Yiu Yun v. Attorney General

CACV000068/1990

BETWEEN

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Coram: Hon. Sir Derek Cons, V.P., Clough & Macdougall, JJ.A.

Date of hearing: 16 - 18 October 1990

Date of delivery of judgment: 18 October 1990

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JUDGMENT

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Sir Derek Cons, V.P., delivered the judgment of the Court:

1. In January 1967 the Plaintiff, Mrs. Yiu Yun, also known as Yiu Kam, then in her late forties, underwent at Queen Mary Hospital an operation for the removal of stones from her gall bladder. The operation was a success save that unfortunately the operating team failed to remove from her body one of the surgical swabs that had been used in the course of the operation.

2. In 1975, i.e. eight years later, the Plaintiff consulted a Dr. Louis Wong with regard to the pain that she had been experiencing since her operation. He treated her continuously for the next twelve years, i.e. until 1987, but at no time did he discover the true cause of her problems. During this period she paid innumerable visits to his surgery being given injections and other medicine.  Such was the inconvenience of it all that in 1976 she made the suggestion, to which he agreed, that she might receive the injections from a doctor who practised more conveniently to her home in the Wan Fu Estate. That doctor was a Dr. Stephen Soo.  At no time did Dr. Soo examine the Plaintiff for himself but was content to accept her word. For a fee either he or his nurse injected the drugs that the Plaintiff brought from Dr. Wong. This was a frequent occurrence, at times daily, so that between August 1976 when she first went to Dr. Soo and August 1984, which was apparently the date of the last injection, she had at Dr. Soo's surgery, been injected some 1,319 times.

3. In August 1987 the presence of the swab was discovered by a Dr. Goh whom the Plaintiff had consulted fearing that the continued pain was caused by a heart problem. He arranged, inter alia, for the Plaintiff to have a barium meal x-ray, which immediately and clearly indicated the presence of the swab by virtue of the radio opaque wire included in the swab for that very purpose. Dr. Goh confirmed the presence of the swab by way of a C.A.T. Scan, and after consulting with a Dr. Frank Cheng, a surgeon, the latter operated on the Plaintiff to remove the swab. By this time the calcification around the abscess caused by the swab had grown to the size of a grapefruit.

4. The x-rays in 1987 were by no means the first that had been taken of the Plaintiff since the original operation. Dr. Wong had arranged for two chest x-rays in 1975, a radioactive isotope scan in 1979, spinal x-rays in 1982 and a C.A.T. Scan in 1983.  There were also ultrasound tests in 1979 and 1981.  The radio opaque wire in the swab is now faintly visible on the two chest x-rays but clearly so on the spinal x-rays and the C.A.T. Scan taken in 1983.  Nevertheless their true nature was not recognised.

5. In August 1988 the Plaintiff commenced action against the Attorney General alone, he being the proper representative of Queen Mary Hospital. She claimed general damages for pain and suffering and loss of amenities and special damages in respect of the medical expenses she had incurred during that 20-year period. Liability was swiftly admitted and proceedings for the assessment of damages were conducted before Master O'Donnell commencing on the 8th February this year.  In the meantime leave had been given to the Attorney to serve third party notices on Drs. Wong and Soo and on the medical laboratory responsible for the x-rays.  The master had thought it better to adjourn the assessment to come on together with the third party proceedings, but, for reasons which are not here material, this Court ruled that it should proceed as planned.

6. At the hearing below the Attorney sought to put part of the blame for the Plaintiff's sufferings upon Drs. Wong and Soo for what was said to be the negligence of both of them in 1975,  in the alternative, the negligence of Dr. Wong alone in 1982.  The master rejected the suggestion insofar as it related to both doctors in 1975 but accepted that the conduct of Dr. Wong in 1982 did amount to novus actus interveniens and held that the Plaintiff could not recover as against the Attorney in respect of the period between then and when she finally went to Dr. Goh in 1987. He therefore reduced the figure of $300,000, which he had thought appropriate for her pain and suffering and loss of amenities overall, by $62,500 as representing that period of five years. In addition to the resulting award of $237,500 general damages he made orders for special damages and interest.  The appeal and cross-appeal before us cover all aspects of his decision.

7. The principles of law relating to novus actus interveniens were not in dispute between the parties.  They are set out by the master in his judgment by reference to well known passages in Haynes v. Harwood [1935] 1 K.B. 146, The Oropesa [1943] P32 and Knigntley v. Johns [1982] 1 W. L. R. 349, passages to some extent adopted by this Court in Attorney General v. Ho Ming Mui unreported Civ. App. 61/82 29th July 1982. We have been taken again to some of the authorities.  We do not think it necessary to quote them except that we would add, because we think it is a useful and simple encapsulation of the relevant principles, what is said by the learned authors of Clerk & Lindsell on Tort, 16th edition, at para. 1-1l8:

As we understand the conclusions of the learned master, they are that, although in 1975 Drs. wong and Soo had not conducted themselves as might have been expected, their behaviour was not such as to eclipse the previous wrongdoing of the operating team at Queen Mary Hospital; but that when it came to 1982 and 1983, the failure of Dr. Wong then to reach the standard expected of him was of such gravity that it was in the words of Lord Sumner, quoted by Lord wright in The Oropesa, "a new and independent cause".

8. The evidence before the master is set out at length in the reserved judgment that he delivered, together with the principal submissions of both sides. In this appeal we have had the advantage of having the same counsel who were instructed below. We have been taken over the same ground, with the added benefit of their comments upon the master's observations. We do not think it necessary to deal with the evidence or their submissions in detail. Nor perhaps is it desirable to do so, bearing in mind that Drs. Wong and Soo may well be called upon to justify their conduct in other proceedings. We think it sufficient to say that apart from one misunderstanding with regard to which C.A.T. Scan report contained the reference to "curvilinear calcific shadowing" - on which, in any event, the master relied only "to a lesser extent" with regard to one of the factors which influenced his decision -, he did not, in our view, misapprehend the evidence, nor is his application of the law to the evidence in any way to be faulted. Despite the enthusiastic and able arguments presented to us by both counsel we see no reason to disagree with his conclusions with regard to liability.

9. With regard to general damages this case is somewhat curious in that neither counsel suggested below a figure that came any way near the $300,000 assessed by the master. Counsel for the Attorney suggested $80,000, counsel for the Plaintiff $100,000 upwards. The latter has to acknowledge, as she is bound to, that, as she put it, the master "leapt" to the figure he subsequently chose. But she nevertheless contends that it is still within the bracket above which this Court would have to say that it was erroneously high before it could interfere: see Every v. Miles 1964 C.A. 261 quoted in Kemp & Kemp Vol. 1 at 19-003.

10. In Lau Che Ping v. Hoi Kong Ironwares Godown Co. Ltd. [1988] 2 HKLR 650 @ 653 this Court suggested that in most cases "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".  As the master observed, this was not a case where such a starting point could be found, for apart from Ho Hing Mui, which on the facts is by no means comparable, even vaguely similar cases do not appear in our reports. The master was then in the position, as we are, of having to come to his decision in the way that was succinctly summed up in the judgment of Cairns L. J. in Hughes v. Goodall 1977 C.A. No. 100 apparently only reported in Vol. 2 of Kemp & Kemp at 7-714:

Later Bridge L.J. said:

In that situation there is naturally room for some latitude between the subconscious feelings of individual judges but, with respect to the learned master, we feel that his feeling led him in fact to take a figure out of the air and at an altitude that was completely erroneous. The levels suffered to him were, in our view, much nearer the mark.

11. The Plaintiff suffered pain and discomfort of varying degrees throughout the period that the swab remained inside her.  But it was constant, if intermittent, pain and for a great number of years. She was forced to seek continuous attention from doctors and subjected to so many injections and tests of various kinds. Finally, at a much more advanced age, she was forced to undergo further surgery.  Based on our combined intuition and experience we feel a proper measure of damages in this instance is $120,000, which should be reduced on a similar basis by $20,000 to allow for that period which cannot be laid at the door of the original wrongdoers.

12. Two other matters remain: the first is the disallowance by the master of the claim for special nursing charges in the sum of $2,350. He allowed a similar claim in the sum of $2,550 in respect of attendance for the five days immediately following the operation in 1987. But he rejected the claim for two nursing attendants for days later on which he regarded as "a luxury and unnecessary".  The evidence for the need of that later attendance came only from the Plaintiff herself and her daughter.  There was no medical evidence to support it. We see no reason to think that the master was wrong.

13. Finally there is the question of interest on the special damages. The master ordered it to run at half the basic rate, which he had put at 10.8% being the rate current at the time of his judgment, from the 30th July 1987 to the date of the judgment.  The 30th July 1987 was the date on which the Plaintiff sought help from a Dr. Jack Wong who soon led her to Dr. Goh and the eventual solution of her problems.  It would seem, although he gives no reason in his judgment, that the master was attempting to apply the guidelines suggested in Jefford v. Gee [1970] 2 QB 130 as varied by the suggestion made in Kemp & Kemp at Vol. 1 16-07. If so he overlooked the fact that the special damages included fees paid to Drs. Wong and Soo earlier on.  Be that as it may, we take the view, adopting the same suggestion, and for the reasons there adumbrated, that the expenses related to the final recovery and removal of the swab, which occurred very close to the date of trial, should attract interest at the rate of 8.76% as from the 1st September 1987, by which time most had been incurred, to the date of the assessment; and that the fees for Drs. Wong and Soo, which by and large were incurred at regular intervals since the 1st August 1975, should attract interest at half the rate of 9.6% (i.e. 4.8%) from that date until the assessment.

14. The rates of interest have been calculated from a list of rates current from 1975 to the present day prepared and submitted by Miss Kwan. We have taken the average over the two periods in question.

15. For these reasons we allow the appeal and the cross-appeal to the extent that we have indicated.  Subject to submissions by counsel we would think the proper order for costs is that the Attorney is to have his costs of both the appeal and the cross-appeal and there is no need to vary the order as to costs below; the Plaintiff is to have Legal Aid taxation.

Representation:

Miss V.A. Hartstein & Miss Paula Scully, Crown Solicitor for the Defendant/Appellant

Miss Susan Kwan (M/s. Robin Bridge & John Liu) assigned by D.L.A. for the Plaintiff/Respondent