The Plaintiff was born on 23 July 1990 and was misdiagnosed as suffering from Transposition of Great Arteries (TGA), which led to an unnecessary operation of Balloon Septostomy performed on the third day after his birth. The surgery created an Atrial Septal Defect (ASD), commonly known as "a hole in the heart". Upon the advice of a medical expert, a corrective surgery was performed on him to close the hole, which was carried out some 12.5 years later on 5 February 2003, when the Plaintiff was almost 13 years of age. Interlocutory judgment was entered against the Secretary for Justice at the commencement of trial and the claim against Hospital Authority was discontinued, leaving the assessment of damages to proceed in September 2011.
The disabilities
The court found, on the balance of probabilities that the misdiagnosis of TGA caused the Plaintiff to have suffered:
- Necrosis of the skin of his left heel shortly after his birth, which led to a prolonged stay in hospital for approximately 55 days
- Persistent shortness of breath, which prejudiced his physical activities and social development prior to the ASD surgery. The symptoms improved as he grew older, and overall, the Plaintiff had a fairly normal childhood with normal growth in height and weight.
The corrective surgery left a scar on the Plaintiff’s chest which he found unsightly, and as a result he gave up swimming. He also had to endure pain from the scar in the first week after the surgery.
In the first two years after the successful closure of ASD, the Plaintiff appeared to be energetic, active and vivacious with minimal absences in school. He participated in competitive sports and obtained good results. The medical evidence suggested there would be minimal impact on life expectancy after the successful ASD repair.
However, from around mid-2005 onwards he started to limit his physical activities and stopped participating in sports, which resulted in him suffering from a very deconditioned heart. This is the most serious condition he had at the time of assessment of damages.
The question arose as to whether it was the Plaintiff’s psychological problems which caused him to curtail his physical activities. In the absence of a psychological expert report, the Judge could not make such findings. Based on the available evidence, the court held that the Plaintiff was affected by the surgery, the scar, follow-ups, concerns of his parents and the litigation. All of these factors had caused him to reinforce his own belief that he had a serious heart problem, which required him to limit his physical activity.
It was then agreed by both parties' experts that the Plaintiff should undertake an active course of psychological counselling and cardiac rehabilitation for five years.
Damages
The Judge awarded a total of around HK$1.37 million to the Plaintiff, which represented less than 20% of the initial amount claimed. The award comprised of the following heads of damages:
- PSLA
There are no comparables for the type of injuries suffered by the Plaintiff and with reference to the section on chest injuries contained in the UK Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injuries Cases, the court awarded HK$500,000.
- Future loss of earning/loss of earning capacity
The Plaintiff is a second year university student pursuing a Bachelor of Chemical and Environmental Engineering programme. Given the Plaintiff’s deconditioned heart, his job opportunities would be limited by sedentary employment.
The Plaintiff has now commenced cardiac rehabilitation and the outcome appears to be successful. It was held that five years is a reasonable period of time for him to recover his full earning capacity. The court applied a multiplier of 3.5 years, after taking into account that the Plaintiff needs another two years to complete his degree and to commence employment. A monthly loss of HK$10,000 was adopted and a global sum of HK$400,000 was allowed under this head.
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Pre-trial loss and expenses
Apart from medical, travelling and food tonic expenses, the court also awarded a sum of HK$92,500 as the value of services gratuitously provided by the Plaintiff’s father, which was calculated by reference to the father’s daily wages from the Plaintiff’s birth up to his retirement in March 2000 intermittently. Total award under this head is HK$125,894.
- Future medical and related expenses
Given the experience the Plaintiff had with the public hospital, it is reasonable for him to seek future treatments in the private sector. Costs of future medical expenses were thus assessed on the private sector scale.
The court adopted a lifetime multiplier of 18 for future medical care, and assessed the awards based on bi-annual visits during the first five years and annual visits in the remaining 13 years. In addition, an award of HK$10,000 was granted for travelling expenses to attend all medical treatments and counselling. Together with the costs of cardiac rehabilitation and psychological counselling, a total of HK$345,800 was awarded under this head of damages.
Comment
This case sets out guidelines for the level of damages awarded for heart injuries. We consider the multiplier of 18 adopted for future medical care is high, probably due to the expert evidence that the Plaintiff’s deconditioned heart should have a minimal impact on life expectancy after the successful ASD repair and his participation in cardiac rehabilitation.
During the assessment of damages, it was argued that the deconditioning of the Plaintiff’s heart and the limitation in his exercise capacity was self-induced, hence did not flow from any fault of the tortfeasor. The Judge however criticised the Secretary for Justice for not admitting responsibility at the first opportunity, thereby permitting the Plaintiff’s loss to continue or to be aggravated. As such, the Judge said they should be responsible for the entirety of the loss suffered by the Plaintiff.
Parties should be reminded not to prolong an unmeritorious defence otherwise there may be consequences on the grant of an award as well as legal costs.
It is also noted that the court disallowed the Plaintiff’s application to adduce evidence from a clinical psychologist, as it was made at a very late stage. The Plaintiff might have been able to obtain a higher award if they had put forward evidence to support the psychological impact on him.
This serves as a reminder to practitioners to adduce relevant expert evidence well in advance of any assessment of damages.