CHOY CHUNG SHING v. DR. NG HON CHUN

HCPI 201 of 1998

THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 201 OF 1998

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ASSESSMENT OF DAMAGES

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Background

1. The Defendant, a medical practitioner, administered an injection into the left buttock of the Plaintiff on 11th January 1996 which damaged the Plaintiff's sciatic nerve, causing him permanent injuries. The Plaintiff issued a Writ on 26th February 1998 against the Defendant, claiming damages for negligence. On 2nd February 1999, judgment was entered against the Defendant with damages to be assessed.

2. The Plaintiff, who was born on 10th July 1928, was 67 years of age at the time of the accident and now aged 71 years. He was divorced some 20 to 30 years ago and does not have any dependants, having lost contact with his ex-wife and children.

3. Of the special damages claimed under the Revised Schedule of Damages dated 16th June 1999, the following items are agreed:

(a) Medical expenses	$17,605.00
(b) Medical equipment	$5,700.00
(c) Travelling expenses	$9,120.00
(d) Physiotherapy treatment	$1,474.00

The defence further made concessions to the following items during the hearing of the assessment, which the Plaintiff accepted:

(e) bonesetter fees	$7,200.00
(f) future medical equipment (ankle support)	$5,400.00

The defence takes issue on the following areas:

1. the degree of impairment,

2. the amount to be awarded under Pain and Suffering and Loss of Amenities of Life ("PSLA"),

3. loss of earnings/earning capacity,

4. nourishing food,

5. medical treatment sought in the People's Republic of China ("PRC") with the related travelling expenses,

6. future medical treatment with related travelling expenses (in Hong Kong).

Degree of impairment

4. The Plaintiff's injuries were set out in the medical report of Professor P. C. Leung of the Chinese University of Hong Kong dated 7th July 1997. Regarding the Plaintiff's left leg, it was found, inter alia, that there was general muscle wasting, discolouration and cyanosis, and unhealthy skin which was sensitive to touch. Regarding his left ankle and foot, general tissue shrinkage in the area, obvious drop-foot deformity, weak muscle power, and marked impaired pain and touch sense. Professor Leung assessed the Plaintiff's loss of leg function at 50% and overall physical disability at 25%. The Defendant did not take issue on this medical report.

5. The Plaintiff walked with a limp and had fallen twice before. He started to wear ankle support two months after the accident and he had not fallen since. He did not, and does not, need the aid of a walking stick.

6. The Plaintiff also relied on the two medical reports prepared by Dr. Brian Choa, a neurologist, dated 21st February 1998 and 17th November 1999 respectively, who also gave evidence before me. The Plaintiff consulted Dr. Choa on 23 occasions from 12th January 1996 to 31st December 1997. Dr. Choa gave details of the treatment received by the Plaintiff during these consultations. Dr. Choa opined that the injection left him with pain and other unpleasant sensations over his left leg and foot, with weakness and wasting of the leg, calf and foot muscles. Dr. Choa then assessed the Plaintiff's disability at 20% of the whole person and estimated the loss of earning capacity at 50%.

7. In the later report, Dr. Choa stated that the power in the muscle in the peroneal division never recovered. The Plaintiff suffered pain and itchiness over the area of the injured nerve disturbing his sleep. There is no treatment other than symptomatic relief of itching and pain. Dr. Choa is of the view that the Plaintiff must permanently wear an ankle support to prevent his ankle from turning over. He revised the degree of permanent impairment to that of not less than 30%, allowing 21% for the impairment and added 9% for the on going suffering of itchiness and the past suffering of pain. He further opined that the estimated theoretical loss of earning capacity at about 30%, and that the permanent loss of earning capacity was in practice nearer 100%.

8. Dr. Edmund Woo, who examined the Plaintiff on the instructions of the solicitors for the Defendant, also prepared two reports, dated 5th May 1999 and 7th December 1999. In his earlier report, Dr. Woo assessed the Plaintiff's permanent impairment at 23%. In his later report, after considering Dr. Choa's later report, Dr. Woo used the comparable of "Anklylosis of ankle joint in the worst position" and opined that the loss of earning capacity was 25%.

9. I will first deal with the degree of permanent disability. There is really no disagreement regarding the physical aspects of the Plaintiff's disability. The only dispute is on the degree of impairment. Both counsel has addressed this issue in their written submissions.

10. Without any disrespect to Dr. Choa, I am afraid I do agree with Mr. Leung's submission that the assessment of 9% to account for the itchiness was out of proportion with the physical impairment of the 21% assessed and was not supported by any medical literature. Further, there was no reference point as to why 9% was chosen, and not any other figure. I do bear in mind that in his previous assessment, Dr. Choa had already taken into account some degrees of itchiness.

11. Dr. Woo, on the other hand, based his assessment on the Guides to the Evaluation of Permanent Disability, American Medical Association, 4th edition, to arrive at the figure of 23%. He agreed that another 2% may be added to reflect the lack of plantarflexion, making a total of 25%. In his assessment, Dr. Woo had already taken into account the discomfort suffered by the Plaintiff, which includes pain and itchiness. So far as the degree of impairment is concerned, I prefer the opinion of Dr. Woo and find that the Plaintiff has suffered 25% impairment of the whole person.

12. As to the loss of earning capacity, though each doctor has ventured a figure, they were both happy or prepared to leave the same to the court. As Dr. Woo's assessment was based on a comparable, though not identical with the Plaintiff's position, there was nevertheless a reference point from which one can work with. After considering the differences between the Plaintiff's disability with that of "Anklylosis of ankle joint in the worst position", I am of the view that the Plaintiff has suffered a loss of earning capacity in the region of 30% as far as the physical disability is concerned.

Pain and Suffering and Loss of Amenities of life

13. Although the Plaintiff did not mention any problem with sitting and reduced sex life to any of the doctors, I accept that he did suffer such disabilities as a result of the injury sustained. Having considered the physical impairment and disabilities suffered by the Plaintiff, I find that his case falls under the lowest end of the "Serious Injury" category as propounded in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657, where 'the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim'. Having considered submissions by both counsel, I am of the view that the conventional global award is appropriate in this case.

14. In Lee Ting Lam, the range of award was $60,000 - 80,000. Mr. Ismail submitted that the award have been upwardly adjusted: in Chan Pui Ki v. Leung On & Anor. [1996] 2 HKLR 401, to $400,000 - 540,000; in Lam Wing Ming v. Dragages Et Travaus Publics (HK) Ltd. and Anor., unreported, HCPI 1090 of 1995, 21 July 1998, to $460,000 - 620,000 (allowing 15% increase for inflation); and in Ho Ah Look v. Nam Kin Scaffolding Ltd. and Anor., unreported, HCPI 156 of 1998, 28 May 1999, the award was increased to $480,000 - 648,000 (allowing 20% increase for inflation).

15. Mr. Leung submitted that Ho Ah Look was decided by Nguyen J. without the benefit of full submissions on the point of inflationary adjustment and restricted to its own facts. He further submitted that the dictum of Litton VP (as he then was) in Chan Pui Ki and of Rogers, J (as he then was) in Cheng Sum Pak v. Secretary of Justice [1998] 2 HKC 551, were apparently not brought to the attention of the learned Judge. Mr. Leung submitted that the awards laid down in Lee Tin Lam has been revised in the proper sense only in 3 cases, i.e. Lau Che Ping (1988), Chun Yat Nam (1994) and Chan Pui Ki (1996). It is only 3 years on since Cheung J. (who was then in charge of the P.I. List) made the revision (which was endorsed by the Court of Appeal). A careful and detailed exercise similar to that conducted by Cheung J. is required before it can be said that the scale of award has been revised. The correct inflationary adjustment since Chan Pui Ki for an award in the lowest end of the Serious Injury Category, according to Mr. Leung, should be $400,000 x 1.058 x 1.028 = $435,049.60.

16. Mr. Leung's argument, in my view, is a strong one. It is common knowledge that Hong Kong has suffered an economic downturn since late 1997. The actual inflation rate according to the Composite Price Index for 1997 (over 1996) is 5.8% (Bundle, D/219) and for 1998 (over 1997) is 2.8% (Bundle, D/221). The appropriate inflation rate for 1999 (over 1998) is not available. It is unclear why Nguyen J. allowed an adjustment of 20% inflation in Ho Ah Look in 1999. I accept the submission of Mr. Leung and find that Ho Ah Look is confined to its own facts. I decline to follow the learned Judge's approach. While I am aware that it is not mandatory for me to take into account the inflation rate: per Mayo JA in Cheng Sam Pak, I am nevertheless prepared to take into account the available inflation rates of 1997 and 1998 and round up the figure to that of $436,000 to reflect the adjustment, which in my view is the appropriate award under this heading.

Medical Expenses

17. The Plaintiff claims $120,000 for medical treatment received in PRC. He claimed that he had sought treatment at the Chung Sen Medical College ("CSMC"), Shantou Medical College ("SMC"), Guangzhou Airforce Hospital ("GAH"), Nam Hai People's Hospital ("NHPH"), Wu Nam Hospital ("WNH") and private clinics. The defence was prepared to accept that the Plaintiff had attended CSMC and SMC upon the advice of the bonesetter Ng Po Shui (see admitted facts exhibit "P2"). It should be noted that GAH, NHPH, WNH and private clinics were not mentioned until after the interrogatories served by the Defendant whereas details of the treatments at CSMC and SMC were given in the Plaintiff's 2nd affirmation dated 8th May 1999 (see bundle A/52). It is hard to see how the Plaintiff could have omitted to mention the other three hospitals when his mind was focused on the evidence required to prove the medical expenses. In any event, there is no evidence on whose advice the Plaintiff sought treatment at the other hospitals, and in the absence of substantive evidence that the treatments are beneficial, the expenses should not be passed onto the defendant: Sin Sau Mui v. Yuen Sai Kwong and Others, unreported, HCA No. 11319 of 1996, 6 November 1996. Further more, the Plaintiff said in evidence that the claim for $120,000 did not include the treatments at the other three hospitals, which was in direct contradiction with the Further and Better Particulars of the Revised Schedule of Damages provided by the Plaintiff's solicitors dated 2nd November 1999 (Defence bundle, p. 36-37).

18. Coming back to the treatment received at CSMC and SMC, on the Plaintiff's evidence in court, he attended each 1-2 times and thereafter consulted Dr. Ka (of CSMC) and Dr. Chan (of SM) in their private capacity about 3 or 4 times. In his said 2nd affirmation, he claimed to have attended CSMC and SMC 80 times with no mention going to Dr. Ka or Dr. Chan. I am prepared to accept that the Plaintiff has equated consulting Dr. Ka and Dr. Chan in their private capacity as attending CSMC and SMC when he swore the affirmation. Even so, on his evidence in court, he has consulted CSMC, Dr. Ka, SMC and Dr. Chan at most a total of about 10 times. His evidence in this respect is extremely unreliable. On the evidence before me, I am prepared to allow 10 treatments at the PRC.

19. The Plaintiff also mentioned, for the first time, in court the purchase of gifts such as cigarettes and wine to give to the doctors which was included in his calculation of medical fees ($1,000 odd per time). There is no evidence before me that the Plaintiff would not have received treatment if he had not purchased the gifts. I do not see why such expenses should be borne by the defendant. The medical expense was $700 - 800 per time and the related travelling expenses $600 - 700. The award is therefore:

1. medical expenses ($700+800) - 2 x 10	$7,500.00
2 Travelling expenses ($600+700) - 2 x 10	$6,500.00

Nourishing Food

20. Although the Plaintiff alleged that he had incurred $3,400 per month for 37 months on nourishing food, he made a claim for $60,000 under this heading. The Plaintiff did not produce any receipts to support this claim. The claim has to be justified on reasonableness: per Master Wooley in Mak Yiu Keung v. Ho Cheung Kat [1995] 3 HKC 575. Mr. Leung referred to the authority of Yu Ki v. Chin Kit-lam and Anor. [1981] HKLR 419, and submitted nourishing food consumed outside hospitalization is not normally allowed. He further submitted that as the Plaintiff was never hospitalized and accepted that the nourishing food was not helping him, the claim should be disallowed. The defendant is nevertheless prepared to concede $5,000 under this heading.

21. As I have already found that the Plaintiff's injuries falls under the Serious Injury Category, in my view, it matters not that the Plaintiff was never hospitalized when I consider the claim for nourishing food. However, where the Plaintiff is not able to produce a single receipt to prove the actual expenditure, I would only allow a nominal amount of $10,000 which I find to be reasonable under the circumstances.

Loss of Earnings

22. For a man of the Plaintiff's age (67 at time of incident and 71 now), his claim under this heading is rather unusual. While the defendant did not challenge the Plaintiff's assertion that he was a "master" in the trade of vehicle and machinery repair, he is certainly not prepared to accept that the Plaintiff was employed by Lucky Wind Motors and Scrap Center ("Lucky Wind") and Shan Luang Company ("Shan Luang") at the time of the accident, or that he was earning the amounts claimed.

23. The Plaintiff's case was that as a skilled master technician, he earned some $31,7834.50 per month at the time of the incident. He worked on weekday mornings for Lucky Wind and for Shan Luang in the afternoons. He did not have to work on weekends. He also did freelance piece work outside these two employment.

24. The proprietors of both Lucky Wind and Shan Luang also gave evidence to support the Plaintiff's claim.

25. It is not in dispute that no documentary evidence of any kind was adduced to support the Plaintiff's claim of earnings. Both Madam Yeung Man Wah (of Lucky Wind) and Mr. Chan Wing Tin (of Shan Luang) said that it was in accordance with the Plaintiff's wish to avoid paying tax that no records of employment and or payment of wages were kept. In my view, such bare assertion is inherently unreasonable. The Plaintiff was allegedly being paid a fairly substantial amount for doing half a day's work ($7,000 per month from Lucky Wind and $8,000 per month from Shan Luang). Though neither Lucky Wind nor Shan Luang appear to be substantial enterprise, it is still hard to envisage how they could have accounted for such regular payments in the absence of records if the Plaintiff was indeed so employed. Furthermore, the Re-entry permit record of the Plaintiff showed that he was going to the PRC rather frequently on weekdays prior to the incident, at times carrying large sums of money. He had also described himself to be a 'merchant' in 1994. I find the Plaintiff's explanation that he had gone to the PRC during those weekdays when he had taken leave from either Lucky Wind or Shan Luang to pursue his own business unconvincing. I also find his explanation regarding the large sums of money he carried to the PRC unconvincing.

26. Further, according to the Plaintiff, he had borrowed money from Madam Yeung to pay for the medical treatment for his mother well before he was employed by Lucky Wind. (Incidentally, I do accept that the deceased Madam Wong was indeed the Plaintiff's mother despite Mr. Leung's submission). It is indeed strange that the Plaintiff referred to the borrowing of money from his "employer" Madam Yeung when, according to him, he was not yet employed by Lucky Wind at that stage.

27. The burden of proof lies on the Plaintiff to satisfy me, on a balance of probabilities, that he was employed as he alleged by these two companies. I find that he has failed in this respect. It does appear that Madam Yeung, following the wish of her deceased father, afforded assistance to the Plaintiff when he was in need, so much so that the Plaintiff even resides at the premises of Lucky Wing; and in return, the Plaintiff gave advice but with no fixed income. It is quite clear that the Plaintiff is indeed a master of his trade and has a number of apprentices who still looks after him. I am satisfied that the Plaintiff did not have any fixed employment prior to the incident, but was relying on the generosity of his former apprentices and people like Madam Yeung, and in return, give advice to them. I am satisfied that both Madam Yeung and Mr. Chan lied to assist the Plaintiff on the issue of the alleged employment.

28. As I find that the Plaintiff was not employed by either Lucky Wind or Shan Luang at the time of the accident, I agree with Mr. Leung's approach and will adopt the figures in the Hong Kong Wage Statistics in Hong Kong (Bundle D/199-217) regarding the Motor vehicles/cycles repairing and serving. Bearing in mind that the Plaintiff was a skilled master and he could repair air-pumps as well as motor vehicles, adopting the figures for middle ranking supervisory and technical workers is appropriate here. Further, although the Plaintiff was in reasonable good health (apart from the injury suffered), it is indeed unrealistic to say that he could work until 75. I am prepared to accept that he could have worked until 70. The relevant figures are:

(a) September 1995	$14,627
(b) March 1996	$15,613
(c) September 1996	$15,484
(d) March 1997	$15,462
(e) September 1997	$16,175
(f) March 1998	$16,239
(g) September 1998	$18,042

the median between January 1996 and July 1998 is $16,334.50 [($14,627 + 18,042) - 2].

29. The Plaintiff is claiming an increase of 10% per annum. There is no evidence to support the same. I have already found that the inflation rate for 1997 and 1998 being 5.8% and 2.8%. It is unrealistic to adopt a 'notional' 10 % increase. Again, I find that Ho Ah Look is confined to its own facts and decline to follow the approach of the learned Judge. I find that the figures in the said Wage Statistics have already taken into account the increase over the years. Although I have found that as far as the physical disability is concerned, the Plaintiff has suffered a loss of earning capacity in the region of 30%, given the Plaintiff's advance age, I find it unrealistic to assume that he could have been employed at all. I therefore decline to follow Mr. Leung's suggestion of deducting a sum equivalent to the notional earnings as a watchman.

30. I accept that I have to take into account the tax liability: King Light Industrial Ltd. v. Lo Wai Keung [1994] 3 HKC 54. I accept the computation of the Plaintiff's tax liability submitted by Mr. Leung:

Tax Liability

Future Loss of Earnings/Loss of Earning Capacity

31. I have already found that the Plaintiff could have worked until 70 only so there is no award for future loss of earnings. However, I do recognize the Plaintiff's mastery ability in his trade and the impairment he suffers would no doubt affect any chance of doing the occasional freelance work as his ability to physical test repaired vehicles would have been hampered. I am of the view that a global award for loss of earning capacity would be appropriate here. In Tran Van Nho v. Cheuk's Industries Co. Ltd., unreported, HCA No. A719 of 1986, 30 September 1987, the learned Master awarded $40,000 under this heading for a Plaintiff aged 31 at the time of the accident. Taking into account the Plaintiff's age, and adopting the approach submitted by Mr. Leung, i.e. adopting about 1/2 of 40,000 in Tran Van Nho and adjusted for inflation since 1987, I award $50,000 under this heading.

Future Nourishing food

32. I have already awarded a notional amount of $10,000 for nourishing food. As the Plaintiff did not find the nourishing food useful, I do not see any basis for allowing a claim for nourishing food to be consumed in future and I disallow this claim.

Future Medical expenses

33. As to the future medical treatment, the treatment at PWH is only symptomatic. There is no basis as to why $3,000 per month is claimed. I accept the approach of Mr. Leung by adopting the fees of $44 per treatment at government hospital and allowing a multiplier of 3:\

(a)	Regular treatments at PWH
	$44 x 12 x 3	$1,548.00
(b)	Travelling expenses to attend PWH
	$100 x 12 x 3	$3,600.00
(c)	Provision for occasional needs
	$1,000 per year x 3	$3,000.00
	Sub-total:	$8,148.00

Summary

(a) PSLA	$436,000.00
(b) Loss of Pre-trial Earnings:	$468,690.28
(c) Loss of Earning Capacity	$50,000.00
(d) Agreed medical expenses	$17,605.00
(e) Agreed medical equipment	$5,700.00
(f) Agreed travelling expenses	$9,120.00
(g) Agreed physiotherapy treatment	$1,474.00
(h) Agreed bonesetter fees	$7,200.00
(i) Agreed future medical equipment	$5,400.00
(j) Medical Treatment in the PRC	$7,500.00
(k) Travelling expenses at the PRC	$6,500.00
(l) Nourishing food	$10,000.00
(m) Future medical treatment and related expenses	$8,148.00
Total:	$1,033,337.28

Interest

34. Interest on General damages at 2% from date of Writ to date of Judgment. Interest on Special damages at half the judgment rate from date of accident to date of Judgment.

Costs

35. As this is an assessment of damages, costs should follow the event. However, since the Plaintiff obtained leave to file, very belatedly, a report from Dr. Choa which necessitated the defence to obtain, on a very urgent basis, an updated report from Dr. Woo so that the scheduled 2-day hearing would not be wasted, the Plaintiff has to bear the extra costs incurred.

36. I make the following nisi Costs Order, such Order to be made absolute should no application to review be made within 14 days:

1. Save that the costs of and occasioned by the late filing of the medical report of Dr. Choa dated 17th November 1999 be borne by the Plaintiff, the costs of the assessment be to the Plaintiff, to be taxed if not agreed.

2. The Plaintiff's own costs be taxed in accordance with the Legal Aid Regulations.