Wong Fung Sze and Another v. Hospital Authority

DCPI 112/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INURIES ACTION NO. DCPI 112 OF 2004

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BETWEEN

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Before: His Honour Judge To in Chambers

Date of Hearing: 7 July 2004

Date of Judgment:  7 July 2004

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D E C I S I O N

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Background

1.I have before me two summonses.  The first one is an application by the Defendant to strike out the statement of claim of the 2^nd Plaintiff as disclosing no reasonable cause of action pursuant to Order 18 rule 19(1)(a) of the Rules of the District Court.  The second one is an application by the Plaintiffs to amend the statement of claim.

2.The 2^nd Plaintiff sues in her own capacity and as the administratrix of the estate of her deceased husband (“the deceased”).  The deceased and 2^nd Plaintiffs were respectively husband and wife.  The deceased was a patient of the Defendant’s Tuen Mun Hospital (“TMH”) for treatment of oesophageal cancer since about October 2000.  He had an operation and was discharged to home on 27 November 2000.  In March 2001, he was treated by TMH for neck pain.  Thereafter, between 2 April and 13 July 2001, the deceased was admitted to TMH on four occasions for headache.  He had three CT scans performed on his brain which all yielded a negative result.  On his fourth admission, TMH discovered a tender right upper neck mass as well as some nerve involvement.  Another CT scan appointment was scheduled on 14 August 2001.  However, at the deceased’s request and at his own expenses, urgent MRI and CT scan were performed on 21 July 2001 in St Teresa’s Hospital, a private hospital, which showed spinal metastases and lesions at the base of the skull, brain and upper neck.  On 24 July 2001, the deceased was returned to TMH.  He received two courses of palliative irradiation treatment from 27 July to 28 August 2001.  Eventually, the deceased died on 22 September 2001.

3.The 2^nd Plaintiff instituted the present action on 12 February 2004 on behalf of the estate of the deceased and on her own behalf against the Defendant for medical professional negligence.  On 13 April 2004, the Defendant took out an inter-parte summons to strike out the 2^nd Plaintiff’s claim.  Shortly before the hearing of the striking out application, the 2^nd Plaintiff issued a summons to amend her statement of claim on 28 June 2004. 

4.The 1^st Plaintiff’s case is that although the deceased would die in any event, but for the Defendant’s negligence, the quality of the deceased’s life would have been better.  The 2^nd Plaintiff’s pleaded case under the statement of claim as it now stands is that but for the Defendant’s negligence, she would not have been so grieved by the death of the deceased and would not have developed psychiatric illness.  By her proposed amendment, she sought to introduce a further or alternative case that she was a “representative” and a “rescuer” of the deceased and recipient of the negligent medical advice, as a result of which she suffered nervous shock when she learned on 21 July 2002 that the cancer had spread to other parts of the deceased’s body.

The approach

5.Mr Tong, counsel for the Defendant does not object to the application for amendment as such, but argues that the statement of claim even if amended is doomed to fail.  I shall consider the Defendant’s striking out application firstly on the basis of the statement of claim as it now stands and secondly as if the amendment had been allowed, which must present what the 2^nd Plaintiff considers to be her better case.  If the 2^nd Plaintiff can resist the striking out application in either case, her application to amend must be allowed and the Defendant’s application to strike out must be dismissed.  If, on the other hand, the 2^nd Plaintiff’s case as now pleaded or if as amended cannot stand, her application to amend must be dismissed and that part of the statement of claim as is relevant to her action must be struck out and her action against the Defendant be dismissed.

6.In addition to the statement of claim filed in Court, the Plaintiff has also filed a statement of damages and medical reports.  The statement of damages must be treated as part of the statement of claim and part of the Plaintiffs’ case.  As for the medical reports, these were filed and served pursuant to Order 18, rule 12(1A) and Practice Direction 18.1.  In paragraph 18/12/4A of the Civil Practice, it is said that the medical report “will operate as particulars.”  They are not pleadings as such but are of the nature of evidence to be relied on at trial by the plaintiff filing the reports.  They may not necessarily represent the whole of the plaintiff’s case as the plaintiff’s condition may change and the plaintiff may also file further reports if necessary.  Under such circumstances, I shall treat the medical reports as a general outline of the 2^nd Plaintiffs’ case for the purpose of these applications and keep my mind open to the possibility that she may file further medical reports in support of her case.

The law – nervous shock

7.Both counsel for the Plaintiffs and the Defendant agree that the leading authority in negligence claim for nervous shock is the House of Lords decision in Alcock and others v Chief Constable of South Yorkshire [1992] 1 AC 310. In that case, the Hillsborough stadium collapsed as a result of overcrowding, killing 95 people and injuring many more others.  The plaintiffs were relatives and friends of the spectators involved in the disaster who witnessed the disaster from other parts of the stadium or who saw the events on television. 

8.The House of Lords distinguished between a primary victim and a secondary victim: per Lord Oliver at 407.  A primary victim is a person who was involved, either mediately or immediately, as a participant.  He was the person to whom the duty of care was owed.  A secondary victim is no more than the passive and unwilling witness of injury caused to the primary victim.  He is a third party whose injury was brought about by the infliction of direct physical injury or the risk of physical injury upon the primary victim. 

9.The House of Lords adopted its earlier decision in McLoughlin v O’Brien [1983] 1 AC 410 and held that because “shock” in its nature is capable of affecting such a wide range of persons, for policy reason there was a real need for the law to place some limitation upon the extent of admissible claims.  In McLoughlin v O’Brien, Lord Wilberforce identified three elements inherent in any claim for nervous shock.  In order to establish a claim in respect of psychiatric illness resulting from shock suffered by a secondary victim it is necessary to show not only that such injury was reasonably foreseeable, but also (1) that the relationship between the plaintiff (i.e. the secondary victim) and the person to whom the duty was owed (i.e. the primary victim) was sufficiently proximate as to be within the class of persons whose claims should be recognised; (2) that the plaintiff had to show propinquity in time and space to the accident, not only through the sight or hearing of the event, but of its immediate aftermath; and (3) that the shock must come through sight or hearing of the events or its immediate aftermath. 

10.The above principle has been well settled since McLoughlin v O’Brien.  But the House of Lords went further in Alcock and others v Chief Constable of South Yorkshire.  It recognised nervous shock as a separate kind of injury distinct from physical injury, but held that the law gives no damages if the psychiatric injury was not induced by shock and defined “shock” as an agitation which involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind.  Lord Ackner referred to Bourhill v Young [1943] AC 92 and set out five legal propositions.  The first and fifth of these propositions are relevant to the present case.  He said at 400:

“In Bourhill v Young [1943] AC 92, 103, Lord Macmillan said:

‘In the case of mental shock there are elements of greater subtlety than in the case of an ordinary physical injury and these elements may give rise to debate as to the precise scope of the legal liability.’

It is now generally accepted that an analysis of the reported cases of nervous shock establishes that it is a type of claim in a category of its own.  Shock is no longer a variant of physical injury but a separate kind of damage.  Whatever may be the pattern of the future development of the law in relation to this cause of action, the following propositions illustrate that the application simpliciter of the reasonable foreseeability test is, today, far from being operative.

(1)                Even though the risk of psychiatric illness is reasonably foreseeable, the law gives no damages if the psychiatric injury was not induced by shock.  Psychiatric illness caused in other ways, such as by the experience of having to cope with the deprivation consequent upon the death of a loved one, attracts no damages.  Brennan J in Jaensch v Coffey, 155 CLR 549, 569, gave as examples the spouse who has been worn down by caring for a tortiously injured husband or wife and who suffers psychiatric illness as a result, but who, nevertheless, goes without compensation …

(5)                 “Shock,” in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind.  It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system.”

11.In the ten years that followed, Lord Ackner’s formulation of shock has been subject to further judicial interpretation.  The latest development is the Court of Appeal decision in North Glamorgan NHS Trust v Walters [2003] EWCA 49.  I think I only need to refer to this case as it summarises the development since Alcock and others v Chief Constable of South Yorshire. 

12.The claimant in North Glamorgan NHS Trust v Walters was the mother of a 10 month old baby, Elliot, who was diagnosed as suffering from hepatitis when in fact he was suffering from acute hepatitis.  He was taken to Prince Charles Hospital.  After a few days, his condition deteriorated.  At the time, the mother was sleeping in the same room as the baby.  She found the baby suffering from a fit and informed the nurse.  She was told by a doctor at 4:45 am that the baby had a fit but it would be very unlikely that he would suffer any serious damage as a result of the fit.  At about 11 am, after a CAT scan, she was told by a doctor that there was no damage to the baby’s brain but the baby had to be transferred to King’s College Hospital for liver transplant. The claimant followed the ambulance in a car driven by her husband to King’s College Hospital.  At about 9 pm that evening, she was told by the doctors there that the baby had suffered severe brain damage as a result of the fit and was on a life-support machine.  The baby underwent a further CAT scan the following day.  After that the mother was told that the baby’s brain was so severely damaged that he would not have any sort of life.  She agreed to discontinue with life support for the baby.  Against those facts, Thomas J found for the mother and held that the mother established she suffered shock through a sudden appreciation by sight and sound of a horrifying event.  He held at paragraph 39:

“On the facts of this case, the claimant was present by her son’s bedside when he suffered a fit.  She clearly appreciated that something serious had happened.  She was told initially at the Prince Charles Hospital that Elliot would be unlucky not to be all right; that was plainly negligent advice.  She had to leave her son while he was transferred to London, but immediately on arrival she was told of the true significance of what had happened.  The following day she made the decision to switch off the ventilator.  It seems to me that the period of 36 hours from the moment at which the epileptic fit started, the mis-diagnosis by the Prince Charles Hospital, the correct diagnosis by King’s College Hospital and the decision to turn off the life-support machine because of the irreparable damage caused by the fit can be looked on in law as a horrifying event properly so called.  Her appreciation of the horrifying event was sudden within the temporal context in contradistinction to more gradual assaults on her mid.  It was that sudden appreciation of that event that caused the pathological grief reaction.”

13.The defendant’s appeal was dismissed by the Court of Appeal.   Ward LJ held that what amounts to a shock is a matter of judgment in each case depending on its facts and circumstances.  The event which caused the shock is not confined to a frozen moment of time but can in fact be made up of a series of seamless events with an obvious beginning and an obvious end over a period of time, which at the time and as subsequently recollected was one drawn-out experience.  He said at page 58: 

“In my judgment, the law as presently formulated does permit a realistic view being taken from case to case of what constitutes the necessary “event”.  Our task is not to construe the word as if it had appeared in legislation but to gather the sense of the word in order to inform the principle to be drawn from the various authorities.  As a word, it has a wide meaning as shown by its definition in the Concise Oxford Dictionary as: “An item in a sports programme, or the programme as a whole.”  It is a useful metaphor or at least a convenient description for the “fact and consequence of the defendant’s negligence”, per Lord Wilberforce, or the series of events which make up the entire event beginning with the negligent infliction of damage through to the conclusion of the immediate aftermath whenever that may be.  It is a matter of judgment from case to case depending on the facts and circumstances of each case.  In my judgment on the facts of this case, there was an inexorable progression from the moment when the fit occurred as a result of the failure of the hospital properly to diagnose and treat the baby, then fit causing the brain damage which shortly thereafter made termination of this child’s life inevitable and the dreadful climax when the child died in her arms.  It is a seamless tale with an obvious beginning and an equally obvious end.  It was played out over a period of 36 hours, which for her both at the time and as subsequently recollected was undoubtedly one drawn-out experience.”

Ward LJ upheld Thomas J’s finding that the series of events over a 36-hour period was one horrifying event.

The 2^nd Plaintiff’s case as pleaded

14.Paragraphs 10 and 11 of the statement of claim as it now stands read as follows:

“10.   But for the Defendant’s negligence pleaded in paragraphs 5 and 6 herein above, the 2^nd Plaintiff would not have been so grieved by the death of the deceased, and have developed psychiatric and/or psychological illness.

11.    As a result of the matters and event pleaded in paragraphs 2, 5 to 7 hereinabove, the 2^nd Plaintiff was unable to accept the deceased’s death under the treatment of inferior quality provided by the Defendant despite bereavement counselling.  She was subsequently given a diagnosis of depression by Department of Psychiatry of TMH…”

For convenience, I have included the 2^nd Plaintiff’s proposed amendments in respect of these paragraphs, which have been underlined.

15.There are two medical reports on the 2^nd Plaintiff.  In his report dated 27 November 2003, Dr Lai Yik Kiu wrote:

“The patient was unable to accept husband’s death despite bereavement counselling at SWD.”

In his report dated 8 December 2003, Dr Alexander Lo wrote:

“Madam Wong did believe that if the diagnosis and treatment was prompt and accurate, her husband should not have died that early.  Since then, she did not accept her husband’s death and started to have her depression.”

16.It is common ground that the deceased would have died in any event.  There is no dispute that the relationship between the 2^nd Plaintiff and the deceased was sufficiently proximate.  For the purpose of the present applications, I would assume that the 2^nd Plaintiff has satisfied Lord Wilberforce’s three elements of proximity. But even assuming further that the psychiatric illness suffered by the 2^nd Plaintiff was reasonably foreseeable and was caused by the Defendant’s alleged negligence, no shock is disclosed in the pleading as it now stands or in the medical reports.  The 2^nd Plaintiff is a secondary victim.  She cannot succeed without proving that her psychiatric illness was induced by shock.  Her statement of claim as it now stands must be struck out as disclosing no reasonable cause of action.

The 2^nd Plaintiff’s case as pleaded under the proposed amendments

17.In addition to the proposed amendments indicated above, the 2^nd Plaintiff proposed to include an additional paragraph 10A, which reads:

“10A.   Further or in the alternative, it is averred that:-

(a)      The 2nd Plaintiff hereby repeats what is pleaded in paragraph 6 hereinabove.

(b)      The 2nd Plaintiff being the lawful wife of the deceased had at all material times taken care of the deceased.

(c)      It was the 2nd Plaintiff (though almost illiterate) who had on many occasions queried TMH whether proper treatment had been administered by the hospital to the deceased and on occasions argued with the doctors of TMH.

(d)      The 2nd Plaintiff at all material times played a role of “representative” for the deceased and a “rescuer” in her mind, especially when the deceased was admitted to TMH having a painful and heavy headache problem because of brain metastasis (as verified subsequently).

(e)      The 2nd Plaintiff was at all material times the recipient of the negligent mis-statement and/or medical advice from TMH that “there was nothing wrong with the decease” (because of what is pleaded in paragraph 6 hereinabove).

(f)        Relying on such negligent mis-statement and/or medical advice from TMH, the 2^nd Plaintiff did not seek alternative medical treatment or look into this matter through the private sector for the deceased until in or about July 2001.

(g)      In the circumstances, the 2nd Plaintiff was deprived of a reasonable opportunity to “rescue” the deceased and/or to demand sufficient medical treatment for the deceased.

(h)      Owing to the treatment administered to the deceased and the admission of the deceased to TMH, the Defendant had brought into a close connection and/or a high degree of proximity with the 2^nd Plaintiff.

(i)        The 2nd Plaintiff suffered from a sudden nervous shock when she learned what is pleaded in sub-paragraph 2(k) hereinabove which followed with the subsequent death of the deceased on 22 September 2001.

(j)        The nervous shock was and is the only or major cause of her current episode of psychiatric and/or psychological illness.

18.By her proposed amendment, the 2^nd Plaintiff firstly seeks to put herself in the position of a primary victim in that she played the role of a “representative” for the deceased and a “rescuer” in her mind.  Secondly, she pleads shock.

19.Apparently, the word “rescuer” as pleaded in paragraph 10A is used in a lose and undefined sense.  Technically, a rescuer who qualifies to be treated as a primary victim so that he may claim damages for psychiatric injury without proving that such injury was caused by a shock has to pass the threshold that he objectively exposed himself to danger or reasonably believed that he was doing so while performing his rescue mission.  In Frost v Chief Constable of South Yorkshire [1999] 2 AC 455, as a result of overcrowding in part of a stadium, 96 people died with many more injured.  Liability was admitted in relation to police officers who were active in the immediate area where the deaths and injuries occurred.  Five plaintiffs were selected as representatives of the various roles carried out by the remaining officers.  Their claims for post-traumatic stress disorder caused by their experiences arising from the tragedy were dismissed.  Lord Steyn held at 499F-G:

“In order to recover compensation for pure psychiatric harm as rescuer it is not necessary to establish that his psychiatric condition was caused by the perception of personal danger.  …  But in order to contain the concept of rescuer in reasonable bounds for the purposes of recovery for pure psychiatric harm the plaintiff must at least satisfy the threshold requirement that he objectively exposed himself to danger or reasonably believed that he was doing so.”

20.On the pleading, even as amended, there is nothing to suggest that the 2^nd Plaintiff for all that she did in receiving and acting on the mis-statement or negligence advice objectively exposed herself to danger or reasonably believe that she was doing so.  By no stretch of imagination could she so expose herself in fact or believe she was so exposing herself by receiving and acting on the mis-statement or negligent advice.

21.The 2^nd Plaintiff’s attempt to equate herself as a participant in taking care of the deceased, communicating with the doctors and receiving the mis-statement so that she is a primary victim and not a passive witness is also misconceived.  Similar argument was rejected by Thomas J in Walters v North Glamorgan NHS Trust [2002] EWHC 321.  In that case, the issue was whether a mother who attended to her son and who was required to take all the decisions and provide the necessary consents in relation to her son’s treatment and to make the decision as to turning off the life-support machine of her son was a primary victim.  Thomas J considered Alcock and others v Chief Constable of South Yorshire, Page v Smith [1996] AC 155 and Frost v Chief Constable of South Yorshire and held at page 6:

“However, on the authorities to which I have referred, there must either be a foreseeable risk of physical injury to the victim or the belief that the victim might be the cause of another’s death or injury.  The Claimant is not a participant in any sense analogous to these.  There was no risk of physical injury to her and in no sense could she be said to have played any causative role in the death of Elliot.  Thus to categorise her as a primary victim would be to extend the category of primary victim in a new direction.  Although it might be said that such an extension would apply to only a limited class of persons, namely parents who remain with their children in hospital and consent to their treatment, it is difficult to see a logical basis upon which such an extension can be made.  Furthermore, even if it were, it is clear from the decision in Frost that any significant extension of the categories should be a matter for Parliament and not for the courts.”

22.That was a much more tragic case than the present one as the mother had to make the decision to turn off the life-support machine of her son.  No foreseeable risk of any injury to the 2^nd Plaintiff as a result of her participation has been pleaded, nor can I imagine of any such risk.  The 2^nd Plaintiff’s claim that she was a participant must also fail.

23.The more significant proposed amendment is the pleading of shock in the proposed paragraph 10A(i) and (j).  The 2^nd Plaintiff intends to plead that she suffered nervous shock when she learned that the cancer had spread to the deceased’s skull, brain and upper neck and that the nervous shock was and is the only or major cause of her current episode of psychiatric and/or psychological illness.

24.Mr Mui seeks to argue that I should adopt the more realistic approach of the Court of Appeal in North Glamorgan NHS Trust v Walters and hold that the series of events from 25 May 2001 to 21 July or 24 September 2001 constituted one horrifying event.  In that case, in upholding the trial judge’s finding that the claimant’s appreciation of events was sudden in contradistinction to it being a more gradual assault on her mind over the period of 36 hours, Ward LJ said at 59:

“40.   In my judgment he was fully justified in coming to the conclusion that her appreciation was sudden in contradistinction to an accumulation of gradual assaults on her mind.  The first event in the series is her being woken by her child’s convulsion.  What she saw next was unexpected.  That amounted to a sudden assault on her mind.  The next event is arriving at the hospital, hopes high.  She is given news she did not expect and did not want. The reaction was to leave her stunned.  That was a sudden and unexpected assault on her mind.  The next day she is told she should switch off the life-support machine.  Perhaps she feared it might be so but does one doubt the consultant’s evidence that she and her partner “found it particularly devastating because they thought they had been reassured prior to Elliot’s transfer that his condition was treatable”?  Each of these three events had their impact there and then.  This is not a case of gradual dawning of realisation that her child’s life had been put in danger by the defendant’s negligence.  A consequence of that negligence was that the child was seized with convulsion.  She was there witnessing the effect of that damage to her child.  The necessary proximity n space and time is satisfied.  The assault on her nervous system had begun and she reeled under successive blows as each was delivered.  It comes as no surprise to me that when her new baby was ill she should suffer the flashbacks of 36 horrendous hours which wreaked havoc upon her mind.

41.    In my judgment the judge was right in this conclusion.”

25.In the present case, the deceased had an operation for his oesophageal cancer and was discharged to home on 27 November 2000.  Since 5 March 2001, he complained of neck pain.  He was admitted to TMH on 2 and 11 April 2001.  On both occasions, a CT scan without contrast was taken from the deceased and the 2^nd Plaintiff was informed that the result of the scan was “negative”.  On 19 May 2001, the deceased was admitted to TMH again.  A right VII nerve palsy was found and he was treated as for Bell’s Palsy with high dose steroids.  On 30 May 2001 a CT brain scan with contrast was taken from the deceased and returned as “negative”. A “negative” finding means no positive cause of the symptom was identified.  In the proposed amendment, the 2^nd Plaintiff pleaded a negligent mis-statement or advice from TMH that “there was nothing wrong with the deceased”. Assuming for the purpose of this application that the staff of TMH had been negligent in the medical procedures and treatment of the deceased and/or in mis-interpreting the result of the scan as “negative” and had informed her that there was nothing wrong with the deceased, that was very much short of the very positive assurance given to the mother in Walters v North Glamorgan NHS Trust that there was no damage to the brain of the baby and that he can be transferred to another hospital for liver transplant.  Indeed, up until 21 July 2001, the staff of TMH could not identify what was wrong with the deceased.  The staff of TMH was still investigating into the cause of the headache and further CT scan was scheduled for the deceased on 14 August 2001.  The staff of TMH did not hold out any high hope for the deceased or the 2^nd Plaintiff as did the doctors of Prince Charles Hospital in Walters v North Glamorgan NHS Trust.  The 2^nd Plaintiff obviously knew there was a problem with the deceased, and probably a very serious one, which was still being investigated by TMH.  That was why she arranged for urgent MRI and CT scan to be taken at the St Teresa’s Hospital at her own expenses instead of waiting for the one scheduled for the deceased in TMH three weeks later.  The 2^nd Plaintiff was obviously under an uncertainty as to what could happen to the deceased.  She must have been suffering from mental stress at least since May 2001 as she alleged, but that was not caused by TMH but by the condition of the deceased, for which the Defendant was not responsible.  The shock (in the non-technical sense of the word) as a result of her realisation of the real condition of the deceased on 21 July 2001 was not caused by any high hope held out by the staff of TMH, however negligent they might be in failing to identify the cause of the headache because she anticipated there was some problem with the deceased, which TMH were still investigating.

26.In support of her plea of nervous shock, the 2^nd Plaintiff produced a Supplemental Psychological Progress Report by Dr Alexander Lo dated 15 June 2004 which addressed the question of causation specifically.  At page 5 of the report, Dr Lo opined that the psychiatric illness was precipitated by a series of events occurring from 25 May 2001 to 22 September, a period of four months.  This report precisely matched the analysis I made above.  The 2^nd Plaintiff’s own expert’s opinion excluded any possible argument that the event on 21 July 2001 was the shock which induced the psychiatric illness.  The psychiatric illness of the 2^nd Plaintiff was therefore the result of gradual assaults on her mind during this period of four months as a result of her worry about the cause of the deceased’s headache, the realisation of the true condition of the deceased on 21 July 2001 and the deceased’s deteriorating condition thereafter until his death. 

27.In Sion v Hampstead Hospital Authority [1994] 4 Med LR 170, a young man was injured in a motor-cycle accident and was taken to the defendant’s hospital.  His father attended to him at his bedside for fourteen days, watching him deteriorate in health, fall into a coma and die.  The father alleged that the staff of the hospital was negligent and that he suffered psychiatric illness.  The father’s claim was struck out as disclosing no cause of action.  The father’s appeal to the Court of Appeal was also dismissed.  Staughton LJ followed Alcock and held at 174:

“… this court must in my judgment accept the state of the law as declared by the House of Lords, even in a striking-out application.  It would not be right for us to impose on the parties the burden of a trial which can only have one conclusion on the present law, against the possibility that this may prove to be a case where the law is changed.” 

28.In Taylorson v Shieldness Produce Ltd , a 14 year old boy was crushed by a reversing vehicle.  He was placed on life support machine for two days.  On the second day, the father agreed to switch off the life support machine.  The son died three days after admission to hospital.   The parents claimed damages for shock and mental injury upon hearing of the accident and upon witnessing the deteriorating condition of their son.  The trial judge dismissed the parents’ claim.  The parents’ appeal to the Court of Appeal was also dismissed.

29.In North Glamorgan NHS Trust v Walters, a series of events which occurred over a period of 36 hours was held to be a horrifying event.  The events in the present case are nothing of the kind which happened to the mother in that case.  Even applying the very realistic approach of the Court of Appeal in North Glamorgan NHS Trust v Walters, it is absolutely impossible to make a quantum leap from 36 hours to hold that a series of events extending over a period of four months constituted one horrifying event.  It is also impossible to single out the event on 21 July 2001 from the series of events as the horrifying event which was and is the only or major cause of the 2^nd Plaintiff’s psychiatric illness as this is not what her medical expert says. 

30.Mr Mui submits that the law is still developing.  He referred me to the fifth proposition of Lord Ackner in which he said “shock” has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system.  He urged me to follow Clark LJ in North Glamorgan NHS Trust v Walters by taking an incremental step to advance the frontier of liability.  In fact, in that case it was unanimously held that the case did not involve any incremental advance in the frontier of liability.  It was a decision on the very special facts of the case.  Indeed, in Sion v Hampstead Hospital Authority, the Court of Appeal expressly refrained from doing so and struck out the plaintiff’s action on the basis of the law as it stands against he possibility that it may prove to be a case where the law is changed.  There is nothing in the circumstances of today that gives rise to any concern that the policy of limiting the extent of admissible claims from secondary victims should be relaxed.  The facts of the present case is certainly not one which justifies a change of the law. 

31.While sympathy lies with the 2^nd Plaintiff and while the jurisdiction to shut a plaintiff out should be carefully exercised, in the circumstances, it would not be right to impose on the parties the burden of a trial which can only result in a dismissal of the 2^nd Plaintiff’s claim with added costs, anxiety and possibly aggravation of her psychiatric condition. It would make no difference even if the case were to proceed to trial with the 2^nd Plaintiff and her medical experts giving evidence because on her case as pleaded or as proposed to be amended, the 2^nd Plaintiff will be unable to prove that her psychiatric illness was caused by a shock. 

Conclusion

32.For the above reasons, I think the 2^nd Plaintiff’s case as pleaded or as proposed to be amended does not disclose any reasonable cause of action.  Accordingly, I refuse her application to amend the statement of claim and grant the Defendant’s application to strike out that part of the Plaintiffs’ statement of claim so far as it relates to the case of the 2^nd Plaintiff and to dismiss the 2^nd Plaintiff’s action against the Defendant.  The Defendant shall have costs of the applications with certificate for counsel.

Mr. L. Mui, instructed by Messrs Lam, Lee & Lai for the 2^nd Plaintiff

Mr. P. Lam, instructed by Messrs T. S. Tong & Co. for the Defendant