Lam Po Yee and Another v. Dr Chan Yee Shing also known as Dr Chan Yee Shing Alvin

HCPI 62/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 62 OF 2011

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REASONS FOR DECISION

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I.  INTRODUCTION

1.For convenience, I shall adopt the abbreviations in the Judgment handed down on even date (“Judgment”) in these Reasons for Decision.

2.On the 1^st day of the 2^nd Trial, Mr Huggins SC, counsel for the Doctor, applied to strike out the Father’s claims for pre-trial and post-trial loss of earnings and for loss of congenial employment, and the Mother’s claim for pre-trial (after July 2012) and post-trial loss of earnings. After hearing arguments by Mr Huggins SC and Mr Ko, counsel for the Parents, I dismissed the Doctor’s application and reserved my reasons which I now give.

3.I pause to say at the outset that the Doctor’s application on the 1^st day of the 2^nd Trial was, to say the least, made rather late in the day. An application for striking out based on lack of proper pleadings and/or no reasonable cause of action should have been made much earlier. After all, the RRSoD was filed in 2013. Mr Huggins SC also grounded the application on lack of evidence, but again there was no satisfactory reason for the delay in making the application on such ground since the available evidence had crystallised long before the 1^st day of the 2^nd Trial. Despite Mr Huggins SC’s persuasion, I am totally unconvinced there was any good reason for the delay in making such application. Further, it was incumbent on the Doctor to show it was a plain and obvious case for striking out the impugned claims. Whilst the threshold requirement remains unchanged no matter when the striking out application is mounted, in a late application made on the 1^st day of trial the court will be jealous to ensure the threshold is strictly met given that absent such application the fullness of the evidence would have immediately unfolded at trial for adjudication by the court. With these matters in mind, I turn to the Doctor’s application.

II.  FATHER’s PRE-TRIAL AND POST-TRIAL LOSS OF EARNINGS

4.Doctor’s case  Mr Huggins SC submitted the pleadings did not disclose any reasonable cause of action for the Father’s loss of earnings on his own account in that there was no plea of any causal connection between such loss and the nervous shocks he suffered, so that was not an issue which the Doctor should be expected to meet at the 2^nd Trial, and such claim should be struck out.

5.Mr Huggins SC added that no evidence had been adduced to support a claim by the Father for loss of earnings caused by psychiatric illness following nervous shocks to him. It was said the Experts’ reports/letters did not say the Father’s psychiatric condition made him unable or less fit to work as a hairstylist or Attendant, and the Father’s statement that he changed jobs by reason of perceived need for him to do so in order to care for the Mother/Children was manifestly inconsistent with such contention. On such basis, Mr Huggins SC argued the Father’s claim for loss of earnings was unsustainable.

6.Mr Huggins SC submitted that being the case there was no other basis for the Father to claim for loss of earnings for the law did not permit him to recover damages for reduction in earnings due to his giving up more remunerative employment because of the anxieties of the Mother and the problem of childcare even if such decision was reasonable from the perspective of an affectionate and caring husband or father. The Father could only have claimed for such loss on his own account if he had both pleaded and adduced evidence to support the plea that this was caused by his psychiatric illness arising from nervous shock.

7.Pleadings Paragraphs 31-33 of the Statement of Claim in the Parents Action averred the Parents were secondary victims of the Doctor’s negligent treatment/management in relation to Bosco’s Finger, and referred to the Experts’ reports for particulars of the nervous shock and psychiatric impairment the Parents suffered, “[in] the premises, [the Parents] have suffered loss and damage as particularised in the Statement of Damages served herewith”. In my view, this is a clear averment that the loss and damages pleaded in the RRSoD (which included the Father’s loss of earnings) were caused by the Parents’ nervous shock and psychiatric impairment.

8.Paragraph 29(b) of the RRSoD pleaded that the Father was “adversely affected by the shock and the aftermath” such that (a) he had to endure his suffering and continue to work to support the family despite his “impaired mental state”, (b) he had to work at a hair salon in Ma On Shan to provide support for the Mother and attend to the needs of the Mother/Bosco in their vulnerable state, (c) he was frustrated in his work at Ma On Shan with reduced income and financial difficulty, and (d) he made the painful decision to give up work as a hairstylist to become an Attendant for Wilson in/about March 2011. Plainly, irrespective of averments in relation to the pre-March 2011 period, there was a clear plea the Father was adversely affected by the nervous shock and aftermath when he decided to become an Attendant in/about March 2011 (being commencement of the relevant period for which he claimed pre-trial loss of earnings). This was reinforced by paragraph 61 of the RRSoD that stated “[for] reasons explained in paragraph 29 hereinabove and in the witness statements served in these proceedings” the Father changed to work as an Attendant in March 2011. Reading the pleadings as a whole, I find it to be clear the Father was attributing the change of work to be an Attendant starting from March 2011 to the nervous shock and consequent psychiatric impairment. I reject Mr Huggins SC’s submissions that the pleadings were defective.

9.Evidence  The issue of whether the Father suffered loss of earnings is a question of fact to be determined on the available evidence. The available evidence included factual, medical and expert evidence, and had to be properly assessed and weighed before the court could come to a conclusion. I refer to Part XVII of the Judgment which set out the analysis of the available evidence on this issue. It is apparent from such analysis that this would be an exercise for trial rather than for summary disposal for striking out. I also reject this ground for striking out put forward by Mr Huggins SC.

10.For the above reasons, I dismissed the Doctor’s application to strike out the Father’s claim for pre-trial and post-trial loss of earnings.

III.  MOTHER’s PRE-TRIAL (AFTER JULY 2012) AND POST-TRIAL LOSS OF EARNINGS

11.Pleadings  Mr Huggins SC submitted there was no plea that any loss of earnings by the Mother from July 2012 onwards was due to any psychiatric inability to work. By July 2012 she suffered from adjustment disorder (no longer depressive disorder), and adjustment disorder had not prevented the Father from working. Mr Huggins SC said the same point could be made of future loss of earnings as there was no plea the Mother was unable to work now by reason of her psychiatric illness.

12.The relevant pleas were in paragraphs 40-45 of the RRSoD, which averred that but for the Incident the Mother would have worked at the Shop as planned on part-time basis and in/after August 2012 on full‑time basis, but as a result of the Incident she was so over-anxious about the Children that she could not leave them at home, so she gave up her plan to work at the Shop, and the Experts agreed that given her pervasive sense of danger concerning the Children’s safety and well-being and given that her stresses would be compounded as the Children would need to confront the outside world, “it would be difficult to say for now when she would be able to return to work”. On such basis, the RRSoD claimed for pre-trial and post-trial loss of earnings. In relation to the claim for future loss of earnings, paragraph 45 of the RRSoD further averred that:

“…… Given that the Mother has only had limited education and has not been trained with any special skill, it will be difficult for the Mother to find any job when she has been out of the labour market for a long time and she will be forty. The Mother therefore claims further loss of earnings / loss of earning capacity ……” (my emphasis)

13.In my view, the above pleas in the RRSoD must be considered as a whole, and it would be highly artificial to confine the claim for the Mother’s loss of earnings (as from August 2012) to paragraph 45 of the RRSoD. Such blinkered approach failed to take into account the Mother’s pleas in paragraphs 40-44 of the RRSoD that it was due to the Incident (and hence the Doctor’s tort) and the psychiatric sequelae that followed which led to her disability in returning to the workforce on part‑time or full-time basis, and that the Experts were not even confident when she could return to work. This, in my view, provided sufficient pleaded foundation for the Mother’s claim for loss of earnings. This was also fortified by paragraphs 31-33 of the Statement of Claim in the Parents Action referred to above. Further, the plea in paragraph 45 of the RRSoD in relation to the Mother’s limited education and lack of special skills only went to her claim that she would be unable to secure work, which formed the basis for her claim for total instead of partial loss of earnings. But this would not affect her pleaded case that her loss of earnings was caused by psychiatric illness as a result of the Incident.

14.Evidence  Mr Huggins SC submitted it could not fairly be inferred from the medical evidence (including the recent reports from PWH) that the Mother was still not able to return to work now as a result of the nervous shocks she experienced and of the psychiatric symptoms associated with those shocks. In my view, this matter should be resolved at trial in the context of both factual and medical evidence, and as seen in Part XV of the Judgment there was sufficient evidential basis to support the Mother’s claim (albeit not to the full extent as pleaded).

15.Mr Huggins SC next argued that the fact the Mother did not feel inclined to work or did not see herself doing so was not good enough to form the basis of an award under this head of claim. I am not persuaded by this argument, and refer to paragraph 212 of the Judgment.

16.For the above reasons, I disagree that the Mother’s claim for loss of earnings (after July 2012) should be struck out as disclosing no reasonable cause of action or on the basis of insufficient evidence adduced, and I dismissed the Doctor’s application in this respect.

IV.  FATHER’s LOSS OF CONGENIAL EMPLOYMENT

17.Mr Huggins SC submitted loss of congenial employment is not a recognised head of damage to which secondary victims are entitled, and there was no plea that the Father’s loss of employment (congenial or otherwise) was caused by psychiatric injury arising from the nervous shocks in 2009. However, for the reasons set out in paragraph 246 of the Judgment, I reject this argument.

V.  COSTS

18.I told counsel at the hearing that I would deal with costs on nisi basis upon handing down these Reasons for Decision. There was no reason why costs should not follow event. I grant a costs order nisi that the Doctor shall pay the Parents’ costs of and occasioned by his striking out application to be taxed if not agreed, and the Parents’ own costs be taxed in accordance with Legal Aid Regulations.

Mr Tony Ko, instructed by Ip Kwan & Co, for the 1^st and 2^nd plaintiffs

Mr Adrian Huggins SC, instructed by Howse, Williams & Bowers, for the defendant