Lee Wah, Administratrix of the Estate of Yick Hong Kwai, Deceased, and in Her Personal Capacity v. Lok Wai Wa

HCPI 476/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INIJURIES ACTION NO 476 OF 2010

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J U D G M E N T

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1.12-year-old Yick Hong Kwai (“Hong”) was seriously injured after being knocked down by the vehicle driven by the defendant (“Lok”) in 2007. Hong was certified dead after hours of resuscitation at the hospital. His mother, the plaintiff (“Lee”), now claims damages on behalf of the estate and in her own capacity for Lok’s negligence.

BACKGROUND

2.Lee was born in Hunan, the Mainland in April 1967.  She received education in the Mainland up to what was equivalent to Form 3.  She was married to Hong’s father in Shenzhen in 1991.  Hong was born in September 1995, and came to live in Hong Kong at the age of 2.  Lee came a couple of years later in 1999.

3.Soon the couple separated.  A divorce decree was formally made in October 2000.  Custody of Hong was granted to the father, who subsequently remarried and had his own family.  In March 2007, Lee applied and successfully obtained the change of custody of Hong.  The mother and child started to live together.  In other words, the fatal accident happened half a year after that.  Hong was then 12 years old and a Form 1 student.

4.The accident happened at the traffic light controlled junction of Ma Tau Wai Road and Ma Hang Cheung Road, Kowloon, on 18 September 2007.  Lok was at the time driving a 24-seater school bus, which knocked Hong down while he came out to the road from the safety island.  Lok was charged with and convicted of, among others, careless driving as a result.

5.At the time, Lee was working as a tour guide and was on her way back home from Shanghai.  According to her, she arrived home at about 5 pm but only to find a note posted on the door informing her that Hong was admitted to the Queen Elizabeth Hospital.  She had no idea who posted it, but she rushed to the hospital.  Upon arrival, she, despite attempt, was not allowed to see Hong, who was in the course of resuscitation and emergency treatment.  At 9:39 pm, Hong was certified dead.

6.According to the death certificate, Hong died of ruptured spleen with haemoperitoneum, lung contusions, skull fracture and cerebral contusions.

7.Letters of administration of Hong’s estate was granted to Lee in 2009.

CLAIM BY HONG’S ESTATE

8.During the trial, Lok accepted liability; and the parties agreed that Hong was contributorily negligent to the extent of 29%.  That resolved the dispute as to liability, insofar as the claim by Hong’s estate is concerned.

9.As to the quantum, the parties managed to agree on all but one item of claim, being that for the loss of dependency.  The claim on the basis of a monthly contribution of HK$3,000 to Lee’s support is put forward.

10.In view of Hong’s age, the consideration of this item of claim inevitably involves speculation.  However, if the evidence suggests that the deceased would have contributed towards his or her dependants, but for his or her premature death, that the assessment may involve speculation and guesswork does not justify the denial of compensation.  The court will just have to do the best it can: see Lam Pak Chiu v Tsang Mei Ying (2001) 4 HKCFAR 34 (at 44J-46B), per Bokhary PJ (in the context of claim for loss of accumulation of wealth).

11.As mentioned, Lee had divorced from her ex-husband, and obtained custody of Hong about half a year prior to Hong’s accidental death.  The mother and son lived together in rented accommodation.  The ex-husband of Lee actually also passed away for cancer in 2010.  According to her, the job nature of tour guide did not provide her with stable income[1]. With her little education in the Mainland and limited working experience in Hong Kong, it would become difficult for her to make a living as a tour guide as she grows older.  Mr Lam appearing for Lee also submits that it is common practice amongst Chinese in Hong Kong for the grown up children to contribute financially in support of their parents as a gesture of their filial piety.

12.Even assuming that the above is not disputed, this would be a projection from the perspective of Lee concerning what she would need or expect as Hong’s mother.  However the relatively more important concern is whether Hong would have been both able and ready to so contribute towards Lee and, if yes, the extent of such support.

13.Ms Lau appearing for Lok submits that the claim in the present case is based more on speculative possibility than real prospect of receipt of future financial benefit from Hong, but for his premature death[2]. She cites 3 cases, 2 of which involved the passing of teenage students.  In Wong Mee Wan v Kwan Tin Travel Services Ltd & Ors, HCA 4201/1989, [1993] HKLY 473, the deceased was an 18-year-old student, who was a year from finishing Form 5 education.  There was evidence that she would have left school and started working after Form 5, had she not been killed.  An award for loss of dependency was made.  In Wang Chin Ying v Lam Ping Fung [1999] 3 HKLRD 190, the 17-year-old student was killed while working in a summer job earning HK$6-7,000 a month.  An award for loss of dependency was also made.

14.In contrast, Hong just turned 12 and in his Form 1 at the time of his death.  Lee testified as to her belief that Hong had talent in computer related subjects. She had intended to send Hong abroad to study.  How Lee would have and would have afforded to send Hong abroad to study is unclear, in view of her assertion at the same time that she has unstable income.  Mr Lam suggests the availability of grants and loans for tertiary education in Hong Kong.  But in the case of loans, the graduate would be starting his career life with liabilities, which would only serve to reduce his disposable income.

15.More importantly, there is no actual evidence from the school or teachers that would have been testament to such potential and hence prospect of achievement of such kind.  There are a couple of school certificates in relation to Hong’s computer-related school activities.  According to Lee, she had seen Hong read computer-related publications.  But there is no real evidence in respect of expression of ideas or plans on the part of Hong prior to his death.  According to the social welfare report in March 2007, Hong had relatively low motivation for study with weak concentration in the class so that, according to Lee, private tuition for Hong had to be arranged.  Objectively the academic result reports from the school reveal that Hong was a less than average pupil throughout his primary school years, and ranked invariably below the middle and in some years within the last 10 of his class.

16.Mr Lam acknowledges the uncertainty.  However, he refers to Lok’s concession in respect of the claim for loss of accumulation of wealth, and submits that as a matter of logic, it could not be maintained at the same time that no sum whatsoever should be awarded for loss of dependency.  Ms Lau disagrees, saying that the assessment of losses of dependency and accumulation of wealth involve different equations.

17.The basis on which Lok conceded the claim for loss of accumulation of wealth is obviously not explored.  This item of claim refers to the wealth that Hong would have been able to accumulate upon his natural death.  That would have been net of whatever burden of expenses that he would have had to bear.  Such burden would have included financial support to his dependents, family included, until their independence or death as well as his post-retirement expenses.  As it is accepted that Hong would have managed to accumulate wealth by the time of his natural death, his financial ability to support his mother probably should not be doubted.  I can understand the logic of Mr Lam’s argument.

18.Mr Lam also highlights the fact Hong should have at least been able to earn his minimum wage; and on that basis, it is not unrealistic to expect him to be able to make a modest contribution.  Seeing no reason to doubt that Hong would have been gainfully employed, I cannot say that this projection is unfair.  But then there is still the question of the amount.  As to this, I have difficulty in accepting that projected by Mr Lam.

19.As to the rate of dependency, Mr Lam projects a monthly sum of HK$3,000 from 2019, when Hong would have been 24 years old (and Lee would be 52 year old).  It is claimed that the dependency would have lasted until Lee reaches the age of 85-86.  According to the Hong Kong Life Tables 2001-2036, Table 19, the life expectancy of a female aged 54 by then would be 33.94.  According to the Personal Injury Tables Hong Kong 2013, Table 28 (p.57), the multiplier for a fixed term of 34 years with a return rate of 2.5% (Chan Pak Wing v Chan Chi Kuen & Anor [2013] 2 HKLRD 1 (at §139)) shall be 23.

20.The high hopes of Lee about Hong are not really substantiated by evidence.  However I give due weight to the implication of Lok’s concession that Hong would have accumulated wealth upon his natural death but for the accident.  In line with that, I am prepared to find the prospect of Hong in at least making a minimum wage rate of living.  I also find that Hong would have been able to and ready to make financial contribution to his mother.  But in view of the uncertainty of the amount projected by Mr Lam, as mentioned, I am only prepared to adopt a nominal amount, which I believe is the best that the court can do in the circumstances.

21.Ms Lau submits that an award, if made, in the circumstances should be a global sum.  Mr Lam disagrees.  Both refer to what Bokhary PJ said in Chan Pak Chiu.  In the context of illustrating the difficulty in finding a multiplicand for a loss of accumulation of wealth, His Lordship suggested (at 50E-G) that:

“Except in cases where there is something more to go on than one has in those cases where the court is driven to taking an almost arbitrary percentage of earnings as multiplicand, judges and masters calculating such award would be well-advised to make global award. This is not to say that a conventional figure across the board ought to be adopted. Nor is it to say that a figure should be plucked out of the air. Even where the exercise does not lend itself to the precision of a multiplicand as in loss of dependency claims, some process of ratiocination must underlie the global award made. And it is necessary that the judge or master indicate at least in general terms how the award has been assessed in the light of the relevant factors, including expenditure during the retirement years.”

22.In suggesting the approach to make a global award for loss of accumulation wealth, His Lordship actually recognised the relatively precise multiplicand-multiplier approach normally adopted in assessing the loss of dependency.  In view of the finding that Hong would have been able and ready to contribute to his mother’s support but at a nominal rate, I would assess the loss of dependency on the basis of a nominal monthly rate of HK$1,000.  If the formula submitted by Mr Lam is adopted, the amount will be HK$1,000 x 12 x 23 = HK$276,000.

23.Even if a global sum is awarded, the same, as said by Bokhary PJ, would have to be somehow explained instead of simply a figure plucked out of the air.  Take the example of an award of loss of earning capacity, which is normally made in a lump sum, it is not uncommon for the court to explain the sum by reference to the income that the plaintiff would have made over a certain period of time.  If a lump sum is to be awarded, the above amount would not have been unreasonable.

24.In conclusion, this part of the award will be as follows:

Bereavement	HK$150,000 (agreed)
Funeral expenses	HK$130,000 (agreed)
Pain, suffering and loss of amenities	HK$ 30,000 (agreed)
Loss of accumulation of wealth	HK$150,000 (agreed)
Loss of dependency	HK$276,000
Total:	HK$736,000

25.Discounted by 29% for contributory negligence, the amount would be HK$522,560.

26.The award for pain, suffering and loss of amenities carries interest at 2% per annum from the date of writ.  Damages for bereavement carry interest at the judgment rate from the date of death.  Interest on funeral expenses runs at half judgment rate from the date of accident.

CLAIM BY LEE

27.For psychiatric illness suffered due to what happened to her son on the day, Lee is claiming as the secondary victim of Lok’s negligence.  Both liability and quantum are in dispute.

Lee’s psychiatric illness

28.Lee was in denial of the fact that Hong passed away at the moment she saw his body some 4 hours after her arrival at the hospital.  Lee has developed various psychiatric symptoms since then.  They included depressive mood, weeping episodes, poor sleep, poor appetite, weight loss, low energy, poor initiation, guilty feeling, negative thought, sense of uselessness and worthlessness.

29.Upon referral, she first attended public psychiatric clinic in November 2007.  She was diagnosed to have suffered from severe depressive disorder.  Antidepressant was prescribed.  In 2008, the diagnosis was revised to psychotic depression, as she developed paranoid ideas.  In 2010, the diagnosis was revised to severe depressive disorder.  At the time of the trial, Lee is still attending follow-up treatment and taking anti-depressant.

30.On behalf of Lee and Lok, Dr Wong Yee Him (“Dr Wong”) and Dr Chung See Yuen (“Dr Chung”) were engaged respectively to provide their expert opinion.  They jointly examined Lee in September 2010 and produced their joint report dated 22 October 2010.  Dr Wong then produced his supplemental report in February 2011, which was followed by the experts’ joint supplemental report dated 3 August 2011.  Both gave evidence in court.

31.The medical experts are ad idem that Lee suffered from major depressive episode and prolonged or abnormal grief reaction, and the major depressive disorder was wholly caused by the accident.  Dr Wong opined that the events experienced by Lee at the hospital contributed in part to both her major depressive disorder and prolonged grief reaction.  This was described by him in the joint supplemental report as a major and significant contributing factor.  Dr Chung differed and opined that her condition was mostly caused by the fact of Hong’s death, and what happened at the hospital played a minor role of up to 10%.

32.Details of Lee’s condition since the accident up to the date of trial will be illustrated further below.

The law

33.In relation to the claim by a secondary victim, one always starts with the English House of Lords decision in McLoughlin v O’Brian & Ors [1983] 1 AC 410.  There the mother was at home when her family met a traffic accident.  Learning about that, the mother rushed to the hospital 2 hours after the accident.  There she saw the injured husband and children, and was told of the death of the youngest child.  She broke down.  She claimed for the psychiatric effect of the shock sustained.  Her claim eventually succeeded on appeal to the House of Lords.

34.Lord Wilberforce (at 418) identified the circumstances in which such a claim could succeed:

“1. While damages cannot, at common law, be awarded for grief and sorrow, a claim for damages for ‘nervous shock’ caused by negligence can be made without the necessity of showing direct impact of fear of immediate personal injuries for oneself.

2. A plaintiff may recover damages for ‘nervous shock’ brought on by injury caused not to him – or herself but to a near relative, or by the fear of such injury.

3. Subject to the next paragraph, there is no English case in which a plaintiff has been able to recover nervous shock damages where the injury to the near relative occurred out of sight and earshot of the plaintiff. In Hambrook v Stokes Brothers [1925] 1 KB 141 an express distinction was made between shock caused by what the mother saw with her own eyes and what she might have been told by bystanders, liability being excluded in the latter case.

4. An exception from, or I would prefer to call it an extension of, the latter case, has been made where the plaintiff does not see or hear the incident but comes upon its immediate aftermath.

5. A remedy on account of nervous shock has been given to a man who came upon a serious accident involving numerous people immediately thereafter and acted as a rescuer of those involved.”

35.His Lordship considered that limitations should be put on the application of the reasonable foreseeability test for the existence of a duty of care to the secondary victim in terms of (i) the class of persons whose claims should be recognised, (ii) the proximity of such persons to the accident, and (iii) the means by which the shock was caused.

36.As regards the class of persons, Lord Wilberforce explained (at 422):

“…… the possible range is between the closest of family ties – of parent and child, or husband and wife – and the ordinary bystander. Existing law recognises the claims of the first: it denies that of the second…… it should follow that other cases involving less close relationships must be very carefully scrutinised. I cannot say that they should never be admitted. The closer the tie (not merely in relationship, but in care) the greater the claim for consideration……”

37.As regards proximity to the accident, His Lordship explained (at 422):

“…… it is obvious that this must be close in both time and space. It is, after all, the fact and consequence of the defendant’s negligence that must be proved to have caused the “nervous shock”. Experience has shown that to insist on direct and immediate sight or hearing would be impractical and unjust and that under what may be called the “aftermath” doctrine one who, from close proximity, comes very soon upon the scene should not be excluded. In my opinion, the result in Benson v Lee [1972] VR 879 was correct and indeed inescapable. It was based, soundly, upon

“direct perception of some of the events which go to make up the accident as an entire event, and this includes the immediate aftermath.”

Finally, and by way of reinforcement of “aftermath” case, I would accept, by analogy with “rescue” situations, that a person of whom it could be said that one could expect nothing else than that he or she would come immediately to the scene – normally a parent or a spouse. Where there is not immediate presence, account must be taken of the possibility of alterations in the circumstances, for which the defendant should not be responsible.

Subject only to these qualifications, I think that a strict test of proximity by sight or hearing should be applied by the courts.”

38.As regards the means by which the shock was caused, His Lordship (at 422-423) explained:

“Lastly, as regards communication, there is no case in which the law has compensated shock brought about by communication by a third party. In Hambrook v Stokes Brothers …… it was said that liability would not arise in such a case and this is surely right. It was so decided in Abramzik v Brenner (1967) 65 DLR 651. The shock must come through sight or hearing of the event or its immediate aftermath. Whether some equivalent of sight or hearing, eg through simultaneous television, would suffice may have to be considered.”

39.The above limitations put by Lord Wilberforce on the right to claim by the secondary victim of the defendant’s negligence were discussed by the House of Lords in Alcock & Ors v Chief Constable of Soth Yorkshire Police [1992] 1 AC 310.  There the relatives and friends of spectators who were involved in the Hillsborough stadium disaster claimed against the police in charge of policing the soccer match for psychiatric suffering as a result of witnessing the distress on television.

40.Lord Ackner (at 402G-H) summarised the 3 elements set out by Lord Wilberforce in McLoughlin that introduced the requirement of “proximity” as the control on the application of the reasonable foreseeability test.  Then Lord Oliver (at 411E) set out 5 common features that he observed from the reported cases of this type so far decided:

“……The answer has, as it seems to me, to be found in the existence of a combination of circumstances from which the necessary degree of “proximity” between the plaintiff and the defendant could be deduced. And, in the end, it has to be accepted that the concept of “proximity” is an artificial one which depends more upon the court’s perception of what is the reasonable area for the imposition of liability than upon any logical process of analogical deduction.

The common features of all the reported cases of this type decided in this country prior to the decision of Hidden J in the instant case and in which the plaintiff succeeded in establishing liability are, first, that in each case there was a marital or parental relationship between the plaintiff and the primary victim; secondly, that the injury for which damages were claimed arose from the sudden and unexpected shock to the plaintiff’s nervous system; thirdly, that the plaintiff in each case was either personally present at the scene of the accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards; and fourthly, that the injury suffered arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim.  Lastly, in each case there was not only an element of physical proximity to the event but a close temporal connection between the event and the plaintiff’s perception of it combined with a close relationship of affection between the plaintiff and the primary victim.  It must, I think, be from these elements that the essential requirement of proximity is to be deduced, to which has to be added the reasonable foreseeability on the part of the defendant that in that combination of circumstances there was a real risk of injury of the type sustained by the particular plaintiff as a result of his or her concern for the primary victim……”

41.The so-called control mechanism based on “proximity” in applying the reasonable foreseeability test was reiterated in the subsequent case of White v Chief Constable of the South Yorkshire Police [1999] 2 AC 455[3], which was another case arising out of the Hillsborough stadium disaster.  This time the police officers who attended the scene were the claimants.  Lord Steyn said (at 500B):

“……In my view the only sensible general strategy for the courts is to say thus far and no further. The only prudent course is to treat the pragmatic categories as reflected in authoritative decisions such as the Alcock case [1992] 1 AC 310……and Page v Smith [1996] AC 155 as settled for the time being but by and large to leave any expansion or development in this corner of the law to the Parliament. In reality there are no refined analytical tools which will enable the courts to draw lines by way of compromise solution in a way which is cohenrent and morally defensible. It must be left to Parliament to undertake the task of radical law reform.”

42.Lord Hoffman (at 503E-504E) summarised the controversy over the control mechanisms since the case of Alcock, but also decided not to enter further into the merits of the various proposals for reforms as none was open to the House.  His Lordship described (at 504F):

“…It is too late to go back on the control mechanisms as stated in the Alcock case [1992] 1 AC 310. Until there is legislative change, the courts must live with them and any judicial developments must take them into account.”

43.The principles, as they are, were applied by the Hong Kong District Court in the context of striking out and amendment of pleading in Wong Fung Sze & Anor v Hospital Authority, DCPI 112/2004 (7 July 2004).  HHJ To (as he then was) again summarised the 3 elements founding a valid claim by a secondary victim of other’s tort: (i) the relationship between the plaintiff and the person to whom the duty was owed was sufficiently proximate as to be within the class of persons whose claims should be recognised; (ii) the plaintiff has to show propinquity in time and space to the accident, not only through the sight or hearing of the event but of its aftermath; and (iii) the psychiatric condition must result from the shock that came through sight or hearing of the events or its immediate aftermath.

44.These are the elements that I have to consider in the circumstances of the present case.

Class of persons

45.That this is a case of a divorced mother who fought for and obtained the custody of her son just half a year prior to the accident puts the first element beyond doubt. It is really the second and the third elements that are controversial in the present case.

Proximity to the accident in time and space

46.Lee did not witness the traffic accident.  It is whether what she experienced upon and after seeing the note on her door about the admission of Hong to the hospital fell within the immediate aftermath of the accident that is in issue.

47.Lord Keith in Alcock said (at 397), in the circumstances of that case, that:

“The first of these is proximity of the plaintiff to the accident in time and space. For this purpose the accident is to be taken to include its immediate aftermath, which in McLoughlin’s case was held to cover the scene at the hospital which was experienced by the plaintiff some two hours after the accident.”

Lord Ackner said in the context of post-accident identification of the primary victim (at 404):

“It is accepted that the proximity to the accident must be close in time and space. Direct and immediate sight or hearing of the accident is not required. It is reasonably foreseeable that injury by shock can be caused to a plaintiff, not only through the sight or hearing of the event, but of its immediate aftermath.

…… it is clear from McLoughlin …… that there may be liability where subsequent identification can be regarded as part of the “immediate aftermath” of the accident……McLoughlin’s case was described by Lord Wilberforce as being upon the margin of what the process of logical progression from case to case would allow. Mrs McLoughlin had arrived at the hospital within an hour or so after the accident. Accordingly in post-accident identification cases before your Lordships there was not sufficient proximity in time and space to the accident.”

In the similar context ,Lord Jauncey added (at 424):

“In these appeals the visits to the mortuary were made no earlier than nine hours after the disaster and were made not for the purpose of rescuing or giving comfort to the victim but purely for the purpose of identification. This seems to me to be a very different situation from that in which a relative goes within a short time after an accident to rescue or comfort a victim. I consider that not only the purpose of the visits to the mortuary but also the times at which they were made take them outside the immediate aftermath of this disaster.”

48.In North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792 (6 December 2002), the baby died of admitted negligent treatment.  The mother suffered pathological grief reaction after having been awakened by her baby’s bedside in hospital at 3 am, when the child was having a fit, and then, some 36 hours later, having the child die in her arms upon withdrawing her life-support treatment.  In his judgment, Ward LJ cited the speech of Lord Wilberforce in McLoughlin as regards proximity to the accident (as mentioned above); and said:

“23. That passage serves to confirm that the “fact and consequence of the defendant’s negligence” is made up of a series of “events”. One looks at the totality of the circumstances which bring the claimant into proximity in both time and space to the accident. It seems to me, therefore, to be implicit in his judgment read as a whole that when he said at p.423:-

“The shock must come through sight or hearing of the event or its immediate aftermath”

he was not intending to confine “the event” to a frozen moment of time.”

Ward LJ concluded:

“34.     In my judgment the law as present 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 then to treat the baby, the 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.”

49.In Galli-Atkinson v Sudhaker Seghal [2003] EWCA Civ 697 (21 March 2003), the 16-year-old daughter of the appellant suffered horrific injuries after being driven over by the respondent’s car.  The ambulance arrived in about 5 minutes.  Despite rescue effort, she was pronounced dead at 7:40.  Her body was then taken to the mortuary.  The girl’s father arrived home 5 minutes later.  Seeing that his daughter had not returned home from class, he drove to collect her at about 8:05.  He then discovered from the police about the accident.  By then his wife had also left home.  She reached the police cordon and was told by the police that her daughter was dead.  There was no evidence that she saw anything of the consequence of the accident, apart from the cordoning tapes.  The news had a profound effect on her; and she screamed hysterically and collapsed to the ground.  She had to be controlled by her husband and the police.

50.The couple were driven by the police to the mortuary.  The mother was still in denial at that stage.  They arrived at about 9:15.  The father went in first and identified the girl.  Upon his confirmation to his wife, she fell to her knees and sobbed beyond control.  She would not be helped but crawled to the trolley bed.  She pulled herself up and saw her daughter’s injured face and upper body.  Though the worst injuries at the lower body were hidden under the sheet, her face and head were disfigured.  She cradled her, saying that she was cold.  The scene was devastating.

51.The Recorder dismissed the mother’s claim for psychiatric sufferings as a result of the shock.  On appeal, the English Court of Appeal applied the test set out by Lord Wilberforce in McLoughlin and His Lordships in Alcock.  The Court identified the issue in question, namely, whether the mother’s psychiatric condition, which was capable of founding a claim for damages, was caused by shock resulting from her perception of an event or its immediate aftermath in the sense intended by Lord Wilberforce in McLoughlin.  Lord Justice Latham said:

“25. In approaching that question, I do not consider that we are restricted by what Lord Ackner said in Alcock to a frozen moment in time. As Lord Wilberforce in McLoughlin recognised from the passage that he cited from Benson v Lee, an event itself may be made up of a number of components. This was accepted by this court in the case of North Glamorgan NHS Trust v Walters [2002] EWCA 1792. Likewise, in my judgment, can the aftermath, provided that the events alleged to constitute the aftermath retain sufficient proximity to the event. Indeed, the decision in McLoughlin’s case can itself only be justified if the events in the hospital, when Mrs McLoughlin went to the hospital, are taken together as providing the trigger, if that is the right description, for the shock which produced the psychiatric illness.

26. In the present case, the immediate aftermath, in my view, extended from the moment of the accident until the moment that the appellant left the mortuary. The judge artificially separated out the mortuary visit from what was an uninterrupted sequence of events, quite unlike the visit to the mortuary under consideration in Alcock. The visit with which we are concerned was not merely to identify the body. It was to complete the story so far as the appellant was concerned, who clearly at that stage did not want – and one can understand this – to believe that her child was dead.

27.     Accordingly, in my judgment the judge was wrong to have excluded what happened at the mortuary from consideration.  If, therefore, it could properly be said, on the basis of the psychiatric evidence, that the whole of that sequence of events which was witnessed by the appellant played a part in producing the illness from which she undoubtedly suffered, then the appellant is entitled to succeed in her claim.”

Lord Wilson said:

“35. The accident occurred at 7:05 pm. In my view, like that of my Lord, its immediate aftermath continued until the appellant and her husband left the mortuary soon after 9:20 pm. Until then the accident had precipitated what in effect was seamless activity, first in seeking to preserve Livia’s life and then in taking essential and urgent steps referable to her body.

……

38. …it is clear that a visit to a hospital for the purpose of identification may well fall outside the immediate aftermath of the accident. It is arguably less easy, at first sight, to understand why, if the visit takes place within that period and has psychiatric sequelae, its purpose remain significant; and, in particular, why, if the primary victim is deed and thus not suspectible to “rescue or comfort”, any such sequelae, of which the likelihood must surely be greater, are beyond recompense.”

52.The other members of the Court of Appeal agreed and unanimously allowed the mother’s appeal.

53.Mr Lam submits that the moment Lee saw the note on the door about Hong’s admission to the hospital to the moment she saw Hong’s body constituted the immediate aftermath of the traffic accident.  Lee’s presence at the hospital was in no way like identification of the primary victim’s body at the mortuary.  She was present shortly after the accident when Hong was being resuscitated, though she was not allowed to see him.  I tend to agree.

54.Ms Lau cites a number of other instances of how the English court has approached the proximity test in their own circumstances.  First there was Taylor v Somerset Health Authority [1993] 4 Med LR 34.  The plaintiff’s husband suffered a heart attack and died shortly after being taken to the hospital. The plaintiff arrived at the hospital within an hour and was informed of the passing of her husband 20 minutes later.  She was shocked and distressed.  It was found that the defendant, which had been treating the plaintiff’s husband for months had negligently failed to diagnose or to treat the heart disease.  It was held that the death was the final consequence of the negligence of the defendant months earlier.  In dismissing the claim, Auld J had this to say about the “immediate aftermath” exception to the actual witnessing of the event (at 37):

“There are two notions implicit in this exception cautiously introduced and cautiously continued by the House of Lords. They are of:

(i) an external, traumatic, event caused by the defendant’s breach of duty which immediately causes some person injury or death; and

(ii) a perception by the plaintiff of the events as it happens, normally by his presence at the scene, or exposure to the scene and/or to the primary victim so shortly afterwards that the shock of the event as well as its consequence is brought home to him.

There was no such event here other than the final consequence of Mr Taylor’s progressively deteriorating heart condition which the health authority, by its negligence many months before, had failed to arrest.  In my judgment, his death at work and the subsequent transference of his body to the hospital where Mrs Taylor was informed of what had happened and where she saw the body do not constitute such an event.”

55.Then there is Sion v Hampstead Health Authority [1994] 5 Med LR 170 (in the context of striking out).  The father suffered psychiatric illness after seeing his son’s condition deteriorate to coma and eventual death in the course of 14 days after his admission following a traffic accident.  The father claimed against the hospital for negligence in diagnosing internal bleeding in his son, and for his suffering as a secondary victim.  The claim was struck out.  In the course of that, Peter Gibson LJ doubted the defendant’s argument that the death of the son did not qualify as the relevant event for the purpose of the claim and Auld J’s decision in Taylor (above).  However, since the Court of Appeal dismissed the claim for the lack of medical evidence of shock, such observation of Peter Gibson LJ about what constituted immediate aftermath for the purpose of the proximity test was obiter.

56.Both Taylor and Sion were referred to in Crystal Taylor v A Novo (UK) Ltd [2013] EWCA Civ 94 (18 March 2013), which is also cited by Ms Lau.  There a woman was injured in an industrial accident, which was admittedly caused by the negligence of her employer.  She made an apparently good recovery but suddenly collapsed and died at home 21 days later.  Her daughter did not witness the accident that injured her mother but the sudden death of her mother.  She suffered psychiatric illness as a result and claimed against the employer of her mother.  The English Court of Appeal identified the issue to be whether the death of the mother was a relevant incident for the purpose of the daughter’s claim as a secondary victim.  Hence reference to the cases of Taylor and Sion (above).

57.The English Court of Appeal considered (at §§29-31) that the defendant’s negligence had two consequences – the injury to the mother and her sudden collapse and death, which were separated by 3 weeks in time.  Whilst there was a relationship of legal proximity between the defendant and the mother, to allow the daughter to recover as a secondary victim on the facts of the case would be to go too far and the concept of proximity to a secondary victim could not reasonably be stretched that far, contrary to the caution expressed by Lord Steyn in Winter (above).  Lord Dyson MR found that the judge was wrong to hold that the death of the mother was the relevant “event” for the purpose of deciding the proximity question, and said (at §32):

“…A paradigm example of the kind of case in which a claimant can recover damages as a secondary victim is one involving an accident which (i) more or less immediately causes injury or death to a primary victim and (ii) is witnessed by the claimant. In such a case, the relevant event is the accident. It is not a later consequence of the accident.”

58.His Lordship expressly (at §33) confirmed the correctness of what Auld J said in Taylor regarding what qualified as the immediate aftermath (above) whereas the expression of doubt about that by Peter Gibson LJ in Sion (above) was obiter and thus not binding.  In dismissing the daughter’s claim as a secondary victim, His Lordship considered (at §35) that the accident to the mother and her death were not part of a single event or seamless tale but distinct events.  On that basis, North Glamorgan NHS Trust (above) and Gallie-Atkinson (above) were distinguishable on the facts.  The question whether the death, being a separate event, was a relevant event for the purpose of a claim by a secondary victim did not arise in North Glamorgan NHS Trust or Gallie-Atkinson.

59.Apart from doing fairness to the effort of counsel, I hope to make good 2 points by going through the above authorities.  First, what were the components of the immediate aftermath of an event are fact sensitive, which are bound to vary from case to case.  Second, the courts in the various cases came to their respective conclusions because they, if I may say so with respect, applied the test of proximity in terms of time and space with common sense.

60.Applying the test with common sense, I find the present case to be different from the circumstances of those cases cited by Ms Lau.  Lee rushed to the hospital while what could be done to save Hong was being done.  Hours later, she got to see Hong’s body when the resuscitation eventually failed.  All were precipitated by the accident, and fell within the time and space of its immediate aftermath.

The means by which the shock was suffered

61.As to the means by which the shock was suffered, Lord Keith in Alcock said (at 398):

“Lord Wilberforce said in McLoughlin …… that it must come through sight or hearing of the event or of its immediate aftermath. He also said that it was surely right that the law should not compensate shock brought about by communication by a third party.”

62.Lord Ackner concurred; and set out the propositions in respect of the nature of this cause of action (at 400):

“(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.

……

(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 or more gradual assaults on the nervous system.”

63.In North Glamorgan NHS Trust, Ward LJ referred to Lord Ackner’s 5^th proposition mentioned above, and had this to say:

“25. …… Lord Ackner did not give authority for his proposition but he surely had in mind the judgment of Brennan J in Jaensch v Coffey at p.566/7 where he said:-

“The notion of psychiatric illness induced by shock is a compound, not a simple, idea. Its elements are, on the one hand, psychiatric illness and, on the other, shock which causes it …… I understand “shock” in this context to mean the sudden sensory perception – that is, by seeing, hearing or touching – of a phenomenon affronts or insults the plaintiff’s mind and causes a recognisable psychiatric illness. A psychiatric illness induced by mere knowledge of a distressing fact is not compensable; perception by the plaintiff of the distressing phenomenon is essential.”

I infer Lord Ackner had this passage in mind because he quoted the last sentence to support his second proposition……”

64.Again, each case turns to its own facts.  It is the approach of the court in interpreting the facts of the case, with the assistance of medical expert evidence, in applying the legal test that matters.  What Ward LJ also said (at §34) about the taking of a realistic view of what constitute the necessary event (above) is instructive.  His Lordship further said:

“35. Mr Miller submits that the court cannot take account of what the mother was told about her son’s condition from time to time.  I do not agree.  The distinction in the authorities is between the case where the claim is founded upon “merely being informed of, or reading, or hearing about the accident” and directly perceiving by sight or sound of the relevant event.  Information given as the events unfold before one’s eyes is part of the circumstances of the case to which the court is entitled to have regard.

……

39. The issue here is whether her psychiatric condition was caused by shock.  The medical evidence was clear that it was.  That may be no surprise since the psychiatric profession have a clinical view, and may for good reason, not understand or accept the illogicality of the law as it has developed.  Being a legal test it was for the judge to decide.

40. In my judgment he was fully justified in coming to the conclusion that her appreciation was sudden in contradiction to an accumulation of gradual assaults on her mind.  The first event in the series is her being woken up by her child’s convulsion.  What she was unexpected.  That amounted to a sudden assault on her mind.  The next event is arriving at the hospital, hopes high.  She is given the 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 particular 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 the 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 in space and time is satisfied.  The assault on her nervous system had begun and 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 flashbacks of 36 horrendous hours which wreaked havoc upon her mind.”

65.In Galli-Atkinson (above), Latham LJ said further in respect of the legal test (at §27), namely, if it could properly be said that on the basis of the psychiatric evidence that the whole sequence of events was witnessed by the plaintiff played a part in producing the illness from which the plaintiff suffered, the plaintiff is entitled to succeed in her claim.

66.In the present case, Lee, without expectation, saw the note posted on her door upon return from job up to her arrival.  She arrived at the hospital shortly but the strike in terms of uncertainty about Hong’s well being was not cleared. According to her, she was brought to where Hong was undergoing resuscitation and emergency treatment.  She saw a lot of people, teachers from Hong’s school included.  One the one hand, her ex-husband told her that it should be the case that Hong could be saved or else the doctors would not be trying.  One the other hand, she saw a nurse holding a pack of blood and went behind the curtain, which was believed to be the operating theatre.  She sensed the situation was not good.  She was told that all would depend on the will power of Hong.  She was later told by a doctor that she had to be prepared for the worst.  At one stage, she wanted to rush to see her child. She was perplexed and resorted to a corner crying.  Photographs depicting her sitting on the floor of the hospital with face buried in her hands were shown in the subsequent newspaper reports[4].

67.Lee was led to see Hong when he already passed away.  That was approximately 4 hours after her arrival at the hospital.  She found him lying with eyes closed.  There was a lot of blood on his face and body.  His face was swollen, and one of his leg was displaced.  When she stroke his face, blood came out of his mouth.  She pulled down a white sheet to cover his body.  She was in denial and cried hysterically.  She was led to another room to rest overnight.

68.I accept Lee evidence in this respect.  What she described was not merely information from third parties but her perception by sight and sound of what had happened and what was happening to Hong as a result of the accident within hours of the accident.

69.However, much is said about her reaction upon seeing Hong’s body.  In her evidence, she confirmed that she did not feel anxious or horrified by seeing Hong’s body.  Dr Chung opined that her psychiatric illness was not caused by having seen any appalling injuries on Hong’s body.  However Dr Wong opined that a mother usually would not become anxious or horrified by the sight of her own son’s body, albeit dead, but she would be anxious and horrified by what happened that led to her son’s state and would feel pitiful on seeing her son’s disfigured body.

70.In my view, one must exercise common sense in understanding the scenario at the time and place.  In the whole series of events experienced by Lee in those 4 to 5 hours, not a single moment in time could be frozen for study in isolation.  Nor could the moment of Lee finally seeing the body of Hong.  Otherwise, it will be too narrow a view to take about what are relevant to be taken into account, contrary to what the authorities say as discussed above.  It will also be too narrow a view to take in applying the legal test of causation, which is a matter for the court.

71.The English Court of Appeal considered the issue of causation in the context of the claim by a secondary victim in Vernon v Bosley (No 1) [1997] 1 ALL ER 577.  Stuart-Smith LJ said (at 586g):

“What the plaintiff is required to do, in my judgment, is to show on balance of probability that the illness from which he is suffering is caused, or substantially contributed by, by the shock, as defined by Lord Ackner, of witnessing the accident. Questions of causation and aetiology in psychiatric medicine are often very difficult because psychiatric is not a precise science.”

Evans LJ said (at 604-605h):

“So the inquiry becomes whether the plaintiff’s symptoms of illness were exclusively referable to grief and bereavement. If the evidence fails to establish that they were not, and that they were at least partly referable to his traumatic experience, then despite the apparent likelihood of the plaintiff being unaffected by the experience his claim for compensation must fail.

……

Damages for mental injury do not include compensation for feelings of grief and bereavement which are not themselves symptomatic of illness; indeed, they are identified as the ‘normal’ consequences of such a bereavement, when it occurs. That the damages are limited in this way was established, in my view, by Hinz v Berry. This is not the policy-induced rule, recognised in McLoughlin v O’Brian and later decisions, which limits the scope of the duty of care, but rather a restriction on the heads of damage which may be recovered by a successful plaintiff. In technical legal terms, damages for ‘normal’ grief and suffering may be said to be too remote to be recoverable in law.

What if the plaintiff, who was a secondary victim and was owed a duty of care by the defendant, has suffered mental illness which properly should be regarded as a consequence both of his experience as a bystander and of an intense ie more than normal grief reaction to the bereavement which he suffered? This presupposes that the mental illness can be ascribed to both causes by medical science, rather than to one, and that the causes can be regarded as independent, or several, rather than joint ie combined causes of the resulting mental state. In such a case, are the damages limited to compensation for that part of the mental illness which can be ascribed to the experience rather than to the grief? As it has tended to be expressed in the present case, must the damage be discounted for grief and the consequences of bereavement, even if the plaintiff’s illness was partly so caused?

In my judgment, this particular issue is not covered by the authorities, and I would hold that the damages for mental injury should not be discounted in this way. Hinz v Berry held that damages are not recoverable for feelings of grief and bereavement, but it was not suggested there that those feelings had worsened into illness or were partly the cause of the plaintiff’s illness. In Calascione v Dixon (1993) 19 BMLR 97 the illness causes by grief (PGD) was found to have a subsequent post-accident cause. The question, in my view, is one of remoteness of damage and of the kinds of injury for which damages may be recovered. Mental injury suffered in consequence of witness at first hand an accident involving a loved one as its primary victim is actionable in law. In principle, damages are recoverable for injury caused partly by the negligence of the defendant, even if there was another cause and the negligence was only a contributory cause: Bonnington Castings Ltd v Wardlaw [1956] 1 All ER 615, [1956] AC 613 (this leads to the proposition that the plaintiff is entitled to recover damages for an injury caused or contributed to by the negligence of the defendant, provided that it was a ‘substantial’ or ‘significant’ contributory cause). Mental illness, as distinct from grief and other emotional sufferings resulting from bereavement, is a kind of injury which is recognised by the law. Therefore, I would hold that damages are recoverable for mental illness caused or at least contributed to by actionable negligence of the defendant ie in breach of a duty of care, notwithstanding that the illness may also be regarded as a pathological consequence of the bereavement which the plaintiff, where the primary victim was killed, must inevitably have suffered.

If this is a correct view of the law, then it has the following advantages for the trial of cases such as this. First it is unnecessary to research into the niceties of psychiatric medicine in order to discover whether part, and if so what part, of the plaintiff’s illness should be ascribed to bereavement rather than to the traumatic experience of witnessing the accident. Perhaps these are questions which even the experts find it difficult to answer – Dr Cuthill said more than once that he finds it impossible to do so, even now more than ten years since he first treated the plaintiff and after much research has been published. And it must be remembered that the only reason for making the inquiries, if they are necessary, is to set a limit to the damages which are recoverable by a plaintiff who has established the right to sue. The number of such persons is restricted, for policy reasons, in order to limit the exposure of defendants to claims by those who were only indirectly affected by their acts. I do not see any policy reason for limiting the damages in the way suggested, particularly when the line between recovery and non-recovery would or might depend upon a detailed psychiatric inquiry in every case. If the plaintiff was owed a duty of care, then he should recover, in my view, damages for the injury which he has sustained ie the illness from which he suffers. After all, even if his illness if partly attributable to the pathological consequences of grief and bereavement, it was nevertheless caused by the defendant’s negligent act, and the policy reasons which limit the scope and number of those to whom a duty is owed do not provide equal justification for limiting the damages recoverable by those who can sue (see also Clerk and Lindsell on Torts (17^th edn, 1995) para 7-51 ‘Policy and flexibility’).

Secondly, the practical consequence of the submission for the defendant seems to be this.  Only a plaintiff who had a close and loving relationship with the primary victim can recover damages, but the damages would have to be assessed so as to exclude the consequences of the bereavement which the plaintiff must have suffered, if the loved one was killed.  This in my view would be an unrealistic and artificial exercise, just as the judge found that he could not do better than make an ‘educated guess’ as to what the extent of the plaintiff’s grief reaction would have been if he had been a person of normal fortitude and not particularly vulnerable in circumstances of stress.  If the law is, simply, that a plaintiff who is entitled to sue (who was owed a duty of care) can recover damages for mental illness caused or contributed to by his involvement as a secondary victim of the accident, notwithstanding that his illness may also be described as, in part, a pathological grief reaction to the bereavement which he has suffered, then it is unnecessary to embark on the process which the judge, not surprisingly, found both abstract and difficult in the present case.”

72.The above was applied in Galli-Atkinson (above), where the psychiatric expert evidence was that the plaintiff’s psychiatric illness was contributed to by her proximity to the accident, though it was mainly (80%) the result of her bereavement.  In allowing the appeal, the Court of Appeal held that on the evidence, the shock was not caused merely by being told of the death of the primary victim, but was just part of the immediate aftermath that caused the shock and illness.

73.Dr Wong described her emotional experience from what she saw and heard during those few hours as “a ride on a roller-coaster”.  It is not difficult to see that in the circumstances of this case.  In court, Dr Chung agreed that during those hours in the hospital, when Lee was waiting at the hospital but not allowed to see Hong, her inability to ascertain the exact state of Hong and whether he had died might lead to a significant uncertainty and tremendous anxiety.  He accepted that the chain of events had cumulative effect on Lee, and it would be unrealistic to single out a single point of time for assessing her emotional state.  They contributed to her prolonged grief, which in turn contributed to the development of major depressive disorder.

74.Whilst Dr Chung quantified the role so played by what Lee experienced during the few hours at the hospital in contributing to her illness to the extent of 10%, he accepted that that was a matter of impression instead of scientific quantification.  Dr Wong refrained from making such quantification.  More importantly, as a matter of causation, it matters not whether such experience during the immediate aftermath of the accident was a major or minor contributing factor to the development of her psychiatric illness.

75.The realistic view of the circumstances is that Lee’s experience from the moment when she saw the note on the door of their home up to the moment she finally got to see Hong’s body within hours of the accident materially contributed to her psychiatric illness. Put another way, it would be against the evidence and common sense to conclude otherwise.

Conclusion

76.Mr Lam refers to judicial and academic commentaries suggesting that the English case law in this respect so far developed is too restrictive and somewhat illogical.  The authors of Clerk & Lindsell on Torts (20^th ed) (at §8-61[5]) observed that whilst no legislation had been passed subsequent to the review by the Law Commission in 1998, legislative reform seemed unnecessary as the courts seemed to have adopted a more flexible approach to the distinction between primary and secondary victims as well as a less restrictive approach to recovery by secondary victim.

77.In Yang Yee Man v Leung Hing Hung [2012] 5 HKLRD 782, Bharwaney J (at §8) observed that much has been said in favour of abandoning the restriction in the case of a person who has suffered a reasonably foreseeable recognised psychiatric illness as a result of the death, injury or imperilment of a person which whom he or she has a close tie of love and affection.

78.However, the circumstances of the present case do not actually call for the consideration of whether the law should be taken further.  I would certainly refrain from adopting a too narrow view of the relevant components of consideration.  On the facts of the present case, I find the claim by Lee as the secondary victim established.

Quantum

79.Lee claims general damage for her pain, suffering and loss of amenities (PSLA) as well as special damages for loss of earnings, loss of earning capacity and miscellaneous expenses.

Lee’s condition since the accident

80.With Hong’s passing, Lee lives by herself in Hong Kong.  Lee’s sister brought her to see a private doctor for her emotional and psychiatric problems shortly after the accident.  According to the record, she cried easily and woke up early in the morning.  Her appetite reduced.  She had thoughts of her son talking beside her.  Suicidal idea came about at one stage.  In November 2007, Lee was referred to consult the psychiatrist at the Kowloon Hospital.  She was classified into the serious category.  The diagnosis was severe depressive disorder.  Lee turned down inpatient treatment; and Remeron (sleeping pill) was prescribed.  The hospital had since increased the dosage gradually upon each follow-up.

81.During her follow-up in January 2008, after her return from the Mainland for, according to Lee, the burial of her son’s ashes, her mood was still found to be depressed.  Follow-up and the previous prescription continued until mid-2008, when it was recorded that she had poor sleep, weight loss, low and depressed mood, low energy and loss of sleep as well as appetite.  Prescription was changed to Efexor.  Such course continued November 2008.  In the interim, the doctor certified her eligibility to disability allowance.

82.During the follow-up in November 2008, Lee was found to express psychotic symptoms, such as blaming his son’s classmate for the accident.  The dosage of Efexor was doubled plus anti-psychotic drug.  The dosage was further increased during the follow-up towards the end of 2008.

83.Lee continued her follow-up in 2009.  In that year, Lee had at one stage defaulted drug compliance, which led to a new course of prescription of Efexor, which eventually increased.  According to the record, Lee still complained about poor concentration.  In early 2010, the diagnosis remained that of severe depressive episode but without psychotic symptoms.

84.Lee attended the joint medical examination by Drs Wong and Chung in September 2010. Mental state examination was conducted.  It was recorded that Lee was alert, cooperative, polite and spontaneous.  Her speech was coherent and relevant but she could be circumstantial and over inclusive at times.  She demonstrated intact cognition and orientation in terms of date, time, place and person.  She still looked tired and sad.  At times, she would appear tense and tearful, when talking about her son.  She had depressed mood, low esteem, pessimistic outlook and guilty feelings.  There was no suicidal idea or psychotic features such as paranoid ideas.

85.In her statement dated August 2011, Lee described her current state.  She had low mood, bad temper, sense of worthlessness and lack of confidence, though there had been improvement.  There was still flashback of her memory about her son’s state at the hospital on the day of the accident.  All sorts of ideas about her son and even revenge came about, which drew down her mood.  Her thoughts sometimes became self-conflicting.  Her memory and concentration had deteriorated.  Seeing children sometimes would remind her of her son, which would drive her to tears.  At the same times, she was worried about the impact of her condition on her old mother.  It was only towards the end of 2010 when she reached out to see more people with a view to improving herself.  She also resumed work as a part-time tour guide in 2011.  She also had the disability allowance cancelled.

86.Lee has been attending follow-up until the trial with intermittent break while she would go back to stay in the Mainland.  Appointment had been made for attendance after the trial.  She was prescribed with yet another type of antidepressant, which she had to take every day.

87.Lee’s evidence was tested by cross examination.  It is suggested that Lee’s condition was not as bad as she projected.

88.There was Lee’s police statement made in late September 2007.  I do not think much can fairly be made out of the fact that she made a statement during an interview with the police 3 days after the accident.  That she managed to do so on that particular day cannot be indicative of her emotional and psychiatric state, particularly in view of her medical history recorded over time.

89.Much concern is raised about Lee’s trading in securities during the last quarter of 2007 and the first quarter of 2008.  Attention was brought to her sale of securities just 2 days after the accident.  Her explanation was that she did so only at the advice of her sister, but she was then so confused that she pressed the button by mistake and had to rectify the transaction on the following day.  2 weeks after the accident, Lee again traded in securities.  Her explanation was that her sister and friends advised her not to lay idle as that she would only allow herself to think about her dead son.  It was often one buy and one sell in a day, and she did not trade daily.  She stopped the trading activities in April 2008.  She was granted disability allowance later.

90.As mentioned, all have to be assessed against the entire medical history of Lee, which started before late 2007.  As mentioned, Lee was referred to psychiatric treatment at the Government hospital and has been attending such treatment since November 2007.  There is and can be no suggestion that Lee was less than genuine about such consultation simply because at the same time she managed to carry out the trading activities.  The bottom line is there is no real suggestion that Lee has malingered or consciously exaggerated her symptoms.

Psychiatric expert evidence

91.Dr Wong opined that Lee’s mood since the accident until mid-2010 never entirely improved.  She was still in morbid preoccupation about her son.  She had major impairment in various areas, accounting for 25% of the whole person.  Dr Wong recommended another 6 to 12 months of intensive psychiatric treatment to Lee.  She should continue her psychiatric follow-up treatment every fortnight for a year and then every month.  Such follow-up and antidepressant prescription would be for life.  Clinical psychologist consultation every fortnight for a year was also recommended.

92.Dr Chung opined that the major depressive episode largely subsided about 6 months after the accident (early 2008). The episode was in remission, and she only displayed symptoms of bereavement or prolonged grief.  She no longer displayed sufficient symptoms to qualify as major depressive disorder[6].  The impairment would be mild, about 5% of the whole person.  Dr Chung agreed that Lee should continue her treatment, including psychologist intervention and drug treatment, once a month for a year.

93.Dr Wong opined that Lee would need sick leave until late April 2011 whereas Dr Chung opined that sick leave up to the end of 2008 would be sufficient.

PSLA

94.In common, the experts opined that normal grief should have lasted for about a year.  Lee’s condition and grief since the sudden passing of her son has been prolonged with some transient fluctuation for one reason or the other.  In my view, notwithstanding the differences between the medical experts, the overall medical evidence at least supports that the initial deterioration and development into major depressive disorder, and its subsequent subsidence, even to that short of such diagnosis clinically, has not substantially reduced the prolonged bereavement and its impact on the mental state of Lee.

95.Mr Lam refers to Bernt Lars-Olof Wanlayaphol v The Incorporated Owners of the Foremost Building, HCPI 336/1998 (3 December 2001) and CMY v Tam Siu Wing [2008] 4 HKLRD 604.

96.Bernt Lars-Olof Wanlayaphol involved the claim by a secondary victim, who suffered from minor physical injuries but psychiatric illness as a result of witnessing the horrendous injuries to his wife in the same accident.  He lived with his gravely disabled wife and nursed her for 3 years before she passed away.  He suffered from severe bereavement reaction with depression, fatigue, reduced respiratory function and anxiety.  The master found that the husband received direct impact injuries and was exposed to the full shock of his wife’s plight. That brought about a genuine psychiatric illness that had largely been suppressed by his pre-occupation with his wife’s needs.  All the diagnosed symptoms were but the manifestations of that mental and physical illness for which compensation should be given.  HK$600,000 was awarded for his PSLA, which was effectively then top end of the serious injury category.

97.CMY however involved a plaintiff, not a secondary victim, who suffered minor physical injuries but major psychiatric condition.  The court awarded HK$400,000 for his PSLA.

98.Each case turns on its own facts.  Mr Lam accepts that Lee’s condition is less serious than that of the secondary victim in Bernt Lars-Olof Wanlayaphol. He submits that the claimed amount would effectively reflect that Lee’s condition falls well below the serious injury category and is fair and reasonable.  I agree, in the circumstances of this case.  In the light of that, I think the amount claimed, HK$350,000, is reasonable.

Lee’s earnings

99.The documents show that Lee was first issued with a tour guide pass by the Travel Industry Council of Hong Kong (“the Council”) in August 2006.  According to her, she had gained some relevant experience by working for friends before then.  As mentioned, whilst saying her income from being a tour guide was not stable, Lee asserted that her average monthly income from such job amounted to HK$30,000.

100.According to her, her income consisted of basic salary paid by the travel company and commissions paid by retail and tourist spots.  The fact is, and Mr Lam fairly accepts, that Lee has no documentary evidence of such income prior to the accident.  There is nothing from her pre-accident employing travel company.  Nor is there any tax return.  On behalf of Lee, it is submitted that her failure to file the tax return does not support what she said about her earnings is untrue. Reference is also made to her attempt through solicitors to seek documentary proof from her previous employer and her answers to interrogatories.  On her behalf, it is said that she should not be criticised as being less than forthcoming about discovery of such documents.  Yet whatever view one takes as to these, this would not assist Lee to advance her case, as this is after all her burden to prove her assertions.

101.The only documents that may cast some light in this respect are copies of Lee’s bank account passbooks.  Reference is made to the deposits into one of these accounts during 2006.  But it becomes clear that Lee could not now recall the nature of each of those deposits.  Mr Lam exercised his industry in coming up with his calculation of Lee’s pre-accident average income.  His proposition comes about in the following manner:

(1) The total deposits into the account during 2006 were about HK$450,915.  The average monthly deposit was about HK$37,576.  They are taken to have consisted of loans and income.

(2) Based on the evidence about the amount repaid out of the insurance monies as a result of Hong’s death, Lee had borrowed a total sum of about HK$370,000 from about 2005, which, according to her, were for her securities trading and other purposes.  The same is assumed to be her loan amount for 2006 until the date of the accident.  This gives a monthly loan amount of HK$18,049.

(3) On the basis of (2) above, the part of the deposits that are said have come from her income during 2006 was HK$(37,576 – 18,049) = HK$19,527.  Hence approximately HK$20,000.

(4) Another average sum of HK$10,000 is assumed to be her cash receipts from work.  Hence the total income of HK$30,000.

102.It is not difficult to observe that the above proposition is somewhat arbitrary and artificial.  Even Mr Lam has to admit that.  He urges upon me to take that as a counter-check of the inherent probability of Lee’s asserted pre-accident income level.

103.In her declaration of her income in the social welfare report in March 2007 for the purpose of her application for variation of the custody of Hong, it was stated that she made only HK$4,000 monthly in the first quarter of 2007 but she had income from securities trading and rental income from properties in the Mainland.  Lee admitted that she lied about rental income from Mainland properties, but explained that she was keen at showing his financial ability while having to change to work as a part-time tour guide at the same time so as to spare the time to enable her to look after Hong[7].  In view of Lee being a single parent living by herself, such dilemma is perhaps not inherently incredible, though it was of course wrong for her to lie then.

104.According to Lee, since she had obtained the change of custody, she gradually resumed the previous work pattern and thus income level so as to meet both ends for herself and Hong.  That again is inherently plausible, bearing in mind that Hong’s father, as mentioned, was remarried and had his own family to support.  There is no evidence of any maintenance or financial support from Hong’s father since the change of custody.

105.Ms Lau suggests that the evidence only shows that Lee received HK$2,000 for the tour between 15 and 18 September 2007 immediately prior to the accident.  However that is suggestion at the other extreme, especially when there is no real dispute that Lee mainly worked as a tour guide serving Mainland tourists in Hong Kong.

106.It is perhaps difficult to just adopt Mr Lam’s calculation, when Lee did not actually say how she came up with the asserted average monthly income prior to the accident by explaining the entries in her bank account.  But the fact was that she did have the deposits, which, I accept, consisted partly of income from work.  I also accept that some of her income was received in cash.  She was also adamant that she managed to foot the bills for monthly expenses of at least HK$10,000 immediately prior to the accident.  The expenses include the rent, utilities, insurance and Hong’s private tuition fees.  She was also firm that the post-accident income of HK$15,000 as a part time tour guide, which is evidenced by documents and not seriously challenged, was less than what she normally earned before.  All the evidence triangulated, I am not prepared to find that Lee’s pre-accident average monthly income exceeded the region of HK$20,000.

Loss of earnings

107.According to Lee, she stopped working after the accident.  In September 2008, her case doctor certified her loss of earning capacity for 1 year, which entitled her to public disability allowance.  She returned to work as a part-time tour guide in March 2009 but was fired the following day.  The experts recorded in their report Lee’s description of her attempt to resume work as a tour guide in 2010 when she was dismissed the following day.

108.In January 2011, Lee resumed work as a part-time[8] tour guide and earned a monthly salary of about HK$15,000.  Her then employer[9] confirmed that in writing.  According to her, her income consisted of HK$500 basic daily wage as well as tips and commissions.  In December 2011, Lee changed to work for another travel company[10] until March 2012, when she changed to work for some other travel companies.  She spent a couple of months in late 2012 in the Mainland resting.

109.Lee resumed working as a tour guide for another travel company[11] from January 2013 and earned a monthly income of HK$8,000.  Mr Lam accepts that the reduction from her previous income level to the present level was not the result of her psychiatric condition.  This part of the evidence is not heavily disputed, and I find the same to be the fact.

110.In view of the expert evidence, including that of Dr Chung, there should be no dispute that Lee should be entitled to total loss of earnings up to the end of 2008[12]. However Lee claims total loss of earnings up to the end of 2010.  Mr Lam maintains that Lee should have been able to earn HK$15,000 ever since January 2011.  On this basis, Lee claims partial loss of earnings since January 2011 until mid-2014[13]

111.There is no real suggestion that Lee could have attempted other kinds of work and what they were.  I accept as fact that her background and skill set the limitation on her job opportunities even in the absence of the accident.  Notwithstanding the differences between the experts, I find that Lee was genuine in her attempt to resume work in early 2009 at the earliest.  I also find that if she had managed to resume her pre-accident job on a longer term, albeit part time, she would not have continued living on public assistance.  She did cancel the assistance upon resumption of such work subsequently.  Mr Lam is fair in accepting that the variation in her income level since resumption of work in 2011 had nothing to do with her condition.  Also considering the medical evidence, I do not find that her absence from work between 2009 and 2010 to be wholly unreasonable.

112.Lee’s loss of earnings should be:

From the date of accident to December 2010
(say 39 months): HK$20,000 x 39	HK$780,000
From January 2011 to mid-2014
(say 42 months): HK$5,000 x 42	HK$210,000
Total:	HK$990,000

Loss of earning capacity

113.The experts recorded in their report Lee’s description of the mistakes she made when she attempted to resume work, such as taking the tourists to the wrong restaurant.  When she saw children in the tour, she remembered her son and became emotional.  Dr Wong opined that Lee might not be able to carry on working as a tour guide, because such job requires customer service and a high level of concentration.  Dr Chung opined that her mood symptoms, impaired concentration and memory would have mild adverse effects on her work efficiency, though the same should not prevent her from returning to work as a tour guide.

114.This is to compensate for the plaintiff’s handicap in the labour market in the form of inability to be or to remain gainfully employed due to his or her impairment and disability.  For that, I award a lump sum of HK$90,000, which is effectively similar to half a year’s income at the current pay rate.

Medical expenses

115.According to the prognosis as at the date of the joint report, Dr Wong recommended 5 years of psychiatric and clinical psychological treatment, the cost of that in the private sector would be HK$180,000.  Dr Chung recommenced psychiatric treatment in the private sector for 1 year, which is said to cost HK$25,000, whilst taking the view that Lee had reached the stage of maximum medical improvement.  According to Dr Chung, different doctors could propose different treatment plans; and Dr Wong was not cross examined specifically on this issue.  Mr Lam submits that it is prudent to err on the safe side.  I rather say that it is not unreasonable for Lee to be given the opportunity of adequate and proper future treatment.  I allow the amount claimed.

Other special damages

116.Lee claims medical expenses, travelling expenses and tonic food in the sums of HK$400, HK$3,600 and HK$8,000 respectively, or a total sum of HK$12,500.  The amount exceeds that pleaded, but Ms Lau confirms that no issue is taken.  It is reasonable and I allow that.

Contributory negligence on the part of Hong

117.Whilst it is accepted that Hong was contributorily negligent in the accident, the damages recoverable by Lee as a secondary victim should not be discounted on such ground.  So Mr Lam argues.

118.The issue has not been decided before.  In Alcock, Lord Oliver (at 418G-H) expressed the concern by the illustration where a primary victim was 75% responsible for the accident.  His Lordship observed:

“……it would be a curious and wholly unfair situation if he [claimant] were entitled to recover damages for his traumatic injury from the person responsible only in a minor degree whilst he in turn remained unable to recover any contribution from the person primarily responsible since the latter’s negligence vis-à-vis the [claimant] would not even have been tortuous.”

119.The editors of Clerk & Lindsell on Tort (20^th ed) says (at §8-77)[14] that Lord Oliver’s concern was the suggestion that a negligent immediate victim could not be subject to a contribution claim, and His Lordship was not suggesting that the primary victim’s contributory negligence should be imputed to the secondary victim. They went on to point out that the Law Commission actually considered that to reduce the claimant’s damages in line with the contributory negligence of the immediate victim was not attractive as:

“it would be contrary to the underlying principle that the defendant owes a separate duty of care directly to the claimant, and would mean that the plaintiff was unable to obtain full compensation for his or her psychiatric illness”.

120.As the law now stands, and that Alcock is a case where the accident was mainly contributed to by the negligence of primary victim, I do not see this as a typical case that calls upon the court to make an effective policy decision on this issue adverse to Lee’s claim.

Summary

121.In summary, this part of the award is as follows:

PSLA	HK$350,000
Loss of earnings	HK$990,000
Loss of earning capacity	HK$  90,000
Future medical expenses	HK$180,000
Other special damages	HK$ 12,500
Total:	HK$1,622,500

122.The award for PSLA carries interest at 2% per annum from the date of writ.  Interest on special damages (loss of earnings and special damages) runs at half judgment rate from the date of accident.

ORDER

123.Judgment is entered in favour of the estate of Hong and Lee in the respective sums and with interest as aforesaid.  Interest from today runs at the judgment rate until full payment.

124.I make a nisi order that Lok shall pay the plaintiff’s costs of this action, including any costs reserved.  Cost shall be taxed, if not agreed.  The plaintiff’s own costs shall be taxed in accordance with legal aid regulations.  The parties have 14 days to apply for variation or the nisi order will become absolute.

125.I thank counsel for their assistance.

Mr Paul LAM SC, instructed by Messrs L&L Lawyers for the plaintiff upon the assignment of the Director of Legal Aid

Ms Selina LAU, instructed by Messrs Tsang Chan & Wong for the defendant