FRANK YU YU KAI v. CHAN CHI KEUNG

HCPI 230/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 230 OF 2004

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JUDGMENT

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1. The plaintiff brings this claim for damages for personal injuries against the defendant for negligence arising from the defendant’s role as the anaesthetist in relation to an operation performed on the plaintiff on 26 May 2001 and which is alleged to have resulted in the plaintiff suffering radial nerve palsy of his left hand.

Background

2. The plaintiff, a medical surgeon himself by profession, was diagnosed in May 2001 to have prostrate cancer.  The plaintiff was then aged 68.

3. Upon consulting Dr Andrew Chan, a specialist in urology, when the biopsy result came out, the plaintiff was advised to have a total prostatectomy which advice the plaintiff accepted.  Dr Andrew Chan further nominated Dr Richard Lo to assist him in the operation and the defendant to be the anaesthetist.  That was also accepted by the plaintiff.

4. The operation was scheduled for the afternoon of 26 May 2001 at St Teresa’s Hospital.  The plaintiff was admitted to St Teresa’s Hospital on the evening of 25 May 2001.

5. The plaintiff met the defendant, being the anaesthetist for the operation, on the morning of 26 May in his hospital room where they had a short discussion.

6. The plaintiff was brought into the operating theatre at about 1:00 p.m. on 26 May and given an epidural anaesthesia followed by a general anaesthesia.

7. Present in the operating theatre were Dr Andrew Chan, Dr Richard Lo, the defendant together with two scrub nurses and one anaesthetic nurse assistant.

8. Both upper limbs of the plaintiff were placed at about 90° to his body on two armboards for the operation.  His both hands were placed in a supine position with the palms facing upwards secured by adhesive strapping on each wrist.

9. After the operation was completed, the plaintiff was returned to his hospital room at about 7:15 p.m. that same evening.

10. Some time during that night, while in bed in his hospital room, the plaintiff tried to raise his left arm to adjust the position of his nasal oxygen tube but could not do so.

11. A nurse was summoned as other members of his family present in the room feared that he might be suffering from a stroke.  After examining the plaintiff, it was confirmed by the nurse that the plaintiff was not suffering from stroke.

12. Ultimately it was confirmed that the plaintiff had suffered a radial nerve palsy of his left arm and a clear left wrist drop.

13. Subsequent medical examination also found that there were tenderness at the site of the spinal groove of the left humerus which suggests that a compression injury likely occurred there causing the left radial nerve palsy and resulting in the drop wrist.

14. The above background matters were not disputed between the parties.

The plaintiff’s claim

15. It is the plaintiff’s case that the left radial nerve palsy was caused at some time during the 6 hours or so that the plaintiff was in the operating theatre while under the effects of the anaesthetic as it is generally accepted by all concerned that the plaintiff entered the operating theatre with a perfectly normal and functioning left arm and wrist.

16. Because the plaintiff was under anaestetic during the entirety of the operation, he is of course unable to give evidence as to what had happened during that time.

17. However, the plaintiff’s claim is based on one of two possible scenarios taking place in the operating theatre.  Firstly, his left arm was allowed to fall off the armboard on which it was placed for the duration of the operation and because it was left hanging from the operating table unsupported for an excessive period of time, that resulted in a prolonged and excessive localized external compression of the radial nerve.

18. Secondly, it is the plaintiff’s alternative case that the defendant had failed to take sufficient care when he put on the automated Non-invasive Blood Pressure (“NIBP”) cuff on the upper left arm of the plaintiff in the operating theatre to monitor the plaintiff’s blood pressure during the operation (rather than using an arterial cannula), such that the repeated inflation of the cuff during those 6 hours of operation caused the radial nerve injury to the plaintiff due to some pleat, wrinkle or kink from the cuff.

19. In either case, it is the plaintiff’s case that the defendant had been negligent since he, being the anaesthetist during the operation, had a duty to see to the well-being of the plaintiff who by reason of the anaesthetic administered to him, was not able to take care of himself in that respect.

20. The plaintiff also relies upon res ipsa loquitur to show negligence.

The Defence

21. The defence raised by the defendant are as follows :

(a)      the plaintiff’s left arm did not at any time during the course of the operation fall off from the armboard on which it was placed;

(b)     the automated NIBP cuff was used properly, the defendant having checked to ensure there was no pleat, wrinkle or kink when it was put on, and it’s use was in accordance with normal and accepted practice in Hong Kong, such that the plaintiff was not exposed to any additional risk of radial nerve palsy; and

(c)     the reliance on the doctrine of res ipsa loquitur is misplaced as a matter of fact, and inappropriate as a matter of law or evidence.

Moreover, the defence further says that perioperative radial nerve injuries are very rare and peripheral nerve injuries are known complications which can occur with no association to the type of anaesthetic technique nor the intra-operative positioning of the patient.

22. I shall deal with each area of dispute in turn.

Arm falling from armboard

23. The evidence relating to the plaintiff’s left arm falling off the armboard during the operation comes from the plaintiff.

24. Although the plaintiff was himself under the effects of anaesthetic at the time of the operation, it is his evidence that some 3 days after the operation, while he was still in the hospital room in St Teresa’s Hospital, he was told by a friend of his who is also in the medical profession that this friend overheard in the tea room (presumably of the hospital) from a nurse who worked in the operating theatre that when the operation on the plaintiff finished, and the sterile sheet was taken off him, she saw that his left arm had slipped from the armboard and was hanging down from the table.  She then took hold of the left arm and put it back in position on the board.

25. The plaintiff was not prepared to disclose the identity of his friend who told him that as he had promised not to disclose his name.

26. On the other hand, the defence witnesses who were present in the operating theatre at the time of the operation on the plaintiff, namely, the defendant himself, Dr Andrew Chan, nurse Kan Wai Han and nurse Chung Oi Ling all testified that they did not see that the left arm of the plaintiff had fallen off the armboard or dangling by the side of the operating table at any time.

27. There was also evidence from the plaintiff that the size of the armboard on which his left arm was placed was smaller than the armboard used for his right hand.  However, this evidence from the plaintiff does not seem to have been pursued by the plaintiff’s counsel in his final submission.

28. On the other hand, the nurses who gave evidence for the defendant in this case and who were present in the operating theatre at the time of the operation on the plaintiff all confirmed that the size of the armboards used for both the right hand and the left hand were the same.

29. In coming to a decision on the factual dispute on this point, I take note that in refusing to disclose the identity of his friend who allegedly overheard the conversation in the tea room, the plaintiff has effectively prevented the defendant from verifying or investigating any truth there may be in that hearsay account, which at best was second-hand hearsay.

30. In those circumstances, and in view of the fact that this factual issue goes to the very root of the plaintiff’s case of negligence against the defendant and is a matter wholly disputed by the defendant and not supported by the defence witnesses called, I am unable to give any weight to that hearsay evidence on which the allegation is founded.

31. I am therefore left essentially with the evidence of the defendant, Dr Andrew Chan and the two nurses, all of whom testified to the effect that at no time did the plaintiff’s left arm fall off the armboard during the operation in the operating theatre.

32. That evidence of Dr Andrew Chan and the two nurses I accept and find accordingly.

33. Should it become necessary, I also find that the evidence given by the nurses as to the size of the two armboards being the same to be correct and that the plaintiff must have been mistaken in that respect.

The use of automated NIBP cuff

34. There are two separate issues involved here.  Firstly, the use of the automated NIBP cuff instead of an arterial cannula.  Secondly, whether the NIBP cuff was administered properly by the defendant.

35. Dealing with the first issue, it is the plaintiff’s allegation that the avoidance of the NIBP cuff would have prevented the radial nerve damage to the plaintiff, thus it was negligent to have used it instead of an arterial cannula.

36. The evidence supporting the plaintiff’s case on this issue comes from Professor Holland, the plaintiff’s expert on liability, who states that most specialist anaesthetists of his (Professor Holland’s) acquaintance would consider direct arterial blood pressure monitoring by intra-arterial cannula as mandatory the circumstances.

37. As against that evidence from Professor Holland, there is evidence from Dr Andrew Chan, who although not called as an expert witness, was able to give factual evidence as to his experience, both in Canada and in Hong Kong, that the use of automated NIBP cuffs to monitor blood pressure during an operation is a common practice, both at the time of the operation on the plaintiff in May 2001 as well as currently.

38. The defendant gave similar evidence and so too did the defendant’s expert witness Dr Low as to such common practice of using NIBP cuffs to monitor blood pressure in an operation.

39. When the plaintiff, himself a surgeon of many years’ practice, was cross-examined, his evidence was that in carrying out the numerous similar operations himself, he was unable to say that in any of those operations, an arterial cannula was used in preference over an automated NIBP cuff.

40. I have therefore no difficulty accepting the evidence from Dr Andrew Chan, the defendant and Dr Low that the use of an automated NIBP cuff is common practice, at least in Hong Kong if not elsewhere, and that the use of such by the defendant in this case cannot be said, by any yardstick, to be outside of the normal and ordinary practice of an anaesthetist.

41. Moreover, even in the medical literature referred to in this case, there are a number of references to the use of automated blood pressure cuffs.

42. It should also be noted also that the statement by Professor Holland, taken at its face value, does not even go far enough to counter a Bolam defence.

43. I can therefore safely conclude on this issue that the use of the NIBP cuff per se was not itself negligent.

44. Coming to deal with the second issue under this heading, which is essentially a factual issue, the plaintiff gave evidence of the NIBP cuff being put on his left arm.  It is therefore quite obvious that the plaintiff was conscious at the time the cuff was put on him.

45. There is, however, no evidence from the plaintiff that he had felt any discomfort or anything wrong when the NIBP cuff was put on him.  There was also no suggestion that either the nurse or the defendant had put the cuff on in any improper way such as to cause him any difficulty or discomfort.

46. The defendant also gave evidence on how the NIBP cuff was put on the plaintiff’s left arm.  His evidence was that a velband, which is extremely soft and specially designed to be used under the cuff, was wrapped round the plaintiff’s left arm before the cuff was put over where the velband was wrapped.  Thereafter the defendant had inserted his finger under the cuff to ensure that there was no wrinkle or crease created on the velband.  Only when he was so satisfied was the cuff put into operation to monitor the blood pressure.

47. The suggestion that a wrinkle or fold of the velband might have caused or contributed to pressure or compression causing an injury to the spinal groove of the humerus and in turn giving rise to the radial nerve palsy is no more than a suggestion by counsel for the plaintiff.

48. Such suggestion is clearly not borne out by the evidence in this case.

49. Once again I have no difficulty accepting the evidence of the defendant that he had done all that was reasonably required of him to ensure a proper application of the automated NIBP cuff on the plaintiff and I do not find that the defendant was in any way negligent in so doing.

Timing of the onset or discovery of the palsy

50. Before I go on to deal with res ipsa loquitur relied on by the plaintiff, there is one disputed fact which needs to be resolved.  That factual dispute relates to the time of the onset or discovery of the plaintiff’s left radial nerve palsy.

51. It is the plaintiff’s case that the discovery of the plaintiff’s radial nerve palsy was made some time about 10:30 p.m. the same night immediately after he had the operation.

52. That discovery came about when the plaintiff, resting in his hospital bed in his hospital room, tried to use his left hand to adjust a tube inserted into his nose and discovered that he could not move his left hand or the fingers.  This was made known to his wife, who fearing that the plaintiff may be suffering from stroke, summoned for a nurse urgently and, in her anxiety, even went out of the room to meet the nurse when she came.

53. After the nurse had examined all four limbs of the plaintiff it was confirmed that he was not suffering from a stroke.

54. Both the wife and the daughter of the plaintiff gave evidence that this took place some time around 10:30 p.m.

55. On the other hand, Teng Im Leng, the nurse who had been summoned, gave evidence that she had been summoned and was told that the plaintiff could not move his left arm and that this happened at about 5:30 a.m. on the morning of 27 May 2001.  She then made an entry of this occurrence including the time when it happened in the Nurses’ Report.  That entry was made by her at about 6:00 a.m. (i.e. shortly after its occurrence) and before she went off duty at 7:00 a.m.

56. From the evidence given by both the plaintiff’s wife and daughter on the one hand, and the evidence given by the nurse relying on the time entered by her in the medical records, it would appear that the record made by the nurse was the only contemporaneous record made by anyone in so far as the time of its occurrence is concerned.

57. I have no doubt that the plaintiff’s wife and daughter were relying solely on their memory as to the happenings of that night when they gave evidence that this happened at about 10:30 p.m.

58. It must have been a stressful night for both of them and they were, at the time, very much more concerned with the well-being of the plaintiff, than with the timing of events which happened.  Moreover, that night must have been a particularly long and stressful night for both of them due to the fact that the plaintiff had just come out of a major and life-threatening operation.

59. On the other hand, I can see no valid reason for the nurse to have deliberately or otherwise fabricated the time of 5:30 a.m. for this event if it did not happen then.  Indeed, counsel for the plaintiff, in his final submission, said that the time at which this happened, was of no great significance.

60. In view of the fact that the medical records made by the nurse being the only contemporaneous record as to when this event happened, I accept her evidence that it happened at around 5:30 a.m.

61. In so finding, I do not say or even think that the wife and daughter of the plaintiff was in any way telling a deliberate untruth to the court, merely that their memory of the timing of events of that night had not served them well.

Res Ipsa Loquitur

62. This in fact is the main dispute in this case between the parties.

63. The plaintiff pitch his case in reliance on res ipsa loquitur on the footing as follows :

(1)     the plaintiff entered the operating theatre with a perfectly good left arm and no left radial nerve palsy;

(2)     less than 12 hours after the operation, he suffered a left radial nerve palsy;

(3)     it is a proper inference from the undisputed facts that the injury to the plaintiff causing the left radial nerve palsy must have occurred while he was in the operating theatre while under the effects of the anaesthetic and which was within the watch of the defendant being the anaesthetist during the operation; and

(4)     had reasonable care been exercised by the defendant during the operation, the left radial nerve palsy should not have happened; put differently, the left radial nerve palsy suffered by the plaintiff was preventable with reasonable care.

64. There is no dispute between the parties in respect of the first two points above.

65. However, it is disputed by the defendant that the injury giving rise to the plaintiff’s left radial nerve palsy must have occurred during the time of operation in the operating theatre.

66. It is also disputed by the defendant that radial nerve palsy must necessarily be preventable.

67. The evidence relating to both those disputed issues are contained in the respective medical expert evidence adduced by both the plaintiff and the defendant.

68. In the case of the plaintiff the evidence of Professor Holland and in the case of the defendant the evidence of Dr Low together with the medical literature relied on by him.

69. Professor Holland’s evidence is quite straightforward, and is simply that radial nerve palsy is commonly caused by extensive and prolonged compression of the radial nerve usually at the spiral groove of the humerus in the upper arm.  Because of that and the fact that such injuries very often occur to persons who fall asleep on a sofa or armchair as a result of intoxicating alcoholic drink, and in those circumstances suffer prolonged compression of the radial nerve at the spiral groove because of their arms being extended over the arms of the sofa or armchair, such injury carries the common name of “Saturday night palsy”.

70. Medical textbooks and literature often warn against allowing a patient’s arms to come into direct contact with the edge of the operating table or armboard so as to avoid such injury.

71. In the present case, there is the findings of Dr Vincent Ma as contained in his report dated 21 June 2001in which it is stated :

“… There was local tenderness of left Radial nerve at the spiral groove in the posterior aspect of the mid-shaft of left humerus.

Diagnosis

This is a typical case of left radial nerve palsy (Saturday night palsy).  External compression is usually the cause. …”

72. In the light of such finding, Professor Holland was of the opinion that prolonged and excessive localized external compression of the radial nerve was the only possible cause of the plaintiff’s injury.

73. Moreover, given the overall circumstances, it was likely that the injury could only have happened while the plaintiff was under the effects of anaesthetic when the operation was being carried out.  The reason given by Professor Holland for taking this view was that if the plaintiff had not been under the effects of anaesthetic, he would likely have moved or changed position (even if he was asleep or half asleep) to alleviate the compression to his upper left arm where the spiral groove was.

74. Against this evidence was the evidence of Dr Low relying on a number of medical literature.

75. The substance of the medical literature relied on can be summarized as follows :

(1)     while it was previously thought that all perioperative nerve injuries were preventable, that is no longer the generally held view today;

(2)     the invocation of the doctrine of res ipsa loquitur is no longer considered appropriate for perioperative nerve injury;

(3)     whilst peripheral nerve injuries at different sites may have some differences, there is a significant similarity between them;

(4)     today it is believed that perioperative nerve injuries are complex, multi-factorial and incompletely understood; and

(5)     there has been very little investigated evidence collected in relation to radial nerve injuries because incidents of such injuries are rare which leads to inability to collect such evidence.

76. The conclusion drawn by Dr Low from the medical literature is that the precise mechanism of perioperative nerve injury is usually unknown.

77. In the case of the plaintiff, who, being in a category of persons with the possible risk factors for perioperative neuropathy, being male and elderly, it is all the more difficult to pinpoint the cause of such injury.

78. In having to resolve the disputed evidence of the respective experts for each party, I take into account the fact that no medical literature were provided by the plaintiff’s expert to counter or challenge those statements contained in the medical literature produced by the defendant’s expert.

79. In the present case, not only was there left radial nerve palsy of the plaintiff which is conceded by the defendant.

80. In addition, there is also the medical evidence of Dr Vincent Ma who found upon examination local tenderness of the left radial nerve at the spiral groove in the posterior aspect of the mid-shaft of the left humerus.

81. Furthermore, there is also his diagnosis of this injury to be a typical case of Saturday night palsy for which external compression is usually the cause.

82. Given that evidence, and the fact that Dr Vincent Ma’s findings was not challenged by the defendant, I find on that evidence that the left radial nerve injury to the plaintiff came about due to external compression at the spiral groove at the posterior aspect of the plaintiff’s left upper arm.

83. I further find that the external compression to the spiral groove of the left upper arm of the plaintiff which caused the left radial nerve palsy to have taken place during the time when the plaintiff was under anaesthetic effect when in the operating theatre.

84. In coming to this finding, I accept the evidence of Professor Holland that had it not been for the fact that the plaintiff was under anaesthetic, he would likely have moved or changed position (even if asleep or half asleep) to alleviate the effect of the external compression upon his upper arm at the spiral groove.  This aspect of his evidence was not challenged by the defendant’s expert or by the medical literature produced.

85. Moreover, the textbooks and medical literature seem to support this aspect of Professor Holland’s evidence that Saturday night palsy occurs when a person is either so intoxicated by alcohol or drugs, or being under the effect of anaesthetic while undergoing an operation, that those medical textbooks warn about care having to be taken for such a person on the operating table, especially when his arms are placed on an armboard, not to let the arms fall off or dangle from the armboards or operating table.

86. Needless to say that in making the above findings, I have rejected the suggestion by the defendant that the cause of that external compression could just as easily have occurred while the plaintiff was in his private hospital room between the hours of 7:30 p.m. after his operation and 5:30 a.m. the following morning when the left radial palsy was discovered.

87. I reject that suggestion firstly because the plaintiff was by that time awake from the anaesthetic and even if he had been sleepy or drowsy during that time, even if there was external compression, there was no reason why the plaintiff would not have changed position to alleviate or remove such external compression, instead of letting it culminate in his suffering left radial nerve palsy.

88. Moreover, there is also the evidence from nurse Teng Im Leng that during the time she was on duty, from 10:00 p.m. 26 May to 7:00 a.m. 27 May 2001, she had taken the plaintiff’s blood pressure using a blood pressure cuff on his left upper arm almost once each hour, and on each occasion would have had to move his left arm to do so.  In those circumstances it is further unlikely that the plaintiff’s left arm would have been subject to prolonged external compression when he was in his hospital room that night.

89. Having come to the above findings, I must now deal with what I perceive to be the most difficult aspect of this case, namely, on such findings made, can res ipsa loquitur apply such that the defendant be said to have been negligent.

90. It has to be recognized at once that although I was able to make the finding by inference that the external compression causing the left radial nerve palsy of the plaintiff occurred during the time when the plaintiff was in the operating theatre under the effects of anaesthetic, there is in effect no evidence, and therefore no finding, as to how that external compression came about.

91. In that sense, the cause of the injury is unknown since the external compression could have manifested itself in a number of different ways, some of which may not have been readily apparent to the defendant or anyone else present.

92. Given these findings and the circumstances of it, the question that I need to ask is whether this was such an event which in the ordinary course of things was more likely than not to have been caused by the negligence of the defendant as the anaesthetist having charge of the plaintiff during the course of the operation itself.  In other words, am I able to infer negligence on the part of the defendant by reason only that such an injury was caused to the plaintiff.

93. While I accept that an anaesthetist in the defendant’s position is no doubt under a duty to reasonably ensure the well-being of a patient when under the effects of anaesthetic, that duty is not put at such a level so as to make the defendant to be effectively the insurer of the patient’s well-being.

94. Having regard to the medical literature put before me, in particular those medical literature indicating that while it was previously thought that all perioperative nerve injuries were preventable, but that is no longer the general view today, I am unable to infer negligence, given the facts of this case, on the part of the defendant, even though I was able to come to the finding that the external compression causing the left radial nerve palsy likely took place at the time when the plaintiff was having the operation under anaesthetic.

95. For the above reasons, I come to the conclusion that the plaintiff has failed to prove his case on the issue of liability against the defendant and the plaintiff’s case is accordingly dismissed with an order nisi that the defendant’s costs of defending the claim be borne by the plaintiff to be taxed if not agreed.

96. Should I be shown to be wrong in my determination on the issue of liability, I shall go on now to deal with the issue of quantum since I have heard the evidence relating to quantum.

QUANTUM

97. The plaintiff consulted Dr Fali Shroff, a neurological surgeon, in September 2001 in respect of his drop wrist arising from the left radial nerve palsy.

98. Upon carrying out a neurological examination and an evaluation of the motor function of the left upper limb of the plaintiff, Dr Shroff found the following :

(a)      elbow flexion at grade 4+;

(b)     elbow extension at grade 4;

(c)     supination at grade 4;

(d)     pronation at grade 5;

(e)      with the forearm hald supinated, elbow flexion was at grade 3+;

(f)      wrist flexion at grade 4;

(g)     wrist extension was very limited and at grade 2 resulting in the wrist drop;

(h)     hand adduction at grade 4; and

(i)      extension of the fingers very limited and at grade 2, more marked at the proximal digits and in particular extension of the thumb and index finger mainly affected.

99. Dr Shroff also found appreciable impairment to pin-prick sensation over the whole of the back of the forearm and back of the thumb and index finger.

100. There was also a 1-inch muscle wasting of the left forearm circumferentially when compared with the right.

101. From the findings, Dr Shroff concluded that in the case of the plaintiff, it appears that an acute compression of the radial nerve had occurred.

102. He further found that the plaintiff suffered considerable pain in his wrist and fingers and there had only been minimal improvement up to the time of his examination (in September 2001).

103. Dr Shroff stated in his report dated 27 September 2001 that there was a marked restriction in the range of movements possible at the left wrist joint which was due to compression neuropathy and non-use.  Such impairment, together with the motor weakness will make it impossible for the plaintiff to undertake any surgery.

104. Dr Shroff further stated that the plaintiff remained greatly hampered by his disability and will have difficulty in bathing, putting on his clothes, driving his car etc. due to inability to extend his left wrist.  Any activity involving the use of both hands will also be difficult for the plaintiff.

105. Dr Shroff recommended the plaintiff to undertake vigorous physiotherapy at least three times weekly and that surgery at this stage is unlikely to relieve his symptoms.

106. The plaintiff was again examined by Dr Shroff in May 2002.  On this occasion examination by Dr Shroff showed that elbow extension and flexion as well as supination and pronation of the plaintiff’s left upper limb to be normal (i.e. grade 5).  So too the wrist flexion.

107. However, wrist extension and hand adduction was at grade 4; and finger extension, including thumb and index finger was at grade 3.

108. There was no loss of the whole upper left arm to pin-prick sensation, but still some ¼ inch wasting of the muscle of the left forearm.

109. There was also now minimal restriction in the range of flexion and extension of the left wrist joint.

110. In the light of such findings, Dr Shroff expressed the opinion that there had been significant improvement in the neurological status of the plaintiff’s left upper limb.

111. Dr Shroff further took the view that the plaintiff was capable of performing surgery which is not likely to exceed one hour and not more than two such procedures a day.  But even so, the procedures which the plaintiff can perform would be restricted to what can be described as non major surgery.

112. It is common grounds that by September 2002 the plaintiff has fully recovered from his wrist drop and left radial nerve palsy injury.

113. The plaintiff was also examined by the defendant’s specialist in neurology, Dr Jason Fong in May 2002.

114. In his report dated 14 February 2005, Dr Fong noted that the plaintiff complained of intermittent finger joint pain of his left hand but which did not interfere with his daily activities and there was no other sensory symptoms.

115. Motor examination by Dr Fong revealed intact muscle power of all upper limb motions with no wrist drop, finger drop nor weakness in forearm flexion.  Reflexes were equal and symmetrical and co-ordination normal.  There was no sensory deficit with respect to touch and pain over the left dorsum of the hand.

116. The circumference of the plaintiff’s left mid-forearm was found to be 25 cm while that of the right mid-forearm was 26 cm.  This according to Dr Fong was within normal variation.

117. From these findings, Dr Fong opined that while the plaintiff had suffered a left radial nerve palsy and his wrist drop had persisted for 4 months, he had made satisfactory improvement with the aids of regular physiotherapy with no residual neurological  deficit and a full recovery when examined.

118. Dr Fong further took the view that the plaintiff could continue his career as a general surgeon without compromise from his injury.

Pain suffering and loss of amenities

119. Undoubtedly, there are differences between the opinions expressed by Dr Shroff and that of Dr Fong.  However, those differences go really to the degree and seriousness of the injury suffered and possibly also the time within which a full recovery was made.

120. The big picture still remains that the plaintiff suffered from a left radial nerve palsy manifesting in a drop wrist and for which he underwent physiotherapy.  It is common ground that by September 2002 there had been a full recovery of that injury.

121. If it becomes necessary for me to make a determination as to the difference expressed between the two experts in neurology, I would say that the opinion expressed by Dr Fong in his report dated 14 February 2005 seem to be over simplistic.  It does not carry the necessary detail provided by Dr Shroff as the basis for Dr Shroff’s opinion.

122. Moreover, I note that the report of Dr Fong was dated 14 February 2005, almost three years after his examination of the plaintiff.  Although the medical notes made by Dr Fong at the time of examination were also attached to the report, those notes appeared to be really the bare minimum record of the examination.  It is therefore hardly surprising that if the report was prepared almost three years later by Dr Fong relying only on the medical notes made at the time of the examination, that report and therefore also his opinion leaves much to be desired.

123. For these reasons, and there being no challenge to the figures elicited by Dr Shroff as contained in his reports, I prefer the opinion of Dr Shroff where they differ from that of Dr Fong.

124. Given that the plaintiff’s drop wrist and the major disability from it (i.e. the pain and weakness) persisted for something like a year but completely dissipated by about September 2002, such disability suffered by the plaintiff, in my view, fall far short of the category of “Serious Injury” as it is understood in the case of Lee Ting Lam.

125. In all the circumstances in this case relating to the injury and considering the length of time of the disabilities suffered by the plaintiff, when the usual recovery period for such injuries are normally 6 to 12 weeks, a reasonable award for PSLA would be $250,000.

Loss of earnings

126. At the time of his injury, the plaintiff was 68 years old and a medically qualified surgeon practicing in Hong Kong.

127. There is a claim for loss of earnings but which is limited to the period from 16 July 2001 to 7 June 2002.

128. The significance of the date 16 July 2001 is that the plaintiff took time off to recuperate from his operation and only started to return to his work in his clinic as from 16 July 2001.

129. As for 7 June 2002, that is simply the date upon which the plaintiff is content to and arbitrarily limits his claim for loss of earnings, and that the record of his lost patients for surgery was only kept up to that date.

130. It is the plaintiff’s case that he was unable to perform any surgery at all from 16 July 2001 up to the end of March 2002 due to the left radial nerve palsy.  It was only in April 2002, because of improvement to his condition that he was able to perform some minor surgery, and only in September when his condition had about fully recovered that he was able to perform moderate surgery.

131. The end of March 2002 is a convenient date since it is also the end of the accounting and tax year used by the plaintiff.  Furthermore, the claim is put on two separate footing, the loss from the plaintiff’s practice in carrying out surgical operations and also from his loss in relation to his clinical receipts.

132. It should be noted that the calculation and the basis for the claim differs somewhat from how it was pleaded in the Revised Statement of Damages, rather, the final version and basis for the claim appears in the Final Submission of counsel at the trial.

133. It is put on the following footing by the plaintiff :

(A) For the eight and a half months’ period from 16 July 2001 to 31 March 2002 :

(i) The estimated loss of his surgical operations practice based on a record compiled of the persons who had approached the plaintiff and asked him to perform surgery, but he had to turn away, is $3,123,000.  That figure is based on the number of persons who had approached him, the type of surgery that they had asked for and the normal charge of the plaintiff for undertaking such type of surgery.

(ii) That figure of $3,123,000 is deducted by 10% to take account of the fact that some of those people who had approached the plaintiff might not eventually have engaged the plaintiff’s services and also the fact that the plaintiff had a habit of charging a reduced fee for those who could not afford his usual charges, thus giving $2,810,700.

(iii) This figure is now topped up by one sixth on the assumption that there are persons who did not, but who would have approached the plaintiff to perform surgery if he had been able to do so, giving $3,279,150.

(iv) Reduced by expenditure costs of  $42,461 for performing operations giving $3,236,689.

(v) And finally reduced by tax incidence to give $2,751,186.

(B) For the same period (16 July 2001 to 31 March 2002) in respect of loss of clinic receipts :

(i) this is calculated by the plaintiff to be one third of the gross amount of his loss from his surgical practice (i.e. $3,279,150) giving $$1,093,050;

(ii) after deduction for tax, this gives $929,093.

(C) For the period of just over 2 months from 1 April 2002 to 7 June 2002 :

(i) in respect of loss of surgical operations, bearing in mind that the plaintiff was able now to perform some minor surgery, again it is estimated from the particulars kept as to persons who had approached him asking for his services in performing surgery but who he had to turn away, the estimated loss is $601,000;

(ii) similarly as before reduced by 10% for the same reasons as before, giving $540,900;

(iii) adding a further one sixth again for the same reason as before, giving $631,050;

(iv) deducting expenses (of $8,171) to give $622,879;

(v) and reduced by tax incidence to give the final figure of $529,447.

(D) For the same period of just over two months (i.e. from 1 April to 7 June 2002) :

(i) the loss of clinic receipts is estimated at one third of $631,050, being the gross amount of the loss of surgical practice, giving $210,350; and

(ii) after deduction for tax, this gives $178,798.

134. The above is the overview of the calculations put forward by the plaintiff for loss of earnings.

135. They add up to being $3,680,279 for the tax year 2001/2002 (effectively being for the first eight and a half months) and $708,245 for the tax year 2002/2003 (effectively being for the latter two months of the claimed period.

136. Totally the claim comes to $4,388,524.

137. That claim has to be looked at against the background of the plaintiff’s surgical and clinical practice as well as the accounts relating to the plaintiff’s medical practice in respect of the preceding 4 years prior to his injury and which has been produced in evidence.  They paint a rather different picture.

138. It is submitted by Mr Bharwaney who appeared for the plaintiff in this matter that the calculations of the plaintiff based on the actual approaches made to him by persons seeking his services as a surgeon is based on facts and in that sense is a better approach to adopt in calculating the loss of earnings in this case than the approach advocated by the defendant which is by an artificial mathematical exercise of examining the accounts for the previous years.

139. When the accounts showing the earnings and in particular the receipts of the plaintiff for the five accounting years immediately preceding his injury are looked at, it can be seen that the plaintiff was maintaining a consistent level of earnings in receipts both in his surgical practice and in his clinic receipts, with no great variations.

140. Indeed it was pleaded by the plaintiff in his Revised Statement of Damages that for the past five accounting years prior to 2001/2002, the plaintiff’s average annual income (gross receipt) from his surgical practice was $2,393,481, which ranged from a high (within those five accounting years preceding the injury) of $2,559,419 in 1999/2000 to a low of $2,140,665 in 2000/2001.

141. When those figures are compared with the figure of $3,123,000 said to be the estimate of his gross loss of income from his surgical practice but only for the initial eight and a half months, it would appear that such estimate is grossly exaggerated.

142. While I do not doubt that there has been approaches made to the plaintiff during his incapacity for his services, it still remains anybody’s guess as to what part of such approaches by potential patients would have ended up engaging his services had the plaintiff not been incapacitated from the radial palsy.  That is where the estimate and guesswork comes in and thus the exaggeration.

143. Quite apart from that the plaintiff also, in calculating his loss of earnings, makes the further assumption that there would be those patients who would have engaged his services without having initially approached or made enquiries from him.  That is purely guesswork and has no factual basis.

144. For the purpose of assessing his loss from his surgical practice during the initial eight and a half months, I accept the plaintiff’s evidence that given the condition of his left radial nerve palsy, he could not perform any kind of operation at all.  That evidence of the plaintiff is supported by the medical evidence in this case.  I am of the view that taking the average earnings of his over the past 5 years preceding the injury is as good an approach in this case simply by reason of the fact that the plaintiff has maintained that consistency in his earnings.  Also, in his evidence from the witness box, the plaintiff agreed that there was no reason to expect his earnings for either clinical receipts or surgery to significantly vary up or down.

145. Therefore based on the average earnings from his surgery practice to be $2,393,481 annually, eight and a half months should gross the plaintiff $1,695,382.  After deduction of tax (16%), it would give $1,424,121.  That will be rounded off to $1.4 million to further take account of the business costs or expenses necessary for surgery or operation.

146. As for the further two months from 1 April to 7 June 2002, there is evidence before me (Exhibit C attached to the witness statement of the plaintiff’s wife) that he had in fact earned $39,339 and $78,340 respectively for the months of April and May 2002 from his surgical practice.

147. I accept that evidence.  Totally therefore the plaintiff did earn $117,679.  The loss for the period of just over two months would therefore be 2.25 months of his average income from surgery less that amount.  I make it to be $331,098.  After tax deduction it comes to $278,122 which can be rounded down to $275,000 to take account of business costs and expenses.

148. The net total loss for the plaintiff from his surgical practice therefore comes to $1,675,000.

149. Turning now to deal with the loss of clinical receipts claimed by the plaintiff.

150. It is common grounds (which can be seen from the accounts) that the plaintiff’s average annual income from clinical receipts to be $6.15 million.

151. The accounts for the tax year 2001/2002 shows the plaintiff’s clinic receipts to be $4,921,620.  Considering that the plaintiff did take some two months to recuperate from his operation (and which he would have taken anyway because of his operation) it follows that the plaintiff had only worked for about 10 months for that financial year.  On a strict mathematical calculation, that figure of $4,921,620, if representative of 10 months’ earnings for clinic receipt, will only be short by about $200,000 when compared to his average earnings.  As such it is well within the margin of variance for the plaintiff’s earnings.  In those circumstances I am not persuaded that the plaintiff has suffered any loss in his clinic receipts due to the injury suffered.

152. In coming to this view I also take into account that while his left radial nerve palsy no doubt prevented him from properly using his hands in the way necessary for the plaintiff to carry out surgical operations, it should not have prevented him from carrying out his work in the clinic and giving consultation to his patients, and in that sense it is consistent with the plaintiff resuming his work at his clinic after two months of recuperation from the operation and in spite of the condition of his left radial nerve palsy.

153. For those reasons, I do not see fit to assess any loss for his clinical receipts for the period claimed.

154. The total amount assessed for loss of earnings therefore comes to $1,675,000.

Special damages

155. This head of damage has been agreed by the parties to be in the amount of $45,568 and the same will be awarded.

Interest

156. Interest will be awarded in the normal way, namely, for general damages for PSLA, at 2% p.a. from the date of the Writ until judgment.

157. For the loss of earnings and special damages, interest will be at half judgment rate from the day of the accident until judgment.