psychology help from Dr Fung (see paragraphs 128-129 above) and further improvement by and after April/May 2013 with psychiatric help from Drs Wong and Lam (see paragraphs 177-178 above). I find it promising that the Mother would attain further improvement and learn ways to cope/address her negative thoughts, over-concern, sense of danger/dread, worries and anxieties, and upon further relief from her psychological stress/strain, acquisition of relevant coping skills and widening of her social circle she should be able to return to part-time and then full-time employment as a retail shop saleslady/shop-keeper. By that time Bosco would be older and more independent (save perhaps for some parental guidance on dealing with curiosity/adversity due to his injury), and the Grandmother would be available to help with usual childminding when the Father was at work and not at home.

221.  The remaining 17 bi-weekly private psychology sessions can be completed in/about 9 months (see paragraph 272 below) but I am prepared to allow a further 3 months for the Mother to widen her social circle, consolidate/implement her coping skills and adjust herself before return to the workforce, initially as a part-time retail saleslady/shop-keeper for 6 months and thereafter on full-time basis. This gradual approach would help the Mother ease back into employment. In the circumstances, her loss of earnings for this period would be [$6,000 x (9 + 3) months] + [($6,000 - $2,500) x 6 months] = $93,000.

222.  Loss of earning capacity  Mr Ko submitted the Mother was entitled to loss of earning capacity in the sum of $100,000. Mr Huggins SC suggested there was no plea/evidence of any handicap in the job market. But looking at the RRSoD as a whole, the Mother did aver that even assuming she could work after psychology treatment, she would be in her late 30s and as she was out of employment for a long time she would suffer disadvantage and reduced competitiveness in the labour market. In my view, the Mother was entitled to an award under this head. Although I have found she could return to full-time employment after the recommended private psychology treatment with better relief of her stress/strain and better coping skills, she would have to face (albeit with better coping skills after her psychology course) Bosco’s future development (including possible adolescent reactions, surgery and prosthesis), and she would be less competitive than an employee unaffected by any mental stressor. But that said, a claim for $100,000 (equivalent to 16 months’ earnings as a saleslady/shop-keeper) would be excessive and I allow a sum of $50,000 under this head.

XVI.  FATHER CARE CLAIM

223.  Bosco’s case  Bosco measured the value of the Father’s care for 19 months from 10 August 2009 to 10 March 2011 by reference to the Father’s loss of earnings, ie (a) $20,000/month x 5 months (10 August 2009 to 10 January 2010 during which period the Father claimed he ceased work altogether) = $100,000, and (b) ($20,000 - $6,000)/month x 14 months (11 January 2010 to 10 March 2011 during which period the Father worked as part-time hairstylist at Co-Cut in Ma On Shan) = $196,000, totalling $296,000. This head of claim was not for the Father’s loss on own account.

224.  Measuring value of care  Mr Huggins SC submitted that in considering the gratuitous care reasonably/necessarily provided by a close relative instead of deploying assistance by, say, domestic help, the normal/ proper approach in line with usual duty to mitigate loss was to take the commercial/market rate for services provided (which should be the ceiling) and not the carer’s loss of earnings unless such loss was not more than the commercial rate. Mr Huggins SC referred to O’Connor LJ’s observations in Housecroft v Burnett:[57]

"Where the needs of an injured plaintiff are and will be supplied by a relative or friend out of love and affection (and, in cases of little children where the provider is parent, duty) freely and without regard to monetary reward, how should the court assess ‘the proper and reasonable cost’? There are two extreme solutions: (i) assess the full commercial cost for supplying the needs by employing someone to do what the relative does; (ii) assess the cost at nil, just as it is assessed at nil where the plaintiff is cared for under the National Health scheme, …… It follows that in assessing the ‘proper and reasonable cost of supplying the needs’ each case must be considered on its own facts, but it is not to be assessed regardless of whether it will be incurred.

The earlier cases were mostly concerned with recovering earnings lost by the caring relative as a result of looking after the plaintiff. The more recent cases show that substantial sums have been assessed when the relative has not given up any employment …… Very often we find rates being agreed and, as is shown by the approach of the judge in the present case, regard is to be had to what it would cost to buy the services in the open market, but it is scaled down.

I have found this a very difficult problem …… Once it is understood that this is an element in an award to the plaintiff to provide for the reasonable and proper care of the plaintiff and that a capital sum is to be available for that purpose, the court should look at it as a whole and consider whether, on the facts of the case, it is sufficient to enable the plaintiff, among other things, to make reasonable recompense to the relative. So, in cases where the relative has given up gainful employment to look after the plaintiff, I would regard it as natural that the plaintiff would not wish the relative to be the loser and the court would award sufficient to enable the plaintiff to achieve that result. The ceiling would be the commercial rate. …… I would also ask: is it sufficient for this plaintiff should her mother fall by the wayside and be unable to give as she gives now ……”

225.  These passages in Housecroft were preceded by and in part implicitly depended on Megaw LJ’s judgment in Donnelly v Joyce[58] which expressed the view that a claim based on gratuitous services did not need to investigate the source from which the plaintiff’s needs were met. But the theory that (a) the loss was the existence of the need for the services and (b) the value for the purpose of damages was the proper and reasonable cost of supplying those needs was jettisoned by the House of Lords in Hunt v Severs.[59] Donnelly was overruled as it “diverts attention from the award’s central objective of compensating the voluntary carer”, and Hunt went on to state (i) the rationale of this head of damages was not in truth to compensate the plaintiff but to enable to voluntary carer “to receive proper recompense for his or her services”, and (ii) “the injured plaintiff who recovers damages under his head should hold them in trust for the voluntary carer” (but (ii) above was widely criticised as seen in McGregor on Damages).[60]

226.  As pointed out by G Lam J in Lai Pui Ling v Ho Chi Keung,[61] Hunt did not elaborate upon whether compensation is on a restitutionary basis in the sense of giving the carer remuneration on a quantum meruit for the services rendered, or on a strictly compensatory basis in the sense of indemnifying the carer for the forgone wages of the job he has relinquished. G Lam J at page 347 added that “[the] authorities do not suggest that the actual lost earnings form the upper limit of an award, though they may well, at any rate where the lost wages do not exceed the commercial cost of obtaining care, provide a starting point ……” This was also explained by May LJ (with whom Rix and Ward LLJ agreed) in Evans v Pontypridd Roofing Limited as follows:[62]

25. In my judgment, this court should avoid putting first instance judges into too restrictive a strait-jacket, such as might happen if it was said that the means of assessing a proper recompense for services provided gratuitously by a family carer had to be assessed in a particular way or ways. Circumstances vary enormously and what is appropriate and just in one case may not be so in another. If a caring relation has given up remunerative employment to care for the claimant gratuitously, it may well be appropriate to assess the proper recompense for the services provided by reference to the carer’s lost earnings. If the carer has not given up gainful employment, the task remains to assess proper recompense for the services provided. As O’Connor LJ said in Housecroft v Burnett, regard may be had to what it would cost to provide the services on the open market. But the services are not in fact being bought in the open market, so that adjustments will probably need to be made. Since, however, any such adjustments are no more than an element in a single assessment, it would not in my view be appropriate to bind first instance judges to a conventional formalised calculation. The assessment is of an amount as a whole. The means of reaching the assessment must depend on what is appropriate to the individual case. ……

……

30. Any determination of the services for which the court has to assess proper recompense will obviously depend on the circumstances of each case. There will be many cases in which the care services provided will be limited to a few hours each day. The services should not exceed those which are properly determined to be care services consequent upon the claimant's injuries, but they do not, in my view, have to be limited in every case to a stop-watch calculation of actual nursing or physical assistance. Nor, …… must they be limited in every case to care which is the subject of medical prescription. Persons, who need physical assistance for everything they do, do not literally receive that assistance during every minute of the day. But their condition may be so severe that the presence of a full time carer really is necessary to provide whatever assistance is necessary at whatever time unpredictably it is required. It is obviously necessary for judges to ensure that awards on this basis are properly justified on the facts, and not to be misled into findings that a gratuitous carer is undertaking full time care simply because they are for other reasons there all or most of the time.

31. …… In my view, the evidence …… justifies the conclusion that the services which Mrs Evans provides are those of a full time carer. The fact that for some of the time she does things which she would have done if her husband had not been injured does not detract from this conclusion. It is neither necessary nor to be expected that a full time carer should spend every hour of the day and night engaged in providing physical services. ……” (my emphasis)

227.  I respectfully adopt the approach espoused by G Lam J in Lai Pui Ling at pp 347-348:

“59.  The appropriate award on account of care provided gratuitously by a relation has to be broadly assessed, having regard to all the relevant circumstances of the case including the nature of the injuries suffered by the plaintiff, the nature and extent of the care required and provided, the nature and remuneration of the employment relinquished by the carer and the cost of obtaining the requisite care on a commercial basis.  It may be relevant to assess the care with reference to that which is part of ordinary family life, but it would not be appropriate to take a “stop-watch” approach to try to tot up the minutes spent by the carer referable solely to the injured person each day, or necessarily to exclude every activity which the carer would have done in any event had the plaintiff not been injured: see Evans v Pontypridd Roofing Ltd at [25], [30]-[31]; see also Ta Xuong v The Incorporated Owners of Sun Hing Building [1997] 4 HKC 171, 182, per Seagroatt J.”

But quite irrespective of Lai Pui Ling, the authorities cited by counsel plainly showed there was no conventional straitjacket as to how the value of care was to be assessed, and much would depend on the particular circumstances of each case:

(a)   Seagroatt J in Ta Xuong v The Incorporated Owners of Sun Hing Building[63] referred to Hogg v Doyle in which the plaintiff’s wife (nurse) provided extensive nursing care to the plaintiff such that she probably did the work of 2 full-time nurses, and her unpaid services were valued at 1½ times the net earnings she would have earned as a nurse. Likewise, Seagroatt J in Ta Xuong assessed the value of the wife’s gratuitous care on the basis of the cost of 2 commercial carers ($7,500/month) and not at her actual earnings of $40,320/year ÷ 12 = $3,360/month. Even though the awards in these 2 cases were based on commercial rates, they significantly exceeded the wife’s actual loss of earnings.

(b)   Master J Wong in Chan Hak Foon v Sutera Harbour Resort Sdn Bhd & anor[64] assessed the value of care by the plaintiff’s wife who ceased work as a property agent to take care of the plaintiff by her loss of income. Mr Huggins SC complained that in that case no authorities were cited with no indication of the commercial cost of care or what care the wife provided. But at least this showed loss of earnings can in appropriate cases be a suitable base line for assessing the value of care.

(c)   In Lai Pui Ling, the mother gave up work as a restaurant dishwasher to provide full-time care to the plaintiff in the 1^st year or so after the accident, and the value of her care during such period was based on her estimated earnings of $5,600/ month, but thereafter the plaintiff recovered to such extent she only needed domestic assistance and escort when going out, which was allowed at the reduced sum of $2,800/month.

In my view, these cases show the value of care provided by a gratuitous carer as a result of a plaintiff’s injury depends on the circumstances of the case and the extent of those services, and there is no dogmatic limitation that the carer’s loss of earnings can only be awarded if it is less than the cost of commercial care.

228.  Bosco Judgment The DHCJ observed in the Bosco Judgment that the Parents’ substantial commitment/involvement in Bosco’s care could “only be justified for a relatively short period and even then it would not have been reasonable for both of them to have been involved at the same time”. By carving out the Father Care Claim for future consideration, the DHCJ did not have the benefit of the Parents’ viva voce evidence. Anyway, the DHCJ directed the Father Care Claim (which was still at large) to be considered in the Parents Action, and the CA Judgment also clarified the Father Care Claim “has not yet been considered at all, and the [Father’s] evidence as to his earnings has yet to be tested in cross-examination”. I do not consider myself bound by the DHCJ’s observations.

229.  5 Months  I have in paragraphs 78-80 above found Bosco needed the Father’s care during the 5 Months. The Revised Answer proposed a sum of $10,000 x 5 months = $50,000, but Mr Huggins SC submitted this was overly-generous as it bore no correlation to any commercial rate and failed to reflect (a) a need to reduce the Father’s alleged notional earnings (if they were to be used to measure the value of care) and (b) the Father’s care was to a large measure for looking after the Mother (ie to comfort/support her as she was anxious and prone to think too much) and not Bosco. For (a) above, I have in paragraph 50 above found the Father’s notional earnings as a full-time hairstylist in Central were $15,000/month. For (b) above, I have in paragraphs 78-80 above found the Father rendered needed care for Bosco during this period. But that said, I have in paragraph 81 above found the Father did make some minor earnings during the period at $1,500/month. Thus, by using the Father’s notional earnings as the base line (which I consider to be appropriate given the required care for Bosco during this period in the particular familial situation in which Bosco/Father found themselves in), the value of the Father Care Claim from 10 August 2009 to 9 January 2010 would be ($15,000 - $1,500) x 5 months = $67,500.

230.  Remaining period up to 10 March 2011  Mr Huggins SC argued on the evidence that Bosco did not need the Father’s care beyond the 5 months, so thereafter the Father should have stopped staying at home or working nearby to care for Bosco. He suggested the Father was really spending his time looking after the Mother (ie to comfort/support her and to respond quickly to any emergency on the home front and/or the needs of Bosco/Mother in their vulnerable state), and even if continued care for Bosco was required, a domestic helper could be employed. Further, as the Father’s actual care was not full-time care as might be expected of a full‑time domestic helper, it was said any award at the commercial rate of a full-time domestic helper should be discounted.

231.  I refer to paragraphs 83-89 above in which I have found (a) Bosco still needed the Father’s home care whether directly or indirectly by supporting the Mother in looking after Bosco given her anxiety, vigilance, fearfulness and dread in relation to Bosco (as distinct from husbandly comfort/supportive to the Mother on her own account), (b) the Mother (who used to be Bosco’s principal carer prior to the Incident) was so psychologically ill that she was incapable of looking after Bosco on her own without the Father’s help which necessitated his accessibility in Ma On Shan, (c) the Mother’s pervasive sense of mistrust, danger and dread would not have tolerated assistance by a domestic helper although in the latter part of 2010 (after having some psychology help from Ms Wong) she was receptive to but still wary of the idea of having a FDH to lessen the burden of childcare/housework. I find on balance Bosco being a baby still needed the Father’s home care during this period, and the Mother by reason of her psychiatric illness could not help herself in being attentive to everything about Bosco but quite incapable of properly taking care of him on her own. In the particular circumstances of this case, the appropriate base line should be the Father’s notional earnings and it would be inappropriate to adopt any commercial rate. The value of the Father Care Claim from 10 January 2010 to 10 March 2011 would be ($15,000 - $7,500) x 14 months = $105,000 (see paragraphs 51 and 96 above). Thus, the award for the Father Care Claim would be $67,500 + $105,000 = $172,500.

XVII.  FATHER’s LOSS OF EARNINGS

232.  Claim for pre-trial loss of earnings  The Father’s pleaded claim for pre-trial loss of earnings was based on his notional earnings as a hairstylist in Central at $20,000/month and his monthly earnings as an Attendant for Wilson in March 2011 at “about $12,000”: (a) from 11 March 2011 to 10 June 2012 in the sum of $8,000 x 15 months = $120,000, and (b) from 11 June 2012 to 10 November 2014 in the sum of $8,000 x 29 months = $232,000, totalling $352,000. Mr Ko’s written closing submissions adopted ($12,000 + $14,000) ÷ 2 = $13,000 as the Father’s average pre-trial monthly earnings on the basis that his earnings from March 2011 to January 2015 increased from about $12,000/month to about $14,000/month, and on the evidence I see no reason to depart from this approach in calculating the Father’s average pre-trial earnings as the proposed figure was in fact generous.[65] On such basis, Mr Ko submitted that the Father’s pre-trial loss of earnings from 11 March 2011 to 10 November 2014 should be revised down to ($20,000 - $13,000) x (15 + 29) months = $308,000.

233.  Claim for post-trial loss of earnings  The Father pleaded a claim for post-trial loss of earnings of $8,000 x (144 - 29) months (or 9.58 years) = $920,000. But Mr Ko’s opening submissions suggested it would be very difficult for the Father to re-enter the hairdressing industry after such a long break, so he should be awarded loss of future earnings until his retirement at 55 years (he was 43 years old at the time of the 2^nd Trial) based on his earnings at the time of the 2^nd Trial of about $14,000/month,[66] ie ($20,000 - $14,000) x 12 months x 10.28 years[67] = $740,160.

234.  Doctor’s case  The Father’s claim for loss of earnings was on his own account, but it was the Parents’ case under the Father Care Claim (and it was also the Father’s evidence) that he gave up working as a full‑time hairstylist in Central to work as a part-time hairstylist at Co-Cut in Ma On Shan not for his own needs but to take care of Bosco/Mother as seen in the submissions by the Plaintiffs’ former counsel to the DHCJ at the 1^st Trial that “we would rather advance it as part of [Bosco’s] claim …… when we had the [Father’s] claim later in the statement of damages, that includes everything beyond this timeframe, and there’s a cross-reference back to this paragraph to say this period has already been dealt with under [Bosco’s] claim. ……”

235.  Although the Father had not received the full course of private psychological counselling recommended by the Experts (but I have found there was no failure to mitigate loss on his part), Mr Huggins SC submitted there was no psychiatric/psychological or other reliable evidence to show (a) the Father’s change of work from hairstylist to Attendant was due to any psychiatric illness/disability or (b) any loss of psychiatric function caused any diminution in the Father’s function as a hairstylist in the past or such loss so caused would be likely in the future. Rather it was the Father’s own evidence that he took the job at Wilson because he wanted a stable job with regular pay for his family.

236.  Mr Huggins SC submitted that whilst the reports on the Father noted his guilt reactions made him feel he had to compensate Bosco for the Incident by re-arranging his own life to accommodate Bosco’s/Mother’s needs and he did not have the heart to work as he used to because he was preoccupied with guilt and multiple worries of any further bad happenings to his family members, the medical evidence did not suggest his symptoms interfered with his work as a hairstylist and/or Attendant. Although the Father was depressed about Bosco’s situation, he could still cut hair and perform other hairdressing services. Mr Huggins SC submitted that as there was no psychological impairment/inability to cope with full-time hairdressing, the Father was fit enough and could have returned to Hom or other hair salon to work as a hairstylist again despite being sometimes depressed. Mr Huggins SC also reminded the Father was affected by objectively irrelevant stressors in/after September 2012, but in any event his condition had much improved over the years, and recent PWH reports recorded him saying he was coping with his job at Wilson except the workhours were long. It was said the Father’s own psychiatric condition would not have precluded him from working as a hairstylist during the time he worked for Wilson or rendered him less able to carry out his work in such a way which was as remunerative as it had been before, so there was no loss.

237.  Discussion  Mr Ko referred to the Father being guilt-ridden and suffering from self-blame, so in January 2010 he changed to work closer to home in Ma On Shan as he felt he had to compensate those to whom he felt indebted and to put down his work as a full-time hairstylist in Central in order to look after Bosco, especially when he might be needed in an emergency. Mr Ko reminded the Father no longer had the heart to work far away from home as he was preoccupied with guilt and multiple worries of bad happenings to his family. However, loss due to change of work to Co-Cut in Ma On Shan was the subject of the Father Care Claim instead of any claim by the Father on his own account. It was essential to bear in mind (a) the Father’s claim for loss of earnings was for the period in/after March 2011 when he worked for Wilson, and (b) such claim was for the Father’s own account and not for Bosco/Mother.

238.  Given that nature of the Father’s claim, it was necessary for the Father to show the psychiatric illness he suffered as a result of the nervous shocks he experienced caused his inability to work as a full-time hairstylist (especially when he was already working as a full-time Attendant) in/after March 2011 and thereby led to his loss of earnings for that period. It is not enough for a claimant to show he has experienced nervous shock and suffered psychiatric disorder for he has to go on to establish his psychiatric impairment renders him unable to carry on his pre-incident work. A claim for loss of earnings is not be viable if despite the psychiatric signs/symptoms the claimant suffers he can still manage his pre-incident work albeit with strain/difficulty.

239.  On balance, I am not persuaded on the evidence that in/after March 2011 the Father was so psychologically impaired he could not have worked as a full-time hairstylist whether in Central or elsewhere. I readily accept that in/after March 2011 the Father still suffered from adjustment disorder with mixed anxiety, depressive and guilt reactions of a mild to moderate intensity. I also do not disagree with Mr Ko’s reminder that (a) a person who suffers psychiatric injury is not a person with a “normal” mind in the sense of enjoying full mental health, and (b) psychiatric illness in contra-distinction to physical ailment presents with behavioural symptoms (rather than bodily discomforts) that are “inappropriate”, ie not to be expected from a “normal” person. The existence or otherwise of “abnormal” behavioural symptoms turns essentially on factual evidence. But whilst the presence of “abnormal” behavioural symptoms may satisfy the criteria of a relevant psychiatric disorder, it does not necessarily follow that a psychologically impaired person with such symptoms will be unable to work at all or unable to return to pre-incident work. Again, it is essentially a question of fact upon considering such disorder/symptoms against the nature, scope and context of the pre-incident work.

240.  Adjustment disorder is characterised by distress in excess of what is expected from exposure to stressor and significant impairment in social/occupational functioning. But whilst the Father suffered adjustment disorder with mixed anxiety, depressive and guilt reactions, it was merely of “mild to moderate intensity”. Bearing in mind the Father actually worked as a part-time hairstylist from January 2010 to March 2011, and as a full-time Attendant since March 2011, the essential question was whether the Father (with his adjustment disorder and “abnormal” behavioural symptoms of “mild to moderate intensity”) could have worked as a “full‑time” “hairstylist” in/after March 2011. Ultimately, this would be a finding of fact.

241.  In my view, the Father’s pre-morbid optimistic and easy-going personality was well-suited to his hairdressing vocation, but I am unconvinced the mild to moderate impairment of his social/occupational functioning being “abnormal” behavioural symptoms of his adjustment disorder would have prevented him from returning to full-time work as a hairstylist in/after March 2011. The Father was well aware of what it took to be a full-time hairstylist and (as evident from the treatment/expert reports) he also had insight into his psychiatric impairment, and with such awareness/insight he still acknowledged in evidence he could manage hairstylist work with no problem (see paragraph 102 above). As explained in paragraph 11 above, I am unconvinced by his late suggestion in RXN that he was so confused he could not remember his customers’ preferred hair style/colouring or was not as creative as he used to be, which allegations I find to be belated and incredible attempts to bolster his case.

242.  The Father’s acknowledgement that he could manage hairstylist work with no problem was borne out by his plan in late 2010 to increase hairstylist work by working more during evenings/weekends and by building a new network of customers in Ma On Shan (see paragraph 102 above). This clearly demonstrated not only his eagerness to resume full‑time hairstylist work, but also his willingness (despite his psychiatric impairment) to take up the challenge of re-establishing a customer network from his modest customer base at Co-Cut in Ma On Shan (as most of his customers from his old network had been lost). The Experts’ joint report dated 6 December 2010 noted the Father still felt compelled to stay near home, but this was overcome (no doubt with some worries as driven by his guilt reaction and self-blame) by March 2011 when he was posted to a carpark in West Kowloon (which was some distance away from Ma On Shan) with long workhours when he joined Wilson (and there was no evidence the Father subsequently moved to any carpark closer to home).

243.  I accept that in March 2011 the Father still had depressive symptoms and was socially withdrawn, so his social functioning was mildly or moderately impaired, but even with such handicap he could manage full-time work and continued to do so even up to the 2^nd Trial. I also accept he had mildly or moderately impaired occupational functioning in that he was not engaged in his work as an Attendant, feeling it was an inferior occupation and wanting all along to become a hairstylist again. In my view, despite the Father’s psychiatric signs/symptoms, hairdressing was work he strongly preferred, and he would certainly be more engaged in such work (with less occupational dysfunction) than in work as an Attendant (which he disliked but had to bear), which probably excited his plan in December 2010 in relation to hairstylist work. This was further borne out by the Experts’ joint report dated 6 September 2012 (ie after the Father had worked at Wilson for more than a year) that recorded the Father still expressed strong wish to return to work as a full-time hairstylist: “He said that given the choice, he would rather go back to work as a hairstylist because he enjoys work of beauty, and he could earn a better income of around $20,000 a month” (which must be a reference to full-time hairstylist work in Central). Although the Father was then well aware he still had psychological issues (see paragraph 130 above), he did not see/voice any inability in handling full-time hairstylist work.

244.  I am unconvinced by Mr Ko’s submissions that the Father changed job to work at Wilson because he could no longer work as a hairstylist due to his psychiatric illness that manifested itself in behavioural symptoms. On the contrary, I find the Father could work as a full-time hairstylist whether in Central or elsewhere despite still having behavioural symptoms reflective of his adjustment disorder, and the reason he changed his mind in March 2011 to work for Wilson was (as he himself said) to earn stable income to support his family (se paragraph 104 above). He plainly knew he had to invest time/effort to re-establish a new customer network, and despite his willingness there was no assurance of regular steady income in the short term. I find on balance these considerations drove the Father’s decision to take up the job of an Attendant at Wilson (which he did not like but felt he had to bear) in order to provide steady income for the family. But whilst this was a laudable act by the Father in loving consideration of the family’s needs (and as found in Part XVI above it was for Bosco who needed his care that he moved to work in Ma On Shan and thereby lost most of his customers), I am unable to say, though not without some regret given the Father’s worthy deeds, it was caused by his psychiatric impairment as a result of the nervous shocks he suffered.

245.  I therefore find the Father failed to prove his claim for pre-trial and post-trial loss of earnings.  But if I am wrong and the Father was entitled to such claims, then the Father’s pre-trial loss of earnings from 11 March 2011 to 10 November 2014 would be ($15,000 - $13,000) x 44 months = $88,000 (see paragraphs 50-51 and 232 above), and his post‑trial loss of earnings would be ($15,000 - $14,000) x 12 months x 10.28 = $123,360 (see paragraphs 50-51 and 233 above).

XVIII. FATHER’s LOSS OF CONGENIAL EMPLOYMENT

246.  The Father claimed a sum of $150,000 for loss of congenial employment. Mr Huggins SC submitted this was not a recognised head of damages to which secondary victims are entitled, and there was no evidence the Father’s loss of employment (congenial or otherwise) was caused by any psychiatric injury arising from the nervous shock in 2009. On the other hand, Mr Ko submitted loss of congenial employment if established  could be a recognised head of claim for psychiatric illness.[68] In Li Yuet Yee, the husband as secondary victim recovered $120,000 for loss of congenial employment as skilled jewellery craftsman as he was unable to do sophisticated jewellery anymore due to “his mental state, lack of concentration and tremors” after witnessing his wife and younger son being seriously injured in the accident. I do not agree that this head of loss is impermissible for a secondary victim. Recoverable loss is determined by issues of causation and remoteness of damage (see paragraph 75 above). If it is established the psychiatric illness caused by nervous shock experienced by a secondary victim is so debilitating that he cannot return to his pre-incident work and has to turn to a less congenial employment as a result, I see no reason why such head of loss is not recoverable in the case of a secondary victim.

247.  But here, I have found the Father’s psychiatric impairment did not prevent him from returning to full-time hairstylist work whether in Central or Ma On Shan, and his change of work to be an Attendant for Wilson was for other causes. That being the case, there could be no award under this head of claim. But if I am wrong and the Father was entitled to loss of congenial employment by not being able to return to his work/vocation as a hairstylist for over 10 years which gave him job satisfaction, I would have awarded $80,000 under his head of claim.

XIX.  MOTHER’s CLAIM FOR FDH EXPENSES

248.  Background  The claim for FDH expenses in the Consolidated Revised Statement of Damages filed in 2013 was for the account of Bosco. In the Bosco Judgment, the DHCJ made a nil award as he found it was not attributable to Bosco’s situation. A complaint against dismissal of this head of claim was made on appeal, but paragraph 22 of the CA Judgment stated “…… Mr Ko did not press this point before us.  This aspect of the claim was, in fact, abandoned by the plaintiff’s counsel during submissions before the judge, and the failure to make an award in respect of it is therefore not something of which complaint can now be made”.

249.  In paragraph 115 of the PTR Decision, on the Parents’ application, I allowed the “transport” of the claim for FDH expenses in the same terms as claimed in the Bosco Action to the Parents Action on the following basis:

“…… there is just about enough evidential basis to raise the possibility that certain domestic helper expenses may be attributable to the Parents’ or at least the Mother’s situation. The Mother claimed she suffered psychological impairment and was stressed as a result of the Incident. On the basis of the above expert reports and witness statements, it is arguable that the Mother was able to cope better emotionally with the help of a domestic helper. In the circumstances, I am of the view that leave should be granted for the Parents to transfer this head of claim (with possible reduction due to apportionment) to the Parents’ claim.”

In the RRSoD, the claim for FDH expenses was presented as a claim by the Mother.

250.  Incurred FDH expenses  Mr Huggins SC reminded whatever “possibility” might have been contemplated at the pre-trial stage, the Mother’s present claim (which he said was vague) was put on the basis the full cost of incurred FDH expenses was required by reason of psychiatric injury done to her, which appeared at odds with the claim for the same full cost of FDH expenses that was said to be required to look after Bosco by reason of his injury as presented by the Mother as next friend in the Bosco Action. Mr Huggins SC submitted these 2 claims were mutually exclusive, and the latter claim would have precluded the former. He reminded that the Mother was not even aware the claim for FDH expenses was made on her behalf, and she added that the decision to “transport” such claim from the Bosco Action to the Parents Action was not the Parents’ decision, thus the court should be most circumspect in accepting the Mother’s case that such loss was suffered by her rather than by Bosco. Mr Huggins SC also submitted there was no basis on the evidence to find the nervous shock to the Mother in August 2009 required her to have the services of a FDH, especially as the Mother gave evidence that the FDHs employed were required for looking after Bosco because she considered Bosco needed someone to look after him. Finally, Mr Huggins SC urged this court to be slow in finding the services of the FDHs were rendered to just one member of the family and then to saddle all FDH expenses on the Doctor.

251.  In my view, the Bosco Judgment would not have shut the door against the possibility that FDH services were/are required by the Mother as whether or not such services (and hence expenses) were actually necessitated by her psychiatric condition resulting from nervous shock must be a question of fact taking into account all circumstances. I find it unsurprising the Mother could not fully grasp the technical “transport” of the claim for the FDH Expenses from the Bosco Action to the Parents Action. Her focus on Bosco in this respect was more of a reflection of her psychiatric sequelae that made her very attentive and anxious about him, but as seen below the 2^nd and 3^rd FDHs in fact helped to ease her housework/childcare burden to some extent so she could have more time to look after Bosco (and also for herself).

252.  I find on balance there was no intention to hire a FDH prior to the Incident, and I do not agree an FDH would have been employed in any event after the Mother gave birth to the Daughter in August 2010. But for the Incident that caused the Parents to suffer psychiatric disorders, they had planned to rely on nursery service and childminding by the Grandmother to enable the Mother to return to part-time and later full-time work at the Shop.

253.  But after the Incident, the Mother was in poor mental state and was unable to handle housework and childcare on her own although she was attentive, anxious, vigilant and overprotective about Bosco/Children. Indeed, the Mother’s over-concern about Bosco and her disability in home-making due to her psychiatric injury caused her to feel she had neglected the Daughter. Quite simply, the Mother (formerly the primary homemaker and childminder) needed help in childcare, and this need was filled by the Father who took care of Bosco and supported her in her care for Bosco during the 5 Months and in the subsequent period up to March 2011 when he worked at Co-Cut in Ma On Shan. By the end of 2010 the Mother was receptive to outside help even though she still unsure about leaving Bosco with the FDH, and with some interim payment the Parents contemplated engaging a FDH to ease the childcare burden. On balance I find it a timely and reasonable decision as (a) the Father had plans to do more work and eventually took up full time work at Wilson (see paragraph 102 above), and (b) the Mother still could not fully cope with housework and childcare on her own due to her psychiatric disability but in her strive to get better she recognised she need to give more time for herself and to widen her social circle (see paragraph 99 above).

254.  The 1^st FDH was to arrive in February 2011 but did not, and the 2^nd FDH only arrived in May 2011. The Mother hoped that when the 2^nd FDH was suitably trained to handle housework/childcare, she would have more free time for herself to relax and to reach out to friends (see paragraph 108 above). But the work performance of the 2^nd FDH turned out to be unsatisfactory, and the Mother did not feel confident to let her look after either of the Children, so in October 2011 she dismissed the 2^nd FDH (see paragraph 116 above). The Mother tried to find another FDH with childminding experience, but pending the arrival of the 3^rd FDH in March 2012 the Mother could not leave the Children for long (see paragraphs 116-117 above). After the 3^rd FDH joined the family, the Mother was quite satisfied with her performance, and by July 2012 she could entrust the Daughter’s care to the 3^rd FDH when she took Bosco to/from kindergarten (see paragraph 117 above). By August 2012, the Mother had greater confidence in dealing with domestic and childminding challenges with the support/help of the 3^rd FDH to whom she could delegate household chores, and she went to see her friends occasionally. The Father also felt the Mother was more capable in running the home. But the Parents terminated the service of the 3^rd FDH due to financial reason in February 2013.

255.  Plainly, the 2^nd and 3^rd FDHs were beneficial to the Mother in the strive to get better for they enabled her to build up confidence in home-making and to mitigate her pervasive sense of risk/danger and her abnormal vigilance towards the Children’s safety by learning to have more trust in outside help and in gradually increasing her social life and having more time for herself. I disagree the 2^nd and 3^rd FDHs were not to look after the needs of the Mother but those of the Children (principally the Daughter). In my view, notwithstanding Bosco’s claim for FDH expenses in the Bosco Action and the Bosco Judgment (see paragraph 248 above), I find on the available evidence at the 2^nd Trial that the 2^nd and 3^rd FDHs were reasonably necessary for the Mother in learning to overcome her disability in housework and childminding caused by her psychiatric illness, and their availability had eased her road to recovery from her impaired social functioning. She had shown some improvement in these respects, and I consider the Mother was entitled to recover reasonable incurred FDH expenses. I agree the Father and Children would also benefit from the FDH’s services, but there was no reason to make deductions because the FDH was to help the Mother whose pre-Incident role was homemaker and childminder.

256.  Although the Mother employed 3 FDHs, only two came to Hong Kong to work for her. The 2^nd FDH was employed from 13 May to 4 October 2011 and the 3^rd FDH was employed from 24 April 2012 to 2 February 2013, ie a total of about 14 months. On the basis that FDH expenses were estimated as $7,000/month, the Mother claimed pre-trial FDH expenses as follows: (a) from 11 March 2011 to 10 June 2012 at $7,000/month x 15 months = $105,000 and (b) from June 2012 to February 2013 at $7,000/month x 10 months = $70,000, totalling $175,000 (but the period from 11 June 2012 to 10 February 2013 was in fact 8 months instead of 10 months). But I see no reason why the Mother should claim for FDH expenses for 25 or 23 months when the FDHs were actually employed for 14 months.

257.  At the 2^nd Trial, the Mother provided an updated summary of pre-trial FDH expenses totalling $94,845 (which included insurance premiums and agency fees paid for the FDHs). Working on this summary, Mr Huggins SC submitted that a number of items of expenses should be deducted:

(a)   It was said a sum of $3,135 being payment in lieu of notice for immediate termination of the services of the 2^nd FDH should be deducted. I disagree. Having established that the Mother required the services of a FDH due to her psychiatric impairment, there was no reason why the exigencies of the Mother’s reasonable efforts of hiring/firing a FDH should not be recoverable. It would be unreasonable for the Mother not to terminate the services of the 2^nd FDH with poor work performance who was of no help to her and who caused her to be more stressed/nervous.

(b)   Mr Huggins SC submitted miscellaneous expenses of $21,840, ie (i) $1,500/month x 12 months = $18,000, and (ii) $1,920/month x 2 months = $3,840, should be deducted. Mr Huggins SC submitted there was no reason why “maid’s food, travelling expenses, entrance fees for recreational and entertainment facilities in accompanying Bosco etc” should all be recoverable. The Mother gave evidence that the sum in (i) above covered the value of the 2^nd and 3^rd FDHs’ everyday food consumption and travel expenses in going about their work for 12 months, and the sum in (ii) above covered (i) above and entrance fees to amusement park / Disneyland and related travel expenses for the 2^nd FDH for 2 months. These amounts were the Mother’s rough estimates drawn from her recollection and notations she marked in the wage records that she kept (but not disclosed).

I agree associated expenses in maintaining the 2^nd and 3^rd FDHs (eg food, insurance premium, airticket etc) were recoverable as they were necessary and inevitable in employing FDHs. However, I am not persuaded I should allow for Disneyland expenses for the 2^nd FDH. The Parents went to Disneyland with the Children (see paragraph 111 above), and there was no need to have the 2^nd FDH to accompany the Children with both Parents present. However, I would allow $400 for the 2^nd FDH to accompany the Mother and Children to amusement parks when the Father who had to work was probably not present.

258.  Upon appropriate deductions as found, I allow incurred FDH expenses at $94,845 – [($1,920 - $1,500) x 2] + $400 = $94,405 (or on average $94,405 ÷ 14 months = $6,743.21 a month).

259.  Future FDH expenses  The RRSoD pleaded further services of the FDH were required as in the meantime the Mother was assisted by relatives in the neighbourhood and she sometimes had to leave the Children with the Grandmother when she felt unable to cope, but the RRSoD left the question of future FDH expenses “to be adjudicated”. Mr Ko’s written opening submissions fleshed out such claim at $7,000/month x 12 months x 8 = $672,000 on the assumption that the Mother’s condition would persist for another 5-10 years.

260.  Mr Huggins SC submitted there was no basis for the Mother to seek future FDH expenses. He reminded that the Mother had managed without a FDH since March 2013 without indication in the psychiatric/ psychological reports that she had not been able to cope or her psychiatric condition required FDH assistance. The Experts’ joint report dated 6 September 2012 found the Mother more emotionally and physically competent in handling daily matters, such as running a household, supervising the FDH, taking Bosco to and from kindergarten etc. The more recent PWH reports/notes also indicated the Mother coped with the household chores.

261.  I agree by August/September 2012 the Mother’s coping skills had improved, and she had gained greater confidence in dealing with domestic and childminding challenges. She was more capable in running the home, and could deal with Bosco’s teachers, pick up Bosco to/from school and take him to various medical attendances. But at that time she had the assistance of the 3^rd FDH to whom she could delegate household chores and entrust to look after the Daughter leaving more time for herself and to look after Bosco (see paragraph 128 above).

262.  The fact the family did not have a FDH since March 2013 was not because the Mother had no need of one, but because after the Bosco Judgment was handed down the family considered themselves financially incapable of affording one. Even putting aside the objectively irrelevant stressors, the Mother still needed treatment for her psychiatric condition, and on balance I accept she needed the help of the Grandmother and other relatives in housework/childcare. Although Dr Lam noted the Mother coped with household chores (se paragraphs 178 and 188 above) (but the Father clarified that she was in fact assisted by family members), he also noted she was still depressive and “stressful in taking care of children” (see paragraphs 178, 188 and 191 above). The Mother’s psychiatric disorder was marked by anxiety, vigilance, worries and sense of danger/dread about the Children (especially Bosco) and also social isolation, so having a FDH to help with housework/childcare would give the Mother opportunity to gradually increase her social life whilst leaving the Children with the FDH.

263.  Mr Ko submitted that $7,000/month was the appropriate multiplicand for calculating future FDH expenses as it comprised (a)  minimum wage of $4,110/month at the time of the 2^nd Trial, (b) miscellaneous expenses of $1,500-$1,920/month as aforesaid and (c) insurance fee at $1,200 + $1,000 per year, agency fee at $3,700 per employment contract, holiday relief help and travel expenses for home leave.[69] Given that the average monthly expenses of the 2^nd and 3^rd FDHs in 2011-2013 were about $6,743.21 (see paragraph 258 above), but discounting the extra month’s pay referred to in paragraph 257(a) above and taking into account the increase in minimum wage for FDHs since then, I consider the proposed sum of $7,000/month a reasonable baseline for calculating future FDH expenses.

264.  I am prepared to allow future FDH services for a period of 2 years to cover the period when the Mother would have the remaining psychology sessions recommended by the Experts (about 9 months), some time to consolidate her coping skills (about 3 months), time to ease back into part-time employment (about 6 months) and time to adjust in the initial period of full-time employment (about 6 months). On such basis, I allow future FDH expenses in the sum of $7,000/month x 12 months x 2 years = $168,000.

XX.  MOTHER’s SPECIAL DAMAGES

265.  Travelling expenses  The RRSoD pleaded a claim of $4,000 ÷ 2 = $2,000 for the Mother. But Mr Ko suggested travelling expenses for the Mother should be $1,170 on the basis of $30 per round trip for each medical attendance on Drs Fung, Wong, Lam and Tang. According to the schedule of medical attendances, the Mother attended 43 sessions, but the attendances on Drs Fung and Wong on 20, 25 and 26 September 2012 were patently related to the objectively irrelevant psychological setback upon receipt of the Council Letter which should be discounted. Even on the basis of 40 medical attendances at $30 per round trip, I find the claim for $1,170 conservative. I therefore allow the Mother’s travelling expenses in the sum of $1,170.

266.  Tonic food The Mother claimed $10,000 ÷ 2 = $5,000 for tonic food expenses, but there were no receipts and no evidence of any what tonic food was consumed. Mr Huggins SC reminded the statement evidence only referred to tonic food for Bosco, and argued there was no reason to think (and no evidence that) tonic food would be of value for psychiatric illnesses or insomnia. The absence of evidence as to the advisability/suitability of tonic food is not a bar to recovery of a nominal sum,[70] but Mak Yiu Keung v Ho Cheung Kat[71] and Leung Yun Keung v Citybase Property Management Limited[72] suggested a substantial award ought not to be made in the absence of evidence of the amount spent or reasonableness of consuming tonic food in the circumstances. Here, given the paucity of evidence, but bearing in mind it is generally accepted by the local community of the recuperative value of tonic food, I am prepared to award a nominal sum of $1,000.

267.  Incurred medical expenses  The Mother’s pleaded claim for incurred medical expenses was $3,000 ÷ 2 = $1,500. Mr Ko submitted this had been overtaken by events, and the updated schedule of the Mother’s medical expenses showed she had incurred $43,177 prior to the 2^nd Trial. There was a minor item of $460 for psychology sessions at QEH for the Parents. The Doctor objected to such sum on the basis that the receipts were under Bosco’s name and reference. The Parents were referred for psychology consultation during Bosco’s initial QEH hospitalisation. On balance I accept the treatment they received were recorded under Bosco’s reference (see also referral letter and medical notes/records for the Parents under Bosco’s name/reference). After all, Bosco required psychological counselling not then but when he was older.[73] Thus, the further sum of $460 ÷ 2 = $230 was attributable to the Mother and not Bosco.

268.  For private psychology treatment received by the Mother, issue arose as to whether she should be compensated for $2,300/session as incurred by her or $1,500/session as estimated by the Experts. Mr Ko submitted that with long waiting time for psychology follow up at the public sector, the Mother reasonably sought private treatment with Dr Fung at a reputable private hospital, and even though Dr Fung’s fees at $2,300/session were above that estimated by the Experts they were not unreasonable and should be allowed in full. The Court of Appeal in Au Yeung Miu Sim v Tsang Kwong Wai & anor[74] held that all medical expenses honestly and reasonably incurred by a plaintiff for the treatment of injuries caused by the accident are recoverable, and cited with approval the following observations by Lord Collins in Clippens Oil Co Ltd v Edinburgh and District Water Trustees:[75]

“…… the wrong-doer is not entitled to criticise the course honestly taken by the injured person on the advice of his experts, even though it should appear by the light of after-events that another course might have saved loss. The loss he has to pay for is what has actually followed under such circumstances upon his wrong.”

Although the CA Judgment refused to award Bosco’s future psychological treatment on the basis of $2,300/session rather than $1,500/session, this was distinguishable on the ground that Bosco’s future expenses had not yet been incurred. But here the Mother had incurred such expenses, and the question was whether they were honestly and reasonably incurred, which in my view they were. Indeed, the Experts found Dr Fung’s counselling helpful.

269.  There was suggestion the Mother failed to mitigate loss by choosing not to have the number of treatments at the intensity recommended, and she could not claim for what she chose not to have. But as I have found, the Mother did not fail to mitigate her loss. However, some of the Mother’s psychological/psychiatric attendances were for the psychological setback she suffered upon receipt of the Council Letter. A explained in paragraph 265 above, the sessions with Drs Fung and Wong on 20, 25 and 26 September 2012 ($2,300 + $2,300 + $1,562 = $6,162) were necessarily related to such psychological setback. The Mother’s other sessions with Drs Wong, Lam and Tang were for treatment/therapy over lingering symptoms/grievances relating to the Council’s Decision and Council Letter and other objectively irrelevant stressors as well as the underlying psychiatric illness attributable to nervous shock, so I make a further global deduction of $3,000 in respect of treatment expenses attributable to the objectively irrelevant stressors. In the circumstances, the Mother’s incurred medical expenses were ($43,177 + $230) – $6,162 - $3,000 = $34,245.

270.  Future medical expenses  The Mother’s pleaded claim for future medical expenses was $2,300 x 2 times/month x 12 months = $55,200. Mr Ko submitted at the time of the 2^nd Trial the Mother was still attending psychiatric/psychology follow up at PWH (psychology session about once every 4-6 months), which showed she still need psychology help. Mr Huggins SC took the narrow point that future psychology help as pleaded in the RRSoD must have envisaged “future” as from the date of that pleading, and since the Mother attended PWH (at about $60/session) and Dr Wong (at about $1,700/session) with no pleaded claim for future medical expenses as from January 2015, the Mother could not claim for future medical expenses. I do not agree with such blinkered view of the Mother’s pleading. There was plea of future medical expenses, which (subject to proof on the evidence) encompassed the post-trial period.

271.  The Experts recommended the Mother should receive bi‑weekly psychology sessions for the next 12 months, ie approximately 26 sessions in total. At the time of the Experts’ joint report dated 6 September 2012, the Mother had attended 8 sessions with Dr Fung and there remained 18 sessions from which she could benefit. The Experts noted that after these 8 sessions with Dr Fung there was significant and positive improvement to the Mother’s mood state. The Mother subsequently attended another session with Dr Fung on 24 October 2012.

272.  I agree the Mother had not yet completed the course of psychology treatment recommended by the Experts. Whilst I accept the Mother benefited from her counselling sessions with Dr Tang and psychiatric follow up with Dr Lam, and the recent medical notes suggested she was less depressive, the 3 sessions with Dr Tang were not the intensive bi‑weekly private psychology help envisaged by the Experts with the particular objectives discussed in paragraph 129 above. I accept on balance the Mother would benefit from having the remaining 17 private counselling sessions preferably with Dr Fung who was familiar with her history/condition and who had helped her attain some improvement with counselling, which benefit was acknowledged by the Mother and Experts. I agree the Mother was entitled to an award for future medical expenses on the basis of $2,300 x 17 times = $39,100.

XXI.  FATHER’s SPECIAL DAMAGES

273.  Travelling expenses The RRSoD pleaded a claim of $4,000 ÷ 2 = $2,000 as travelling for the Father. Mr Ko proposed a sum of $1,170 on the basis of $30 per round trip for each medical attendance on Drs Fung, Wong, Lam and Tang. But the summary of medical attendances showed 29 medical attendances by the Father, and for reasons set out in paragraph 265 above I deduct travelling expenses for the attendances on Drs Fung and Wong on 20, 25 and 26 September 2012. I allow $30 x 26 times = $780 under this head of claim.

274.  Tonic food  The Father claimed $10,000 ÷ 2 = $5,000 for tonic food expenses. For the same reasons as set out in paragraph 266 above, I make a nominal award of $1,000.

275.  Incurred medical expenses The Father’s pleaded claim for incurred medical expenses was $3,000 ÷ 2 = $1,500. Mr Ko submitted this had been overtaken by events, and the updated schedule of the Father’s medical expenses showed he had incurred $16,140 before the 2^nd Trial together with a further sum of $230 (as explained in paragraph 267 above). Like the case of the Mother, some of the Father’s psychological/psychiatric attendances were for the psychological setback he suffered upon receipt of the Council Letter. In my view, the sessions with Drs Fung and Wong on 20, 25 and 26 September 2012 ($2,300 + $2,300 + $1,539 = $6,139) were necessarily related to such psychological setback, and there should be further global deduction of $1,000 in respect of treatment in relation to objectively irrelevant stressors. In the circumstances, the Father’s incurred medical expenses were ($16,140 + $230) – $6,139 - $1,000 = $9,231.

276.  Future medical expenses  The Father claimed future medical expenses in the sum of $2,300 x 15 times = $34,500. The Experts’ joint report dated 10 December 2012 recommended a course of 15 psychological therapy sessions to help in relieving the Father’s emotional difficulties and to deal more effectively with his current/future stresses, to lessen his undue sense of guilt, to alleviate his anxieties, and to learn to regain self‑confidence, sense of self-efficacy and enjoyment of his future life.  The Experts’ joint report dated 13 October 2011 reiterated the above recommendation, and the stated treatment aim was to provide emotional support to help the Father deal with his guilt and dysphoric mood. In the Experts’ joint report dated 6 September 2012, they repeated their recommendation of 15 psychological therapy sessions for the Father. In the more recent reports/notes, Drs Lam and Tang noted the Father’s condition had improved (see paragraphs 178 and 195 above) although he still had stresses/worries (see paragraphs 189 and 195 above). The Experts envisaged that with adequate psychological support/treatment the Father would gradually improve and would become more engaged in his work.

277.  The Father had yet to receive the full course of psychological sessions recommended by the Experts, but he appeared motivated to engage in treatment (see paragraphs 123 and 195 above). He attended Dr Fung 3 times at $2,300/session, so putting aside the 2 sessions on 20 and 25 September 2012 that dealt with the crisis from the Council’s Decision and Council Letter (and hence not the course of treatment envisaged by the Experts), there were still 14 outstanding sessions under the Experts’ recommendation from which the Father could benefit. Like the case of the Mother, I find the Father’s suggestion of having the proposed course of outstanding private psychology sessions with Dr Fung (who had all along managed the Parents’ case) reasonable, and for reasons explained in paragraph 268 above, I disagree the cost of such psychology sessions with Dr Fung at $2,300/session should be reduced to $1,500/session. I award $2,300 x 14 sessions = $32,200 for the Father’s future medical expenses.

XXII.  CONCLUSION

278.  I summarise the above awards as follows:

(a)   Father Care Claim in the Bosco Action: $172,500.

(b)   Mother’s claim in the Parents Action:

	HK$
PSLA	270,000
Pre-trial loss of earnings	185,000
Post-trial loss of earnings	93,000
Loss of earning capacity	50,000
Incurred FDH expenses	94,405
Future FDH expenses	168,000
Incurred medical expenses	34,245
Future medical expenses	39,100
Travelling expenses	1,170
Tonic food	1,000
Total:	935,920

(c)   Father’s claim in the Parents Action:

	HK$
PSLA	250,000
Pre-trial loss of earnings	-
Post-trial loss of earnings	-
Loss of congenial employment	-
Incurred medical expenses	9,231
Future medical expenses	32,200
Travelling expenses	780
Tonic food	1,000
Total:	293,211

279.  I therefore grant judgment in favour of Bosco against the Doctor in the sum of $172,500, in favour of the Mother against the Doctor in the sum of $935,920 and in favour of the Father against the Doctor in the sum of $293,211. Interest is payable on the awards for PSLA in the Parents Action at 2% pa from the date of the Writ of Summons to the date of judgment herein. Interest is payable on special damages from 21 August 2009 to the date of judgment herein at half judgment rate and thereafter at judgment rate until payment.

280.  I grant the following order costs order nisi in the Parents Action: (a) the Doctor shall pay the Mother’s and Father’s respective costs of the assessment of damages on District Court scale to be taxed if not agreed, and (b) the Parents’ own costs be taxed in accordance with Legal Aid Regulations. I grant the following costs order nisi in the Bosco Action: (i) the Doctor shall pay Bosco’s costs of the Father Care Claim on District Court scale to be taxed if not agreed, and (ii) Bosco’s own costs be taxed in accordance with Legal Aid Regulations.