LAW MEI NGO v. HOSPITAL AUTHORITY

DCEC1637/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1637 OF 2006

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D E C I S I O N

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1.  The applicant applies for leave to make the application under the Employees Compensation Ordinance out of time.  Her application is opposed by the respondent, who claim that the applicant was 1 year and 5 months out of time, counting from the date of June 2003 at the end of the SARS outbreak period, to the time of the applicant’s filing of application in November 2006. 

2.  The applicant makes her application under section 14 of the Ordinance.  Section 14 requires the applicant to make the application within 24 months of the date from the occurrence of the accident causing the injury or, in the case of death, within 24 months from the date of death or prior to a determination made by the Commissioner under section 6B(1)(a). 

3.  “Accident” under section 14 refers to the incident that caused the injury or the illness of the applicant, section 14(4) says: 

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The court may receive and determine any application for compensation in any case notwithstanding that the notice required by subsection (1) has not been given or that the application has not been made in due time as required by that subsection, if it is satisfied that there was reasonable cause or reasonable excuse, for the failure so to give notice or to make an application, as the case may be.”

4.  I have been assisted by the chronology of key events prepared by Ms Lee, counsel for the respondent, based on the applicant’s affidavit giving the history, as disclosed in her affirmation in support of the application.  In further support of the applicant’s application, she produced a medical report by Dr Chan Chee-hung, a psychiatrist in private practice, who had been treating the applicant since May 2004. 

5.  The background of the applicant’s case can briefly be summarised as follows.  She was a Tuen Mun Hospital ICU (Intensive Care Unit) nurse since 1998 until she was transferred out in May 2006. 

6.  During the SARS period, between February 2003 and June 2003, she was put in charge of taking care of and attending to the SARS patients in the ICU from the first day when the first SARS patient was admitted into Tuen Mun Hospital on 28 March 2003.  Out of 87 SARS patients admitted into Tuen Mun Hospital during this period, 14 had died and all of them at the ICU. 

7.  Two medical staff of the Tuen Mun Hospital, Dr Tse Yuen-man and a male nurse, Mr Lau Wing-kai, were colleagues of the applicant.  Mr Lau was trained at the same period of time as the applicant, they were student nurses together.  The applicant had taken care of both of them before they passed away in April and May 2003 in the Tuen Mun Hospitial ICU.   

8.  Their deaths and the applicant’s ICU work during the SARS period had apparently affected the applicant a great deal.  She was put under tremendous work pressure and had been working long hours at the ICU during the period.  She claimed that after the SARS outbreak was over she felt distressed, like many of her colleagues, and she was not given any leave in spite of the hard work and long hours during the SARS period fighting a hitherto unknown illness that killed almost 300 in Hong Kong.

9.  She carried on working in spite of feeling a great sense of guilt over the loss of her two colleagues under her care and she felt a sense of failure to fulfil the public’s expectation of the medical profession. 

10.  She did not seek professional help during the 10 months after the SARS outbreak and her depression continued.  By February 2004, she lost 30 lbs in weight and found she was losing control.  She was losing her temper and bursting into tears for no apparent reason.  She had frequent nightmares and experienced auditory hallucination.  She would panic, tremble and sweat when she saw people holding flowers.  She became withdrawn and lost interest in things around her. 

11.  She began to seek professional help from a Hospital Authority psychiatrist, but not finding any real assistance, she sought the assistance of a private psychiatrist referred by the Hospital Authority psychiatrist.  In May 2004, she began consulting Dr Chan Chee-hung regularly and taking medication for her condition. 

12.  Dr Chan confirmed the applicant’s mental condition.  She was diagnosed to suffer from Post Traumatic Stress Disorder and Major Depressive Disorder.  In spite of Dr Chan’s advice, the applicant refused to take sick leave initially, and she carried on working at the Tuen Mun ICU because she said she did not wish her employer or colleagues to know of her illness until September 2004. 

13.  She first took sick leave for her illness in November 2004 up to mid December 2004.  Her condition fluctuated and for periods in July 2004 to August 2004 and again in January 2005 to May 2005, she was able to find relief but her depressive condition remained.  She was put on further sick leave on 31 October 2005 to 13 November 2005 and again between 31 December 2005 and 31 January 2006.  She was again put on sick leave on 1 February 2006 to 15 March 2006. 

14.  On 20 March 2006, she attempted suicide by taking an overdose of drugs.  She was admitted into the North District Hospital and was rescued.  During this period she continued to be suicidal.  She was admitted to Castle Peak Hospital on 1 June 2006. 

15.  In Dr Chan’s opinion, the applicant’s case was not a simple case of bereavement and her condition was due to the nursing care she gave to patients during the SARS period.  It is akin to conditions at war combat, which involved fear, helplessness and horror, the trauma of witnessing death in process of friends or colleagues.  He is of the opinion that her condition had lasted 3 years or more and had significantly impaired her social life and her occupation.  She was barely functioning, even though she had carried on working.  She is still suffering from the illness and Dr Chan gave a guarded prognosis.  He also claimed that she was not able to make up her mind to live on properly or set a clear goal for her future, therefore it is understandable that she failed to take up the employee’s compensation claim before November 2006. 

16.  Miss Lee, counsel for the respondent, referred me to the case of Chan Wing Cheun v Sun Cheong Bleaching and Dyeing Factory Ltd [1989] HKDCLR 55 where Remedios D.J. held that: 

“	Ignorance of right to claim compensation until after the expiry of the limitation period was not a reasonable excuse under section 14 of the Ordinance and that an excuse will only be reasonable in terms of the Ordinance, if it operates for the whole of the period and not merely part of it.”

17.  Miss Chan referred me to the case of Cheng So Chun Jolly v Wa Fung Public School DCEC975/2004 (Judge Chow’s judgment of 30 June 2005) where the applicant had delayed her application for almost 3 years, the Court allowed the application to proceed on the basis that she was under a mental disability.  Miss Lee distinguished the case of Cheng So Chun on the facts that the applicant there did not realise her condition was caused by the school incident in 1999. 

18.  In the present case, I find the applicant had been suffering under Post Traumatic Disorder and Major Depressive Disorder, which is known to affect soldiers after a war combat situation.  I am satisfied that the applicant had a reasonable excuse under section 14 of the Ordinance.  Her experience during the SARS period was the cause of her depression.  SARS was a major incident in the medical history of Hong Kong.  It is well known in the medical profession in the world.  It is a period when the whole of Hong Kong was under shock and the whole community had been greatly affected. 

19.  The medical profession in Hong Kong, particularly those put in charge of the care of the SARS patients, were given an impossible task yet professionals like the applicant had soldiered on in the ICU, not only at the Tuen Mun Hospital, but all of the Hospital Authority hospitals in Hong Kong.  It was indeed akin to a war combat situation and should be treated as such. 

20.  The applicant’s mental condition is confirmed to be caused by the work the applicant had undertaken during the SARS period.  Mental illness, unlike other industrial accident injuries, is not physically visible and the treatment period can be prolonged, the effects long lasting and prognosis difficult. 

21.  I am satisfied that the applicant had been suffering from Major Depressive Disorder and Post-Traumatic Stress Disorder since the end of the SARS outbreak in Hong Kong and she was under a mental disability throughout this period. 

22.  As commented by Rogers, JA in the case of Chan Siu Ling v Tonyear Investment Ltd [1999] 2 HKC 348: 

“	The power given to the court to receive and determine applications made out of time should, in my view, be exercised liberally.”

This is a suitable case for discretion to be exercised liberally and I grant leave to the applicant to file the application out of time. 

(Argument on costs)

23. Costs be in the cause to be taxed if not agreed with certificate for counsel and the applicant’s own cost to be taxed in accordance with Legal Aid Regulations.