GHULAM HUSSAIN v. LAM WAH CHAU AND ANOTHER

HCPI 422/2002

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HEADNOTE

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Neither counsel cited any case, textbook or article on the recoverability or otherwise of a claim for the cost of Viagra. Instead the arguments for and against the Plaintiff's claim for the cost of Viagra, which was limited to future cost since he has not taken Viagra yet, proceeded on the application of established general principles to the material facts.

The first of the established general principles relevant to a claim for the cost of Viagra must be the most basic of all the principles on damages, which is that the purpose of an award of damages is to put the plaintiff, as far as money can do it, in the position that he would be in but for the wrong done to him by the defendant. Next comes the principle that an award for the cost of medicine, past and/or future, is one of the awards that a court can make for that purpose. On these principles, an award for the cost of Viagra, past and/or future, can be made in certain circumstances, which are as follows. It must be proved that the wrong done to the plaintiff by the defendant has resulted in an adverse medical condition which Viagra can put right or at least alleviate. Then it must be proved, where pre-trial use is concerned, that Viagra was reasonably prescribed and taken to put right or at least alleviate that adverse medical condition. Or it must be proved, where future use is concerned, that Viagra will probably be reasonably prescribed and taken to put right or at least alleviate that adverse medical condition.

In such circumstances, making an award for the cost of Viagra, in a sum appropriate to the facts and figures of the case, would accord with principle and be fair to both sides. It must be remembered that the court will, when assessing the award for pain and suffering and loss of amenities, take into account in the defendant's favour what the use of prescribed Viagra has done and/or will do for the plaintiff so as to reduce the award to be made under that head of damages.

HCPI 422/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 422 OF 2002

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J U D G M E N T

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LIABILITY

1. This case arises out of an accident which occurred in the afternoon on 27 May 1999 at the service road on the 12th Floor of Asia Terminal Ltd's premises at Container Port Road South in Kwai Chung. A medium goods vehicle ("the parked vehicle") was parked at a parking space along that service road, facing the side of the road. Another medium goods vehicle ("the defendants' vehicle") had stopped, with its engine running, along the road so that its near-side was parallel to the front of the parked vehicle. While the Plaintiff was walking between the two vehicles, the 1st Defendant, who was driving the defendants' vehicle in the course of his employment as the 2nd Defendant's employee, drove the defendants' vehicle in such a manner that the Plaintiff's pelvis was crushed between the rear near-side of the defendants' vehicle and the front of the parked vehicle.

2. In respect of the accident, the 1st Defendant was charged with careless driving. On 12 October 1999 in the Magistrate's Court at Tsuen Wan, he was convicted, on his guilty plea, of this offence.

3. The Plaintiff's case is that the accident was caused solely by the 1st Defendant's negligence. The Defendants neither gave nor called any evidence on liability. Mr Joseph Vaughan for the Defendants concedes, rightly in my view, that the prima facie case on liability arising out of the 1st Defendant's conviction for careless driving has not been displaced. He submits, however, that the Plaintiff should be held 10% to 20%, perhaps 15%, contributorily negligent for the reasons which he summarized thus in the written synopsis which he provided of his closing speech:

"(i) Plaintiff knew the engine of D1's vehicle was on. He should have anticipated D1's vehicle might be driven off any time. He himself has testified that if a vehicle is parked like the one in this case, security guards would ask the driver to leave soon.

(ii) He chose to pass through the narrow gap between the vehicles nevertheless.

(iii) There were other wider routes he could have taken. Other drivers would at least have been able to easily see him as he walked.

(iv) Common sense would require Plaintiff to have been more careful in this incident."

4. The gap between the two vehicles, I find on the Plaintiff's evidence which I accept, was about 3 to 4 feet wide. The Plaintiff also said, and I also accept, that walking along the off-side of the defendants' vehicle would have exposed him to the risk posed by vehicles driving along the service road. In all the circumstances, I find that the Plaintiff acted reasonably in walking where he did. I do not find him contributorily negligent. In my view, the 1st Defendant's negligence, consisting essentially of his failure to keep a proper lookout, was the sole cause of the accident. Accordingly I hold the Defendants 100% liable.

QUANTUM

5. On the day of the accident, 27 May 1999, the Plaintiff, who was then aged 27, was admitted to Princess Margaret Hospital, suffering from the following main injuries sustained as a result of the accident: fracture of his left pubic bone; fracture of his right superior and inferior pubic rami; fracture of his right sacral ala; and diastasis i.e. separation of his right sacro-iliac joint. He was unable to pass urine, so a Foley catheter was inserted.

6. Temporary skeletal traction of his right lower limb was performed on 29 May 1999. He underwent three operations: open reduction and sacral bar insertion on 1 June 1999; external pelvic fixator on the same day; and removal of the external pelvic fixator on 15 July 1999. The Foley catheter was removed on 2 June 1999.

7. After having been hospitalised for two months, he was discharged home on 26 July 1999, walking on crutches. Following his discharge from hospital, he attended there for follow-up and physiotherapy. This lasted until 11 September 2000. By then he could walk unaided.

8. He was also seen by the hospital's urology department where he was found upon examination to be suffering from a mild degree of painful sensation at the right side of his penis. I find that this was due to the accident. He was treated conservatively and asked to return for follow-up but did not. I find that this failure to return was because the matter embarrassed him.

9. As to the Plaintiff's present condition and prognosis as they result from the accident, a number of medical reports have been placed before me by agreement. I do not propose to recite the contents of these reports. On orthopaedic matters, Mr Kumar Ramanathan for the Plaintiff places particular emphasis on the prognosis set out in Dr Patrick Wong's report of 28 October 2000. On urological and related matters, Mr Ramanathan places particular stress on the opinion expressed and comments made in Dr George Koo's report of 20 December 2000. Dr Wong reported for the Plaintiff. Dr Koo reported on the joint instructions of both sides.

10. Dr Wong's prognosis, which I accept, is expressed as follows in his report of 28 October 2000:

"Mr. Hussain has sustained forceful lateral compression to his pelvis resulting in multiple pelvic ring fractures and major instability. He has required multiple major operations to stabilize the pelvis. Despite a lot of efforts by the surgeons to restore the anatomy, there is still much residual deformity left after the fracture has healed as exemplified on the x-ray and CT scan. The prognosis for this deformity is not good because it is very unlikely that further remodelling or improvement will take place either by natural healing or further surgical procedures."

11. Dr Koo's opinion and comments, which I accept, are expressed as follows in his report of 20 December 2002:

"1. As the result of the crush injury to his pelvis on the 27th May 1999, Mr. Hussain suffered from multiple fractures of his pelvic, resulting in a disrupted, unstable pelvic ring. This required a series of orthopaedic operations, and eventually healed up with permanent mal-union / mal alignment of the right sacral lliac joint, thus resulting in a weak right hip.

2. He also had, associated with the pelvic fractures, most probably, partial damage to the membranous urethra, that caused retention of urine and required insertion of indwelling catheter to drain the bladder on admission to the Hospital.

3. After a week or so, the catheter was weaned off and he was able to pass urine fairly well since, suggesting that whatever the urethral injury was, it had healed. So far he has had no symptoms of any significant urethral stricture, a common sequelae of urethral injury.

4. Sexually, after the injury, he complains of persistent numbness / paraesthesia of the right side of the penis and mild to moderate impairment of erectile function as compared with pre-accident. Both of them are related to the fracture of the pelvis from neurogenic damage to the innervation of the genitalia. He is able to have sex with his wife 2-3 times a week, but the quality and duration are much reduced as compared with his norm.

5. Mr Hussain has not received any advice or treatment for his sexual problems mainly because of the language difficulty and his shyness to talk about it openly.

6. It has been over three years since the injury and these impairment can be considered as permanent. Using the AMA's Guide to the Evaluation of Permanent Impairment, 5th edition, as reference. I would assess a 6% impairment to the whole person for his partial loss of penile sensation and his mild erectile dysfunction.

7. His mild erectile dysfunction can be helped with the use of oral erectogenic medication such as Viagra, 50 mg taken one hour prior to intercourse. The cost of such therapy, if provided in the private sector, is estimated to be about HK$720 per month, assuming he needs this twice a week. He should be assessed yearly for the need of continued therapy.

8. There is no loss of earning capacity from his sexual problems. The loss of which comes from his residual orthopaedic impairment."

12. In his medical report of 2 December 2002 following a joint interview and physical examination of the Plaintiff by himself for the Plaintiff and Dr Chun Sui Yeung for the Defendants, Dr Wong repeated the prognosis which he had earlier expressed in his report of 28 October 2000. I have had regard to what Dr Chun says in his report of 19 December 2002. To some extent Dr Chun's views appear to reflect his belief that there was some exaggeration on the Plaintiff's part. Having seen and heard the Plaintiff in the witness-box, I do not think that he is given to the exaggeration which Dr Chun seems to suspect. Neither doctor gave oral evidence. Doing the best I can, I have come to the conclusion that Dr Wong's views are more reliable, and I accept them.

Pain and suffering and loss of amenities

13. As far as pain and suffering and loss of amenities ("PSLA") is concerned, counsel are not very far apart in their submissions. Mr Ramanathan suggests an award of $600,000 while Mr Vaughan suggests one of $500,000. All things considered, I regard Mr Ramanathan's figure as the appropriate one. I award $600,000 for PSLA. In awarding this sum, I take into account such help as the Plaintiff is likely to get through the use of the drug Viagra.

Pre-trial loss of earnings

14. The Plaintiff was, it is common ground, on sick leave for two years. He resumed work on 1 June 2001, working for the same company which had employed him as a driver at the time of the accident. Upon resuming work the Plaintiff worked as a godown keeper earning $5,000 per month. I find that he was reasonable in not working at all for two years following the accident. In the month preceding the one on which the accident happened, the Plaintiff received the following from his employer: $11,300 basic salary; $630 overtime pay; $760 good attendance bonus; $1,000 meal allowance; and $700 transport allowance. These figures total $14,390. He received double pay i.e. double his basic monthly salary on Chinese New Year. While he was on sick leave, his employer continued to give him the meal and transport allowances. His sick leave was otherwise unpaid. The meal and transport allowances given during the sick leave period have been taken into account in the calculation of the Employees' Compensation award made to the Plaintiff. Even so, he does not claim the transport allowance although he claims the meal allowance. On that basis, Mr Ramanathan puts forward a monthly multiplier of [($13,690 x 12 + $11,300) ( 12] $14,631. Mr Vaughan submits that a figure of $14,161 would be more realistic. In my view, Mr Ramanathan's figure of $14,631 per month is appropriate. For the two years of total loss of pre-trial earnings, I award (14,631 x 12 x 2) $351,144.

15. This brings me to partial loss of pre-trial earnings. The $5,000 per month which the Plaintiff started earning on 1 June 2001 was reduced to $4,500 per month on 1 January 2002, which is what he is still earning now.

16. Mr Ramanathan puts forward a figure of $231,644 for partial loss of pre-trial earnings calculated in the following way set out in his written final submission:

"	Partial Loss 1.6.01 - 31.12.01 - 7 months
	($14,631 - $5,000) x 7	$ 67,417
	Partial Loss 1.1.02 - May 2003 - 17 months
	($14,631 - $4,500) x 17 - [$8,000]	$164,227

The deduction of $8,000 represents the Chinese New Year bonus which the Plaintiff received. Mr Vaughan's quarrel with Mr Ramanathan's submission as to partial loss of pre-trial earnings is based on two points. The first is the one, which I have already rejected, that $14,161 would be more realistic than $14,631. The other is that, Mr Vaughan submits, the Plaintiff ought to have been able to earn considerably more than $5,000 and then $4,500 per month. Mr Vaughan says that the Plaintiff was taken advantage of by his employer. I do not find that. So I accept Mr Ramanathan's submission as to partial loss of pre-trial earnings. The total award for pre-trial earnings, total and partial combined, is therefore ($351,144 + $231,644) $582,788. I award that sum.

Post-trial loss of earnings

17. As far as post-trial loss of earnings are concerned, the parties are agreed that a multiplier of 16 would be appropriate, and I accept that multiplier.

18. As to the multiplicand, I have carefully considered all the evidence and arguments. As I have already indicated, there is nothing unreasonable, in my view, about the Plaintiff earning $4,500 per month now. But I think that there are some realistic prospects of his doing better in future. And I also bear in mind that, although the Defendants accept that there must be an award for loss of future earnings, they have also agreed, unusually perhaps, that there should be in addition to that an award for loss of earning capacity. The parties have agreed an award of $100,000 for loss of earning capacity.

19. Mr Ramanathan suggests a multiplicand of ($14,631 - $4,833 [($4,500 x 12 + $4,000) ( 12] x 12) $117,576. All things considered, I will take instead a multiplicand of $115,000. This gives an award of ($115,000 x 16) $1,840,000 for loss of future earnings. I award that sum.

Loss of Mandatory Provident Fund benefits

20. In his written final submissions, Mr Ramanathan puts forward the following submission as to what should be recoverable in respect of Mandatory Provident Fund ("MPF") benefits:

"(a)	Pre-Trial Loss 1.12.2000 - 31.5.2001
	$14,631 x 17 months x 5%	$12,436.00
(b)	1.6.-31.12.2001
	($14,631 - $5,000) x 7 months x 5%	$ 3,370.00
(c)	1.1.2002 - May 2003
	($14,631 - $4,500) x 17 months x 5%	$ 8,611.00
		$24,417.00
(d)	Post-Trial Loss
	($14,631 - $4,833) x 12 x 16 x 5%	$94,060.00

21. Mr Vaughan says that there is no dispute that the Plaintiff is entitled to receive MPF benefits calculated on the basis of his actual award for loss of earnings. On the basis of the award which I have made for pre-trial loss of earnings, the figure of $24,417 put forward by Mr Ramanathan is appropriate. But as far as the figure of $94,060 is concerned, on the basis of my award for post-trial loss of earnings, the figure should be 5% of $1,840,000 which comes to $92,000.

22. So I award $24,417 for pre-trial loss of MPF benefits and $92,000 for post-trial loss of MPF benefits.

Loss of earning capacity

23. For loss of earning capacity, I award the $100,000 agreed by the parties.

Special damages

24. Special damages are agreed at $7,604, and I award that sum.

Future Medical Expenses: removal of sacral bars; cost of Viagra

25. Two items of future medical expenses are claimed. The first is the cost of an operation to remove the two sacral bars. In his report of 28 October 2000, Dr Wong says that "removal of the two sacral bars might lessen the amount of pain felt over the SI joint. Costs of this operation done in a private hospital as a general ward patient is around $35,000". He repeated this in the report of 2 December 2002. Mr Ramanathan does not push for the costs of the operation in a private hospital. But he submits that it would be reasonable to allow say $5,000 for the operation to be performed in a Hospital Authority facility. That amount may be reasonable in itself. But the question is whether the evidence justifies the operation at all. In his report of 19 December 2002, Dr Chun says: "As the sacral bars are not causing symptom and is a factor to maintain the stability of the SI joints, removal is not recommended". He put it even more strongly in his report of 20 February 2003, saying: "The sacral bar holds the position of the pelvis at the sacro-iliac joint and gives added stability. When it is removed pain may not improve and may get worse". Dr Wong, it will have been noticed, does not say that he recommends removal. He merely says that it "might" lessen pain. On the whole of the evidence, I do not find any justification for this operation made out. I make no award under this item.

26. The other item claimed in respect of future medical expenses is the cost of Viagra. Neither counsel has cited any case, textbook or article on the recoverability or otherwise of a claim for the cost of Viagra. Instead the arguments for and against the Plaintiff's claim for the cost of Viagra, which is limited to future cost since he has not taken Viagra yet, have proceeded on the application of established general principles to the material facts.

27. The first of the established general principles relevant to a claim for the cost of Viagra must, I think, be the most basic of all the principles on damages, which is that the purpose of an award of damages is to put the plaintiff, as far as money can do it, in the position that he would be in but for the wrong done to him by the defendant. Next comes the principle that an award for the cost of medicine, past and/or future, is one of the awards that a court can make for that purpose. On these principles, I hold that an award for the cost of Viagra, past and/or future, can be made in certain circumstances, which are as follows. It must be proved that the wrong done to the plaintiff by the defendant has resulted in an adverse medical condition which Viagra can put right or at least alleviate. Then it must be proved, where pre-trial use is concerned, that Viagra was reasonably prescribed and taken to put right or at least alleviate that adverse medical condition. Or it must be proved, where future use is concerned, that Viagra will probably be reasonably prescribed and taken to put right or at least alleviate that adverse medical condition.

28. In such circumstances, making an award for the cost of Viagra, in a sum appropriate to the facts and figures of the case, would, in my judgment, accord with principle and be fair to both sides. It must be remembered that the court will, when assessing the award for pain and suffering and loss of amenities, take into account in the defendant's favour what the use of prescribed Viagra has done and/or will do for the plaintiff so as to reduce the award to be made under that head of damages.

29. The medical evidence on which the Viagra claim is based comes from Dr Koo, jointly instructed by the Plaintiff and the Defendants. In his report of 20 December 2002, Dr Koo says this about the Plaintiff:

"His mild erectile dysfunction can be helped with the use of oral erectogenic medication such as Viagra, 50 mg taken one hour prior to intercourse. The cost of such therapy, if provided in the private sector, is estimated to be about HK$720 per month, assuming he needs this twice a week. He should be assessed yearly for the need of continued therapy."

Dr Koo expanded on this in his letter of 4 March 2003 to the two firms of solicitors, saying:

"Viagra, the oral erectogenic medication, is available at HA hospitals in Hong Kong. The cost use to be HK$48 per visit including medication in the general clinic, but this been raised up to $100 per visit recently. However for medicine such as Viagra for the treatment of impotence, it is my understanding that after the initial month of trying out the effectiveness of the treatment, the patient is usually given a prescription to purchase the medication from commercial pharmacies. The HA hospitals do not give out subsidised Viagra on long term basis.

The HA is still in the process of undergoing cost cutting, saving changes. I do not see them being more generous in the foreseeable future."

30. The Plaintiff's own evidence, which I accept, provides a factual foundation for the medical opinion expressed by Dr Koo, which opinion I accept. Mr Ramanathan puts forward in respect of this item a claim for $138,240 calculated on the basis of $720 per month for 16 years.

31. Mr Vaughan responds thus in the written synopsis of his closing speech:

"The "Viagra" claim is at least exaggerated to a significant extent the complaints being highly subjective and unverifiable:

(a) Plaintiff had not followed up after the May 2000 consultation.

(b) His complaints about the frequency of intercourse in the Court is blatantly inconsistent with that described in the reports.

(c) The "pain" factor would apparently not be alleviated by taking Viagra.

(d) Plaintiff has not even tried out its effect despite he was financially able to do so.

(e) Dr Koo himself has recommended a review after a year.

(f) Thus Defendants would ask Court to disallow this claim, or at least halve it."

32. In my view, the Plaintiff has proved the existence of the circumstances which I have said must be present before an award for the costs of Viagra can be awarded. I am satisfied that such an award should be made. But in what amounts? All things considered, I think that it would be going too far in one direction to make an award for the cost of Viagra in the sum suggested by Mr Ramanathan and that it would be going too far in the opposite direction to halve that sum as Mr Vaughan suggests that I might do if I do not disallow this item altogether. Doing the best I can, I award $100,000 for this item i.e. the cost of Viagra. Since I make no award for the other item claimed in respect of future medical expenses, this sum represents the total award which I make under this head.

RESULT

33. Subject to the agreed deduction of $770,000 representing the Employees' Compensation received by the Plaintiff, I award him damages as agreed or assessed by me and agreed interest as follows:-

Damages

(i)	PSLA	$ 600,000
(ii)	Pre-trial loss of earnings	$ 582,788
(iii)	Post-trial loss of earnings	$1,840,000
(iv)	Pre-trial loss of MPF benefits	$ 24,417
(v)	Post-trial loss of MPF benefits	$ 92,000
(vi)	Loss of earning capacity	$ 100,000
(vii)	Special damages	$ 7,604
(viii)	Future medical expenses	$ 100,000
		$3,346,809

Interest

(i) Interest at 2% per annum on the $600,000 for PSLA from the date of the writ to the date of this judgment.

(ii) Interest at 4% per annum on the $7,604 for special damages from the date of the accident to the date of this judgment.

(iii) Interest at the same rate and for the same period on the $24,417 for pre-trial loss of MPF benefits.

34. Finally, I make an order nisi for costs in favour of the Plaintiff against the Defendants. There is no need for any order for legal aid taxation since the Plaintiff is not legally aided.