Madam Tsang Choi Yung v. United Christian Hospital

HCA003353/1990

1990 No. A3353

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Hon. Rogers, J. in Court.

Dates of hearing: 7, 8, 11-15, 18 and 19 October 1993.

Date of judgment: 19 October 1993.

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Judgment

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1. This Action arises out of a fatal accident which occurred at about 1.35 a.m. on the 20th June 1987 when the deceased fell from the 4th floor window of the hospital.

2. The deceased had a history of mental illness. He had been ill off and on from 1981 and he had suicidal tendencies.

3. His condition was described by Sir Martin Roth, one of the witnesses on behalf of the Plaintiff, as being a recurrent endogenous affective disorder. In more simple language I understand that to mean that he has an emotional disorder which was biological, that is, it came from within him rather than something which was caused by outside factors. Sir Martin considered that his condition was now treatable and had been treatable for some years now by a lithium compound and that the prognosis was that, although he would from time to time if untreated have had attacks, if he were properly treated those symptoms should not show themselves and he should have had a reasonably lengthy life expectancy.

4. The history of the deceased's, Mr. TSANG's, suicide was, as I have indicated, that he had been hospitalised three times, once in 1981, once in 1984 and he had earlier in 1987 tried to commit suicide and again had been hospitalised.

5. Early in the morning of 19th June, 1987 he tried to commit suicide twice. He apparently took ten tablets of a medicine called Largactil. He consumed that with a small sample bottle of brandy. Unbeknown to him, that apparently was not a very effective way of trying to commit suicide, because the combination of that drug and that amount of brandy would certainly not have had an immediate effect. No doubt because of that, he made a second attempt to commit suicide by climbing up on a window. He tried, apparently, to loosen the window, how I am not quite sure but it does not matter, but that exhausted him and he fell back unconscious. He was found later in the morning by his sister who had been rung up by the occupants of the flat who apparently were his employer, who had rung to say they were worried about him.

6. The only other matter to mention about these attempts is that again it was clearly a serious, two serious, attempts to commit suicide because he had done it in a non-dramatic manner, as the doctors pointed out. He had in fact rung his sister early that morning to say he was at work, or going to work. He had not made a great scene about it, but obviously made a serious attempt to commit suicide. After his sister had got the door open and summoned the necessary people, he was taken to hospital where he was admitted to the Accident Department. The immediate treatment that he was given was a stomach washout and at about 11.45 he was admitted to Ward 4A.

7. From the hospital records it is clear that during the early part of the afternoon he was either asleep or unconscious. He did not react in the normal way and the neurological records show that he was not responding. During the afternoon he quickly regained consciousness and it is clear from the nursing records, the neurological records and the pulse rate records that around 5.30 or 6 o'clock he seems to have fully recovered. He fully recovered to the extent that the hourly neurological checks and the hourly pulse rate checks were changed to 4-hourly checks.

8. Meanwhile his sister, the Plaintiff, had been with him during the day except for a time when she went off to get his things from his home. Whilst at the hospital she had impressed on the doctors and nurses a number of things. She was not precise as to whom she talked to, and I do not suppose in her state of mind she really could distinguish much between senior nurses and junior nurses, doctors and so forth, but she had impressed on them a number of things. First of all, that her brother had had a history of mental illness and that he needed careful attention; secondly, that he had been previously treated at the Kwai Chung Hospital which is a hospital, which was far more suited to his condition; thirdly, that she wanted him transferred as soon as possible to Kwai Chung because she felt that they could look after him much better because they could deal with his psychiatric condition, and in default of all that, when they said, "Well this cannot happen, that cannot happen", she said she wanted to stay with him all the time he was at the United Christian Hospital. That request was denied to her.

9. Now just pausing there for a moment Dr. YAM, who was the expert witness called on behalf of the Defendant and is a consultant of the Nethersole Hospital, which is a sister hospital of the United Christian Hospital, doubts that. She says a nurse would not have taken the responsibility of denying the Plaintiff permission to stay at the hospital and would have recorded it. Well in some circumstances that may or may not be so and it is true that the nursing records do not show any record of a request being made and refused. But given the fact that she would not have been allowed to stay with her brother anyway, she would have had to wait virtually outside the ward or certainly in the corridor somewhere on a wooden bench, I am not convinced at all that that reason given by Dr. Yam as to why the Plaintiff could not have made a request is a valid one. I have seen Madam TSANG in the witness box and I am convinced that she was telling me the truth when she said she requested to stay. In the end I do not think very much turns on it.

10. However, some of what Madam TSANG said to the doctors must have impinged on them, because at some stage the South Kwai Chung Clinic, at which the deceased had also attended, had been contacted and arrangements were made to transfer him at 9.00 a.m. the following morning, or at 8.00 a.m. the following morning. It was also appreciated that he had a history of suicidal tendencies. He had been seen on arrival at the Ward by a doctor who was in his pre-registration period and later by a doctor who was the doctor on the Ward, namely, Dr. Patrick FUNG. Now Dr. FUNG was not called. To my mind, it is clearly a great pity that he was not called. He wrote down in the notes which he made of the deceased that there was a high suicidal risk, and he wrote that after, just beneath, he had written characters in Chinese which mean 'very useless'. That is clearly indicative that he must have talked to the deceased, for those must have been words which the deceased used about himself, indicating that he felt either he was useless or his life was useless indicating what might colloquially be termed a depressive frame of mind.

11. It would have been extremely pertinent to know what Dr. FUNG had made of the patient and as to what he meant when he wrote 'high suicidal risk', as I will come to in a moment. It would also have been very pertinent to know the time at which Dr. FUNG saw this patient; looking at the neurological records and the reactions recorded there of the deceased, it would appear to me that it was probably at about 5 or some time after that he must have seen the deceased, because clearly the deceased was then in a condition where he could talk to the doctor properly. n a What instructions he gave the nurses we do not know. Again as I will mention in a moment, this is highly important because Dr. YAM said that the words 'high suicidal risk' would indicate to the nurses a course of action. Some of the nurses that were on duty later that evening, after 10 o'clock gave evidence, those words did not seem to mean much to them. So that if any specific instructions were given to the nursing staff, it clearly would have been more likely to have been oral, at any rate, the more important ones would have been oral instructions.

12. It is also pertinent to note here, perhaps without taking it out of order, that Dr. YAM said that a lot of things were implied and the documentation was not clear. She said that the documentation should be improved and she said that the importance of a documentary clear plan of action clearly had not been impressed on the doctors and that was to be regretted.

13. The 'high suicidal risk' is also noted in another document. This was a letter, which I take to be a referral letter which is again dated the 19th June, 1987, and it was signed for Dr. TSE. Who Dr. TSE is, I do not know. He was not called, and it was not explained to me either. He said in that letter, having given the history of the attempted suicide that morning, or one of the attempted suicides that morning, that "he has a very high suicidal risk." So clearly the very high degree of suicidal risk of this particular patient was known to the hospital.

14. Now unfortunately, the message which got through to the nurses seems to have been that because of this high suicidal risk they should not talk to the patient very much and they should keep an eye on him. According to one of the nursing records it would seem to be implied that if they talked to him too much it would tend to agitate him. That might be a sensible layman's approach, but as Dr. Bridges pointed out, and in fact Sir Martin Roth also pointed out, that is not a very good psychiatric approach, because the one thing that you have got to do with patients in the deceased's condition is to talk to them and find out what they are thinking and see whether they still have suicidal tendencies and so forth.

15. Now the nursing ratio during the day time in the Ward 4A was, I am told, something like 1 to 7. Now there are fifty odd beds in the Ward, nearly sixty, and so that would give about 8 nurses on duty. But at night that would drop down to 4, about half that number. Of course at any one time one or other of the nurses might be expected to be away either in the canteen having a meal or for some other personal reason.

16. Mr. TSANG, the deceased, was put in a bed near the window. Now I had the advantage of visiting the Ward 4A, and I should explain this, that 4A is quite a large Ward, and there is a Nursing Station in the middle. It seems that about half of the beds were in front of the Nursing Station and half were at the back, behind the Nursing Station. There is a room to the side which is I think called the Treatment Room. Down one side of the Ward is a row of windows, slightly old-fashioned iron windows with not perhaps very large openings for each window, and at one point, probably at more than one point there is a pillar. The bed in which the deceased was put was Bed 35A, that was with the back to the pillar in between the windows. 35A was clearly an additional bed-space which was found. It was obviously a permanently additional bed-space, but it was an additional bed-space over and above the planning of the hospital, and that is why it is 35A.

17. Now one can see when one visits the Ward perhaps a reason for putting the deceased there. It was, according to my way of looking at it, probably one of the few beds where one could actually see the patient if one was sitting in the Nursing Station. From some parts of the Nursing Station one could actually see somebody lying on the bed. So that if for example he had a drip you might be able to see his drip there.

18. However, it had its defects. First of all it was some distance from the Nursing Station. It is difficult to say how far, but far enough that it would take a few seconds for anybody however fast they moved to get there; secondly, there is the possibility of curtains which are around other beds in between Bed 35A and the Nursing Station being drawn for one reason or another and then one would not be able to see the bed properly. So from the point of view of seeing some things for medical reasons, it may be a reasonable bed to put the patient in.

19. It was a very unfortunate bed to have put this patient in because if a bed on the other side of the Ward had been chosen and the late Mr. TSANG had got out of that bed there is quite a chance that he could not have walked across the Ward and got to the windows, or got anywhere else where he might have done himself some damage, without one of the nursing staff seeing it and stopping him. However, he was clearly right by a window out of which it was only too easy for him to get out. The windows do have bars on now. One is not sure, because one has only got photocopies of photographs, whether the windows actually had bars on in 1987. It seems that they did, because there is mention of the key ring which kept the bars in place being on the windowsill, after the deceased had committed suicide, so I take it that they did have bars then, but really they were not effective bars from point of view of stopping anybody jumping out, because those bars could very easily be opened. The key ring was the sort of car-key ring with the latch on the top, that one is familiar with. I can only say that they look rather scruffy to me on the windows of the hospital, but be that as it may.

20. Now I will turn back to the Plaintiff's visit to the hospital. After the deceased had come round about 6 o'clock she was sitting there talking to him and he was saying to her that he wanted to end his life. Clearly one takes it from that his suicidal tendency had not been purged and he was saying to her "Why have you brought me to this hospital? I don't want to live any more?" She told the court that she told all this to the nurses and doctors, and I take it from that that she really told everybody that was prepared to listen to her at the time.

21. The other person that visited the deceased in the hospital was his friend, a Mr. LAM. Mr. LAM Wai- pui, had been at school with the deceased in China, and they had both come down to Hong Kong and they both worked for Mr. LAM's elder brother's company. In fact they both seemed to live in Mr. LAM's elder brother's flat. The company seems to be quite a successful company, making plastic goods, where the deceased was employed. I will come to that in a moment.

22. Mr. LAM was clearly very friendly with the deceased. They used to go round together at such times as they were not working, and they seemed to work pretty hard. He was obviously very concerned about the deceased.

23. One incident occurred when Mr. LAM arrived. Madam TSANG had gone off to the lavatory for a short time and while she was there the deceased pulled out the I.V. drips that were in his arm and he said to Mr. LAM, that is the way to end his life.

24. In point of fact the I.V. drips were not that important for Mr. LAM at that stage, because he had already come round from his overdose and it was simply a question of putting more fluid back into his body, but he was not to know that. He had just come round. He obviously found this drip there. He obviously thought that that was what was keeping him alive. That was a sort of layman's approach. That likely layman's approach was confirmed by Dr. Bridges, who gave evidence on behalf of the Plaintiff.

25. The nurses were called and had to put the drip back in. There is no record of that on the nursing report. Mr. LAM says that he told the nurses that by this the deceased was attempting yet again to commit suicide. Again there was some question about that, but I accept Mr. LAM's evidence on this point. I am quite certain that he would have told the nurses that because this was an event, when one thinks about it, which would have very greatly concerned somebody who was sitting with a patient in a hospital that he should start tampering with the apparatus, that everybody thought was very important for him. I have no doubt that he impressed on the nurses who came, or the nurse or nurses who came, that the deceased was again trying to take his own life. That, I would have thought, must have been something, when a person with a high suicidal risk was tampering around with his medical equipment, that ought to have impinged on their mind and should have been brought to the attention of relevant people, and I mean senior nursing staff and the doctors.

26. Whilst dealing with Mr. LAM's evidence I should say this, that he also said that he requested to stay at the hospital overnight, and that he heard Madam TSANG ask the nurses whether she could stay overnight. He was cross-examined on that. I felt that he had attempted to exaggerate a little. I do not think he was telling complete lies. I think he was just exaggerating a little. Whether or not he actually heard Madam TSANG request to stay overnight matters in the end not very much. As Dr. Bridges said, it was not a very good idea to have friends and relations looking after a patient in a hospital, because they tend to drop off to sleep during the night and fall off chairs and do themselves as much damage as anything else.

27. Dr. Bridges says that once it had been appreciated that the deceased had a high suicidal tendency, or was a high suicidal risk, there should have been a clear plan of action as regards keeping him alive. The first thing, to Dr. Bridges' mind, which should have happened is that a psychiatrist should have been consulted and they should have tried to get him into a psychiatric hospital or ward as soon as possible. In the meantime, because of a high suicidal risk he should have had one to one nursing. As an alternative, he might have been transferred to Ward 4B which was only discovered, so far as this case is concerned, on the visit to the hospital which I have mentioned earlier. There was in fact, or is now, a psychiatric ward and one understands it was then in its infancy.

28. I accept, although the evidence is not the best, that there may have been some difficulty in getting admission to a psychiatric hospital for a voluntary patient after 5.00 p.m. I accept that the usual admission channels were probably closed down and people had gone home. But I doubt that it was entirely impossible in a case like this.

29. But here again we have yet another missing witness, Dr. TSANG. According to the nursing report, the one at 8.00 p.m., Dr. TSANG had already contacted the South Kwai Chung Clinic and had arranged for the patient to receive treatment at South Kwai Chung at 9.00 a.m. Dr. TSANG was not called and I was given no reasons to why he was not called or why some hearsay evidence from him was not sought to be admitted. He was the one who could have told us about the difficulty if there was one.

30. Dr. YAM, the defendant's expert, was at pains to say how important it was that the deceased was kept under observation in case he had a head injury, an internal head injury, which would only show itself up later. This, Dr. Bridges explains, was a possibility but there was no indication that the deceased had in fact hit his head as he fell to the ground when he was trying to commit suicide earlier that day. So, although it was clearly a counsel of prudence to keep him under watch, it was, in my view, not a necessity. By 6.00 p.m. it seemed that most of the danger signals had gone and he was only being kept under observation. I fail to understand why it is said that those in a psychiatric hospital could not have kept him under observation just to see whether some possible internal head injury did not appear just as easily as those on a medical ward when the nursing ratio was low at night, and they were busy clearly looking after many other patients.

31. Having been appraised of the seriousness of the deceased's condition, it seems to me, that if it was not possible for the deceased to be admitted to a psychiatric hospital on a voluntary basis, due to the time of day, then he should have been admitted either as temporary patient or he should have been committed under the full committal procedure.

32. The stigma that might have been attached to a committal seems to me to be irrelevant, when one considers that what one is considering is whether he might die at his own hand or not. In any event, since he had already been a mental patient for some years, the subtleties of whether he was committed under a compulsory procedure or admitted under a voluntary procedure, quite honestly are pretty small, and I would have suspected would have escaped those in ordinary life with whom the deceased would have been likely to have come in contact.

33. Both Dr. MA and Dr. YAM agreed in cross- examination, that it was a possibility that he should have been so admitted and in the circumstances, it seems to me, that clearly should have happened.

34. As I say, in relation to Ward 4B it was at that stage in its infancy - apparently there was only a consultant doctor from the Chinese University Medical Hospital, who kept an eye on the ward. The two doctors on the ward were not specially trained although one was in the course of training. Hence psychiatric advice within the United Christian Hospital might not have been feasible at the time and transferring the deceased to Ward 4B might not have been the answer. Ward 4B would have been much safer clearly for the deceased, the windows there were permanently barred to the extent that as far as I can see now you can not pull the bars open, they seem to be welded on to the window-frame. So clearly he would have been much safer in Ward 4B had he been admitted there.

35. Where I think the breakdown in the system arose was in not transferring the relevant information about the deceased to the doctors. Where the fault lies in that, I am not entirely sure. It may be with the doctors, not paying sufficient attention to the patient, in not realising - in knowing of and not realising the danger signals particularly what happened when he pulled out the I.V. drip; it may be the nursing staff in not communicating that fact, or it may be in not having set up a proper plan of action or impressed upon the staff precisely what was meant when they were warned that this patient was a high suicidal risk.

36. In any event, it seems to me that, as the Plaintiff puts its case, once the hospital has admitted the deceased and appreciated the fact that he was of high suicidal tendencies they owed a duty to take all reasonable steps to ensure the deceased's safety. Clearly, all reasonable steps were not taken. Things happened in the hospital which should have come to the attention of those responsible, who should have taken the necessary steps and one way or another that did not happen.

37. I should mention, at this stage, I think that there is an entry at 10.00 p.m. in the nursing records which is the first entry I believe in the chronological nursing records or in the timed nursing records, which indicates that the deceased had a suicidal tendency and it was argued that it was indicative that this suicidal attempt which occurred around 8.00 p.m. must have come to the attention of the nurses and had been so appreciated. Whether that was so or not I cannot say. Again the relevant nursing staff were not called. Nurse NAM who was on duty until 10.00 p.m. was not called, but clearly there is a strong possibility that the fact of the deceased pulling out the intravenous drips is what accounts for the entry at 10.00 p.m.

38. I should also mention for completeness that it appeared in the course of the trial that the entries after 10.00 p.m., namely 12.30, 1.30, were entered after the deceased had jumped from the window; later in the evening the nursing records were written up.

39. Again it is to be noted here that at 1.30 a.m. the deceased sat up in bed and when the student nurse, WONG, asked him whether he was all right, instead of answering, he lay down and covered himself up with a blanket. This might also have been a danger signal but clearly the nursing staff were so busy at that stage, that they could not pay any more attention to the deceased and, just a few minutes later, the deceased took his life by jumping out of the window right by his bed.

40. I turn then to the question of damages, and I intend to follow the Amended Particulars of Plaintiff's Claim for Damages. I am not sure whether I specifically dealt with the application made during the course of trial to file the Amendment. If I did not formally give leave at that time, I give leave now for filing of the amended document and that can be taken care of in due course.

41. The first thing I have to assess, as far as I can see, is the deceased's earnings. There is not very much dispute that at the time of his death his earnings averaged out at about $5,000 per month. Then comes the question of what would he be earning now. As I have indicated he seems to have been quite well in with the people he worked for. He was very friendly with what in effect was the boss's younger brother. He lived in the boss's flat apparently at that stage rent free and he was well regarded. He had been a clever person at school, done well in his studies. He had applied himself well to his job. He worked long hours. He worked six and a half to seven days a week, according to the evidence, and he was productive. He was concerned with quality control. He had made a number of contributions to the products which the company produced, plastic products, and apparently made a large number of suggestions to what I really understand is the internal moulding techniques of these products, rather than their external appearance. He was clearly a very useful member of the staff.

42. Now given all that going for him I have no hesitation in accepting that it is likely that he would have had one promotion by now, and I would mention that his flair that he seemed to have for the work that he was doing, slightly inventive flair or so forth, was something which the psychiatric doctors, called on behalf of the Plaintiff acknowledged was likely to exist in somebody who was of his condition. It all went together.

43. So, turning then to what it is likely he would be earning now, I think it is quite right as indeed Mr. LAM said, that he would have had at least one promotion and by now he would be a manager earning something in the region of $16,000 to $17,000 basic. To that has to be added the annual bonus, the Chinese New Year bonus and also one other benefit which is enjoyed by the staff of Sealand, namely a local return air ticket once a year. That all seems to me to come to, give or take, $60,000 a year, therefore I take about $5,000 in addition to the basic salary which gives me a basic salary now of $22,000 per month, average. That I take to be about right, because Mr. LAM was saying well it would be in the region of $22,000 to $23,000 and I am prepared to take off a little bit because, as I have indicated, I felt that, on occasions, Mr. LAM was inclined to exaggerate a little bit and $22,000 seems to me to be a good working figure.

44. That would give in the pretrial earnings an average monthly earning of something like $13,500, and if I take the 75 months, that would give a figure, on my calculation, of $1,012,500.

45. Now turning to Mr. TSANG's dependants, he had in China a father and a mother - the father is now 63, the mother is 61; he had I think, three elder sisters and he had two younger brothers, the older of which has just finished his education, the younger one has still got some time to go with his education, another four years.

46. Now he paid for his brother's education. He also remitted substantial sums of money to his parents for their living expenses, and he also seems to have contributed a substantial amount of money to pay for what I think was the building of a house for his parents back in their home village.

47. Now I accept the evidence on that and it seems that there was a substantial sum, probably in the region of about $2,000 on average per month going back to China. The figure for dependency which has been put by the Plaintiff is 42% and I accept that for these purposes, and so I take 42% of $1,012,500, and on my calculation it comes out to $425,250, to which must be added interest of 4.75% at half the judgment rate and that is $20,199. The damages in respect of bereavement, I am told had been agreed at $70,000, and the interest on that of $20,781, giving on that score a figure of $90,781. The Special Damages had been agreed at $4,240, and the General Damages at $21,068, and those figures take into account interest.

48. Finally on this I have to assess a figure for the Loss of Accumulation of Wealth, and that is the pretrial income. In respect of that I consider that 20% of his salary is a reasonable amount. I say that because of this - although I accept the evidence that he was a very frugal person, and he clearly was very careful with his money, he seems to have kept as much money as he could in a Savings Account, no doubt to get the interest. It seems as though on looking at the copy of his Savings Bank Book, that although he saved up money that was from time to time exhausted and paid out. He would save it up and then it would go, presumably up to China, usually at chinese New Year, or round about Chinese New Year, but at other times as well. I do not think that in the early years he would have been able to save a great deal over and above what he was remitting to China. As time went on and his salary went up, as I have held it would do, then of course he would have been able to save much more and I think his frugal nature would have shown through. That is why on a global basis I have picked a figure of 20%, and that on my calculation of the 20% of $1,012,500 comes to $202,500.

49. I turn then to the Post Trial claim - first of all under the Fatal Accidents Ordinance, we start off with the basic figure of $22,000. He was at the time of his death paying a substantial amount of his income over to his relatives and there was this, I have taken this figure of 42% dependency and I think that is reasonable to a certain extent, but I think that he would have stopped paying for the elder of his young brothers, namely TSANG Kwong Woon, at least in about a year's time, once he had been able to get a job and clearly he would have stopped paying for the younger of his younger brothers, TSANG Kwong Chau, in about four years' time.

50. I have also considered that, given the age of the deceased's parents, a figure of 6 years for them would be reasonable. I am not prepared to give them the full, to calculate it on the full extent of the deceased's multiplier, which I will come to in a moment. So if I take 42% of $22,000 that comes to $9,240, and if one were to divide that by the four people who are largely beneficiaries, or one of the beneficiaries of his benevolence, that would be about $2,310 each. Over a period of 6 years for the father and mother, that would come on my calculation to $166,320 for each of the father and mother and for the elder of the two brothers, $27,720, and for the younger $110,880. Therefore my calculation comes to a total of $471,240.

51. Now turning to the deceased's own claim under LARCO the first question which I have to decide is what multiplier I should apply. Now in my view, I consider it right to apply the multiplier of 14 years. I say so for this reason, that although Sir Martin Roth says that the deceased's condition was treatable by this lithium compound and the prognosis was good, there was clearly still a risk there that the deceased might attempt suicide in the future. There might be problems if he forgot to take his medicine, or he happened not to take his medicine, or he might have got into difficulties, things might have happened, the treatment might not have been that good. I consider that whereas 15 or 16 years might in other circumstances have been appropriate for a person of the deceased's age, namely 25 years old and- in a non-dangerous occupation, I think 14 years is a more appropriate multiplier given his mental and physical state.

52. I consider that it is quite likely, given what has happened in the state of the property market and so forth in Hong Kong over the years, that the most likely thing is that as the deceased's salary went up he would have tried to buy himself a flat. He might have got married. He might not have got married. We do not know. But I think he would have put a substantial sum away each month to pay for a flat. In those circumstances, once his salary had gone up, I think it is reasonable to take a figure of some 40% of $22,000 would give a figure of $8,800, and I think that he may well have put that money aside in mortgage payments to pay for a flat. That would give, over a period of 7.75 years which is that remaining once the 6.25, a figure of $818,400.

(Discussion as to form of Order)

53. I give judgment for the Plaintiff in the amount of $2,053,678.

Representation:

Martin Lee, Q.C. leading R. Sujanani (D. L. A.) for Plaintiff

S. Franklin (Robertson Double) for Defendant