So Sau Man and Another v. The Hospital Authority

HCPI000890/1998

HCPI No. 890 of 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 890 OF 1998

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Coram: Before Master Cannon in Court

Date of Hearing: 29th November 2000

Date of Handing Down: 31st January 2001

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ASSESSMENT OF DAMAGES

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1. This assessment of damages arises out of a judgment which was entered for Madam So on 20th July 2000, with the notice of assessment issuing on 15th September 2000.

2. In 1994 when Madam So was aged 35, she became pregnant for the first time. She gave birth to her son, Leung Chung Hong on 27th August 1995 at the Princess Margaret Hospital. At birth, her son was apnoeic, cyanosed and flaccid, and he suffered from severe birth asphyxia with multiple system involvement. Sadly, the baby died on 23rd January 1996.

3. On her own behalf Madam So claims damages for pain, suffering and loss of amenities for the fact that she will probably not have any children resulting from the tortious act of the defendant, and for the dysthymic disorder she suffers. But for the tortious act of the defendant she would have had a child and would not have suffered from the dysthymic disorder. Madam So also brought a claim on behalf of the estate of her late child, which included damages for bereavement and PSLA, which was settled between the parties.

4. The defence submit that the plaintiff has not suffered a physical injury but a dysthmic disorder, and that the plaintiff has brought two claims, and that these must be treated separately to avoid duplication of compensation, and that Dr. Stevenson confirms that the plaintiff does not suffer from any gyaecological disease.

5. At the assessment Madam So's witness statement was admitted into evidence and she gave oral evidence. Madam So's husband, Leung Wing Hung, gave evidence and his statement was admitted into evidence.

6. Admitted into evidence were the reports of Dr. Chung See Yen dated 8th December 1998 and 17th May 1999 and his letter dated 27th July 2000, as were the reports of Dr. R.J. Stevenson dated 5th June 1999, 23rd June 1999, 9th July 1999, and his letters dated 25th July and 27th July 2000. Also admitted into evidence were the reports of Dr. Ching Kam Wing of the Department of Health dated 7th December 1998 and of Dr. Hui Yui Fun, Linda, dated 18th January 1999.

7. I ruled that since the defence had not filed an answer to the statement of damages or the revised statement of damages, the defence was precluded from adducing a positive case on the quantum, as provided in PD 18 paragraph 10, although entitlement remains an issue.

PSLA

8. Simon Brown J. in Bagley v. North Hertfordshire Health Authority, New Law Journal of 24th October 1986 at page 104 considered three aspects of the loss under PSLA in this type of claim, and in his judgment Ognall J. in Kerby v. Redbridge Health Authority (Unrep.) QBD 1992, followed the same breakdown, categorised as dashed hopes, rigours of an additional pregnancy and the plaintiff's own pain and suffering. I will do likewise.

Dashed Hopes

9. In Bagley, Simon Brown J. found that the plaintiff was entitled to a separate and discrete head of damages -

"The plaintiff's loss of the satisfaction of bringing her pregnancy, confinement and labour to a successful, indeed joyous, conclusion: It is accepts counsel for the health authority in his most helpful and able submissions, the reward which every woman hopes for at the end of her labour. This plaintiff was denied it. On the contrary she underwent the burdensome, laborious process of carrying and bearing her child, only to be deprived at the final hour of her hopes and expectations of success and fulfilment. One needs but little imagination to appreciate the depths of her disappointment and distress. I accept entirely the submission of counsel for the health authority that the plaintiff cannot be compensated for the discomfort and inconvenience of carrying the child. That, would, of course, would (sic) have been suffered even had the hospital not been negligent - even, that is, had the pregnancy been brought a happy end. For this reason Udale v Bloomsbury Area Health Authority ... and other authorities concerned with failed sterilisation and vasectomy, namely, with the failed prevention of childbirth, cannot assist me. But that is not to say that I must ignore the disappointment, the lack of a sense of accomplishment at the end of the pregnancy, is not the more acute through a realisation of the needless struggle and the dashed hopes that were increasingly built up through the entire pregnancy."

10. In Kerby, Ognall J. refused to award damages under this head on the grounds that he would awarding damages for bereavement twice over or awarding damages for a head of claim not recognised by English law. He relied on the dictum of Lord Bridge in Mclough v O'Brien (1983) 1 AC 410 for the principle that the common law, rightly or wrongly, affords no right to damages for the 'normal emotions by way of grief, sorrow or distress attendant on the loss of a loved one'.

11. I follow the authority of Ognall J. in Kerby. I too regret that I am unable to award any sum for 'dashed hopes' since I would be either awarding damages for bereavement twice over or awarding damages for a head of claim not recognised in English or Hong Kong Law.

Rigours of an Additional Pregnancy

12. In Bagley, Simon Brown J. said -

"The loss associated with the physical loss of the child counsel again fairly concedes that the hospital's negligence frustrated this plaintiff's plan to enlarge her family; and that her loss in this regard is rendered the more poignant by what he accepts to be her reasonable decision not to attempt a third pregnancy. Thus she has no hope of replacing the lost child and thereby repairing her shattered family plan. I have no doubt whatever that this plaintiff falls to be compensated on the basis that she will not now have another child; indeed, were she to attempt it and fail, then the aggravation of her suffering would in my judgment at least equal such alleviation of frustration as she could hope to achieve by success. As it is, both the plaintiff and her husband have taken the view that the plaintiff would probably not be able to recover from an unsuccessful further pregnancy."

13. In Kerby, Ognall J. refers to Bagley, as follows -

"it should be noted that in that case, as I have already been at pains I hope to observe, the plaintiff was fully justified on medical grounds in saying that she would never become pregnant again. That is, of course, not the case here. My earlier expressed findings mean that, as a question of fact, the plaintiff in this case has not been precluded from further pregnancy by these events. In those circumstances, even if Bagley (2), as I have described it, is a head of damages recognised by the law, which for my part I doubt, it cannot arise upon my findings in this case. The highwater mark of the plaintiff's entitlement here is that I am allowed to look at the prospects of a further pregnancy in her case, as I do, and to remind myself that, on the plaintiff's own evidence, such further pregnancy would not have been necessary had it not have been (sic) for the death of her fourth child, occasioned by the admitted negligence of the defendants. Thus, I have to consider what I shall describe as "the rigours of an additional pregnancy", what they are worth by way of damages, discounting it for the risk that the plaintiff may not again fall pregnant, or that, if she does, for some other sad reason, the pregnancy does not come to a healthy conclusion. On the latter score, she is still amenable to conception."

14. Ognall J. noted that the plaintiff in Bagley was fully justified on medical grounds in saying that she would never become pregnant again.

15. Ognall J. found as a question of fact that the plaintiff in Kerby was not precluded from further pregnancy by the events that befell her, and that in reality since 1989 the plaintiff was quite happy to conceive again if it happened and he was not prepared to find that the loss of her baby in any material way was causative of the fact that from then until now she had not become pregnant again. He awarded damages in the sum of GBP 1,500 for the rigours of an additional pregnancy, discounting it for the risk that the plaintiff might not fall pregnant again, or that, if she did, for some other sad reason, the pregnancy did not come to a healthy conclusion.

16. In this regard, the reports of Dr. Chung See Yuen and Dr. Robert J. Stevenson are relevant.

17. In his letter of 17th May 1999, Dr. Chung See Yuen, having been referred to the report of Dr. Stevenson dated 23rd March 1999, stated that -

"I agree with Dr. Stevenson that Madam So is frightened of becoming pregnant again .... The fear of pregnancy has affected her interest in sex. She told me that the frequency of sexual intercourse had decreased from once or twice a week prior to the incident to once every 1 or 2 weeks during the interview with me on 30 November 1998 .... It appears that the frequency has further deceased to once a month when she saw Dr. Stevenson on 23 March 1999. It suggests that this problem has got worse."

18. In his letter of 5th June 1999, Dr. Stevenson states

"Assessment

There does not appear to be any significant gynaecological disease process taking place.

Conclusion

Madam So is not suffering from any gynaecological disease at the moment which would reduce her ability to become pregnant or carry a child to full term. She has been normally fertile in the past but has not conceived for the past four years since the early loss through miscarriage of her second pregnancy. There do not seem to have been any complications associated with either the delivery of her son or the miscarriage which would impair her ability to conceive. The fact that she has not conceived a third pregnancy is most likely to be accounted for by the infrequency of sexual intercourse. Her ability to conceive will decrease with the age especially after she becomes 40 years old."

19. In his letter of 23rd June 1999, Dr. Stevenson states

"With respect to documentation of a fall in reproductive performance with age I have obtained results of a study which shows that the fecundity (capacity to fall pregnant) of women in the study receiving intrauterine insemination with donated sperm fell with increasing age. In this situation the woman is normal and the procedure is performed because of a problem with the male partner. The donors are generally proven to be fertile. The data shows (copy of abstract included with this letter) that the fecundity rate halves for women in the age group 40+ years old compared to women less than 35 years old."

20. In his letter of 9th July 1999, Dr. Stevenson states

"I can confirm that Madam So is less likely to become pregnant as time passes now that she is 39 years old. The chance of her falling pregnant will decrease if she has intercourse less than two times per week.

IVF is not generally used to overcome infertility problems caused by low frequency of intercourse although the procedure is technically possible. The chance of being successful performing IVF in the age group 35-40 varies from laboratory to laboratory but at Prince of Wales it is about 15%. In the 40 years and above age group the success rate is below 5%. Once a woman is pregnant her chance of carrying to term is about 80% and this does not decline much with increasing age.

Chinese University do not have an age cut off but counsel women over the age of 40 years about the low chance of success. The Hong Kong University will not accept women over the age of 35 years because of the difficulties with meeting the demand for the service and the low chance of success."

21. As with the plaintiff in Kerby, there is no medical evidence that Madam So is unable physically to become pregnant again. Unlike the plaintiff in Kerby, she is not happy to conceive again. There is a reduced frequency of intercourse. She remains fearful of a pregnancy because of her not unnatural fear of the medical profession. She will have to overcome this fear before she can contemplate a third pregnancy. She is now 41. In Kerby the plaintiff was 42. Madam So did attempt a second pregnancy which sadly did not come to full term. Given the facts and the medical evidence before me, I find that Madam So will not fall pregnant again and I make no award for the rigours of a further pregnancy.

Plaintiff's Own Pain and Suffering

22. In the revised statement of damages a sum in the region of $780,000 is claimed.

23. In her witness statement of Madam So details the trauma she experienced both during and after the birth of her son, the further trauma of watching her son's condition deteriorate and of seeing him die five months later, and the continuing trauma at the loss of her son.

24. Counsel for the plaintiff submitted that the events leading up to the birth are fully set out in the statement of claim. In view of the admission of liability it is clear that the management by the doctors and nurses concerned was grossly inadequate. The defendant admitted liability in the case of the son on 18th December 1998, but did not concede liability in the case of the mother until 10th July 2000. It is not even as if the defendant challenges the psychological impact on Madam So of the loss of her child. Madam So and her husband were interviewed for the purpose of a psychological assessment by a defence medical expert but the defendant did not produce any medical evidence at the assessment.

25. The baby was born with severe brain damage and other injuries. The baby was Madam So's first, and it is the plaintiff's case that as a result of the effects on her, it will probably be her last.

26. Madam So remained in hospital from 28th August to 1st September, and during that time she went to see her son in the neo-natal intensive care unit. The child was in an oxygen tank and connected to numerous tubes. At about 4 weeks old he required surgery for a ruptured spleen. Gradually he became paralysed.

27. Following her discharge, Madam So remained at home for a week because she had difficulty in walking. The ligament between her pubic bone and pelvis became stretched. As a result her pelvis could not support her lower limbs, and whenever she moved, she felt great pain. Her husband visited the child every day. She and her husband then visited her child each day as he deteriorated over the next four and a half months. A medical entry on 5th October records that the condition of the baby was poor and critical.

28. The plaintiff suffered considerable distress over the condition of her son caused by the gross negligence of the hospital. Adding to the ordeal was the knowledge that had the hospital not been negligent her son would have lived.

29. As a result of these events, Madam So developed her own problems. These are set out in the statement of claim, in her statement and the medical reports. Counsel for plaintiff summarised his client's case -

30. According to Dr. Chung See-yuen report dated 8th December 1998, prior to the incident Madam So was a happy person with many friends with whom she would socialise. She had undertaken courses in Japanese, Putoughua, knitting and cooking. She was a fairly driven person with many interests. She had a good marital relationship. She was herself from a large family of 6 siblings with whom she had good relationship. Despite having had hypher thyroidism in 1986 for she was under treatment for more than a year she had not allowed it to depress her. Her life was happy and serene prior to the accident.

31. Her pregnancy was a cause for joy and excitement. Both she and her husband attended the antenatal course. Everything changed after the deliver. She saw her son in intensive care, suffering generalised convulsions. She saw him cry as she embraced him. To her the baby had feelings. She became depressed, she suffered from frequent frightening dreams relating to the baby. A physician at Ngan Tam Kok Clinic gave her counselling and prescribed an anti depressant and a hypnotic.

32. In May 1996 she became pregnant but suffered a miscarriage in June. She became dejected, irritable and emotional. She contemplated suicide.

33. In November 1995 she was referred to a Clinical psychologist at Princess Margaret Hospital. She attended psychotherapy several times up to May 1997 which helped her.

34. At the time of the examination, Madam So complained that she was depressed most of the time and cried a lot.

35. She considered herself to be a failure as she could not bring up a child. She had no meaning to life. She sometimes thought of suicide. She became emotional whenever she though about her baby. She lacked confidence with people, and would not let them talk about the event. Her sleep was fitful with anxious dreams. She feared another pregnancy and was anxious with not being able to cope with another failure even though she would love to bear a child. She had decreased interest in sex as she feared another pregnancy. Her mental condition had improved over the previous two years but she had been depressed most of the time recently. Her relationship with her husband had become distant. He wanted her to have another child although he respected her decision for not having a baby.

36. During the interview Madam So was emotional and tearful when talking of the incident, the death of the baby and the miscarriage. She did not believe that psychiatric treatment would help her.

37. In a report of 17th July 2000 Dr. Chung stated that Madam So's mental condition was essentially similar to that in November 1998. Dr. Stevenson, in her report dated 27th July 2000 stated that for a pregnancy in a 40 year old woman or older, the baby would be at significantly higher risk of a chromosomal abnormality compared to a woman in her thirties, especially Down's syndrome. The baby would also be at higher risk of abnormalities for formation. She herself would be more likely to experience complications, such as gestational hypertension.

38. Counsel for the plaintiff submitted that what is apparent from the above is that the inability of Madam So to have conceived children in the period from 1995 and now lies at the doorstep of the defendant. Now that she is 41, she is even less likely to have a child in the knowledge that additional complications are more likely. The defendant should bear the responsibility for future consequences as it is the defendant's negligence that took away her years of child bearing ability leaving her at age 41 needing to face further risk which she ought not to be expected to assume.

39. In most personal injury cases the physical injury leads to the psychological sequelae. In this case the reverse is true. The psychological trauma has resulted in Madam So being unable to force herself physically into having children because of her fear of pregnancy itself and her fear of doctors. This is no less serious a result. Madam So will live with the memory, and even more so live without children because of the events that occurred.

40. The award for PSLA should reflect all these factors.

41. In Kerby, Ognall J. considers the plaintiff's particular circumstances as follows -

"That leaves the central issue of the plaintiff's own pain and suffering. Here the following factors are to my mind relevant and, indeed, important: first, on her own account, the plaintiff was aware, when admitted for the birth of the twins that all was not well after the delivery of the first healthy twin. She for her own part is still racked with doubt as to whether at that stage she should have spoken up instead of leaving it to the doctors but she went through what I shall describe, perhaps charitably, in those few minutes - maybe longer - a thoroughly upsetting experience before she was ultimately anaesthetised and the second boy delivered by caesarean section. Secondly, the surgical intervention and the ensuing and permanent scar would not have been necessary but for the defendant's negligence. Thirdly, the scar is a bikini scar and therefore unobtrusive to strangers, but it is still - and I accept the plaintiff's evidence on this - modestly troublesome around the time of menstruation and, of course, the plaintiff herself, as any lady might be, would herself be aware of it. Fourth, Mr. Havers submits that the plaintiff must be compensated for the immediate trauma which followed on the disclosure to her and her husband that the baby was so grievously disabled that he had no future and the ensuing agony of the authorising of the switching off of the life support machine. Whether or not this aspect of the plaintiff's claim should be treated as generically sound or whether, as Mr. Coghlan would maintain, it should be treated as no more than "distress and grief" does not seen, in the event, to me to matter. That is because, even if Mr. Coghlan is right, these matters must be taken as forming part of the immediate causation background to the last of Mr. Haver's heads, namely, the depressive illness.

This was moderately severe for some six months. Some sequelae still remain, but happily few. But is has to be noted that, unlike some cases of this kind, the plaintiff has a constant reminder of what might have been in the presence eof Robert, the surviving and healthy twin. No doubt, in many respects his happy and healthy existence is a consolation to the plaintiff, but I believe her when she tells me that often when she looks at Robert, she misses his brother, the baby who was taken from her. I would be very surprised indeed if that was not a factor which has continued to militate against her total recovery from that depression."

42. Ognall J. awarded the sum of GBD 10,000.

43. While the defence accepts the plaintiff suffers a dysthymic disorder, a psychiatric injury, for which she is entitled to be compensated, it is important to differentiate between what the plaintiff is entitled to be compensated for and what she is not.

44. In his report of 8th December 1998, Dr. Chung see-yuen confirms that Madam So is suffering from dysthymic disorder, a mental disorder characterised by a chronic depression of mood. The symptoms are that of having a depressed mood most of the time, irritability, feelings of worthlessness, low self-esteem, lack of interest in activities and sleep problems. The mental illness is mild. Her marital relationship and social functioning are slightly affected by the mental symptoms. Her work performance is not impaired. The most worrying symptom is her fear of pregnancy.

"She cannot tolerate another pregnancy despite her longing for a child. The fear is caused by that fact that she is traumatised by the tragic birth and death of the baby. The impact is made worse by the miscarriage in 1996. She had lost confidence in the medical profession. She firmly believes that nobody can help her if she is coming across similar problems again. Her self concept is low. She regards herself as a failure. She is nervous that she will not able to cope with another setback. She has decided not to have another pregnancy because of the emotional disturbances.

The prognosis of dysthymic disorder depends, to a large extent, on whether she can bear a child. Her mental condition will significantly improve if she can deliver a healthy baby. She will regain herself confidence. Her depression will then be alleviated. She will continue to be a sad person with shattered self-esteem for many more years to come if she cannot bear a child.

Psychiatric treatment is indicated. She has to help work through the trauma of the incident. Her self-esteem has to be bolstered. She has to be taught on coping strategies to deal with her emotional problems. The treatment has to be provided on an urgent basis as she is now 39 years old. She will not be able to bear a child a few more years later because of her age. Psychotherapy is needed once every 2 weeks for about 15 one-hour sessions. Her husband has to be present during some of the sessions. I anticipate that treatment is difficult to be carried out as she lacks confidence on doctors. Therapeutic relationship will be difficult to be established. An experienced psychiatrist is required as treatment failure will give rise to detrimental outcome. Patients cannot choose their doctor in the public service. I recommend that the treatment be carried out by a private psychiatrist of her choice to increase the chance of success. I estimate the cost of treatment at $37,500.

Assessment of psychiatric impairment cannot be made at present as it is difficult to predict the outcome of the treatment. I recommend a reassessment of her condition after the psychiatric management."

45. In his report of 17th May 1999, at page 39 of the Bundle and referred to earlier, Dr. Chung refers to Dr. Robert J. Stevenson's report and states that

"I agree with Dr. Stevenson that Madam So is frightened of becoming pregnant again. I have got the same history from her as described in paragraphs 16.3 and 26 of my report dated 8 December 1998.

The fear of pregnancy has affected her interest in sex. She told me that the frequency of sexual intercourse had decreased from once or twice a week prior to the incident to once every 1 or 2 weeks during the interview with me on 30 November 1998. (Paragraph 16.3 of my report) it appears that the frequency has further decreased to once a month when she saw Dr. Stevenson on 23 March 1999. It suggests that this problem has got worse."

46. The plaintiff seeks a sum of $780,000 under this head. The defence suggests that the appropriate figure is $200,000.

47. Counsel for the defence submitted that the claim on behalf of the estate of the son included a claim for PSLA and the physical pain and suffering of the child have been compensated in the settled claim and in law the plaintiff is not entitled to damages for grief and distress at her son's suffering. The plaintiff gave evidence that the counseling she received before and after her son's death did help her to improve and that those treating her were competent, that the paediatricians who treated her son did their best for him and that she had a good relationship with them. Madam So said in cross examination that she was happy when she became pregnant in 1996, that it was planned, it was something she wanted and thought she could do. It was obvious that her fear of doctors and of becoming pregnant due to the tortious act, while understandable, was a proportionate response to her recent experience but was managed. The cross examination was not intended to suggest that the psychological reaction had dissipated, but rather to demonstrate that care should be taken not to over-state the response.

48. I accept the plaintiff's submission that as a result of the defendant's tortious act Madam So's enjoyment of life has been marred, and I find that on the evidence of the medical experts that Madam So will not have a child and that for the rest of her life she will be deprived of the family life which she had a right to expect.

49. Other than the two cases referred to above, there is little authority to assist me in assessing the damages for pain, suffering and loss of amenities in this type of claim since most of such cases reach settlement. In saying this, I do not imply any criticism of the parties in this case. Counsel for the plaintiff referred to the Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injury Cases (4th Edition 1998), where it is suggested that in cases of 'infertility by reason of injury or disease with severe depression and anxiety, pain and scarring the top end should be GBP 72,990 and the bottom end should be GBP 52,140'. Counsel also referred to the English Court of Appeal case of Heil v. Rankin (2000) 2 W.L.R., where awards for general damages were increased by up to 30%. There are the categories of injuries set out in Chan Pui Ki, but these relate essentially to physical injuries and even then awards have been variable.

50. Having evaluated the evidence and considered the careful submissions of counsel for both parties, and doing the best I can in all the circumstances of this case, I make an award of $650,000 under this head.

SPECIAL DAMAGES

Costs of Psychiatric Treatment

51. Although Dr. Chung see yuen anticipates that the treatment will be difficult since Madam So lacks confidence in doctors and that the therapeutic relationship will be difficult to establish, he recommends such treatment for the plaintiff, to be carried out by a private psychiatrist of her choice to increase the chances of success, and he estimates the cost to be $37,500. I am satisfied that the plaintiff is entitled to the costs of such treatment and I accept Dr. Chung's figure, and award the sum of $37,500 under this head.

Medical Expenses

52. The items for antenatal check ups ($2,234), Madam So's hospital fee at PMH ($300), her outpatient treatment in various institutes of the Hospital Authority ($2,000), and physiotherapy ($1,804) are all allowed, totalling $6,338.

53. As to the costs of chinese herbs from Kam Fung Dispensary ($1,800) and from the Buddhist Vassar Chinese Medical College ($4,169), the defence submits that the Kam Fung expenses were incurred after the miscarriage and do not flow from the tortious act. As to the Buddhist Vassar costs, there is no evidence that these were medically advised or as to the benefits the plaintiff derived from their use. Madam So said that she started to take the herbal medicines after the birth, as most Chinese women do to assist in the recovery of their strength. The defence submits that the plaintiff cannot recover sums which would have been expended without the tort. I disallow the Kam Fung expenses of $1,800 but allow the Buddhist Vassar expenses in the sum of $4,169, on the grounds that, due to the negligent act of the defendant, these expenses have been wasted since the pregnancy and birth were unsuccessful and such expenses stand to be recovered from the defendant.

Expenses incurred in anticipation of the birth of Leung Chung Hong

54. These are listed as expenses of a Fung Shui Master in choosing a name for baby Leung, his birth and death certificates, and the purchase of accessories for the baby, including a baby bed, clothing and so on. Again, I take the view that expenses are wasted due to the negligent act of the defendant and allow the claim in the sum of $11,250. The costs of the Fung Shui Master are reasonable. The parents would feel that the selection of a propitious name for their son might assist him in his struggle to survive, and they would perceive this as doing all they could to help their son at that time.

Travelling Expenses

55. The defence submit that on the authority of Butterworth's Hong Kong Personal Injury Service Vol. 1 paragraph [1505] the expenses for visiting the baby were incurred for the benefit of the baby and would be encompassed in the settlement of the baby's claim. I do not accept the submission. This claim arises on behalf of the mother herself to alleviate her own condition by visiting the child. I allow the sum of $10,000.

56. As to the sum of $4,000 claimed for travelling expenses of the mother, I allow these in principle. As to the quantum, the defence submits that the plaintiff's evidence is silent on these and that she could have taken public transport. There is nothing in the evidence which suggests that these expenses were not incurred or were improperly incurred by the plaintiff, and she produced a hand written note of dates. I allow them as claimed.

Loss of Earnings and Future Earning Capacity

57. As to the sum of $8,000 for loss of earnings during maternity leave and $16,320 for absence from work for 24 days as a result of the birth, I am satisfied that these have been wasted due to the negligence of the defendant, and I am satisfied that the plaintiff's evidence has established the quantum of these claims, and I allow them.

58. As to the claim for the $1,152,000 for potential loss of earnings as a result of becoming a kindergarten teacher and for $300,000 for loss of future earning capacity.

59. The defence submits that the formulation of the case has no regard to the factual and expert evidence, questions of remoteness, reasonableness and necessity. Although the plaintiff had substantially completed her childcare course by December 1998, there is nothing in Dr. Chung's report to indicate that a change of job to kindergarten teacher can have any bearing on her dysthymic disorder. The plaintiff has not used her weekends or free time to do voluntary work for social welfare agencies for children, which she admitted she knew about. When Mr. Hingorani asked: "Had you thought about going?", the plaintiff relied: "No". When he then asked if there was any reason and whether it had occurred to her or not, she replied "I do not understand why I had to go". Clearly, if it made her happier - and it is a serious suggestion that working with children will benefit her - one would have expected different answers. The plaintiff in cross examination confirmed her evidence in her supplemental statement that she had not yet decided whether to try to obtain a job as a kindergarten teacher, which she is aware are difficult to get. There is no evidence that the plaintiff can get this work. The evidence of the estimated earnings is hearsay. The need and reasonableness of the claim have not been proved. The claim is flawed in law and speculative in fact. The claim for loss of earning capacity is equally wrong.

60. The plaintiff submits that Madam So has told the Court that when she was with children during her Childhood Education course she was happy. If she had a choice and her loss of earnings was not a consideration she would teach in a kindergarten to be with children. It is one thing teaching children in a class daily, and quite another carrying out voluntary work. The relationships established are quite different. The defendant has effectively deprived Madam So of a full family life. Madam So's commitment to a 21/2 year course shows the importance that children have to her. She took the course in the hope that she could mitigate the psychological effects that the events had upon her. In choosing to take up a kindergarten post she would suffer a loss of earnings for which the defendant should be responsible. Had she in fact changed jobs earlier to be with children and claimed a loss of earnings she would have been entitled to such a claim. If such a claim would have been justified in such circumstances it is not less justifiable now. Her current condition is no better than when Dr. Chung first interviewed her. Her needs remain the same.

61. The plaintiff submits that the claim is not remote in law or speculative in fact. Its necessity reasonably flowed from the plaintiff being deprived of a family by the psychological condition resulting from the defendant's negligence which can only be alleviated by another child or by being involved regularly with children.

62. I am satisfied that this claim finds no basis in the factual or expert evidence in this case. The claim is speculative. I make no award for loss of earnings or for loss of future earning capacity.

Tonic Food

63. This is claimed at $18,000. The plaintiff submits that in the absence of receipts the courts in general award a sum of $20,000. The defence in its submission combined this claim with the claim for chinese medicine, being $23,969, and suggested a sum of $5,000 in total should be allowed. I have dealt with the chinese medicine claimed above. As to the tonic food claim, the amount is reasonable and I am satisfied that I should allow it in the sum of $15,000, on the basis of a small discount since receipts are not available.

Post pregnancy clothing and accessories

64. Again on the grounds that these costs have been wasted, the claim is reasonable I allow the claim in the sum of $3,000.

Part Time Course in Childhood Education

65. The claim is for the costs of a part time course in Childhood Education at the Baptist University, in the sum of $32,175, together with a claim for $8,840 being 13 days taken off work to receive training as part of the course.

66. The defendant submits that there is simply no evidence from Dr. Chung that such a course has had any beneficial effect on the plaintiff's dysthymic disorder. In fact, Dr. Chung's latest report states that her condition is unchanged. The plaintiff's husband confirmed that the happiness she derived from visiting children as part of the programme was temporary. There is no evidence to show that this was the only way Madam So could alleviate her loss. There is no mechanical evidence in support of this contention. The need and reasonableness of the claim have not been proved.

67. The plaintiff submits that the 1st plaintiff took a part-time course in Childhood Education with a view to being closer to children. In view of her emotional condition it was the only way she could alleviate the impact of her loss. The fact that she has as yet not begun to teach in kindergartens does not diminish the right to such a claim. The consequent loss of earnings has restrained her. The defendant is the cause of her predicament.

68. The course provided some relief to Madam So, although of a temporary nature. There is no medical expert evidence to support the claim. While I commend Madam So in taking this positive approach to help herself, in the absence of such medical evidence, I must decline to make an award for this claim.

Cost of pregnancy and deliver in the private sector

69. The claim in the sum of $90,800 is agreed as to quantum but not as to entitlement.

70. It is clear from the medical evidence that Madam So will not fall pregnant again, and I make no award for this claim.

Summary of Damages

P.S.L.A.	$650,000
Psychiatric treatment	$37,500
Medical Expenses	$6,338
Chinese Herbal Medicines	$4,169
Expenses in anticipation of birth	$11,250
Travelling expenses	$14,000
Loss of earnings	$24,320
Tonic foods	$15,000
Post pregnancy clothing and accessories	$3,000
Total	$765,577

Interest

71. The award for PSLA will carry interest at judgment rate from the issue of the writ until the date of judgment, and thereafter at judgment rate until payment.

72. The special damages will carry interest at half judgment rate from the date of delivery of Leung Chung Hong until the date of judgment and thereafter at judgment rate until payment.

Costs

73. Costs of the assessment to be to the plaintiff on a party and party basis to be taxed if not agreed, with the plaintiff's own costs to be taxed under the Legal Aid Regulations, such order to be made absolute within 21 days of the handing down of this assessment.

Representation:

Mr. Jeevan Hingorani instructed by Messrs. Littlewoods for 1st Plaintiff.

Mr. Ashok Sakhrani instructed by Messrs. Deacons for Defendant.