Fung Chun Man v. Hospital Authority and Another
Read the full judgment text of HCPI 1113/2006 on BabelCite. This High Court CFI judgment was delivered on 11 November 2011.
1. This is a medical negligence claim against the 2 nd defendant, the Secretary for Justice on behalf of the Secretary for Food and Health, in respect of the matters of complaint spanning from the period from 24 July 1990 to December 1991, and against the 1 st defendant, the Hospital Authority, in respect of the matters complained of after 19 December 1991. It is alleged that the plaintiff was born at the Prince of Wales Hospital on 23 July 1990 with a normal Apgar score, that, on 24 July 1990,
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HCPI 1113/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 1113 OF 2006 ----------------------------- BETWEEN
----------------------------- Before : Hon Bharwaney J in Court Date of Hearing : 5–8 and 14 September 2011 Date of Judgment : 11 November 2011 ------------------------ J U D G M E N T ------------------------ 1.This is a medical negligence claim against the 2nd defendant, the Secretary for Justice on behalf of the Secretary for Food and Health, in respect of the matters of complaint spanning from the period from 24 July 1990 to December 1991, and against the 1st defendant, the Hospital Authority, in respect of the matters complained of after 19 December 1991. It is alleged that the plaintiff was born at the Prince of Wales Hospital on 23 July 1990 with a normal Apgar score, that, on 24 July 1990, the plaintiff was misdiagnosed as suffering from Transposition of Great Arteries (“TGA”), and that the infant underwent unnecessary surgery on 26 July 1990 when a Balloon Septostomy was performed. The surgery created an Atrial Septal Defect (“ASD”), commonly described as “a hole in the heart”. Prior to its closure on 5 February 2003, it is alleged that the child’s normal growth and development was stunted and it is further alleged that the plaintiff suffers from lifelong disabilities, consequent upon the unnecessary surgery performed on 26 July 1990 and negligent treatment during the period from March 1991 to August 2002. 2.On the morning of the commencement of trial, Mr Patrick Lim, appearing on behalf of the 2nd defendant, made the admission, on behalf of the 2nd defendant, that there had been a sub-standard negligent diagnosis of the plaintiff that he suffered from TGA, when he did not, and that the said sub-standard negligent diagnosis resulted in an unnecessary operation to create a hole in the plaintiff’s heart and which subsequently required closure by a patch. On the basis of the said admission, I was prepared to and entered Interlocutory Judgment against the 2nd defendant for damages to be assessed. The plaintiff then applied for leave to discontinue the proceedings against the 1st defendant, which I granted, reserving all questions of costs to the conclusion of the proceedings. Thereafter, the trial proceeded as an assessment of damages against the 2nd defendant. 3.Mr Neal Clough, counsel for the plaintiff, opened the plaintiff’s case on quantum. He submitted that the plaintiff, now a young adult aged 21, has lived with the consequences of the grievous injury done to him from before his first memory. The surgery created an ASD measuring 0.9 cm in diameter that later grew to about 3 cm, requiring further surgery to close the hole in the heart, and which was only carried out some 12½ years later. The hole in the heart that the doctor created allowed blood to flow directly from the left side of the heart to the right side and vice versa, in turn allowing for the mixing of arterial (oxygenated) and venous blood. He submitted that the plaintiff’s normal growth and development was retarded by the ASD that existed from the 4th day of his life until 5 February 2003 and that he suffered the indirect incidental effect of the sclerosis that occurred on his left foot consequent upon the ballooning procedure. The plaintiff suffered from persistent shortness of breath and weakness during his childhood that restricted his activities and development. It made him more dependent on his supported home, restricting his social developments. He could not join his peers in activities and his engagement in physical activities was limited. Constant reference to doctors and hospitals also affected his life as a school child and his academic progress. He had been deprived of normal development; enjoyment in games, sports, and rough and tumble play with other children, such that his physical and social development had been prejudiced. Throughout, the medical staff of Prince of Wales Hospital failed to address the concerns of his parents, aggravating these consequences. This failure continued up to the surgical closure of the ASD on 5 February 2003. The plaintiff will suffer life-time disabilities as a result of the 2nd defendant’s negligence. 4.My assessment of damages in this case will depend on my resolution of the following issues which arise, namely :
The medical records and the expert evidence 5.The medical records revealed that baby’s heel took some time to heal and that he was only discharged home on 15 September 1990. A month after discharge, a repeat echocardiogram demonstrated normal vessel relationship and the medically induced ASD. In October 1996, at the age of six, when he had been admitted for evaluation of generalized edema, an echocardiogram taken demonstrated that the ASD was 2 cm in size with a left to right shunt. At age 12, in August 2002, a repeat echocardiogram showed that the ASD had increased to 3 cm in size. From 22 January 1997 to 22 December 1999, the plaintiff was seen at six-monthly intervals at Prince of Wales Hospital when clinical examinations were conducted without any echocardiograms. This became yearly visits from 22 December 1999 to 19 December 2001. On that last occasion, there was a notation that an echocardiogram would be performed at the next visit, presumably in December 2002. This, however, was preceded by the discovery of an enlarged cardiac chamber on the plaintiff’s x-ray performed at the Un Chow Kok Chest Clinic in August 2002, resulting in a visit to the Prince of Wales Hospital on 28 August 2002 when an echocardiogram was done. He was then referred to Grantham Hospital. There appears to be a note made during the clinical examination conducted on 8 July 1998 stating “discuss with parents about the operation … closure of the ASD. Will think about it”. There was another note on the clinical examination of 20 December 2000 stating “Small ASD … FU (follow-up) 1 year”. The note of the visit in December 2001 stated that an echocardiogram would be performed at the next visit, but did not state the reason for performing the echocardiogram. 6.The plaintiff’s expert, Dr David Chung Kuen Hu, in his report dated 19 August 2009 said that, for reasons which were uncertain, the plaintiff had a very passive and discontinuous fashion of follow-up at the Prince of Wales Hospital after discharge, although it was known that he had an ASD which had been created unnecessarily. From 1991 to 1996, they chose to tell the plaintiff’s parents that all was fine and that no follow-up was needed. Prior to the admission to hospital in October 1996, the follow-ups had only occurred on 8 October 1990, 5 December 1990, 20 February 1991 and 13 March 1991. In the said report, Dr Hu stated that from 1996 until after the corrective surgery, the plaintiff had repeated respiratory symptoms of shortness of breath and suffered from edema, in particular, on the lower limbs. During infancy, the father also recalled a lot of difficulty feeding the infant as compared with his sister. In 1996, the plaintiff had been admitted to Prince of Wales Hospital due to generalized swelling, abdominal pain and skin rash. In his opinion, with the exception of the skin rash, the other symptoms “may well be signs of heart failure” and, notwithstanding the presence of the large ASD on the echocardiogram performed on 23 October 1996, no aggressive management or proposal to correct the defect was ever suggested or made. 7.Dr Hu examined the plaintiff on 12 August 2009. He gave the appearance of being a nervous boy. He had just finished his A-level exams. He complained of chest pains, for which he took painkillers prescribed by doctors from Grantham Hospital, shortness of breath and inability to exercise or attend P.E. lessons since childhood. He expressed a deep suspicion and distrust of doctors. Dr Hu noted that the plaintiff’s self-confidence and the way he viewed himself appeared to be low. Physical examination showed the surgical scar in the mid chest and old scar on the left foot due to the neonatal problem. Blood pressure was high, at 140/80 for a young boy. His pulse was 80 and regular. The heart sounded normal. He performed an echocardiogram which showed normal cardiac function and repaired ASD with mild regurgitations of mitral and tricuspid valves. The exercise stress test he conducted showed that the plaintiff was in normal cardiac rhythm, but the plaintiff was only able to run 10 minutes on the treadmill. For his age, he should have been able to run 14 minutes. The heart rate had shot up to 190 beats per minute with this degree of exercise and he was extremely exhausted. Dr Hu expressed the opinion that the plaintiff’s exercise function was comparable to that of a 50-year-old man. He concluded that the delayed surgical repair brought about consequential morbidity and “deep psychological damage to this child and family”, and that the plaintiff suffered “physical and psychological impairment during teenage years with possible long-term consequences”. In his opinion, the ASD ought to have been repaired before the plaintiff started school age, at 6 or 7 of age. Dr Hu stated that the current limitation of physical activity and the symptoms sensed by the plaintiff was likely to be the result of long-term self, or parental, imposed limitation; initially out of necessity from symptoms of heart failure. These limitations had been imposed since childhood and it had been reinforced in his mind all his life that he could not run or exercise. This would take long-term psychological treatment to correct, together with exercise therapy. Of prime importance was the need for psychological assessment and rehabilitation by psychologists and physical exercise regime by a cardiac rehabilitation specialist. His physical and psychological impairment had to be assessed by the specialist. 8.However, notwithstanding this clear call, no application to adduce evidence from a clinical psychologist was made until recently, shortly before trial, and which I disallowed for the reasons set out in my decision of 24 June 2011. 9.The prognosis, not from a medical point of view but from a psychological point of view, was quite poor, according to Dr Hu. There was a lot that needed to be done to put back the damage, even if that could be achieved. For example, the plaintiff’s aspiration of being a policeman would never be achieved, and this was a long-term impairment of his career goal. From a medical point of view, he would need half-yearly follow-up on his heart to make sure he did not develop an irregular heartbeat. A yearly echocardiogram and exercise stress test would also be needed. 10.The 2nd defendant’s expert, Dr Ng Yin Ming, has prepared a number of reports on this matter. In his report dated 7 September 2003, he said that the correct diagnosis of normal anatomy with a septostomy related residual ASD was made in Prince of Wales Hospital subsequently when the plaintiff’s clinical condition improved. He was followed regularly in the Cardiac Clinic in the Department of Paediatrics, Prince of Wales Hospital, for the residual ASD. The plaintiff had normal exercise tolerance all along. He had participated in competitive basketball games before the surgical closure of his ASD. He had normal growth parameters with height and weight being greater than 97% tile. There had not been increased episodes of pneumonia and there was no history of shortness of dyspnoea, apart from his asthma. Physical examination showed right ventricle (“RV”) impulse but no diastolic flow murmur. These all suggested that he had been in good health and there was no sign of heart failure. Echocardiogram in 1997 showed enlarged right atrium (“RA”) and RV and pulmonary artery (“PA”) with a large 2 cm ASD. He was planned for catheter closure or surgical closure of the ASD. The echocardiogram on 28 August 2002 at Prince of Wales Hospital showed similar findings with the ASD size of about 3 cm. The comment by Dr Adrian Warner, on the x-ray taken at the Hong Kong Sanatorium & Hospital on 30 August 2002, was that the cardiac size was normal, the prominent pulmonary artery conus was normal and there was no evidence of pulmonary hypertension. Echocardiogram on the same day showed ASD of 2.3 cm, dilated RA and RV with mild pulmonary hypertension. Examination at Grantham Hospital on 21 October 2002 showed a large ASD of 3.3 cm and it was decided that surgical repair ought to be conducted. This was performed on 5 February 2003 with uneventful outcome. 11.Dr Ng was of the view that there was no evidence of heart failure, and no significant pulmonary hypertension, as demonstrated by the history of excellent exercise tolerance of competitive sports participation and excellent growth; the physical examination; the chest x-rays; the ECG not showing any right ventricular hypertrophy nor RV strain; and the echocardiography not showing elevated RV pressure. Dr Ng agreed that the increase in size of the ASD required surgical intervention at some stage of his follow up but that there was no deleterious side effect of the ASD on the plaintiff’s health and life style before surgical repair. He enjoyed good health with excellent growth (97% tile in weight and height), and he had been participating in competitive basketball games. The surgery cured his heart defect and he had normal life expectancy. He was of the view that the surgical repair was not too late as most of the literature suggested that the actuarial survival and complications of arrhythmias would be the same as normal control if surgery was performed before 25 years of age. The suggestion that surgery should be as early as possible after pre-school age was an individual impression not supported by long-term systemic study. The plaintiff was operated on at age 13 and there was no evidence to suggest that his outcome would have been different if early referral had been made, and he had been operated on earlier. 12.Dr Ng’s 2nd report of 23 October 2009 is relevant for his observation that the left leg wound was a consequence of extravasation of intravenous electrolyte fluid or TPN fluid, and that this was an unavoidable complication of intravenous drip especially in sick neonates. 13.In his 3rd report dated 3 November 2009, Dr Ng specifically dealt with the plaintiff’s treatment from 1 December 1991, the date the Hospital Authority came into being. 14.In that report, Dr Ng noted that during his admission to Prince of Wales Hospital in October 1996, when he suffered from acute nephritis (inflammation of the kidney), physical examination showed good growth rate with his height and weight at 90% tile. 15.In a note dated 23 July 1997, it was recorded that the heart was not enlarged clinically and the plan was to observe for a few more years before deciding whether to operate or not. Dr Ng also referred to the medical notes from Dr Gary Cheng of 13 August 2009, which showed that the plaintiff had been treated as suffering from wheezy bronchitis during childhood from January 1993 to November 1993 with oral and inhalational bronchodilators. From 1994 until 2000, he suffered from infrequent attacks of asthma and bronchodilators were prescribed on p.r.n. (as needed) basis. Dr Cheng last saw him on 26 June 2007 for non-specific chest pain and oral analgesics were prescribed. 16.Dr Ng also referred to the follow-up notes of Prince of Wales Hospital and Grantham Hospital showing that the plaintiff had normal exercise tolerance all along. He had participated in competitive basketball games before the closure of his ASD. The consultation note on 13 September 2002 and 3 January 2003 of Grantham Hospital recorded “exercise tolerance good. Playing basketball and badminton, no palpitation” and “good exercise tolerance, basketball competition, no problem” respectively. He continued the basketball games even after repair, and it was recorded in the consultation note of Grantham Hospital of 7 July 2006 that he had “good exercise tolerance; basketball game every day, good exercise tolerance”. There was no chest pain before the surgery. There was also no chest pain after the ASD repair until the follow up on 14 January 2005 (this may be a typographical error as the first follow up record to record chest pain was in July 2007). Dr Ng noted that the plaintiff started the legal process in May 2004. His conclusion in this report was similar to his conclusion in the earlier report of 7 September 2003. 17.In his report on quantum dated 3 November 2009, Dr Ng referred to his examination of the plaintiff on 26 September 2009. The plaintiff had told him that he had not exercised much for the past two years. He claimed to have exercise intolerance after only 3 flights of stairs. He was slightly obese with BMI (Body Mass Index) of 24.6 as opposed to the Hong Kong standard of less than 23. He complained of non-specific chest discomfort and dizziness. Physical examination revealed a pale scar at the left ankle and a split sternal scar with no keloid formation. There was no abnormality. Dr Ng performed an echocardiogram on the same day which showed that chambers were normal in size with normal ventricular function and no residual ventricular septal defect. There were trivial leaks in all the 4 valves after very diligent Colour Flow Mapping and Doppler interrogation. The aortic incompetencewas very trivial. Blood pressure was normal at 126/68 with a heart rate of 77 per minute. 18.Dr Ng concluded that the ASD did not produce significant pulmonary hypertension or heart failure. It caused the heart to have an enlarged right atrium and right ventricular and pulmonary artery because of increased left to right shunt, but there was no pulmonary hypertension and arrhythmia. There had been no effect on the plaintiff’s lifestyle in his early years and early teens. The plaintiff was only affected, before surgery, by the few regular Cardiac Out-patient Department follow up. He was asymptomatic. The shortness of breath was due to asthmatic attacks which were responsive to bronchodilators. If it were heart failure, the bronchodilator would certainly aggravate the shortness of breath. The edema in 1996 was due to acute nephritis which was an unrelated, separate and isolated condition from which he had recovered. The feeding difficulties in infancy would have been transient as his subsequent growth was good. He was followed up only in Grantham Hospital from 13 September 2002 and, from then till 2005, he had normal exercise tolerance and played basketball and even joined competitions. His chest X-rays and echocardiograms showed improvement and became normal over time. He had not seen any cardiac patients who began to deteriorate in function when the cardiac assessment showed improvement with normal results. He disagreed with the report of Dr Hu which stated that the plaintiff had shortness of breath and was unable to exercise or attend P.E. lessons in his childhood. The follow up notes of Grantham Hospital until 2005 reported competitive basketball activities before and after the cardiac surgery. The 2 – 3 cm scar on the left ankle did not have any physical consequences. His gait was normal. On the other hand, the surgical scar on the chest might be a source of embarrassment and stress even without keloid formation. 19.Dr Ng stated that there could be psychological factors affecting the plaintiff’s physical ability after 2005. He was probably worried and distressed about his heart surgery and the presence of a sternal scar. He could not enjoy swimming like others because of the scar which he would consider to be unsightly. He might be affected by the frequent and multiple follow up and investigations for the first year that he was seen at Grantham Hospital. He was old enough to understand the importance of the litigation and the eminent legal action and might worry about the results and compensation. Dr Ng expressed the opinion that the plaintiff might have some psychological impact and disturbance with the surgery, the follow-ups, the scar, the attitude of the father, and the litigation. 20.Commenting on his exercise tolerance as shown by the objective evidence of the treadmill test in 2007 in Grantham Hospital, his view was that the slightly less than optimal exercise tolerance could be affected by psychological cause, his obesity, and his relative sedentary lifestyle after 2007. As commented on by the cardiologist in Grantham Hospital, this might be due to “deconditioning” which could happen in normal persons. He agreed with Dr Hu that parental influence would be an important factor in his deconditioning but not heart failure. 21.The creation of the ASD necessitated a subsequent closure by surgery. Regular monitoring was required to ensure that any arrhythmia that occurred in future was discovered although the chance of this occurring was small. The presence of the trivial regurgitation of the 4 heart valves would also require regular follow up. In his opinion, the chest pain could not be substantiated and might be psychosomatic. It was non-specific and not typical ischaemic pain. There was no ischemic heart disease or cardiac malfunctions to account for it. Until 2005, there had not been any physical disabilities according to the records and, after 2005, he had stopped exercising which, together with the psychological stress, would contribute to his non-optimal performance on the treadmill in 2007. Even so, there was no arrhythmia or sign of ischaemia after exercising more than 10 minutes. Slow rehabilitation and psychosocial support would be very helpful. His exercise intolerance was not commensurate with his physical examination results and the improved chest x-ray and echocardiographic findings. In his view, exercise intolerance could not be regarded as disabilities. His life expectancy and his working capacity were normal. 22.In conclusion, Dr Ng expressed the opinion that there was no deleterious side effect of the ASD on the plaintiff’s health or lifestyle before surgical repair, as he had been enjoying good health with excellent growth, and he had been participating in competitive basketball games. He made the observation that there was no psychological impact on the plaintiff, or any record of such impact, before he reached the age of 15, not even after the operation performed on 5 February 2003, but that it surfaced with the timing of the legal action. His prognosis was the same as those operated on at an early age. The surgery cured his heart defect and he could enjoy normal life expectancy, normal activities of life, except that there was a slight chance of supraventricular arrhythmias occurring that required longer term follow up. 23.In the subsequent joint report of Dr Hu and Dr Ng dated 31 May 2010 appeared the following statement :
24.The two experts had another meeting in the course of the assessment of damages. They submitted a further joint report dated 7 September 2011. In that report, they agreed that theoretically there should be minimum impact on life expectancy after the ASD repair. They also agreed that the intravenous needle was inserted in the left foot in the management of the infant as a result of the misdiagnosis of TGA for intravenous infusion of medications. They reviewed the latest stress test done on 5 August 2011, which showed that the resting heart rate was abnormally high at 103 beats per minute (“BPM”) supine as against the norm of 70 – 80 BPM. His heart rate shot up to 131 BPM, with 31 seconds of exercise on stage one of Bruce protocol (1.7MPH 10% grade). With 9 minutes and 9 seconds of exercise, he had a near collapse with his heart rate shooting up to 222 BPM. They both concluded that the claimant had a very deconditioned heart in that he could not sustain his exercise. In a normal person of his age, he would have been able to exercise much longer. They could not be certain whether such reduction in exercise capacity would have a long term impact on his lifespan. 25.They also reviewed the physical therapy report of 29 August 2011 and agreed that the report was very positive for the plaintiff in that he was able to exercise in a rehabilitation setting. His heart rate and blood pressure was normal with low exercise level, and both felt that this type of training would be beneficial to the plaintiff in the long run. Having regard to the exercise pattern of the plaintiff, the question arose whether there was a psychological problem in the plaintiff that caused him to limit his own activity, or whether it was done on his own volition, or on the advice of his parents. 26.They also agreed on the need of follow up as follows :
27.They concluded that they had no areas of disagreement. 28.This joint report was followed up by a supplemental joint statement on longevity, earning capacity and psychological treatment in these terms. 29.Dr Hu expressed the view that life expectancy was negatively affected by resting heart rate as observed in multiple settings starting in 2006 at Grantham Hospital with exercise test (heart rate 103 approximately). Similar observations were made in the recent exercise test on 5 August 2011. The two articles from the literature suggested that this high resting heart rate would have a negative impact on life expectancy and, in particular, on the risk of sudden death and myocardial infarction. Dr Ng, on the other hand, expressed the view that the plaintiff had normal heart rate during his clinic follow up in Grantham Hospital, and during his recent physical therapy session, which showed the resting heart rate of 77 BPM and, after exercise, of 71 BPM. The increased heart rate during the stress tests could have multiple causes ranging from psychological causes to drugs. 30.On earning capacity, both doctors were in agreement that the inability to exercise would limit his work opportunity at present. According to Dr Hu, he was limited to sedentary employment. Even if cardiac rehabilitation was successful, he might still be limited by his sedentary employment and might have to continue in his sedentary employment with promotion prospects being thereby negatively affected, and, consequently, his earning capacity was bound to be adversely affected. On the other hand, Dr Ng was of the view that if he rehabilitated well, he might be able to get a better job and that his job opportunities would not be affected adversely after the heart was repaired. However, the rehabilitation depended on the plaintiff’s willingness to improve his exercise ability himself. 31.Dr Ng repeated the same opinion as regards the prospect of successful psychological counselling which depended on the plaintiff’s willingness to accept and follow the psychologist’s advice closely, and also might be affected by any adverse advice or comments from the family members. It was difficult to predict how long he needed the psychological treatment, although one to a few years would be a good guess. Dr Hu was of the view that he would need long term therapy for at least 10 years. It was difficult to assess how long it would need to reverse the negative psychological impact on the plaintiff which depended on the length of time that he suffered from the psychological problems. IV drip causing necrosis of baby’s heel 32.I can deal briefly with the issue of the IV drip needle causing necrosis of the skin of the baby’s left heel and which resulted in a prolonged stay in hospital for some 55 days. Although both experts had agreed initially that the IV drip needle was inserted in the left foot in the management of the infant as a result of the misdiagnosis of TGA and in order that the intravenous infusion of medication specifically prostaglandin, Dr Ng pointed out that a closer look at the treatment sheet showed that the IV drip was required when the baby was first intubated and ventilated mechanically for grunting and cyanosis with respiratory distress. After intubation, nothing could be given orally to the baby and the IV drip was necessary in order to give the baby the fluid and nutrition that the baby required. When the misdiagnosis of TGA was made, the IV drip was already in place and it was then used for the infusion of prostaglandin. 33.It is unclear from the evidence when the IV drip would have been removed, if the misdiagnosis of TGA had not been made. It is also unclear on the evidence when the necrosis of the skin of the left foot occurred. It does seem likely, however, that the misdiagnosis of TGA led to a prolonged use of the IV drip, and it also appears likely that the prolonged use of the IV drip caused the necrosis of the skin to occur. I find, on a balance of probabilities, that the misdiagnosis of TGA materially contributed to the baby suffering from necrosis of the skin of his left heel and to the baby’s prolonged stay in hospital. Main problem today 34.Our heart controls two circulations in our body, the pulmonary circulation, via the pulmonary artery, to the lungs, and the systemic circulation via the aorta. The pressure in the pulmonary circulation is about a quarter of the pressure of the systemic circulation. The reason for the reduced pressure of the pulmonary circulation is because our lungs are soft and generate less resistance. The right side of the heart, which pumps deoxygenated blood out through the pulmonary artery to the lungs, uses a lot less pressure than the left side which pumps oxygenated blood to the body through the aorta. The ASD caused the blood to shunt from the left to the right side of the heart because the pressure on the right side was less. The effect of the shunt was to increase the pressure on the right side and that led to a dilated right atrium and right ventricle. After the closure operation, the enlarged right side of the plaintiff’s heart decreased to normal size. 35.However, the plaintiff’s main problem today is his very deconditioned heart. I propose to review, in reverse order, the stress tests that he has taken. The latest stress test was that carried out on 5 August 2011. At the commencement his heart rate was recorded to be 103 BPM. At the pre-test stage, when all the leads had been put in place, his heart rate had gone up to 126 BPM, but his blood pressure was normal at 120/80. At stage 1 of the exercise, lasting 3 minutes, his heart rate went up to 146 BPM, with blood pressure of 140/80. At stage 2, after another 3 minutes of exercise, his heart rate went to 171 BPM with a blood pressure reading of 150/80. At stage 3, which was another 3 minutes, i.e. he had exercised for 9 minutes by this time, his heart rate went up to 200 BPM and his blood pressure reading was 160/90. He only carried out stage 4 of the exercise for 9 seconds, when his heart rate reached 222 BPM and the exercise was stopped due to fatigue. He had a recovery period of 7 minutes and 28 seconds after which his heart rate returned to 126 BPM and his blood pressure reduced to 130/80. The stress test report stated that the functional capacity was markedly decreased, by over 40%, and that he had very poor exercise capacity for his age. It took him 10 minutes to recover. 36.Subsequent to that stress test, the plaintiff attended at the Adventist Hospital for physical therapy when his resting heart rate was recorded at 77 BPM, and blood pressure at 119/67. His first appointment there was on 16 August 2011. The aim of this physical therapy was to improve his exercise tolerance and improve his confidence about exercising. The programme consisted of walking on a treadmill at a speed of 2.5 km, 0% slope, for 10 minutes and to rest for 3 minutes; thereafter, to again walk on a treadmill at the same speed, 0% slope, for 10 minutes and rest for 3 minutes; and finally to walk at an even slower speed of 2 km for 5 minutes. The rate of perceived exertion during the exercise was recorded as moderate to somewhat hard. His only complaint was leg muscle ache. 3 minutes after the exercise had been completed, his heart rate was 71 BPM and blood pressure 122/61. 37.The plaintiff was aged 21 in August 2011. He was 20 years old on 29 December 2010 when a treadmill exercise test was conducted. He exercised for 11 minutes and 14 seconds, and the test was terminated because of shortness of breath. He achieved a maximum heart rate of 203 BPM. Another stress test taken 4 years earlier on 1 August 2006 at the Grantham Hospital, when he was 16 years of age, showed that he only had fair exercise capacity which might be related to deconditioning. On enquiry, the plaintiff reported that he was quite sedentary and seldom did exercise. He played basketball once every 2 – 3 weeks, but he had a lower chest discomfort during the basketball game. This treadmill exercise test lasted some 10 minutes and 15 seconds and was terminated because of exhaustion with lower chest discomfort. He achieved the maximum heart rate of 191 BPM. The stress test had been arranged as a result of the plaintiff’s complaint of chest pain on 7 July 2006 in order to rule out an ischaemic cause of the chest pain. While the test showed reduced exercise capacity on the part of the plaintiff, there was no evidence of myocardial ischaemia. 38.The plaintiff gave evidence that he had been undergoing the physical therapy programme at the Adventist Hospital for some 2 weeks. He understood that the benefit of the exercise programme was to improve his health, but he expressed his concern whether he could actually achieve that. 39.Having considered the medical expert evidence and the findings of the various stress tests reports, I turn to the issue of the plaintiff’s condition prior to the closure operation. The plaintiff’s condition prior to the closure operation 40.The present case gives proof to the old adage that ignorance is bliss. The plaintiff genuinely believes that he has a serious heart condition today, and this belief has coloured his evidence of his well-being during the first 12½ years of his life, from the time of his birth up till the time of the closure operation on 5 February 2003. In his witness statement dated 9 February 2010, the plaintiff said that when he was in kindergarten, he often had pain in his chest and difficulty in breathing with unusual respiratory noise. He had to use an oxygen mask in the clinic. He also suffered from leg edema and his mother often took him to consult Chinese medical practitioners. When he was six, he was hospitalized for one week at the Prince of Wales Hospital because of his chest pain and edema all over his body. He said that throughout his childhood, he had chest discomfort several times a week. During the summer vacation in 2002, his parents, his two elder sisters and he had to go to the Un Chow Kok Chest Clinic for x-ray examination. On their way home, they suddenly received the call from the clinic requesting them to return to the clinic. The x-rays of the family had been taken to allay the concern that members of the family or some of them might have been suffering from tuberculosis. The x-ray of the plaintiff showed an enlarged cardiac chamber and was the reason for the recall and referral to the Prince of Wales Hospital. The attendance at the Prince of Wales Hospital on 28 August 2002 resulted in a referral to the Grantham Hospital for assessment. The plaintiff’s parents, however, took the plaintiff for examinations to a Dr Ng in Causeway Bay. Dr Ng caused a detailed examination to be carried out at the Hong Kong Sanatorium & Hospital and also advised the plaintiff’s father to seek treatment at the Grantham Hospital, a hospital specializing in cardiac surgery. Dr Ng had advised the plaintiff not to engage in any sports as Dr Ng was worried that he might have complications. The consultation at the Grantham Hospital in mid September 2002 eventually resulted in the closure operation taking place in February 2003. 41.When the plaintiff was about 4 – 5 months old in about mid December 1990, his parents were informed by Dr Rita Sung that the surgery planned for the time when he was one year old would no longer be necessary, since the review of the echocardiograms indicated that the diagnosis of TGA was wrong and because the ASD was small and would close without intervention. 42.In his witness statement, the plaintiff said that throughout his childhood, even though the doctor did not say that he should not involve himself in sport activities, his mother strictly restricted his activities, fearing that he would have a sudden relapse. She always accompanied him every time he was playing and would only allow him to run for 5 – 10 minutes. He would feel exhausted after a short time and his chest would become painful. His legs would become sore and his muscles would be stiff. Children of his age in his neighbourhood seldom invited him to join them. Although he achieved fair grades at school, physical education was the worst of his subjects. As a result, he was never selected to represent the school to participate in any sports competitions. He started to play badminton but could only play for a short time and would stop as he felt breathing difficulty, dizziness and chest pain on each occasion. 43.Two matters that impressed me during the course of the plaintiff’s evidence was the concern shown by his parents during the whole time that he was giving evidence, and his own evidence that they would anxiously ask him whether he was alright whenever he exhibited some problems and that they would take him to see so many doctors throughout the years. Clearly, they were very concerned parents and the plaintiff knew that they were anxious and concerned about his condition, and, clearly, that had an impact on the plaintiff as he grew up to be a young boy, and now a young man. 44.One of the complaints made by the plaintiff was in relation to him suffering shortness of breath which limited his physical activities. The plaintiff had consulted a Dr Gary Cheng from 21 May 1992 to 26 June 2007. Apart from the usual coughs and fevers suffered by every growing child, Dr Cheng’s records also contained references to the plaintiff suffering from wheezing on a number of occasions and that he was prescribed with Ventolin, which is a bronchodilator that is usually prescribed for the treatment of asthma. These records showed that Dr Cheng was treating the plaintiff’s respiratory problems as asthma. The plaintiff’s parents denied that he ever suffered from asthma and I am not prepared to find, on the basis of Dr Cheng’s scanty records, that he did suffer from asthma. On the other hand, I do make the finding, on the balance of probabilities, that the respiratory symptoms of shortness of breath were caused by the ASD. I am prepared to make this finding notwithstanding the opinion of Dr Ng that the shortness of breath was due to asthmatic attacks which were responsive to bronchodilators and that, if it were heart failure, the bronchodilator would certainly aggravate the shortness of breath. Dr Cheng prescribed ventolin 9 times in 1993 when the plaintiff was below the age of 4 years. There is no reliable evidence of the infant’s reaction to the administration of ventolin, and whether it improved or worsened his shortness of breath. On the other hand, the medical literature supplied by Dr Hu included a publication on ASD which had been reviewed by Dr Steven Ritz in August 2007 and which stated that :
45.This publication supports my finding that the respiratory symptoms of shortness of breath were caused by the ASD. However, I also find that the symptoms of shortness of breath improved as the plaintiff grew older, as evidenced by the infrequent visits to Dr Cheng after 1993. I find, further, that the successful closure of the ASD alleviated the breathing problems, which the plaintiff himself acknowledged when he said that the situation improved after the operation. 46.However, I am not satisfied that the edema he suffered from was related to his ASD. In this regard, I prefer the opinion of Dr Ng that the edema was due to the acute nephritis that he suffered from in October 1996. If the edema had been related to the ASD, it would not have subsided and would not have cured by itself without treatment of the ASD. 47.I accept the evidence of the plaintiff regarding his primary school years that, even if he played badminton with his friends, he needed to take a rest very soon after he started playing badminton. I find that that was partly due to the shortness of breath that he suffered from occasionally and partly because of his own belief that he could not participate as fully and as actively as other children of his age, a belief which was reinforced by the anxieties and concerns of his parents. These shortcomings notwithstanding, I find that he had a fairly normal childhood. He enjoyed school and was rarely absent from school, as can be seen from his school reports from 1999, when he was in primary 1, up till January 2003, when he was in Form 1, and just before the closure operation. He was recorded as being talkative and active and as taking part in P.E. lessons achieving good results, Ds and Cs in the early years, improving to B pluses in primary 4 and to A in primary 6, when he even joined the badminton team in 2002. I find that the repression of his physical activity in his early years, which was contributed to by his shortness of breath and his parents’ anxieties and concerns, was largely overcome by the time he was 12. I accept the accuracy of the records from the Grantham Hospital, from September 2002 until the closure operation in February 2003, that he was asymptomatic with good exercise tolerance, and was playing basketball and badminton without any palpitations. He also participated in basketball competitions and did not have shortness of breath. I also accept the accuracy of the record from Prince of Wales Hospital dated 28 August 2002 which also stated that he did not suffer shortness of breath. There was no record of chest pain. The improvement in the plaintiff’s exercise capacity coincided with his growth in height and weight which improved from better than 90% tile to 97% tile. Notwithstanding the feeding difficulties his parents faced when he was a baby, he was growing normally and better than normal when he reached the age of 12. 48.There was no record of chest pain in any of the medical records on the plaintiff, prior to the closure operation, and, notwithstanding the evidence of the parents and his own evidence, I do not accept that he suffered from chest pain. If he had in fact suffered from chest pain, there is no reason why he or his parents would not have made complaint of his chest pain and no reason why such complaints would not have been recorded in the medical records of the Prince of Wales Hospital, or in Dr Gary Cheng’s medical records. Indeed, Dr Gary Cheng’s records did contain a complaint of chest pain but that complaint was made much later in 2007, subsequent to the commencement of these proceedings. The plaintiff’s condition after the closure operation 49.The surgical closure was performed on 5 February 2003. The plaintiff had to endure pain during the healing process after the operation was conducted. The pain from the scar was most serious in the first week after the operation but gradually subsided after he was discharged home on 10 February 2003. 50.Just as I do not accept the plaintiff’s evidence that he suffered from chest pain before the closure operation, I also do not accept his evidence that he suffered from chest pain after the closure operation. Notwithstanding his claim and the claim of his parents that he complained of chest pain to the doctors of the Grantham Hospital at each and every post operation consultation, there was no record of any complaint of chest pain in the 7 visits to the Grantham Hospital between 28 March 2003 and 10 June 2005 that took place after the operation. In the same publication quoted above appears the following statement :
51.Although, in his report dated 19 August 2009, Dr Hu noted the plaintiff’s complaint of chest pains for which he had taken painkillers prescribed by the doctors of Grantham Hospital, Dr Hu did not offer any opinion as to the cause of such chest pain. The first complaint of chest discomfort and chest pain was made to a doctor at Guantham Hospital on 7 July 2006 and resulted in a treadmill test being booked to exclude an ischaemic cause of the chest pain. The subsequent reports from Grantham Hospital from 3 August 2007 up to 22 July 2011 all state that the chest pain was unlikely to be cardiac in origin. However, the records also show that although he had good exercise tolerance and good exercise capacity, from the time of the closure operation up till June 2005 when he was noted to be playing basketball games every day, by 2007 he was recorded as seldom exercising and had an exercise tolerance of only 2 to 3 flights of steps. The record of 23 November 2007 stated that he had only fair exercise capacity which may be related to deconditioning. The record of 28 January 2011 noted that the plaintiff refrained from exercise for years and that he was encouraged to engage gradually and slowly to increase his exercise as his heart would be further deconditioned if he did not exercise at all. He was again advised to have regular exercise at the next follow up on 22 July 2011. 52.The Grantham Hospital records are consistent with the school reports of the plaintiff after the surgical closure operation was conducted. These school reports spanned from the summer of 2003, when he was in Form 1 all the way to the summer of 2009 when he was in Form 7. In Form 1, his result in P.E. dropped from A to E, which was understandable given his absence of 8 days as a result of his operation. From Form 2 to Form 4, he consistently scored a B in P.E. He was reported to be energetic, active and vivacious with nil or minimal absences. Indeed, in his report, in the second term of Form 4, it was recorded that he was a member of the athletic and basketball teams, and that he was champion and first runner-up in rowing competitions. 53.He gave evidence that he stopped extra-curricular activities to prepare for his examinations. He started Form 5 in September 2006 and, by the end of the school year, his school report of May 2007 showed that his result in P.E. had dropped to D. Indeed, he did not participate in any P.E. classes in Form 6 or Form 7. It was at this time that the complaint of chest pains emerged. There was a record of complaint of chest pain in the Grantham Hospital record dated 7 July 2006. Subsequent complaints of chest pain were also recorded in Grantham Hospital as well as in the records of other doctors, including Dr Gary Cheng and Dr Mak Wing Kin of Kwong Yuen Estate Medical Centre. 54.By the summer of 2006, the plaintiff already suffered from a deconditioned heart as shown by the results of the stress test taken on 1 August 2006. Although there was no evidence of myocardial ischaemia, the test showed reduced exercise capacity on the part of the plaintiff. He could only run on the treadmill for some 10 minutes and 15 seconds before the exercise was terminated for exhaustion. He was 16 years old then and achieved a maximum heart rate of 191 BPM. Clearly, he was in a much better physical state earlier in that scholastic year starting from September 2005. He won a silver medal in the Indoor Youth Rowing Tournament in the 20 minutes mixed relay race and he was on the champion team in the men’s 4 x 500 metres relay Indoor Youth Rowing Competition. I find that, some time after that competition, the plaintiff started to limit his physical activities and stopped participating in sports, and which has resulted in him suffering from a deconditioned heart. A comparison of the August 2006 and the August 2011 stress tests shows that his heart is even more deconditioned today than in 2006. In August 2011, he could only exercise for some 9 minutes. Both Dr Hu and Dr Ng observed in their joint opinion of 7 September 2011 that the deconditioning of the plaintiff’s heart raised the question whether there was a psychological problem and whether he limited his own activity on his own volition or at the advice of his parents. That statement is consistent with their similar observations in their earlier reports as set out above. 55.The two experts are heart specialists. They are not psychologists or psychiatrists. In the absence of expert evidence from psychologists or psychiatrists, I have insufficient material before me to find that the plaintiff suffered from a psychological problem causing him to limit his activity very severely and resulting in him suffering from a very deconditioned heart. However, I have ample evidence to find that, before the time he reached the age of 16 in July 2006, the litigation process, in which it was claimed that he was the victim of a damaged heart which had been surgically repaired, was well underway. The realization that he suffered from a damaged heart would have produced a natural tendency on his part to curtail his physical activities in order to protect his heart. This tendency would have been reinforced by the renewed concerns of his parents and, particularly, of his father who was actively engaged in the pursuit of his litigation from that time. I also find that the complaints made by the plaintiff of chest pain from July 2006 onwards were genuine. I accept the evidence of Dr Ng that this was not typical ischaemic pain and did not arise from ischaemic heart disease or cardiac malfunction, and that it was probably psychosomatic. The extreme concern for his own well-being, which was re-inforced by the concerns of his parents, would have amplified, in his mind, any sense of discomfort arising from any sudden or prolonged exertion. He was old enough then to understand the importance of the litigation. That litigation process has caused him to reinforce his own belief that he has a serious heart problem which required him to limit his physical activity. In his report dated 3 November 2009, Dr Ng rightly noted that :
56.These services will be provided, at the conclusion of this litigation, with the agreement between the experts, and between the parties, that he should be awarded damages to enable him to pursue a course of cardiac rehabilitation and to obtain treatment from a clinical psychologist. Is the 2nd defendant responsible for the present condition of the plaintiff? 57.Mr Patrick Lim, for the 2nd defendant, submitted that the deconditioning of the plaintiff’s heart and the limitation in his exercise capacity was self-induced. In one sense, that is correct, but his belief, that he has a seriously damaged heart, which was and is reinforced by the very natural concerns of his parents and aggravated by the litigation process and the absence of the provision of timely counselling and rehabilitation services, is the product of the initial tort complained of in this case. Whilst the 2nd defendant is not under any duty to admit liability in a timely fashion, the tortfeasor who prolongs litigation by failing to admit his responsibility at the first opportunity and, thereby, permits the victim’s loss and damage to continue, or to be aggravated, is responsible for the entirety of the loss and damage suffered, unless the tortfeasor can successfully establish that the victim has failed to mitigate his continuing or aggravated loss and damage. No such plea of failure to mitigate has been advanced in the present case, and rightly so. Despite the very early plea by Dr Ng for the provision of counselling and rehabilitation services to the plaintiff, none has been provided up to the present time. As Rogers VP said in Lam Pui Yi Anita v Secretary for Justice [2011] 1 HKLRD 56 :
Although there is no duty to admit liability at the first available opportunity, if a case is prolonged by an unmeritorious defence raised by a tortfeasor and, in consequence, the victim’s suffering is prolonged or aggravated, then that continuing or aggravated suffering is part of the loss and damage for which the tortfeasor is responsible. Impact on the plaintiff’s life expectancy 58.In their recent joint report dated 7 September 2011, both experts agreed that clearly, there should be minimum impact on life expectancy after the successful ASD repair. Dr Hu, however, pointed out two articles from the literature suggesting that high resting heart rate had a negative impact on life expectancy and, in particular, that there was an increased risk of sudden death and myocardial infarction. Dr Hu pointed to the resting heart rate of 106 when he started the stress test in August 2006. However, that heart rate was likely to have been recorded as the leads were being attached, an act which was likely to increase the heart rate in a normal person. A similar heart rate of 103 BPM was recorded at the commencement of the recent stress test conducted on 5 August 2011. On the other hand, Dr Ng pointed out that his resting heart rate was normal during his clinic follow-ups in the Grantham Hospital and that, during his recent physical therapy session on 11 August 2011, his resting heart rate was 77 BPM and, after exercise, 71 BPM. His heart rate was also recorded at QMH on 28 January 2011 to be 69 BPM. I am not satisfied, on the basis of the two recordings at the beginning of the stress test conducted in 2006, and recently, that the plaintiff suffers from an elevated resting heart rate. However, I do accept that his current very deconditioned heart impacts upon and reduces his normal life expectancy. The plaintiff is an intelligent young man and well able to understand the hope expressed by the experts, including his own expert, Dr Hu, that his dedicated participation in his cardiac rehabilitation would result in a reconditioning of his heart to the extent that it would have no or very minimal impact on his life expectancy. Loss of earning capacity 59.The plaintiff, who is now 21 years of age, is pursuing his second year of studies in the Bachelor of Chemical and Environmental Engineering programme at the Hong Kong University of Science and Technology. His university records show that he is doing reasonably well. The experts agree that his inability to undertake heavy physical activity will limit his job opportunities at present and that he would be confined to seeking secondary employment after his graduation. His express wish to become a policeman is unlikely to have been fulfilled, even if his heart had been normal, because of his severe astigmatism. Opportunities to work in the United States of America are not curtailed, because of his heart condition, but because of the immigration policy of that country. There is also no evidence before me that the income of a policeman is likely to be more than the income of an engineer who is restricted to secondary employment. Both counsels agree that, if I were minded to make an award under this head of claim, a global award would be appropriate. I shall turn to this claim after I have dealt with the next head of damages. PSLA 60.Mr Neal Clough, who claims $800,000 as damages of PSLA for the plaintiff, frankly admits that there are no comparables that he can locate for this type of injury. He repeated, in his closing submissions, the submissions that he had made in his opening which I have set out above. The plaintiff suffered from necrosis of the left foot, shortly after he was born, as a result of the IV drip and which resulted in a prolonged stay in hospital and left a faint scar on his left foot. He suffered from shortness of breath in his childhood which curtailed his playground activities and social development. His parents’ concern and distress about his heart condition had a negative impact on his own development and diminished the quality of his enjoyment of his young childhood. There is no evidence before me that his condition would have been any better had the closure of the ASD been performed at an earlier age. He had regained a semblance of normal life as a young person by the time he underwent the surgical repair and he had to suffer the consequences of that operation. Although the ASD repair was successful and he had a normal life expectancy, there was a small chance that he might develop an irregular heart beat in the future. He had minimal insignificant regurgitations of mitral and tricuspid valves. He has a permanent scar on his chest which causes him embarrassment. He has given up swimming as a result. The commencement and prolongation of the litigation has added to his woes and led him to curtail his physical activities to such an extent that he now suffers from a very deconditioned heart, which impacts on his future life expectancy, and he suffers from periodical psychosomatic chest pains. The parties are, however, agreed that he ought to be awarded damages such as will enable him to undertake an active course of psychological counselling and cardiac rehabilitation. He is an intelligent young man, and I am confident now that this litigation has concluded, that he will pursue these therapies to improve his own condition, that he will be successful, in due course, in reconditioning of his heart, and that the risk of any impact on his life expectancy will become nil or minimal. 61.The UK Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injuries Cases, 10th Edition, contains the following section in relation to injuries to internal organs :
62.In my judgment, the proper award for damages of PSLA in the present case is $500,000. Damages for future loss of earnings/loss of earning capacity 63.A global award is warranted in the present case for the above heads of claim. The present claim falls within that class of case which is well illustrated by the decisions of the court in Wang Sizhe v Ng Kwok Wah, HCPI 933 of 1999, 25 October 2000; Lam Yin Fong v Tsang Kam Cheong [2003] 3 HKLRD 501 and Choy Wai Chung v Chun Wo Construction & Engineering Co. Ltd, HCPI No. 605 of 1999, 16 December 2003. In the latter case, an award of $600,000 was made as damages for loss of earning capacity to a construction site engineer who was office-bound after the accident he had suffered and no longer able to work outdoors. In Wang Sizhe v Ng Kwok Wah, Seagroatt J awarded $350,000 as damages for loss of earning capacity to the plaintiff whose visual defect prevented him from undertaking certain professional occupations. There was also a likelihood in that case of a degenerative change at some stage which might create a further limitation on the plaintiff’s physical activity. The award also reflected the fact that the plaintiff at the time of the assessment of damages was just under 14 years of age. In Lam Yin Fong v Tsang Kam Cheong, the plaintiff was also a young person who was only 12 years old at the time of the assessment. She suffered from lack of mobility, lack of stamina, and would be confined to a sedentary job. On the other hand, if she was able to obtain a management position, her disabilities would not be an obstacle unless the position demanded active and long hours. Seagroatt J assessed the loss at $5,000 per month, to which he applied a working life multiplier, to produce a gross award which he reduced on account of accelerated receipt. 64.The plaintiff has commenced cardiac rehabilitation and my reading of the recent physical therapy report from the Adventist Hospital gives me the impression that the plaintiff is sincere and genuine in his efforts to cover his exercise capacity. The experts agreed that the report was very positive for the plaintiff. Even so, the plaintiff will suffer a loss of earning capacity, until he does so. In addition, I bear in mind the views of Dr Hu, which I accept, that even if cardiac rehabilitation is successful and results in an improved outlook, he will still be limited by his employment to date and may have to continue his sedentary employment for some time before he can exercise the earning capacity that he has recovered. Taking all these factors into account, I find that 5 years is a reasonable period of time for him to cover his full exercise capacity and also recover his full earning capacity. The plaintiff needs two years to complete his bachelor’s degree and to commence employment. I adopt the figure of $10,000 as his monthly loss, to which I apply a multiplier of 3.5 years, and which I then discount on account of accelerated receipt for a period of 2 years. On the above basis, I make a global award of $400,000 under this head of claim. Pre-trial loss and expenses 65.The amount claimed for medical expenses in the Revised Statement of Damages is $25,738. In his closing submissions, Mr Neal Clough only claimed the sum of $15,500 under this head of claim. In his closing submissions, Mr Patrick Lim conceded the sum of $18,394. I award this latter sum as the medical expenses incurred to date. 66.I also award the sum of $10,000 claimed as travelling expenses. I am not satisfied that the claim for tonic food has been sufficiently established such that I may make an award for tonic food, save for the period when the plaintiff was in hospital for the operation to close the ASD. I award $5,000 as tonic food. 67.In his closing submissions, Mr Neal Clough claimed the sum of $482,500 as the value of services gratuitously provided by the plaintiff’s father. In his closing submissions, Mr Patrick Lim conceded that any award I proposed to make under this head of claim could be assessed by reference to the father’s daily wages, which he was prepared to agree were $1,000 per day from the time of the plaintiff’s birth in July 1990 up to the time his father retired in March 2000. The father gave evidence, which I accept, that from 1995 onwards his daily earnings as a da dai so, a type of foreman who shared the profits of a project with his co-worker, amounted to about $2,500 per day. I would assess my award under this head of claim at the rate of $1,000 per day from July 1990 to 1994, and at the rate $2,500 per day from 1995 onwards up to March 2000. 68.I award in full the claim for $55,000 for the 55 days from the date of birth that his son was in hospital when he was clearly under immense stress and concern for his son’s well being. I accept his evidence that he could not work at that time and that he went to hospital to be with his infant son every day. The mother of the plaintiff gave evidence, which I accept, that after his discharge from hospital, she would take her infant son to see the doctor and that her husband joined her occasionally when he was not working. I award the sum of $20,000 as the value of services gratuitously provided by the plaintiff’s father for the period from 1990 to 1994. No claim has been advanced for any visits made to the doctor in 1995. I do not make any award for the visits in 1996 which arose from the plaintiff’s acute nephritis. From 1997 to 1999, it is conceded that the plaintiff’s father attended cardiac follow up at the Prince of Wales Hospital on 7 occasions. The medical records show that there were 7 follow up consultations during this period. The earlier consultation on 3 December 1996 was a follow up consultation on account of his kidney infection earlier that year. Taking the rate at $2,500 per day, I award the sum of $17,500 for the period from 1996 to 2000. My total award for the value of services gratuitously provided by the plaintiff’s father amounts to $92,500. Future medical and related expenses 69.During the consultation at the Cardiac Paediatric Unit of the Grantham Hospital on 14 January 2005, the plaintiff and his father were advised to attend a specialist in the Prince of Wales Hospital to exclude asthma and it was recorded in the consultation note of that day that the plaintiff’s father was reluctant to attend the Prince of Wales Hospital. As noted by Dr. Hu, the plaintiff expressed a deep suspicion and distrust of doctors. Given the past history of the plaintiff’s and his father’s distrust of the Hospital Authority, it is reasonable for the plaintiff to seek medical care, psychological counselling, and cardiac rehabilitation services in the private sector. 70.I adopt the lifetime multiplier of 18. I award $161,000 as the costs of future medical care, being made up of the award of $70,000 for the costs of biannual visits during the first 5 years, and the award of $91,000 being the costs of annual visits at $7,000 per visit for the balance 13 years of my adopted multiplier. 71.I also award the costs of cardiac rehabilitation for a period of 5 years, to enable the plaintiff to attend weekly sessions for the first year, bi-weekly sessions for the second year, and monthly sessions for the balance 3 years. This produces the figure of $79,800 which is calculated as follows :
72.I also award the costs of a monthly visit to a clinical psychologist at the cost of $1,750 per visit for a period of 5 years in the total sum of $105,000. 73.In addition, I award the sum of $10,000 for travelling expenses to attend the medical consultations, to receive psychological counselling, and to undertake exercise therapy. Summary 74.A summary of my award is as follows :
75.I award interest on damages for PSLA at 2% per annum from the date of service of the writ to the date of judgment and interest on pre-trial loss and expenses at 4% per annum from 26 July 1990 up to the date of judgment. 76.I make a cost order nisi that the 2nd defendant pays the costs of the action of the plaintiff, and the costs of the 1st defendant, to be taxed, if not agreed. I also order the plaintiff’s own costs to be taxed pursuant to the Legal Aid Regulations.
Mr Neal Clough, instructed by Messrs Henry H.C. Wong Co., for the Plaintiff Mr Paul Lam, instructed by Messrs P.C. Woo & Co., for the 1st Defendant Mr Patrick Lim, instructed by Department of Justice, for the 2nd Defendant Please refer to HCMP850/2012 for the relevant appeal(s) to the Court of Appeal. | ||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCPI 1113/2006