YIU YUN v. ATTORNEY GENERAL

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. This personal injuries action for negligence dates back to the 5th January 1967 when the Plaintiff had an operation in Queen Mary Hospital to remove stones in her gall bladder. A surgical pad used in this operation was left inside the Plaintiff's abdomen and only removed by operation over 20 years later on 28th August 1987. The Plaintiff had regsived medical treatment periodically since 1975 for abdominal pains.

2. The Defendant did not dispute liability, even though a Defence had been filed, and interlocutory judgment was entered on 30th January 1989 for the Plaintiff with damages and interest thereon to be assessed. Subseguent to his assessment being set down for hearing the Defendant was granted leave to issue third party notices against the three named third parties which gave rise to difficulties. The chronology of the third party notices is set out in the Court of Appeal judgment No.16 of 1990 on an emergency appeal in which it was ordered that this assessment of damages proceed forthwith without dealing with the issues arising in the third party proceedings. The assessment of damages proceeded as directed by the Court of Appeal and lasted 9 days without any of the Third Parties being represented even though the first and second Third Parties were called as witnesses at the assessment by the Plaintiff.

3. The only issues arising on this assessment and in dispute were, firstly, whether some of the general damages were too remote because of the medical treatment received by the Plaintiff over 12 years or in other words whether a novas actus interveniens arose in the course of that treatment, and secondly, the measure or guantum of general and special damages to be awarded. The Plaintiff produced an agreed Bundle of 45 Documents comprising 228 pages to the Court, although not all of the contents of such documents were admitted by the Defendant. Plaintiff's Counsel called a total of 6 witnesses including the Plaintiff and her daughter and 4 medical witnesses. The Defendant called 2 medical witnesses. A full record of the evidence has been recorded and it is only proposed to refer to the evidence considered relevant to the issues to be determined.

4. The Plaintiff gave evidence that she has been a widow for over 2 years and is now 70 years of age. She said she was illiterate and is financially dependant on her 6 children. The Plaintiff confirmed she had a gall bladder operation in Queen Mary Hospital in 1967 and received follow-up treatment at Sai Ying Poon Clinic on 2 occasions where she had her stitches removed. At that time she said she only had a little pain over the area of the wound and was given some medication for the pain. Her evidence is that all along she felt a little pain on her side near her stomach. She says that as she was rather busy cultivating vegetables she did not pay attention to this pain. She said she supported the family after her operation as her husband was too ill to work and was paralysed. The Plaintiff said the pain she felt after her operation did interfere with her work as a vegetable farmer at Wong Chuk Hang and she was only able to work when she did not feel the pain. Some years later she gave up vegetable farming and moved to her present address in Wah Fu Estate where she lives with her son and one of her 5 daughters. She was unable to recall the date when this occurred.

5. The Plaintiff said she first went to see Dr. Louis Wong in September 1975 after she was living at Wah Fu Estate. He was the first doctor she had seen since the follow-up treatment after her operation in 1967. She said that the pain she felt in 1975 was in the same area but was more severe and she likened the pain to what she had experienced prior to her gall bladder operation. When she went to see Dr. L. Wong he told her to have daily injections at his clinic and he prescribed same medicine for her. She went for follow-up consultations every week. She said this treatment went on for a long time and that the pain usually felt better after she had the injections. Dr. L. Wong told her that her liver was enlarged and hardened. The Plaintiff said she was unable to do her housework or to have a good sleep when she felt severe pain. After receiving this treatment from Dr. L. Wong over a long period she asked him if she could have the daily injections administered at a clinic in the Wah Fu Estate so that she did not have to travel to Dr. L. Wong's clinic every day. Dr. L. Wong agreed to supply her with the drug to be injected and she arranged with Dr. Stephen Soo for the injections to be administered at his clinic in the Wah Fu Estate. She told Dr. S. Soo that the injections were treatment for her liver and he charged her $3.00 for each injection. The Plaintiff said she never had any consultation with Dr. S. Soo as she continued to consult Dr. L. Wong.

6. In July 1987 the Plaintiff went to see Dr. S. Soo and Dr. Jack Wong about pain in her chest and abdomen and was referred to Dr. Victor Goh who had her admitted to hospital for 5 days observation in August 1987. After coming out of hospital she felt worse than before and Dr. V. Goh referred her for x-rays of her chest and stomach and other tests. Later in August 1987 she was admitted to H.K. Sanatarium and Hospital where Dr. Frank Cheng operated on her and removed the surgical pad from inside her body which was later shown to her. She remained in hospital until 11th September 1987 and received follow-up treatment from Dr. F. Cheng and Dr. V. Goh. She said that she still felt pain on her right side even after the removal of the surgical pad. She says that even though it is 2 1/2 years since this operation she still feels some pain but that it is an improvement on her previous condition and does not interfere with her housework or sleep. While in hospital she paid for 3 nurses to give her continuous care and to help her sit up to eat meals and to go to the toilet. She said she took nutritious food in the form of herbs, chicken and psecial tonic for a period of about 1 month after her discharge from hospital.

7. In cross-examination the Plaintiff admitted that no doctor recommended that she took nutritious food. She said that she occasionally felt pain and discomfort between 1967 and 1975 but admitted that that pain was not severe and did not occur freguently. The Plaintiff, contrary to her earlier evidence, said she had consulted doctors on a couple of occasions including Dr. S. Soo in 1972 and been given medicine for indigestion after he had examined her stomach around the area of her pain where she had the scar of her earlier operation. When she first consulted Dr. L. Wong she says she told him about the pain in her abdomen and her operation in 1967. She was examined by Dr. L. Wong and sent for chest x-rays and had blood and urine samples taken for tests. Dr. Wong told her that she should have injections to cure her enlarged liver which was not functioning well. She received injections every day for a month and was charged on each occasion. She also took drugs and medicine prescribed by Dr. Wong for pain relief and treatment of her liver. The Plaintiff admitted her condition had improved by 1982 when she only went to see Dr. Wong every 2 months or so for medicine. She said she had not taken a letter from Dr. Wong to Dr. Soo when he started to give her the injections of the medicine supplied by Dr. Wong. The Plaintiff had never been referred to another doctor by Dr. Soo whom she had seen on different occasions between 1972 and 1987. Similarly, Dr. L. Wong had never suggested she seek a second opinion or referred her to another doctor during the period of his treatment from 1975 to 1987. Prior to her admission to hospital in 1987 the only diagnosis of her condition was from Dr. Wong, who told her she had cirrhosis of the liver which was enlarged.

8. The Plaintiff was an impressive witness of truth. She answered all questions put to her to the best of her ability without in any way trying to embellish or exaggerate her symptoms or condition. Any discrepancies between her evidence and that of later professional medical witnesses was not of her making, but, likely to have arisen from the translation of questions put and answers made in the course of her examination. She is a remarkable woman with considerable fortitude, perseverance and patience which no doubt enabled her to survive this unigue ordeal.

9. Dr. Jack Wong (P.W. 2) was called to produce his medical report and records set out at Pages 59 and 60 of the Bundle of Documents. This doctor only treated the Plaintiff once on 30th July 1987 when she complained of gripping chest pains and she was sent for an E.C.G., chest x-rays and blood report and prescribed medicine for a heart condition (angina). Dr. Jack Wong (P.W. 2) was recalled later and questioned about the chest x-ray he had taken of the Plaintiff On 30th July 1987 (Ex. P.14) and found normal in his report dated 7th April 1989 at Page 59 of the Bundle. When asked to examine this x-ray film he could not identify any wire of the surgical pad in the area beneath the diaphragm. When asked to compare the 1987 chest x-ray with the 1975 chest x-rays (Ex. P.7 and P.8) he noticed faint lines on both x-rays which appeared to be metallic wire but said the lines on the 1987 x-rays were very faint. Dr. Jack Wong said he had not seen these lines that appeared to be metallic wire when he examined the chest x-ray film in 1987.

10. Dr. Stephen Soo gave evidence that he bas a clinic in Wah Fu Estate. He produced his medical report and records relating to his treatment of the Plaintiff as set out at Pages 101, and 103 to 107 of the Bundle of Documents. In his report Dr. S. Soo said he treated Plaintiff on five occasions between 1972 and 1975 for ailments such as influenza. Furthermore, the report stated that on 14th August 1976 she brought with her medicine, known as Reticulose, which she wanted him to administer by intramuscular injection on behalf of Dr. L. Wong, who bad prescribed it for her liver condition. He agreed to this request and administered this medicine to the Plaintiff on a regular basis between 14th August 1976 and 11th August 1984. His report also set out details of 3 consultations of Plaintiff from 27th to 31st July 1987 for symptoms of a heart condition. An E.C.G. test revealed no heart abnormality. Dr. S. Soo gave evidence that the Plaintiff had not consulted him in August 1976 when she brought Dr. Wong's medicine to be injected at his (Dr. Soo's) clinic. Dr. Soo said he satisfied himself that the medicine was used in the treatment of liver disease by injection. He says the Plaintiff explained that it would be more convenient to her to have the injections in his clinic at Wah Fu Estate, where she lived, rather than travel each day to Dr. L. Wong's clinic in Kowloon for that purpose. Dr. Soo said these injections were administered mostly by his nursing staff over the period from 14th August 1976 to 11th August 1984 with varying intervals of days, weeks and sometimes months between injections. Dr. Soo saw no reason to stop giving Plaintiff her injections even though she had been receiving same for such a long period. The Plaintiff told him she benefitted from the injections and she never complained of any ill-effects from same.

11. Dr. Soo was cross-examined as to his standard procedure adopted in consulting a new patient. Dr. Soo denied that Plaintiff had consulted him between 1976 and 1984 and he also denied treating her over this period. He said Plaintiff merely used his clinic as a place of convenience to her to be given her injections. He admitted that as a professional medical man it was his duty to be satisfied that any treatment given to a patient was proper. Dr. Soo denied responsibility for treating the Plaintiff as she had not sought a consultation from him and she was still being treated by Dr. L. Wong. He admitted he had not received a letter of referral from Dr. L. Wong or ever spoken with him about the Plaintiff's condition or treatment. This witness was cross-examined at length regarding the treatment of various diseases of the liver and the use of the drug Reticulose in the treatment of same. Dr. Soo said he was not aware that this drug had been withdrawn from the Hong Kong market in 1976. He admitted that another doctor running his clinic in his absence overseas had seen the Plaintiff in April 1985 and on 15th January 1986 and the 7th November 1986. Dr. Soo denied that the Plaintiff had ever complained to him about pain in the right upper guadrant of her abdomen. This witness denied that by giving or authorising the giving of injections in his clinic he was treating the Plaintiff. Dr. Soo denied it was improper to treat a patient without first making a diagnosis and using his professional judgment. He admitted having treated the Plaintiff for minor ailments on different occasions but denied ever having treated her for a liver condition.

12. In answer to the Court Dr. Soo said he had never actually prescribed the drug Reticulose which was injected into the Plaintiff at his clinic and that these prescriptions were always made by Dr. L. Wong. He stated that it was not uncommon for patients to seek outside advice from other doctors and return with the medicine to be administered in his clinic. Dr. Soo stated that he was aware of Dr. L. Wong's good reputation with the public in the treatment of liver ailments and also that Dr. Wong had a specialist qualification and he did not think it necessary to query his diagnosis of the Plaintiff. He said he was aware from the patient that Dr. Wong had asked her to find a clinic in the area where she lived to adminster the drug, and he assumed that if he contacted Dr. Wong over the matter, he (Dr. Wong) would think he (Dr. Soo) was taking over his patient.

13. The next witness called by the Plaintiff was Dr. Victor Goh, a specialist in internal medicine and cardiology. Dr. Goh treated Plaintiff since 1st August 1987 for pains in the chest area over the heart and pain in her stomach and referred to his consultation notes set out in the Bundle of Documents at Pages 66 and 225. He confirmed that a chronic subphrenic abscess and an abdominal surgical pad was later removed from a space above the Plaintiff's liver. Dr. Goh explained that a surgical pad is a piece of cloth which is much wider and larger than a surgical swab. The Plaintiff's symptoms of precordial or chest pains were related to the presence of the surgical pad but this was only found out later. He arranged for Plaintiff to have an E.C.G. on 30th July 1987 and a barium meal x-ray examination on 25th August 1987 which revealed a lateral calcified lump with metallic content in the abdomen near her liver. Dr. Goh also arranged for Plaintiff to have a C.T. (Computerised Axial Tomography) Scan, which is an extensive computerised x-ray of the body in cross-sections, on 27th August 1987. Dr. Goh consulted Dr. Frank Cheng, a gastro-intestinal specialist and surgeon, about the C.T. Scan findings set out in the radiologist's report at Page 6 of the Bundle of Documents. Dr. Goh ordered x-rays of the Plaintiff's chest and abdomen to confirm his earlier findings.  This witness said it was a joint decision by Dr. F. Cheng and himself to operate on the Plaintiff on 28th August 1987. Dr. Goh stated that a sinogram taken after the removal of the foreign body and abscess revealed a cavity the size of a grapefruit where the calcified material had laid (P.25 in Bundle of Documents). A pathology report on the liver tissue, removed during the operation, showed it to be normal (P.23 in Bundle of Documents). Dr. Goh confirmed that the Plaintiff was still complaining of abdominal pain in the area of her right upper guadrant during her follow-up treatment in the post-operative period. Dr. Goh's consultation notes show that in August 1988 the Plaintiff complained of abdominal pain but that it was less severe than prior to her operation, a year earlier. Dr. Goh said that this pain was likely to have been caused by a gastro-duodenal lesion rather than by fluid collection in her stomach. Dr. Goh's notes confirm Plaintiff complaining on a number of occasions of abdominal pain in same area in April, November, and December of last year and as recently as 23rd January this year. In the second paragraph of his letter of 16th June 1988 (Page 30 in Bundle of Documents) Dr.  Goh stated that the cause of the persistent abdominal pain was likely to be due to the calcified wall of the previous subphrenic abscess which was in the immediate vicinity of the diaphragm. Dr. Goh stated that in the medication prescribed for the Plaintiff since her operation in August 1987 was a pain killing drug to reduce her abdominal pain. Dr. Goh agreed with the statement in Dr. S.T. Fan's report (Page 209 of Bundle) that it was most unlikely that the existence of a surgical swab or pad over this period of time could cause any heart condition.

14. In cross-examination Dr. V. Goh agreed that the Plaintiff's symptoms of hypertension and gastro-entro enteritis were not related to the presence of the surgical pad in her body for such a lengthy period and that a person of her age would be likely to suffer from these conditions. He stated that the Plaintiff's statement that she is suffering less pain since her operation in 1987 is consistent with her recovery over a long period. Furthermore, he stated that not all the Plaintiff's present pain is caused by the operation or residual tissue as she also has gastric hypersecretion which contributes to her pain. However, Dr. Goh was satisfied that the presence of a foreign body for such a long time caused calcified tissue to remain in her body even after the operation which results in residual pain. Dr. Goh stated that the fibrous tissue sealed off the surgical pad to prevent infection and that after 5 years or so the fibrous tissue would begin to calcify and that calcification would be a gradual process from then on. In Dr. Goh's opinion the fibrous tissue and calcification could have been prevented to a large extent if the surgical pad had been removed much earlier. He also stated that the arching of the Plaintiff's right diaphragm as seen on the x-rays was caused by the fibrous tissue containing the surgical pad. Dr. Goh confirmed that it was normal practice to seek a second medical opinion when a doctor was not sure of his diagnosis and where the condition was outside his field of expertise. In this case various tests revealed that the Plaintiff had a foreign substance in her body so Dr. Goh sought a second opinion from Dr. Frank Cheng before reaching the joint decision to recommend surgery. When shown the Plaintiff's chest x-rays taken in September and November 1975 (Exhibits P.7 and P.8) for the first time in Court he said that they were normal except for the right diaphragm being elevated and the presence of linear calcification below that. Dr. Goh explained that linear calcification is typically left by the metallic thread in a surgical swab or pad. When Dr. Goh was asked by Defence Counsel what he would have done after receiving these 1975 x-rays of the Plaintiff, he stated he would have asked the patient if she had had surgery in the relevant area of her body and, if so, checked with the surgeon responsible on the possibility of a foreign body being present. Next he would have checked whether any x-rays had been taken of the area of the linear calcification and whether any such x-rays had been reported as normal. He would have confirmed his diagnosis by x-rays of the abdomen and arranged for surgery to have the foreign substance removed. Dr. Goh said that the 1975 x-rays indicate the presence of an unnatural substance in the body rather than a cancerous mass.  It was Dr. Goh's evidence that if the foreign substance had been removed from the Plaintiff's body in 1975 it would be fair to expect the Plaintiff to have much less pain because excessive fibrous tissue reaction and calcification would have been avoided. Dr. Goh confirmed that the cost of the operation to remove the surgical pad in 1975 would have been much less than the same operation in 1987, however, he said it would be difficult to estimate the cost of such an operation in 1975.

15. When questioned about a patient asking a doctor to inject medication, Dr. Goh said he would ask the patient why he or she needed the medication and then discover the nature of the medication to check whether there was any deleterious effect associated with it. He said he would discuss with the patient whether it was to her advantage to have the medication. Dr. Goh said that even if the patient said another doctor had prescribed the medication he would not necessarily agree to administer it. Dr. Goh said he considered it his duty to work out if that medicine was good for the patient or not. He said that the only possible time he would administer medication to a patient without a full consultation and a physical examination was on the personal assurance by another doctor he trusted and had confidence in, such as, his professor at medical school, who had assured him that the medication was beneficial and necessary for the patient and could be given without a full consultation himself. Dr. Goh said that this is what he would expect from any doctor.

16. In re-examination Dr. Goh said that if a patient wanted him to inject her with medication he would have told her that it would have been in her best interest for him to examine her before doing what the patient requested. He said he would have the right to refuse the patient after his consultation and reaching a conclusion that the medication was not good for him or her. He also said he would have told the patient his reason for refusing to inject the patient with the medication. In answer to a cuestion from the master Dr. Goh said that the injection of the drug Reticulose over a long period of at least 8 years could have potential side effects as this drug contains nacleic acid (which is a protein derivative) and may cause an untoward reaction to the protein injection soon after administration. However, Dr. Goh, said that this drug did not cause any severe long term reaction by the Plaintiff and had not contributed to the fibrous tissue or the calcification around it in her body. Dr. Goh admitted that this was an unusual case in that the surgical pad left in the Plaintiff's body did not produce a more drastic effect much sooner. For example, if the fibrous tissue had broken the foreign substance in the form of the surgical pad would have caused infection leading to peritonitis. Dr. Goh said that this was the first occasion he had come across a case where the foreign substance had remained in a patient's body for such a long period of time. This witness said that the Plaintiff's chest x-rays in 1975 were unusual because of the arching of the diaphragm and this should have alerted the doctor looking at the x-rays to the possibility of linear calcification being present. Finally, Dr. Gob said that if a patient continued to complain of pain in the abdomen an x-ray of the stomach area should be sought as it was not usual to examine the abdomen from a chest x-ray. He said that any doctor should have appreciated the Plaintiff's problem after lengthy treatment of consistent symptoms in the same general area of the abdomen.

17. The Plaintiff's daughter - Leung Yuk Mei - gave evidence that she had written out the receipt for $2,650.00 (Page 58 of Bundle) being night shift nursing services rendered to the Plaintiff at the H.K. Sanatarium & Hospital over 5 nights from 28th August to 2nd September 1987 at a nightly rate of $530. She said this receipt was signed by Ho Kit Bing, a registered nurse, after the Plaintiff had paid over this sum. This witness said that this nurse was engaged for night shift nursing services through the Hospital authorities because there were fewer nurses on duty at night time. The Plaintiff's daughter said that her mother required 24 hour attention after her operation as she had lots of tubes attached to her body and she could not eat. Because her mother was so weak at that stage the family wanted someone to look after her over-night when there were fewer hospital nurses to care for her than in the daytime. This witness said that when her mother was able to move around, the family employed two nurse attendants through the hospital authorities to look after her mother. The receipts for these services are set out at Page 57 of Bundle with one nurse engaged in the daytime from the 2nd to 10th September 1987 at a cost of $1,350.00 ($150.00 a day) and the other nurse engaged for the night time from 3rd to 10th September 1987 at cost of $1,200.00 ($150.00 a day). In cross-examination the Plaintiff's daughter admitted that her mother received nursing care from staff employed by the H.K. Sanatarium and Hospital both before and after her operation. This witness claimed that the 3 nurses were employed for her mother out of necessity as the hospital nurses could not provide continuous care at night time and her mother was unable to move even to press the bell to summon attention from hospital staff.

18. The last witness called by the Plaintiff was Dr. Louis Wong Cheong Yee whose professional resume was produced as Exhibit P.1. This witness said he had considerable experience in treating patients with liver diseases and that 60% of his patients are treated for liver conditions. Dr. Wong said that the Plaintiff first consulted him on 6th September 1975 but that his consultation notes for this patient for the period up to the end of 1978 could not now be located as the notes were mislaid in changing his office from Hong Kong Island to his present Kowloon address. Copies of Dr. Wong's available consultation notes dating from 3rd January 1979 on the Plaintiff are set out at Pages 131 to 192 of the Bundle. This witness was shown and agreed with a table showing that the Plaintiff visited his clinic on 208 occasions between January 1979 and July 1987 for consultation and/or injection and/or for medicine. The Consultation Table was produced as Exhibit P.2. Dr. Wong produced on amended Fees Table as Exhibit P.3 showing that the Plaintiff had paid him a total of $57,870.00 as consultation, injection and medicine fees and charges between 1979 and 1987. The witness estimated that the Plaintiff would have paid him more than $30,000.00 as medical fees between September 1975 and December 1978 after taking into account the annual fees in excess of $9,000.00 paid from 1979 to 1981. Dr. Wong admitted that this figure of $30,000.00 as medical fees for the earlier period had been suggested by the Plaintiff's solicitors and he agreed with this figure on a pro rata basis with the 1979 to 1981 period as he could not rely on his memory in the absence of his consultation notes. Dr. Wong was referred to his consultation notes in some detail by Counsel for the Plaintiff. He explained that the drugs reticulose and essentiale he prescribed for the Plaintiff were given by intramuscular and intravenous injection respectively for her liver condition. On a number of occasions when Dr. Wong examined the Plaintiff he found and recorded in his notes that her liver was enlarged and tender because she complained of pain when pressed on the liver. This witness stated that he gave the Plaintiff a full and thorough clinical examination at her first consultation in 1975 and that he noted her old scar on the right side. At this examination the Plaintiff complained of pain and Dr. Wong said in evidence that he found she had a very enlarged liver. He was able to remember details of his examination even without his misplaced notes because she was a special patient as far as Dr. Wong was concerned. The witness was referred to his letter dated 5th June 1989 to the Plaintiff's solicitors at Page 128 of the Bundle which sets out details of his treatment of the Plaintiff since 1975. In evidence Dr. Wong said that this letter was not 100% accurate. Dr. Wong was shown 3 x-ray reports dated 8th September 1975, 1st November 1975 and 17th June 1982 from the Flite x-ray service which he produced as Exhibits P.4, P.5 and P.6 respectively. He also produced the respective x-ray films as Exhibits P.7, P.8 and P.9. Dr. Wong confirmed that these x-ray films were taken of the Plaintiff on the respective dates at his request and that the x-ray reports related to her. Dr. Wong was referred to the chest x-ray of the Plaintiff taken on 8th September 1975 (Ex. P.7) and he said this was requested after the first consultation to rule out whether or not the Plaintiff had a chest infection because her main symptoms were fever and accompanying signs of infection in general. Furthermore, Dr. Wong said that his second reason for obtaining the chest x-ray was that it was his practice to do so where patients were suspected to be suffering from serious liver disease, such as liver abscess or liver cancer. He said that he did this in these cases because the only part of the body where you can see if there is anything under the disphragm on the right side which may be protruding up to the lung is from a frontal chest x-ray. When referred to the x-ray report dated 8th September 1975 from the Elite x-ray service (Ex. P.4) Dr. Wong agreed with the findings that both lungs were clear, that the heart itself was not enlarged, and that the aortic arch was prominent with calcification seen along its wall. He disagreed with the finding in this report that the diaphragm was negative and said that this was not correct in his opinion because clearly the right side of the diaphragm was elevated in comparison with the left side. Dr. Wong was that it was important for him to see if there were any inflammatory changes over the diaphragm but that none had shown up on this chest x-ray and that there was no evidence of chest infection which may have accounted for her condition. He said that the elevation and smoothness of the diaphragm on the right side confirmed that the liver was enlarged. After examination of this x-ray Dr. Wong said that he probably came to the conclusion in 1975 that the Plaintiff did not have a liver cancer bulging out of the diaphragm. This witness said that judging from this x-ray alone it was difficult to say whether or not there is an abscess of the liver as the right lung does not show inflammatory changes and there was no indication of reactive effusion or fluid above the diaphragm on the right side which would have been signs of a liver abscess. Dr. Wong ordered a second chest x-ray in November 1975 soon after the first one to check the area of the diaphragm again. He agreed with most of the findings of the Elite x-ray service report (Ex. P.5) and, in particular, the finding that the right side of the diaphragm was elevated and that there is a linear fibrotic shadow shown in the middle zone of the right lung indicating a healed old scar. Dr. Wong said that there was pinimal difference between the September and November chest x-rays taken in 1975 and he would have interpreted both in a similar way. This witness said that in his memory the diagnosis of the Plaintiff's condition was one of the most challenging he had ever had and he would not have reached a firm diagnosis even after inspecting the second chest x-ray. Dr. Wong said that the Plaintiff's symptoms did not fit any of the established patterns and she did not show any signs of liver cancer in her blood and other tests at that stage.

19. Dr. Wong was referred to 2 test reports on the Plaintiff in 1977:

20. Dr. Wong was referred to a spinal x-ray film taken on 17th June 1982 after the Plaintiff had complained sciatic pain in her lower back. This x-ray film was produced as Exhibit P.9. In his evidence Dr. Wong said that he noticed two most unusual features, firstly, calcification of the liver and, secondly, something that looked like a handle of wire in the patient. As a result of this he said he eventually persuaded the Plaintiff to have a computerised axial tomography scan on a modern x-ray pachine which uses a computer to formulate pictures of a cross-section of a particular area of the body every few centimetres or so. Dr. Wong produced the C.T. Scan Heport as Exhibit P.12 and 4 films accompanying same as Exhibit P.13 and stated that the report findings that "there were 2 large cysts surrounded by calcific rim and demonstrated in the right lobe as well as the medial segment of the left lobe of the liver" confirmed his diagnosis that the Plaintiff had polycystic disease of the liver. He said that this finding was consistent with the result of radio-isotope scan. Dr. Wong said that he had formed this diagnosis that the Plaintiff had polycystic disease of the liver some time between 1975 and 1979 but had not been able to prove it at that time. Dr. Wong said that polycystic disease of the liver was a very rare condition and that a doctor is not on safe ground in making such a diagnosis, which would normally only be made during an autopsy or in the course of operating on the patient. He said that polycystic disease of the liver is a developmental defect at the foetal stage but the symptom only appears when the patient is 40-50 years of age. Dr. Wong said that after confirming his diagnosis by the C.T. scan the Plaintiff did not require treatment even though she would suffer discomfort and pain as there is no method to treat such an abnormality. He said that the regular injections of reticulose was not given as treatment for polycystic disease of the liver. He said he probably prescribed this drug to treat the Plaintiff's liver but that it does not cure a liver condition. Dr. Wong said that the first few times he used reticulose the Plaintiff responded dramatically with reduction in pain and with a good clinical response. He admitted that he could not find an adequate diagnosis for all the Plaintiff's symptoms, namely, that she had an enlarged and tender liver, and that his diagnosis of polycystic disease of the liver only fitted the clinical aspects of her condition. This diagnosis did not account for the tenderness of her liver for which he treated her by injecting the drugs reticulose and essentiale as they had proved useful to her. Dr. Wong admitted that even today there are limited resources and medicine available to treat liver disease. Dr. Wong reached the conclusion that the Plaintiff's condition had improved after 1982 as she had fewer consultations with him thereafter but mainly came to him to prescribe more medicine up until 1987.

21. In cross-examination Dr. Wong was taken at length by Defence Counsel through his consultation notes (at Pages 131 to 192 of the Bundle) covering the period from 3rd January 1979 to 21st July 1987 to identify fees incurred by the Plaintiff for minor ailments unconnected with treatment of her liver condition. A total sum of $784.00 was identified in this way and Dr. Wong agreed that this sum should be deducted from the fees calculation table (Exhibit P.3) to leave a balance of $57,086.00 ($57,870.00 - $784.00 = $57,086.00). Dr. Wong denied that the small dosage of calcium be prescribed for the Plaintiff to be taken orally and on 4 or 5 occasions by injection would have caused calcification of her body organs including the liver. He rejected Dr. Goh's evidence in this regard. When questioned about the squiggle representing wire on the chest x-ray taken in September 1975 (Ex. P.7), Dr. Wong said that he was only able to see this vague line on the x-ray film after it had been pointed out to him because he said no one looking at an x-ray looks everywhere to find the minutest detail. Dr. Wong said he was only looking at this x-ray film on his x-ray screen in his clinic as a physician rather than as a radiologist, who is the expert in studying x-rays. Dr. Wong also admitted that he did not see the metallic shadow below the diaphragm in the x-ray film taken in November 1975 (Ex. P.8). Dr. Wong said that when he inspected the Plaintiff's spinal x-rays taken on 17th June 1982 (Ex. P.9) he wanted to find out about the bunch of wire plainly visible at the top of these 2 x-ray films. To this end he said he arranged for the C.T. scan to be done 3 months later to check out the representation on these x-rays. Dr. Wong denied that another x-ray would have given him any more information about the wire being inside or outside the Plaintiff's body and would not have solved the question as to why the liver was calcified. He considered that the C.T. scan would answer both these questions and he stated that he was more interested in his patient that the wire shown on the x-ray. Dr. Wong said that the delay in getting the C.T. scan done arose from Plaintiff's case not being urgent, the need to convince her to spend $3,000.00 as the cost of this scan, and that the Raptist Hospital was installing a new C.T. scanning machine in 1982. Dr. Wong admitted that one of the reasons be required the C.T. scan was to check on the bunch of wire in the 1982 spinal x-rays but he said it was not the main reason, which was the calcification of the Plaintiff's liver. Dr. Wong admitted that he was very surprised to see the wire on the spinal x-rays in 1982 and that his first impression was to ask the Plaintiff if she had had something put inside her body but she said she did not. When asked why he did not arrange for an x-ray of the Plaintiff's abdomen which would have been much quicker and cheaper to confirm that wire was inside her body, Dr. Wong replied that his concern on seeing the definite pathology of the liver was to find out the cause of this problem. He admitted he also had a duty to his patient to rind out about the bundle of wire seen on the x-rays and whether it was insider her body or not. Dr. Wong considered that an x-ray of the Plaintiff's abdomen would have been unnecessary work as it would have given the same information as the spinal x-rays without answering both questions as he hoped the C.T. scan would. When questioned about why it never occurred to him that the calcification was around an abscess produced by the surgical pad left inside the body, he replied that he wouldn't dare to make such an assumption or commitment and that he didn't think of that at the time. Dr. Wong added that he didn't think any doctor or surgeon would have made such a commitment that the coil of wire had caused such a big calcification. When it was put to Dr. Wong that the only thing that the wire seen on the 1982 x-rays could have been was a surgical swab or pad with metallic thread, he denied that the wire had any particular feature to identify it as a surgical swab or pad and that the Plaintiff would require a barium meal x-ray examination to show up the wire well enough to identify it as a surgical swab or pad. This witness referred to the barium meal x-ray taken in 1987 (Ex. P.15), which shows a considerably larger area of wire than the 1982 spinal x-rays (Ex. P.9) which show a close coil of wire, to point put that he could not have recognised the wire in the 1982 x-rays as metallic thread in a surgical pad. Dr. Wong explained that all doctors are busy in their work whatever their speciality and that they only look for pathological things in x-rays, that is, diseases occurring naturally in humans which they want to discover. Dr. Wong claimed that he wrote a note to the radiologist doing the C.T. Scan in 1983 to look out for a foreign body as well as for polycystic disease of the liver. When questioned as to why he had not gone back to the radiologist doing the C.T. Scan to check why there was no mention of the wire in his report (Ex. P.12), Dr. Wong said he had no experience with this modern medical technology and respected the findings of the radiologist which he did not query. When asked about the C.T. Scan report (Ex. P.12) only referring to confirmation of his diagnosis of polycystic disease of the liver without reference to any investigation of any foreign body being present Dr. Wong was evasive and defensive. When questioned about whether the reference to "curvilinear calific shadowing is also seen within this mass" in the C.T. Scan report taken in 1987 (Page 6 in the Bundle), Dr. Wong admitted that this expression meant a curved calicified line or shadow but he could not say whether or not this was a reference to a foreign body without seeing the C.T. scan itself. Dr. Wong was prepared to admit that the curvilinear line referred to in the 1987 C.T. scan report may have been caused by the wire in the surgical pad but that the radiologist had not specified this in his report. Dr. Wong didnot offer any other explanation for the presence of this curvilinear line, but after referring to the barium meal x-rays (Ex. P.15) he said that those x-rays showed a thin line or thread as compared to the 1987 C.T. scan which showed a thick curvilinear line. When questioned about the movement of the wire within the swab varying with its movement, the angle of the film, and the movement or position of the patient Dr. Wong agreed and commented that they seemed to be arguing over why be didn't see a "phantom".

22. When asked why he had not referred the Plaintiff to be examined by a surgeon, Dr. Wong replied that he had examined hundreds, if not, thousands of patients with liver diseases and considered himself qualified to know if a liver patient could be save by surgery. When Dr. Wong was asked if his failure to see the wire from the surgical pad in the 1975 x-rays was a mistake on his part, he would not accept that proposition as it was his opinion that no doctor, who saw those x-rays, could say that the metallic wire was a surgical pad or swab. Furthermore, he said that there is no such thing as a definite shadow which typifies a surgical pad or swab that you can define and that is why he described the shape and size of any pad or swab as a "phantom". When questioned whether he had ever considered that a foreign body left after the 1967 operation could have caused a subphrenic abscess in the Plaintiff, Dr. Wong replied that this had proved to be the situation in this case but that one can ever be certain in medical practice where doctors only consider treating patients for diseases, rather than always being on guard for the mistakes of others which may never happen in one's lifetime. Dr. Wong refused to admit that his failure to see the metallic wire in the 1975 x-rays was a mistake which if it had not occurred could have led to a diagnosis of the mass in the area of the liver as a subphrenic abscess resulting in the patient being referred to a surgeon for its removal in 1975. He pointed out that several other persons who had inspected the 1975 x-rays including the radiologist had failed to see the metallic wire there. Dr. Wong stated that his only mistake was that he didn't insist on or enforce the Plaintiff to accept his advice to have an operation in 1983. Dr. Wong gave evidence that when he received the C.T. Scan report in 1983 he told the Plaintiff's daughter (P.W.5) of her mother's condition, namely, the 2 large cysts on her liver, and that as the Plaintiff had had infection before it would be in her best interests if she should have the 2 cysts remoyed from her liver to prevent any further risk of infection. Dr. Wong said that his advice was not accepted, maybe because the Plaintiff was doing so well at that time. Dr. Wong admitted that there was no reference to this advice in his consultation notes. Finally, Dr. Wong agreed that it was a doctor's duty to himself inspect any x-ray film or scans on his patient, in case the radiologist may have missed something and to check that the area complained of was covered by the film or scan. Dr. Wong qualified his answer by saying that he did not consider himself to be superior to the radiologist, who was the expert in his specialist field, or to correct him if he had not done his job properly.

23. In re-examination Dr. Wong stated that the decision not to have the operation recommended by him in 1983 was very reasonable one because of the Plaintiff's age, the fact that his diagnosis of polycystic disease of the liver was a benign condition, the risk of further infection was rather remote, and there was the question of her financial circumstances to beet the cost of an operation. Dr. Wong said that in the 1987 operation on the Plaintiff the 2 large cysts on the liver were drained but not removed and this was the same treatment he had recommended in 1983.

24. The Defendant called 2 medical practitioners to give evidence. The first witness was Dr. S.T. Fan who is a lecturer in surgery at the University of Hong Kong and whose special interest is hepato-biliary surgery. This witness confirmed his report written on 16th November 1988 (Page 209 of the Bundle) in which he stated that a plain x-ray of the abdomen should reveal gauze labelled by a radio opaque thread. After close examination of the 1975 x-rays (Exs. P.7 and P.8) in Court Dr. Fan was eventually able to locate a radio opaque thread which he described as very suspicious in the sense that there may be something foreign in the abdomen or on the patient's skin. He said that the next step would be to take an x-ray of the abdomen and to ensure that the patient had nothing on his skin when that x-ray was taken. Dr. Fan said that if the x-ray of the abdomen showed the same line he would suspect that there was a foreign body inside the patient. Moreover, he said that if the patient had had an earlier operation he would suspect the foreign body to be retained gauze and arrange for an operation to remove the foreign body. Dr. Fan said in cross-examination that a radio opaque line can usually be seen clearly on a chest x-ray and that an x-ray of the abdomen would not be necessary to detect same. Dr. Fan said that, although the 1975 x-rays were fading in their quality, if they were examined on an x-ray screen box, the radio opaque line should be readily identified. He said such a line is suspicious and one can safely assume that it is qauze even if the patient's earlier operation was many years ago. Dr. Fan explained that where his report read that the "presence of calcification could mask the thread" he meant that this could be so if the calcification had the same degree of radio density as the thread.

25. The second and last witness called by the Defendant was Dr. C.Y. Watt who has the following medical qualifications MBDS (H.K.), FRCS (Ireland), FRCS (Edinburgh), FACS, and a member of the World Association of hepato-pancreto-biliary surgery and whose present position was senior consultant surgeon at Queen Elizabeth Hospital. Dr. Watt said he examined the Plaintiff on 30th November 1988 and wrote the report at Pages 206-208 of the Bundle. He corrected a typing error in Paragraph 8(c) of his report by substituting the word "raytec" for "latex". Upon examination of the Plaintiff's 1975 x-rays Dr. Watt said that there were 2 curvilinear radio opaque lines to be seen below the diapbragm which were probably foreign bodies. With knowledge of the Plaintiff's history of a prior operation Dr. Watt stated that this foreign body was obviously a retained swab. He said that a plain x-ray of the abdomen would be advised to confirm the presence of the foreign body. Dr. Watt first examined the 1975 x-rays (Exs. P.7 and P.8) in September 1989. When asked about Dr. Louis Wong not having seen the radio opaque line in the 1975 x-rays Dr. Watt said that it may depend on the strength of the lighting in the x-ray screen box, although normally the such lighting should be strong enough to detect such lines. Dr. Watt was referred to the Plaintiff's spinal x-rays (Ex. P.9) taken in June 1982 which he had also seen previously. He said that in both x-ray films curvilinear opaque lines are to be seen in the right upper quadrant of the abdomen and that in one of the x-rays there is also a soft tissue mass with a calcified wall detectable. When asked to comment on Dr. Louis Wong's evidence that he saw the wire on these x-rays but did not know if it was inside or outside the body and had sent the patient for a C.T. scan some 8 months later, Dr. Watt said that if an x-ray film shows abnormal shadowing it can either be genuine or caused by an artefact during the developing of the film. Dr. Watt went on to say that in case of doubt another x-ray should be requested and the patient particularly advised to take off his or her clothes and any ornaments in the area of the x-ray film and to wear only a plain cotton gown without commercial labels. He said that if the second x-ray findings were the same the presence of a foreign body inside the body would be genuine. Dr. Watt did not consider that Dr. Louis Wong's action in sending the patient for a C.T. scan some 8 months later was a reasonable approach to these abnormal findings. Dr. Watt stated that any professional seeing such abnormal findings should act immediately and treat the patient accordingly by requesting a proper x-ray of the abdomen to confirm the presence of calcification and the foreign body. Dr. Watt said that having done that the x-ray would show that the calcification and wire there could only be shadows of foreign bodies and the body reaction to their presence. In such circumstances Dr. Watt said that surgery was definitely indicated without further investigation. He went on to say that if a professional medical man saw such abnormal shadows and did not know what they were, which is unlikely, he should ask colleagues for their opinion. In Dr. Watt's opinion failure to do so was not acceptable. He said that if an operation is not done the foreign body would cause infection or inflammation in the body that would give a lot of suffering to the patient and if the infection progressed it could be fatal. Dr. Watt had pointed out that the curvilinear radio opaque lines were very obvious in the 1982 x-rays of the Plaintiff's spine and much more obvious that the lines shown on the 1975 x-ray films. When asked to comment on the effect of removing the abscess around the foreign body on the extent of the calcification around it Dr. Watt stated that an abscess surrounded by a calcified rim is a very chronic abscess, that is, an abscess over a long period of time, and that the effect of delayed removal of a foreign body would act on its chronicity and make subsequent management more difficult. Dr. Watt stated that the longer the foreign body remained in the patient's body the worse would be the patient's condition. It was Dr. Watt's opinion that the calcium prescribed by Dr. Louis Wong for this patient for at least 2 years from 1979 would definitely have effected the calcification of the abscess. Dr. Watt said that even in individuals with normal blood levels of calcium it can be deposited in the walls of big blood vessels and in areas of chronic inflammation. He added that calcium taken orally or by injection over for a long time would definitely increase the chances of calcium being deposited in the big blood vessels, such as, the aorta, and in soft tissue, such as, in the wall of an abscess in this patient. When asked to examine the C.T. scan film taken in 1983 (Fx. P.13) Dr. Watt reported that he could see radio opaque lines and a dense mass present and that such findings are suspicious of a swab: Dr. Watt said that the diagnosis by Dr. Louis Wong that the Plaintiff had polycystic disease of the liver was not supported by the radiologist in his 1983 C.T. scan report (Ex. P.12) and that as should not have that diagnosis after seeing the spinal x-rays taken in 1982 because the shadows seen there are abnormal did not consistent with his diagnosis. Dr. Watt said he did not know Dr. Louis Wong and could not comment on his experience or ability in treating liver patients.

26. Dr. Watt was questioned about the professional duties of a treating doctor who orders x-rays of a patient as regard to reading and interpretation of those x-rays and said that the doctor would look at the x-ray film himself as well as consider the radiologist's report to co-relate the findings and the clinical assessment to form his own judgment. When asked if the treating doctor was entitled to rely entirely on the radiologist's report Dr. Watt said that this would depend on the experience and competence of the radiologist but that to do so is a dangerous practice especially if the doctor is going to operate on the patient. In his opinion the doctor who requests x-rays should read and interpret them himself.

27. Dr. Watt said that after consideration of the 1983 C.T. scan and report on the Plaintiff (Exs. P.12 and P.13) he would have seen that the cystic lesions on the liver were abscesses with calcified walls and not simple cysts and he would have sent the patient for an operation as the best form of treatment for this condition. In this way the cystic lesions could be treated by open drainage of same and the foreign body could be removed at the same time. Dr. Watt disagreed with the evidence of Dr. Louis Wong that the 1987 C.T. scan report made no reference to the surgical pad or the wires or shadows indicating same. Dr. Watt said that the last sentence in the first paragraph of that report where it states "curvilinear calcific shadowing is also seen within this mass" refers to the raytec wire which suggests the presence of the surgical pad. He went on to comment that he would expect a physician reading this C.T. scan report to know that the above statement in the report referred to the wire when read together with the C.T. scan films.

28. When Dr. Watt was asked if Dr. Louis Wong in his treatment of the Plaintiff should have considered a diagnosis of chronic subphrenic abscess surrounding a surgical pad, he replied that Dr. Wong should have had a suspicion of this condition after inspecting the chest x-rays taken in 1975. He went on to say that if Dr. Wong had not seen the curvilinear lines on the 1975 x-rays he would have missed this diagnosis at an early stage of his treatment. However, Dr. Watt said that the lines and wire in the 1982 spinal x-rays are so obvious that these must have been seen by Dr. Wong. In Dr. Watt's opinion a doctor investigating a liver condition should obtain an x-ray of the abdomen after a blood test for liver function, but before other investigations, such as, ultrasound examination, liver scan or a C.T. scan so that if the Plaintiff had received a thorough and complete investigation for her liver condition in 1975 the wire should have been detected at that time. Dr. Watt concluded his examination-in-chiof by saying that the only realistic diagnosis by any doctor, who had seen the Plaintiff's spinal x-rays in 1982, was the presence of a chronic subphrenic abscess surrounding a surgical pad within the Plaintiff's body and that there could have been no other diagnosis at that stage.

29. In cross-examination Dr. Watt stated that raytec was the name given to the radio-opaque wire on surgical gauze swabs or pads, whereas latex is a soft form of rubber usually used in making urinary catethers or examination gloves. He said that the reference to latex wire in Dr. Frank Cheng's report should be raytec wire. Dr. Watt admitted that in September 1989 when he examined the earlier x-rays taken of the Plaintiff in 1975 and 1982 there was no doubt in his mind that he would see radio-opaque lines of raytec wire in those films because he knew that a surgical pad had been removed from the Plaintiff in 1987. Dr. Watt agreed that the radio-opaque line in the 1975 chest x-rays was short and small whereas the radio-opaque lines in the 1982 spinal x-rays were so obvious that they could not be anything else but raytec wire. He explained that when doctors see this radio-opaque line or shadow they can be almost 100% sure that it is raytec wire because the radiologists working in Government Hospitals in Hong Kong will double check the x-ray film after being taken and before sending the patient away. For this reason Dr. Watt said that extrinsic causes for the radio-opaque lines can be eliminated. Dr. Watt conceded that he did not have the benefit of hearing the evidence of Dr. Louis Wong given in Court over 3 days at this assessment. When asked if a C.T. scan was an acceptable method of finding out 2 questions, firstly, whether the liver is calcified and, secondly, whether a foreign body is present, Dr. Watt agreed but said that Dr. Louis Wong had the C.T. scan done in 1983 to check for polycystic disease of the liver and not to check for the presence of a foreign body. Dr. Watt said it was not unusual to find the formation of a very chronic abscess in a case where a surgical pad was left behind as happened in this case. He said there was no way of telling from statistics which is more common in these cases, that is, a chronic abscess with a thick calcified wall around it preventing infection spreading to other parts of the body, or an acute abscess which would spread infection because it was not contained. Dr. Watt agreed that one of the symptoms of polycystic disease of the liver was an enlarged liver but he did not consider the Plaintiff was suffering from this disease because, firstly, there would be more than 2 cysts with cysts all over the liver, and secondly, if there were only 2 cysts present they should appear on the left lobe and it is more likely to have kidney involvement as well. Heexplained that in this case, 1 cyst was on the right lobe and the other in the middle segment on the left lobe, whereas, the lateral segment of the left lobe of the liver and the kidney were free of cysts.

30. In re-examination Dr. Watt said that he would expect any doctor to see the raytec wire outline in the 1975 chest x-rays because the image is fairly obvious and they are taught in medical school to look out for such outlines. He added that if a doctor saw an abnormal shadow on an x-ray and did not know what it was then he should consult with colleagues and/or medical reference books to find out an explanation for its presence on the film. It was put to Dr. Watt that the C.T. scan taken in 1983 was to ascertain whether the liver was calcified and also whether a foreign body was present as Dr. Louis Wong had given evidence that he requested the scan on a pink slip upon which he had written polycystic disease of the liver and foreign body or the initials for same "F.B.", however, in reply Dr. Watt said that if the instruction to the radiologist taking the C.T. scan was meant to be a returning diagnosis then from his experience with radiologists their report would repeat all the diagnoses mentioned. In the 1983 C.T. scan report (Ex. P.12) under the heading "Clinical Bistory and Physical Examination Findings Summary" the only reference is to polycystic disease of the liver without any specific reference anywhere in the report to the pressure or otherwise of a foreign body and in such circumstances Dr. Watt had doubt whether this possible diagnosis had been put down on the request form. Dr. Watt in reply to a question from the Master said he could see no reason why a normal x-ray of the Plaintiff's abdomen was never taken while she was under medical treatment since 1975 and that there would be no complications or dangers, such as, the patient being preqnant because of her age during that period. Dr. Watt went on to say that, if preparation is good, a plain x-ray of the abdomen can provide much information of the abdominal organs and tissues and, above all, it is the essential investigation for the presence of foreign bodies after surgery and for conditions of intestinal obstructions.

31. Leave was granted to Counsel for the Plaintiff to dile an Amended Statement of Claim to cover various items of special damages at the close of the Defendant's evidence after no objection was taken by Counsel for the Defendant. At the request of the Master both Counsel for the parties provided final submissions in writing and spoke to those submissions in their final addresses.

32. As set out in the helpful submissions of both Counsel, the law to be applied to the facts and evidence adduced at this assessment was generally agreed upon. It is the Defendant's case that they should only be liable for foreseeable acts and the damages flowing therefrom. The Defendant relies on the Latin maxim, novus actus interveniens, translated as a new intervening force or action in contending that the actions of two of the doctors who treated the Plaintiff are not within a class of foresseeable acts because they failed to exercise that standard of care reasonably to be expected of treating doctors.

33. Starting with the approach of Greer L.J. in Havnes v. Harwood [1935] 1 K.B. 146 at 153 the test applied was whether the intervening act was the natural and probable consequence of the wrongful act. Lord Justice Greer at P.156 in this case said:

34. The question applied in earlier cases as to whether there is novus actus interveniens can only be answered after consideration of the entire background of facts, and, in particular, of the quality of that later act or event. In evaluating the quality of the later act or event, it is helpful to bear in mind the following advice of Stephenson L.J. in Knightley v. Johns [1982] 1 W.L.R. 349 at 366G to 367B:

"The question to be asked is accordingly whether that whole sequence of events is a natural and probable consequence of the first defendant's negligence and a reasonably foreseeable result of it. In answering the question it is helpful but not decisive to consider which of these events were deliberate choices to do positive acts and which were mere omissions or failures to act; which acts or omissions were innocent mistakes or miscalculations and which were negligent having regard to the pressures and the gravity of the emergency and the need to act quickly. Negligent conduct is more like to break the chain of causation than conduct which is not; positive acts will more easily constitute new causes than inaction. Mistakes and mischances are to be expected when human beings, however well trained, have to cope with a crisis; what exactly they will be cannot be predicted, but if those which occur are natural, the wrongdoer cannot, I think, escape responsibility for them and their consequences simply by calling them improbable or unforeseeable. He must accept the risk of some unexpected mischances: ...... But what mischances? The answer to this difficult question must be dictated by common sense rather than logic on the facts and circumstances of each case."

This text was cited with approval by Cons & Zimmern JJ.A. in A-G v. Ho Hing Mui Civil Appeal No.60 in 1982 at P.10 & 13.

35. The Defendant having conceded liability in this case rightfully accepts that its servants or agents acted negligently in leaving a surgical pad in the Plaintiff's body during a gall bladder operation in 1967 and must therefore be liable for all damages flowing from this negligence which could reasonably have been foreseen at the time of the original negligence. On this basis the Defendant accepts that general damages for the pain and suffering of the Plaintiff from 1967 until 1975 when she consulted Dr. Louis Wong and also for the pain and suffering caused by the operation to remove the surgical pad in 1987 are payable by the Defendant subject to the provisos that this pain and suffering was aggravated by the delay in diagnosis of the Plaintiff's problem by the acts and omission of other doctors and that had the operation been performed earlier, such as, in 1975 the cost would have been considerably cheaper.

36. On this basis that the Defendant is only liable for foreseeable acts and the damages flowing therefrom it is the Defence contention that the acts or omissions of Drs. Louis Wong and Stephen Soo were not within a class of foreseeable acts because they failed to exercise that standard of care to be exected of treating doctors. In the case of Dr. Louis Wong the Defendant's Counsel alleges that this failure is evidenced as follows:

37. Counsel for the Plaintiff evaluated the treatment by Dr. Louis Wong under 3 headings as follows:

In conclusion Plaintiff's Counsel submitted that the failure of Dr. Louis Wong to notice the raytec wire in the 1975 chest x-rays and his mistaken but not unreasonable reliance on the findings of the radiologist who made the 1983 C.T. scan report are unfortunate but not unforeseeable incidents.

38. In the case of Dr. Stephen Soo the Defendant's Counsel submitted that the Plaintiff was administered injections without the doctor first:

The Defence contention is that the actions or omissions of Dr. Louis Wong and Dr. Stephen Soo prolonged the Plaintiff's suffering by failing to diagnose her problem, and in the case of Dr. Wong, prescribing calcium over a long period which possibly increased the calcification of the abscess which accounts for some of the Plaintiff's present chain. Counsel for the Defendant says that where there is a conflict of evidence or opinion between that of Drs. Louis Wong and Stsphen Soo and, that of Drs. Victor Goh, C.Y. Watt and S.T. Fan, the evidence and opinions of the latter group should be preferred as being more reliable because:

39. Counsel for the Plaintiff in her submission states that Dr. Stephen Soo's act of giving injections to the Plaintiff and his failure to diagnose for illness did not amount to novus actus interveniens because:

40. Adopting the test laid down in Knightley v. Johns [1982] 1 W.L.R. 349 and cited with approval by the Court of Appeal in Attorney-General v. Ho Hing Mui Civil Appeal No. 60 in 1982 to the actions of Dr. Stephen Soo in this case it would be unreasonable to find that his conduct was negligent. While it was a deliberate choice by Dr. Soo to do the positive act of administering injections of medicine to the Plaintiff at ber request, this decision can only be criticised for his failure either to communicate with Dr. Louis Wong, who was treating her for a liver condition, or to have given the Plaintiff a full clinical examination himself. This was a mistake or error of judgment on the part of Dr. Soo, but not such as to constitute negligent conduct. Applying common sense to the facts and circumstances of this case Dr. Soo was a busy general practitioner operating a medical clinic in the Wah Fu Estate and was requested by the Plaintiff to administer to her by injection medicine prescribed by her treating doctor as a matter of convenience. The failure to refer to Dr. Louis Wong before agreeing to give these injection was less than the standard of care to be expected of a treating doctor but not such as to render the consequences unforeseeable. The omission of Dr. Soo was an error of judgment or a reasonable mistake on his part which must be recognised as a risk incidental to medical treatment and inherent in the human fallibility of all medical practitioners. For the above reasons and those set out by Counsel for the Plaintiff in the previous paragraph, in particular, that he was merely the conduit for Dr. Louis Wong's treatment, the chain of causation has not been broken by Dr. Soo's actions and/or omissions to establish novus actus interveniens.

41. Turning to the actions and/or omissions of Dr. Louis Wong, who treated the Plaintiff between 1975 and 1987, it will be more convenient to consider separately the treatment given in 1975 and later and that given in 1982 and later. In consideration of the 1975 treatment Dr. Louis Wong is placed at a serious disadvantage in that his consultation notes relating to the Plaintiff from 1975 to the end of 1978 have been mislaid in changing premises and be was forced to rely on his memory for treatment given up to 15 years ago. The main objection to Dr. Louis Wong's treatment in 1975 was his failure to see the shadow or line of raytec wire in the chest x-ray films taken in September and November. The arguments for and against this omission have been set out at length earlier in this assessment and will not be repeated again. In deciding whether this omission by Dr. Louis Wong was a mere innocent mistake or negligent conduct the following factors were considered crucial:

42. In applying the same test to these omissions by Dr. Louis Wong to see the shadow or line in the 1975 chest x-ray films the real issue that arises is whether such mistakes or omissions are sufficient to break the chain of causation. In other words, was Dr. Louis Wong's failure to notice the raytec wire on the x-ray films in 1975 one of the things likely to arise as a consequence of having the surgical pad in the Plaintiff that a reasonable man would have foreseen it. After taking into account all the facts and circumstances of this case, in particular, those factors outlined above, and applying common sense to same it is not considered that Dr. Wong's omissions or failures to act in 1975 constituted negligent conduct. While this mistake or miscalculation by Dr. Wong may be considered unreasonable rather than a mere innocent mistake, it cannot be said to be so improbable or unforeseeable that the Defendant as the original wrongdoer can escape responsibility on the basis of unforeseeability. Furthermore, Dr. Wong's conduct in this regard cannot be considered sufficiently unreasonable that it gives rise to an intervening act or novus actus interveniens.

43. In consideration of the second period of Dr. Wong's treatment during 1982 and subsequent thereto the doctor's consultation notes are available and these events are comparatively more recent. The objections raised to Dr. Wong's treatment at this stage was that after seeing the clear lines of raytec wire on the spinal x-ray films in June 1982 he failed to investigate the matter properly apart from referring the Plaintiff for a C.T. scan some 8 months later. Further objections were that Dr. Wong (1) never obtained an abdominal x-ray at any stage; (2) referred the patient or x-rays to another doctor for a second opinion; (3) persisted in paintaining a diagnosis of polycystic disease of the liver; (4) never considered a diagnosis of subprenic abscess containing a surgical swab. The factors relied on by both parties in regard to these objections have been fully canvassed earlier and will not be repeated. In consideration of whether or not Dr. Wong's actions and/or omissions were both unforeseeable and sufficiently unreasonable to break the chain of causation by giving rise to an intervening act, that is, a novus actus interveniens, the following evidence was found to be more persuasive on this crucial issue:

44. In applying Stephenson L.J.'s test as set out in Knightley v. Johns supra the real question to be asked is whether the whole sequence of these events is a natural and probable consequence of the Defendant's negligence and a reasonably foreseeable result of it. In the actions of Dr. Wong since June 1982 in treating the Plaintiff there were both deliberate choices to do positive acts, such as, to arrange for a C.T. scan some 8 months later and to persevere with the same treatment; and also there were omissions and failures to act, such as, the failure to make an early investigation into the cause of the wire thread shown on the spinal x-rays or to seek a second opinion, if in doubt over his diagnosis. These acts and omissions were not innocent mistakes or reasonable miscalculations but must be considered to be conduct which was begligent taking into account that Dr. Wong was not acting under the pressures and the gravity of an emergency or the need to act quickly, which was the case of the surgeon in Attorney General v. Ho Hing Mui supra. As cited with approval in that case "the answer to this difficult question must be dictated by common sense rather than logic on the facts and circumstances of each case". Adopting this advice and applying the test referred to above, the decision reached in this case is that the negligent conduct of Dr. Louis Wong since he inspected the spinal x-ray films in June 1982 has broken the chain of causation. His failure to exercise that standard of care reasonably to be expected of a doctor treating a patient has resulted in improbable or unforeseeable consequences, namely, the Plaintiff continuing to suffer from the presence of a subprenic abscess around a surgical pad inside her body for a further 5 years; the operation to remove same being postponed for that period during which the Plaintiff remained at risk from infection with the possibility of a pore serious outcome; and the residual pain and biscomfort suffered by the Plaintiff since the operation in 1987 being increased from the longer period of calcification around the foreign body from 1982 to 1987. It follows that the Defendant can rely on novus actus interveniens for the unforeseeable and unreasonable actions and omissions of Dr. Wong for the period from June 1982 to July 1987 when appropriate action was taken to treat the Plaintiff.

45. Prior to opening the case for the Plaintiff Miss Kwan raised the issue of whether the Defendant could rely on noves actus interveniens unless it had been pleaded with particularity, which is not the case in the Defence filed by the Defendant. Miss Hartstein for the Defendant in reply contended that it was for the Plaintiff to prove each item of damages claimed and also whether those damages were legally foreseeable by the Defendant at the time of its negligence; and that as such, the proof of damages was a matter of evidence to be assessed by the Court rather than a matter of pleading. In its Defence the Defendant has only admitted the fact of a gall bladder operation on the Plaintiff in January 1967 and that a surgical swab remained inside her abdomen after the wound was sutured with the Plaintiff being put to strict proof of all other matters. In the earlier case of Attorney-General v. Ho Hing Mui supra the Crown had merely denied that such of the symptoms of ill-health or injury as the Plaintiff may prove to be suffering were caused or contributed to by the piece of gauze left in the abdomen. In that case Leonard V.P. remarked that the Crown's claim that it was not answerable because of an intervening party had not been pleaded with any great particularity. Such criticism is even more valid in this case where no attempt has been made by the Crown to raise this defence in the pleadings. Regardless of this defect in the pleadings, it is ruled that the Plaintiff is required to prove each item of damages in a negligence action on a balance of probabilities and the Defendant can raise the issue that the head of general damage is too remote and not foreseeableat the time of its negligence. As for the Plaintiff, it is most surprising that Dr. Louis Wong, at least, was not joined as a Defendant in this action. The Defendant, somewhat belatedly after judgment on liability had been entered and the date of this assessment had been fixed, was granted leave to join Dr. Louis Wong and Dr. Stephen Soo as Third Parties. As the liability of the Third Parties has yet to be determined and they were not represented at this assessment, despite being crucial witnesses, the Plaintiff may be unable to recover damages aginst Dr. Wong as a Third Party for the 5 year period of his novus actus interveniens. However, if the statutory 3 year time limit has expired to bring proceedings against Dr. Wong, the legally aided Plaintiff should seek independant advice as to whether or not action should be taken against her solicitors.

46. The bottom line at this assessment must be the quantum of general damages to be awarded for the Plaintiff's pain, suffering and loss of amenities. As explained in Winfield and Jolowicz on Tort at page 624, pain and suffering includes the suffering attributable to the injury itself and to any consequential medical treatment, and worry about the effects of the injury upon the Plaintiff's way of life and prospects, including worry attributable to "compensation neurosis" which will cease on the determination of this claim for damages. Lord Scarman in Lim v. Camden Area Health Authority [1980] A.C. 174 said:

"An award for pain, suffering and loss of amenities is conventional in the sense that these is no pecuniary guideline which can point the way to a correct assessment. It is, therefore, dependent only in the most general way upon the movement in money values ...... As long, therefore, as the sum awarded is a substantial sum in the context of current money values, the requirement of the law is met."

 

47. It is in the nature of this head of general damages for pain, suffering and loss of amenities, which is a claim for non-pecuniary loss, that it cannot be translated directly into money, but nevertheless the only form of compensation available is an award of monetary damages, so that an assessment of damages has to be made. Such damages are said to be "at large" and their gualification cannot necessarily be done on a comparison basis where a suitable standard for comparison is not available. In general terms the damages awarded for non-pecuniary loss should be fair and reasonable, taking into account all the relevant heads of damage, that though awards should be conventional they should not be artificial, that there should be an adequate degree of consistency in awards and that awards should keep pace with the times, in particular, inflationary trends in the value of money.

48. It is appreciated that the above statements and remarks have been made in cases in the U.K. and that in Hong Kong the Court of Appeal in Lee Ting Lam v. Leung Kam Ming (1980) H.K.L.R. 657 and more recently in Lau Che Ping V. Hoi Kong Ironwares Godown Company Limited [1988] H.K.L.R. 650 introduced a sliding scale for damages to be awarded for pain, suffering and loss of amenities as a guideline on the basis of 4 categories accordingly to the severity of the disablement. The 4 categories were labelled serious, substantial, gross disability and disaster with increased awards according to the severity of the disablement. In the later case the Court of Appeal at P.653 observed that they would not exclude reliance upon English authorities in matters of principle and that useful guidance may perhaps be found with regard to rare or particular circumstances or by way of comparison of one injury with another. Later on the same page Cons Acting C.J. in that case had this to say:

"The starting point is a comparison of the injuries in the case in question with injuries in similar cases in which awards have already been made by the court. Consideration must next be given to any special feature or features which might influence the award in the particular case and only then, when a tentative conclusion will already have been reached, should attention be turned to the established guidelines. If the tentative conclusion does not conform to the guidelines then serious consideration should be given to whether there is indeed sufficient justification for an award that is otherwise apparently out of line with the general pattern. This Court did not by Lee Ting Lam intend to confine damages in a straight jacket. If the sartorial analogy is to be pursued, this Court hoped rather to provide them with what in earlier days would have been referred to as a good foundation garment, a garment upon which all other dresses appropriate for particular occasions would sit comfortably."

 

49. And later at page 654 the Acting Chief Justice had said:

"Changes inevitably take place in the everyday life of any growing society and the expectations of the average person and family tend to increase as each year goes by. Hong Kong is no exception, and those changes must be reflected in the general standards of awards, otherwise the awards will cease to be regarded as fair and reasonable compensation."

 

50. In the light of these comparatively recent comments of the Hong Kong Court of Appeal it is most surprising that both Counsel for the parties have slavishly followed the serious injury category in quantifying the sum to be awarded under this head of damage. One would have expected that Counsel for the Plaintiff, at least, would have suggested a much higher award than $100,000.00 upwards on the basis of a serious injury category of $135,000.00 to $180,000.00. Counsel for the Defendant submitted that the Plaintiff's damages should not be within the range of serious injury as she had no serious disability and the pain she suffered over the years was not incapacitating, but, for the most past minor and infrequent. The figure of $80,000.00 was proposed as being appropriate. Furthermore, Counsel for the Defendant submitted that the Defendant should only be liable for 30% of this figure of $80,000.00 being the pain and suffering for the 8 year period prior to the Plaintiff's first consultation with Dr. Louis Wong in 1975 and for some of the wound pain since her operation in 1987.

51. Adopting the starting point proposed in Lau Che Ping supra clearly this is not a case where a comparison of the injuries in the case can be made with injuries in similar cases in which awards had already been made by the Court. The only relevant authority cited at this assessment was an award of $85,000.00 by Mr. Justice Fuad in 1982 in the case Ho Hing Mui v. Attorney-General H.C.A. Wo. 4321 of 1981. However, the facts and circumstances of that case are very different from the present case. The special feature in this case is that the Plaintiff carried a surgical pad inside her body for almost 21 years despite having had medical treatment for symptoms associated with this cause for 12 years. The conclusion to be reached is a firm one, rather than being merely a tentative one, that this case does not conform to the guidelines and there is indeed more sufficient justification for an award that is otherwise apparently out of line with the general pattern. In assessing the award for pain, suffering and loss of amenities the following factors are considered pertinent:

52. Turning to the special damages the Plaintiff is entitled to recover the cost to her for medical treatment related to the symptoms arising from the surgical pad within her body:

Counsel for the Plaintiff relies on the evidence of the Plaintiff's daughter (P.W.5) to support this claim and Maintains that the expenses were reasonably incurred in the circumstances with the nurse and attendants being hired through the hospital. Counsel for the Defendant submits that these additional nursing expenses should not be payable by the Defendant as they have not been shown to be necessary and also referred to the account form used by the H.K. Sanatarium and Hospital where provision has been made for private nursing fees to be included, but this was not done in the hospital accounts sent to the Plaintiff. Defence Counsel rely on an unreported decision in 1972 of Assistant Registrar B.L. Jones, as he then was, in Wong Yuk Ching v. Kenneth K.C. Kwan F.C.A. No. 967 of 1971 where he said "It may be customary and convenient for a patient to employ a servant whilst in hospital and to pay gratuities but neither of these expenses can be recovered from the Defendant". In this case there was evidence from the Plaintiff's daughter that there fewer hospital nurses on duty at night time and they could not provide continuous care to the Plaintiff during the night. Furthermore she said that her mother had lots of tubes into her body after the operation and she could not move even to press the button for assistance from nursing staff. In these dircumstances the employment of a registered nurse for constant care of the Plaintiff during the night shift period after the operation for 5 nights from 28th August 1987 to 2nd September 1987 was justified and necessary. Accordingly, this   claim for $2,650.00 on basis of $530.00 per night will be allowed. The employment of 1 nursing attendant during the daytime when more hospital nursing staff were available to care for the Plaintiff and another attendant at night after the initial 5 day period must be a luxury and unnecessary and the cost of same will be disallowed.

53. On this question of special damages Counsel for the Defendant also made the point that the costs allowed for treatment by other doctors in 1987 and the cost of the operation should be reduced to take account of the inflation factor since the date of the Dr. Wong's novus actus interveniens in 1982. It is considered that there is substance and force in this argument as any sum allowed by way of reduction should be recoverable against Dr. Kong if within the statutory time limit or possibly against the Plaintiff's solicitors if outside that time limit. One must be mindful of the following advice of Acting Chief Justice Cons in Lau Che Ping. v. Hoi Kong Ironwares Godown Co. Ltd. supra:

"Updating (of awards) is principally required because of the fall in the purchasing power of money. This can be, and regularly is, taken care of in each individual judgment by reference to the rate of inflation. There is no need for general interference by this Court excert that one would remark that it is dangerous to adopt a standard rate of 10% for each year. That may have been a convenient rule of thumb at one time, but it is no longer appropriate in view of the wide variations that have occurred in the last few years."

Doing the best one can to take account of the inflation factor in Hong Kong between 1982 and 1987 a reduction of 25% will be allowed to the Defendant for the medical expenses allowed to Dr. Jack Wong, Dr. Victor Gob, Dr. Frank Cheng, the H.K. Sanatarium and Hospital accounts, the Victoria Dispensary charges, the cost of tonic food and the additional nursing expenses.

54. A summary of the damages awarded at this assessment are as follows:

(1)     General Damages

(2)     Special Damages

55. Following the English Court of Appeal decision in Birkett v. Hayes [1982] 2 All R.P. 710 there will be interest on the general damages awarded for pain, suffering and loss of amenities at the conventional rate of 2% per annum from the date the writ was issued until the date that the decision on this assessment is delivered and interest on the special damages at 5.4% per annum (being half the judgment rate) from 30th July 1987 (when Plaintiff consulted Dr. Jack Wong) to the date that the decision on this assessment is delivered.

56. The Plaintiff's costs of this action including the costs of this assessment to be met by the Defendant with a Certificate for Counsel on this assessment, to be taxed if not agreed. The Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.