Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
HCPI 476/2010
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BETWEEN
Plaintiff
Defendant
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JUDGMENT
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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 Loks negligence.
BACKGROUND
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3. Soon the couple separated. A divorce decree was formally made in October
2000.
September 1995, and came to live in Hong Kong at the age of 2. Lee came
She received
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half a year after that. Hong was then 12 years old and a Form 1 student.
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down while he came out to the road from the safety island. Lok was
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charged with and convicted of, among others, careless driving as a result.
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5. At the time, Lee was working as a tour guide and was on her way back
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admitted to the Queen Elizabeth Hospital. She had no idea who posted it,
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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
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8. During the trial, Lok accepted liability; and the parties agreed that Hong
was contributorily negligent to the extent of 29%.
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9. As to the quantum, the parties managed to agree on all but one item of
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claim, being that for the loss of dependency. The claim on the basis of a
monthly contribution of HK$3,000 to Lees support is put forward.
10.In view of Hongs 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 Hongs accidental death. The
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of Lee actually also passed away for cancer in 2010. According to her, the
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job nature of tour guide did not provide her with stable income . With her
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she grows older. Mr Lam appearing for Lee also submits that it is common
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piety.
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12.Even assuming that the above is not disputed, this would be a projection
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from the perspective of Lee concerning what she would need or expect as
Hongs mother. However the relatively more important concern is whether
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Hong would have been both able and ready to so contribute towards Lee
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Fung [1999] 3 HKLRD 190, the 17-year-old student was killed while
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1 Though when it comes to her claim as the secondary victim, she claims to have been
earning on average HK$30,000 per month being a tour guide.
2 Relying on what Bokhary PJ said in Lam Pak Chiu (at 44J-46D), which cited Davies
v Taylor [1972] AC 207.
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14.In contrast, Hong just turned 12 and in his Form 1 at the time of his death.
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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
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have and would have afforded to send Hong abroad to study is unclear, in
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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
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Hong Kong. But in the case of loans, the graduate would be starting his
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career life with liabilities, which would only serve to reduce his disposable
income.
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that would have been testament to such potential and hence prospect of
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she had seen Hong read computer-related publications. But there is no real
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Hong had relatively low motivation for study with weak concentration in
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the class so that, according to Lee, private tuition for Hong had to be
arranged. Objectively the academic result reports from the school reveal
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that Hong was a less than average pupil throughout his primary school
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years, and ranked invariably below the middle and in some years within the
last 10 of his class.
16.Mr Lam acknowledges the uncertainty.
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that Hong would have been able to accumulate upon his natural death.
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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
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18.Mr Lam also highlights the fact Hong should have at least been able to earn
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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
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Hong would have been gainfully employed, I cannot say that this
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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
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52 year old). It is claimed that the dependency would have lasted until Lee
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reaches the age of 85-86. According to the Hong Kong Life Tables 20012036, Table 19, the life expectancy of a female aged 54 by then would be
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33.94. According to the Personal Injury Tables Hong Kong 2013, Table 28
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(p.57), the multiplier for a fixed term of 34 years with a return rate of 2.5%
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(Chan Pak Wing v Chan Chi Kuen & Anor [2013] 2 HKLRD 1 (at 139))
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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 Loks concession that
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Hong would have accumulated wealth upon his natural death but for the
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have been able to and ready to make financial contribution to his mother.
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22.In suggesting the approach to make a global award for loss of accumulation
wealth,
His
Lordship
actually
recognised
the
relatively
precise
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dependency. In view of the finding that Hong would have been able and
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23.Even if a global sum is awarded, the same, as said by Bokhary PJ, would
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the sum by reference to the income that the plaintiff would have made over
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HK$150,000 (agreed)
Funeral expenses
HK$130,000 (agreed)
HK$150,000 (agreed)
Loss of dependency
HK$276,000
Total:
HK$736,000
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at the judgment rate from the date of death. Interest on funeral expenses
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CLAIM BY LEE
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27.For psychiatric illness suffered due to what happened to her son on the day,
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28.Lee was in denial of the fact that Hong passed away at the moment she saw
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his body some 4 hours after her arrival at the hospital. Lee has developed
various psychiatric symptoms since then. They included depressive mood,
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weeping episodes, poor sleep, poor appetite, weight loss, low energy, poor
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In 2010, the
diagnosis was revised to severe depressive disorder. At the time of the trial,
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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
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opinion. They jointly examined Lee in September 2010 and produced their
joint report dated 22 October 2010.
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31.The medical experts are ad idem that Lee suffered from major depressive
episode and prolonged or abnormal grief reaction, and the major depressive
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disorder was wholly caused by the accident. Dr Wong opined that the
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contributing factor. Dr Chung differed and opined that her condition was
mostly caused by the fact of Hongs death, and what happened at the
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32.Details of Lees condition since the accident up to the date of trial will be
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The law
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33.In relation to the claim by a secondary victim, one always starts with the
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
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after the accident. There she saw the injured husband and children, and
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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
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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.
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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.
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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.
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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
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be recognised, (ii) the proximity of such persons to the accident, and (iii)
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36.As regards the class of persons, Lord Wilberforce explained (at 422):
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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,
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after all, the fact and consequence of the defendants negligence that
must be proved to have caused the nervous shock. Experience has
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38.As regards the means by which the shock was caused, His Lordship (at
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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.
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39.The above limitations put by Lord Wilberforce on the right to claim by the
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40.Lord Ackner (at 402G-H) summarised the 3 elements set out by Lord
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Lord Oliver (at 411E) set out 5 common features that he observed from the
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time the police officers who attended the scene were the claimants. Lord
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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 310and 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
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into the merits of the various proposals for reforms as none was open to the
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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
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& Anor v Hospital Authority, DCPI 112/2004 (7 July 2004). HHJ To (as he
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and the person to whom the duty was owed was sufficiently proximate as to
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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
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through the sight or hearing of the event but of its aftermath; and (iii) the
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psychiatric condition must result from the shock that came through sight or
hearing of the events or its immediate aftermath.
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44.These are the elements that I have to consider in the circumstances of the
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present case.
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Class of persons
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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
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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
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46.Lee did not witness the traffic accident. It is whether what she experienced
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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
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issue.
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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
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In these appeals the visits to the mortuary were made no earlier than
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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
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Ward LJ concluded:
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34.
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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
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after being driven over by the respondents car. The ambulance arrived in
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about 5 minutes. Despite rescue effort, she was pronounced dead at 7:40.
Her body was then taken to the mortuary. The girls father arrived home 5
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minutes later. Seeing that his daughter had not returned home from class,
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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.
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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 daughters injured face
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and upper body. Though the worst injuries at the lower body were hidden
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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 mothers claim for psychiatric sufferings as a
result of the shock. On appeal, the English Court of Appeal applied the test
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The Court identified the issue in question, namely, whether the mothers
psychiatric condition, which was capable of founding a claim for damages,
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35.
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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.
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53.Mr Lam submits that the moment Lee saw the note on the door about
Hongs admission to the hospital to the moment she saw Hongs body
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body at the mortuary. She was present shortly after the accident when
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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
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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
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informed of the passing of her husband 20 minutes later. She was shocked
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and distressed. It was found that the defendant, which had been treating the
plaintiffs husband for months had negligently failed to diagnose or to treat
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the heart disease. It was held that the death was the final consequence of
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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
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seeing his sons condition deteriorate to coma and eventual death in the
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bleeding in his son, and for his suffering as a secondary victim. The claim
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defendants argument that the death of the son did not qualify as the
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relevant event for the purpose of the claim and Auld Js decision in Taylor
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(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.
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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.
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recovery but suddenly collapsed and died at home 21 days later. Her
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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
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claimed against the employer of her mother. The English Court of Appeal
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identified the issue to be whether the death of the mother was a relevant
incident for the purpose of the daughters claim as a secondary victim.
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57.The English Court of Appeal considered (at 29-31) that the defendants
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
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58.His Lordship expressly (at 33) confirmed the correctness of what Auld J
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(above) was obiter and thus not binding. In dismissing the daughters
claim as a secondary victim, His Lordship considered (at 35) that the
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accident to the mother and her death were not part of a single event or
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seamless tale but distinct events. On that basis, North Glamorgan NHS
Trust (above) and Gallie-Atkinson (above) were distinguishable on the
facts.
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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.
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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 Hongs body when the resuscitation eventually failed.
All were precipitated by the accident, and fell within the time and space of
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62.Lord Ackner concurred; and set out the propositions in respect of the nature
(1)
(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 Ackners 5th
proposition mentioned above, and had this to say:
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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 plaintiffs 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
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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
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evidence, in applying the legal test that matters. What Ward LJ also said
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(at 34) about the taking of a realistic view of what constitute the necessary
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Mr Miller submits that the court cannot take account of what the
mother was told about her sons 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 ones 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.
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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 childs 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 consultants evidence that she and her partner found
it particular devastating because they thought they had been reassured
prior to Elliots 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 childs life had been put in danger
by the defendants 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.
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test (at 27), namely, if it could properly be said that on the basis of the
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the plaintiff played a part in producing the illness from which the plaintiff
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shortly but the strike in terms of uncertainty about Hongs well being was
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not cleared. According to her, she was brought to where Hong was
undergoing resuscitation and emergency treatment.
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people, teachers from Hongs school included. One the one hand, her exG
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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
G
H
holding a pack of blood and went behind the curtain, which was believed to
I
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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
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by a doctor that she had to be prepared for the worst. At one stage, she
K
L
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
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face buried in her hands were shown in the subsequent newspaper reports4.
M
N
O
P
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,
N
O
P
blood came out of his mouth. She pulled down a white sheet to cover his
Q
R
body. She was in denial and cried hysterically. She was led to another
room to rest overnight.
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T
Q
R
S
4 Though it is unclear as to the precise time of that day when the photographs were
taken.
- 26 A
68.I accept Lee evidence in this respect. What she described was not merely
B
C
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
B
C
69.However, much is said about her reaction upon seeing Hongs body. In her
E
F
evidence, she confirmed that she did not feel anxious or horrified by seeing
Hongs body. Dr Chung opined that her psychiatric illness was not caused
E
F
opined that a mother usually would not become anxious or horrified by the
sight of her own sons body, albeit dead, but she would be anxious and
G
H
horrified by what happened that led to her sons state and would feel pitiful
I
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70.In my view, one must exercise common sense in understanding the scenario
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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
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isolation. Nor could the moment of Lee finally seeing the body of Hong.
M
N
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
M
N
above. It will also be too narrow a view to take in applying the legal test of
O
O
P
Q
R
S
T
- 27 A
B
C
D
E
F
G
H
I
J
K
L
M
N
O
P
Q
R
S
T
- 28 A
B
C
D
E
F
G
H
I
J
K
L
M
N
O
P
Q
R
S
T
B
C
D
E
F
G
H
I
J
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M
N
O
P
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- 29 A
B
C
D
E
B
C
D
E
to by her proximity to the accident, though it was mainly (80%) the result
F
G
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
F
G
death of the primary victim, but was just part of the immediate aftermath
H
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K
L
M
N
O
H
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K
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M
N
O
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.
S
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Q
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- 30 A
psychiatric illness.
75.The realistic view of the circumstances is that Lees experience from the
moment when she saw the note on the door of their home up to the moment
B
C
D
she finally got to see Hongs body within hours of the accident materially
E
Conclusion
H
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K
L
M
N
O
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 (20th ed) (at
8-615) 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
H
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O
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st
- 31 A
consideration. On the facts of the present case, I find the claim by Lee as
B
Quantum
79.Lee claims general damage for her pain, suffering and loss of amenities
E
F
G
E
F
G
80.With Hongs passing, Lee lives by herself in Hong Kong. Lees sister
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brought her to see a private doctor for her emotional and psychiatric
problems shortly after the accident. According to the record, she cried
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easily and woke up early in the morning. Her appetite reduced. She had
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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
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the Kowloon Hospital. She was classified into the serious category. The
M
N
treatment; and Remeron (sleeping pill) was prescribed. The hospital had
M
N
81.During her follow-up in January 2008, after her return from the Mainland
for, according to Lee, the burial of her sons ashes, her mood was still
Q
R
Q
R
low and depressed mood, low energy and loss of sleep as well as appetite.
S
- 32 A
2008.
B
C
D
allowance.
82.During the follow-up in November 2008, Lee was found to express
psychotic symptoms, such as blaming his sons classmate for the accident.
C
D
The dosage of Efexor was doubled plus anti-psychotic drug. The dosage
E
F
G
H
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K
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.
F
G
H
I
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84.Lee attended the joint medical examination by Drs Wong and Chung in
September 2010.
was further increased during the follow-up towards the end of 2008.
It was
recorded that Lee was alert, cooperative, polite and spontaneous. Her
speech was coherent and relevant but she could be circumstantial and over
L
M
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
N
O
had depressed mood, low esteem, pessimistic outlook and guilty feelings.
P
Q
R
P
Q
R
though there had been improvement. There was still flashback of her
S
T
memory about her sons state at the hospital on the day of the accident. All
sorts of ideas about her son and even revenge came about, which drew
S
T
- 33 A
B
C
times, she was worried about the impact of her condition on her old mother.
D
E
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-
D
E
time tour guide in 2011. She also had the disability allowance cancelled.
F
86.Lee has been attending follow-up until the trial with intermittent break
G
H
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
G
H
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K
88.There was Lees police statement made in late September 2007. I do not
L
M
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
L
M
N
O
P
quarter of 2007 and the first quarter of 2008. Attention was brought to her
Q
R
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
Q
R
she pressed the button by mistake and had to rectify the transaction on the
S
T
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
S
T
- 34 A
that she would only allow herself to think about her dead son. It was often
B
C
D
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
B
C
D
Lee, which started before late 2007. As mentioned, Lee was referred to
E
F
E
F
that Lee was less than genuine about such consultation simply because at
G
H
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
G
H
J
K
L
She had major impairment in various areas, accounting for 25% of the
M
N
M
N
up treatment every fortnight for a year and then every month. Such followO
P
Q
R
O
P
Q
R
- 35 A
A
6
B
C
D
whereas Dr Chung opined that sick leave up to the end of 2008 would be
E
sufficient.
E
F
PSLA
G
H
94.In common, the experts opined that normal grief should have lasted for
about a year. Lees condition and grief since the sudden passing of her son
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has been prolonged with some transient fluctuation for one reason or the
other. In my view, notwithstanding the differences between the medical
I
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experts, the overall medical evidence at least supports that the initial
K
L
K
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not substantially reduced the prolonged bereavement and its impact on the
M
M
N
O
P
Q
R
lived with his gravely disabled wife and nursed her for 3 years before she
6 According to the 4th edition of Diagnosis & Statistical Manual of Mental Disorders
(DSM-IV) published by the American Psychiatrists Association.
S
T
- 36 A
passed away.
B
C
B
C
the full shock of his wifes plight. That brought about a genuine psychiatric
D
E
illness that had largely been suppressed by his pre-occupation with his
wifes needs. All the diagnosed symptoms were but the manifestations of
D
E
that mental and physical illness for which compensation should be given.
F
G
H
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
F
G
H
minor physical injuries but major psychiatric condition. The court awarded
I
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K
L
M
N
O
reflect that Lees 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.
Lees earnings
I
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K
L
M
N
O
P
99.The documents show that Lee was first issued with a tour guide pass by the
Q
R
Q
R
friends before then. As mentioned, whilst saying her income from being a
S
T
tour guide was not stable, Lee asserted that her average monthly income
from such job amounted to HK$30,000.
S
T
- 37 A
B
100.
the travel company and commissions paid by retail and tourist spots. The
C
D
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-
C
D
accident employing travel company. Nor is there any tax return. On behalf
E
F
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
E
F
G
H
of such documents. Yet whatever view one takes as to these, this would not
I
J
K
L
M
N
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P
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
K
L
M
N
O
(1) The total deposits into the account during 2006 were about
HK$450,915.
Q
R
(2) Based on the evidence about the amount repaid out of the
S
T
S
T
- 38 A
B
C
(3) On the basis of (2) above, the part of the deposits that are said
have come from her income during 2006 was HK$(37,576
D
E
G
H
102.
F
G
H
March 2007 for the purpose of her application for variation of the custody
I
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of Hong, it was stated that she made only HK$4,000 monthly in the first
M
N
quarter of 2007 but she had income from securities trading and rental
income from properties in the Mainland. Lee admitted that she lied about
M
N
rental income from Mainland properties, but explained that she was keen at
O
P
O
P
after Hong7. In view of Lee being a single parent living by herself, such
Q
R
S
T
custody, she gradually resumed the previous work pattern and thus income
Q
R
S
T
- 39 A
level so as to meet both ends for herself and Hong. That again is inherently
B
C
B
C
custody.
105.
E
F
extreme, especially when there is no real dispute that Lee mainly worked as
a tour guide serving Mainland tourists in Hong Kong.
106.
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
Hongs private tuition fees.
G
H
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K
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M
N
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P
earned before. All the evidence triangulated, I am not prepared to find that
Q
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S
Q
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S
- 40 A
107.
B
C
September 2008, her case doctor certified her loss of earning capacity for 1
year, which entitled her to public disability allowance. She returned to
B
C
work as a part-time tour guide in March 2009 but was fired the following
D
E
day. The experts recorded in their report Lees description of her attempt to
resume work as a tour guide in 2010 when she was dismissed the following
D
E
day.
F
108.
G
H
G
H
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
I
J
109.
M
N
O
110.
P
P
Q
up to the end of 2010. Mr Lam maintains that Lee should have been able to
R
S
T
8 3 days a week.
9 Comfort International Travel (HK) Co Ltd.
10 Hai Qiao International Travel Services Co Ltd.
11 Chun Fu International Tours Ltd.
12 Dr Chung considered that sick leave up to the end of 2008 would be reasonable.
S
T
- 41 A
earn HK$15,000 ever since January 2011. On this basis, Lee claims partial
B
C
D
C
D
background and skill set the limitation on her job opportunities even in the
E
F
experts, I find that Lee was genuine in her attempt to resume work in early
E
F
2009 at the earliest. I also find that if she had managed to resume her preG
H
accident job on a longer term, albeit part time, she would not have
continued living on public assistance. She did cancel the assistance upon
G
H
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
I
J
find that her absence from work between 2009 and 2010 to be wholly
K
L
unreasonable.
112.
HK$780,000
HK$210,000
Total:
HK$990,000
113.
S
T
mistakes she made when she attempted to resume work, such as taking the
13 That was 1 year after the trial, which was claimed as future loss of earnings as at the
date of trial.
S
T
- 42 A
tourists to the wrong restaurant. When she saw children in the tour, she
B
C
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
B
C
D
E
114.
G
H
G
H
Medical expenses
115.
L
M
L
M
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
N
O
Wong was not cross examined specifically on this issue. Mr Lam submits
that it is prudent to err on the safe side.
P
Q
R
S
- 43 A
116.
B
C
B
C
117.
The issue has not been decided before. In Alcock, Lord Oliver
F
G
H
I
victim was 75% responsible for the accident. His Lordship observed:
J
K
L
M
N
O
P
Q
R
S
119.
The editors of Clerk & Lindsell on Tort (20th ed) says (at 8-
77)14 that Lord Olivers 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 victims 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
claimants 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.
J
K
L
M
N
O
P
Q
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st
- 44 A
B
C
120.
As the law now stands, and that Alcock is a case where the
B
C
do not see this as a typical case that calls upon the court to make an
D
D
E
Summary
F
G
121.
H
I
J
PSLA
HK$350,000
Loss of earnings
HK$990,000
HK$ 90,000
HK$180,000
HK$ 12,500
___________
Total:
H
I
J
K
HK$1,622,500
L
M
122.
The award for PSLA carries interest at 2% per annum from the
M
N
ORDER
123.
the respective sums and with interest as aforesaid. Interest from today runs
Q
R
- 45 A
124.
B
C
I make a nisi order that Lok shall pay the plaintiffs costs of
this action, including any costs reserved. Cost shall be taxed, if not agreed.
The plaintiffs own costs shall be taxed in accordance with legal aid
B
C
regulations. The parties have 14 days to apply for variation or the nisi
D
125.
H
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(Simon Leung)
Deputy High Court Judge
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
H
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K