YANG YEE MAN, the administratrix of the estate of LAM LOK KIN, deceased v. LEUNG HING HUNG

HCPI 443/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 443 OF 2010

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D E C I S I O N

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1. This is an appeal from the decision of Master Josephine Chow who ordered that Part G of the plaintiff’s Statement of Damages filed on 17 November 2010 be struck out on the ground that it discloses no reasonable cause of action and that the plaintiff’s application for leave to adduce expert evidence from a clinical psychologist be dismissed. She also made a costs order nisi for costs to the defendant to be taxed and paid forthwith, if not agreed, with certificate for counsel. That costs order has since become absolute.

2. The plaintiff’s husband died as a result of a road traffic accident which occurred on 31 August 2007.  The plaintiff brought these proceedings as administratrix of his estate, and on behalf of the dependants of the deceased. She claimed damages for loss of dependency on behalf of her daughter and the mother of the deceased, and on her own behalf as a dependant of the deceased.  In her Statement of Damages dated 17 November 2010, the plaintiff advanced claims for damages for PSLA, special damages, including pre-trial loss of dependency, and damages for post-trial loss of dependency, loss of accumulation of wealth and bereavement. In section G of the Statement of Damages, the plaintiff advanced claims for her own medical expenses and loss of earnings in a sum in excess of $2.75m in these terms:

“29. At the time of the Accident, both the Deceased and the Plaintiff had assumed the responsibility of taking care of the Daughter (who was then 3 months’ old). However, after the Accident, the services previously provided by the Deceased to the Daughter had to be, and could only be, replaced by the services of the Plaintiff. The Plaintiff has since then shouldered the sole burden of taking care of the infant Daughter.

30. Nonetheless, in view of the sudden and drastic change of circumstances in the Plaintiff’s family, the Plaintiff was under enormous pressure that she required psychotherapy treatment since January 2009.

31. The Plaintiff was diagnosed of suffering from major depressive disorder by Registered Clinical Psychologist Dr Tommy Chan. As a result, the Plaintiff had no alternative but to resign as Senior Audit Manager from 5 January 2010. During her employment, she had received a 7% increment in salary annually. In Dr Tommy Chan’s opinion, the Plaintiff had to take a 3-year break before she would be psychologically fit to return to employment.

32. In the premises, the Plaintiff claims medical expenses incurred at the sum of $106,000 for psychotherapy treatment.

33. The Plaintiff also claims future medical expenses to be assessed.

34. Further, it is pleaded that the Plaintiff has incurred loss of earnings as follows:

Loss of Salary
Year 1	$53,500 x 1.07 x 13	$744,185.00
Year 2	$57,245 x 1.07 x 13	$796,277.95
Year 3	$61,252.15 x 1.07 x 13	$852,017.41
	Sub total :	$2,392,480.36
Loss of bonuses
$42,000 (annual bonus) x 3 = $126,000
Loss of MPF contribution by employer
Year 1	$2,675 x 1.07 x 12	$34,347.00
Year 2	$2,862.25 x 1.07 x 12	$36,751.29
Year 3	$3,062.61 x 1.07 x 12	$39,323.91
	Sub total :	$110,422.20
Loss of medical benefits
The Plaintiff claims a sum of $20,100 under this item.

35.   The total loss of earnings is therefore:

$106,000 + $2,392,480.36 + $126,000 + $110,422.20 + $20,100 = $2,755,002.56”

3. The statutory claim for loss of dependency under the Fatal Accidents Ordinance is limited to the loss of benefit in money or money’s worth which would have accrued to the dependant if the deceased had not died as a result of the tort complained of.  Devlin J, as he then was, stated in Burgess v Florence Nightingale Hospital for Gentlewomen [1955] 1 QB 349 at 357 :

“I think it is clear that the authorities establish that if the benefit [for which compensation is sought in a fatal injuries’ action] arises out of the relationship it need not be a monetary benefit, but it can be services rendered which can then be translated into money; if a relation, out of filial duty or any other motive that arises from the relationship, renders services to the plaintiff which he gives either free or at less than the market rate, the loss of those services is something that can be translated into cash and is recoverable under [the equivalent provisions of] of Act.”

Diplock LJ, as he then was, relied on Devlin J’s statement of principle when he stated in Malyon v Plummer [1964] 1 QB 330 at 349:

“It has, however, long been established, despite these wide words [of the equivalent provisions], first : that the pecuniary loss to the persons for whose benefit the action is brought is the only damage recoverable … and, secondly, that the pecuniary loss recoverable is limited to the loss of a benefit in money or money’s worth which, if the deceased had survived, would have accrued to a person within the defined relationship to the deceased [i.e. a dependant as defined], and would have arisen from that relationship and not otherwise.”

4. In Tsang Mei Ying & Anor v Lam Pak Chiu & Anor [2000] 1 HKLRD 883, the mother of the deceased, who had previously looked after the children, could no longer do so because she suffered depression as a result of the death of her son.  As a result, the plaintiff, the wife of the deceased, found it necessary to give up employment and stay at home to look after her children.  She claimed her loss of earnings as damages arising from the death of her husband.  The Court of Appeal applied the principles enunciated by Diplock LJ in Malyon v. Plummer [1964] 1 QB 330 and rejected this particular claim.  Rogers JA, as he then was, with whom Riberio JA, as he then was, and Godfrey VP agreed, said at 888 E-J :

“Thus, on a narrow view, it seems to me that the plaintiff’s claim for her loss of income could not be maintained because it is a loss of her income as a result of her giving up her own work.

Even, if one regarded the matter on a different footing and considered, as I think might be justifiable, that it was necessary for the plaintiff to give up her work so that her son would have a family member rather than a stranger looking after him, the claim is still not, in my view, recoverable.

Dependency in terms of what is recoverable under the Fatal Accidents Ordinance can be quantified both in terms of money and money’s worth, in other words, services. If, as a result of the death, a dependant has lost services provided by the deceased, then the monetary cost of replacing those services may be recoverable. If the services were of such a personal nature that they could only be replaced by services of a personal nature such as family member replacing a family member in looking after a young child, then the cost of providing that family member might be quantified not on the basis of what it would cost for a child minder but what it would cost for the only available family member to give up their other employment. It would be a matter for the court to decide whether that was reasonable in the circumstances.

So far, there would be no difficulty in quantifying the plaintiff’s claim on that basis.  The difficulty, however, arises from the fact that it was not the deceased that provided the services of looking after the young child, but his mother.”

5. Prior to his death, both the deceased and his wife, the plaintiff, were in full-time employment and their daughter, who was born on 7 May 2007, some 4 months before the death of the deceased, was cared for by another person during their working hours.  It was pleaded in paragraph 29 of the Statement of Damages that after the accident, “the services previously provided by the deceased to the daughter had to be, and could only be, replaced by the services of the plaintiff.  The plaintiff has since then shouldered the sole burden of taking care of the infant daughter.”  On her own pleaded case, the plaintiff continued to work for one year and four months after the accident.  After the accident, the care that she provided to her daughter to replace the services provided by the deceased, was the care that she provided to her daughter after she had completed work and had returned home from work.  Clearly, the value of the services of the deceased that his daughter lost as a result of his death is a recoverable head of claim.  To that extent, the appeal must be allowed and paragraph 29 reinstated into the pleading.  In fact, Mr Robin McLeish, who appeared for the defendant, conceded that paragraph 29 of the Statement of Damages contained a valid claim for the loss of services provided by the deceased to his daughter after he returned home from work.  Mr Osmond Lam, who appeared for the plaintiff, offered to provide particulars of loss and damage under paragraph 29 of the Statement of Damages.  I have fixed a CMC to take place before me on 14 December 2012 at 10 am.  Absent consent from the defendant, the plaintiff can apply at that hearing to amend paragraph 29 of the Statement of Damages to insert these particulars.

6. In prosecuting his appeal, Mr Lam accepted that the claim for medical expenses, pleaded in paragraphs 32 and 33 of Part G, was not sustainable under a loss of services claim and he did not seek reinstatement of these paragraphs.  However, he submitted that the loss of earnings claim in Part G should be allowed to stand in an amended form, as pleaded in the draft revised Statement of Damages as follows:

“30. The Plaintiff initially attempted to combine her work as a Senior Audit Manager with her child-minding duties. However, the Plaintiff was diagnosed by Registered Clinical Psychologist Dr. Tommy Chan as suffering from major depressive disorder. The stresses of performing job duties and taking up both the Deceased’s and her own responsibility in caring for the daughter at the same time caused the plaintiff’s psychological condition to persist.

31. It became necessary on the recommendation of Dr. Tommy Chan for the plaintiff to take a 3-year break from working starting on 5 January 2010 in order to replace the services of the Deceased adequately.

32. During her previous employment, the Plaintiff received a 7% increment in salary annually. Notwithstanding Dr. Chan’s advice, as a result of financial pressure, the Plaintiff resumed work on 28 February 2011 as a Senior Manager at a bank which she had previously worked for, with a new salary of HK$54,000 per month. She receives 12 months’ salary per year for this employment as against 13 months’ salary in her previous job. This employment is less stressful than the last one and she managed to perform her duties in this job. In September 2011, she received a salary increase of HK$55,000 per month after probation.

33.   With the assumption that it is likely that there will continue to be a difference in the plaintiff’s monthly salary (as compared to if she had not quitted her previous employment) at least in the next 7 years, ie until 2018, the Plaintiff’s loss of earnings is as follows: [particulars provided]”

7. The amended pleading does not cure the original defect.  As pleaded, the plaintiff’s loss of earnings was caused by the fact that she suffered from a major depressive disorder following the death of her husband.  Despite the valiant attempts made by Mr Lam, he could not persuade me that the plaintiff’s loss of earnings was a proper measure of the value of the services of the deceased which his daughter had lost as a result of his death.  The appeal to reinstate paragraphs 30, 31, 34 and 35 of Part G of the Statement of Damages, as amended by paragraphs 30 to 33 of the draft Revised Statement of Damages, is dismissed.

8. The plaintiff appears to me to have a classic claim for damages for nervous shock, depending on whether or not she can satisfy the test of physical and temporal proximity by establishing that she was close to the accident and to its immediate aftermath in terms of time and space.  Much has been said in favour of abandoning this restriction[1] in the case of a person who has suffered a reasonably foreseeable recognised psychiatric illness as a result of the death, injury or imperilment of a person with whom he or she has a close tie of love and affection[2]. 

9. As I have dismissed the appeal to reinstate the claim for the plaintiff’s loss of earnings caused as a result of her psychiatric condition, it follows that I must also dismiss the appeal against the learned Master’s refusal to grant leave to the plaintiff to adduce expert evidence from a clinical psychologist on the plaintiff’s condition.  However, I must observe that evidence from a psychiatrist or a psychologist to support claims for damages for nervous shock come within the category of expert evidence on liability, even if such expert evidence would also invariably be used in support of the claims on quantum.

10. On the question of costs, Mr Lam submitted that the plaintiff received notice, on 25 May 2012, of the application to strike out, which was only 3 days before the hearing of her summons on 28 May 2012 for leave to adduce expert evidence of a clinical psychologist, and that I should follow Mak Yue v. Chinachem Realty Ltd. HCA 10335/98, 17 November 1999,to deprive the defendant of costs even though he has been successful below.  I do not agree.  The point, on which the defendant succeeded below, and on this appeal, had been the subject matter of correspondence exchanged between the parties.  As early as 20 January 2012, Messrs. Clyde & Co., for the defendant, had asserted that the plaintiff’s claim for her own loss of earnings and her own medical expenses was not maintainable and not recoverable.  Further, the point was repeated in the 2^nd affirmation of Ms Wong Lok Yan, the defendant’s solicitor, made on 20 March 2012.  Save as mentioned below, I do not disturb the order of costs made below. 

11. However, so far as costs of the appeal are concerned, whilst those costs ought to be paid by the plaintiff to the defendant, I am concerned that the Master’s struck out Part G of the Statement of Damages in its entirety when she should have permitted the plaintiff to retain paragraph 29 of Part G in which a valid claim had been made for the loss of services provided by the deceased to his daughter.  It is correct that Mr McLeish had conceded, in his written submissions of 10 October 2012, that his daughter’s claim for the loss of his services as a result of the death of the deceased was properly pleaded in paragraph 29 of the Statement of Damages.  However, absent an appeal to reinstate this paragraph, this valid claim could no longer be pursued after the Master’s order.  I am not privy to any correspondence from the defendant’s solicitors offering to permit the plaintiff to reinstate paragraph 29 of the Statement of Damages.  In the circumstances, I make a costs order nisi that the plaintiff pays 80% of the costs of this appeal to the defendant, to be taxed if not agreed, with certificate for counsel.

12. The costs awarded to the defendant, both here and below, should not be taxed and paid forthwith, but only at the conclusion of the proceedings.

[1] By legislation or by the development of the common law (see the decision of the High Court of Australia in Tame v New South Wales (2003) 211 CLR 317).

[2] Cf. UK Law Commission Report on Liability for Psychiatric Illness, Law Com No. 249, 10 March 1998 at §6.16. Available on the internet at:

http://lawcommission.justice.gov.uk/publications/liability-for-psychiatric-illness.htm