TAI KUT SING v. CHOI CHUN KWAN

HCPI 812/1995

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES
ACTION NO. 812 OF 1995

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J U D G M E N T

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1. The plaintiff claims damages from the defendant for injuries sustained by him as a result of the defendant's negligence and/or battery.

The Facts

2. On 20 June 1994, the plaintiff sought treatment for his haemorrhoids from the defendant.

3. The defendant, at that time, held himself out to be a practitioner in Chinese medicine specialising in the treatment of haemorrhoids.

4. After examining the plaintiff, the defendant assured the plaintiff that his treatment did not involve any cutting of the skin and he also represented to the plaintiff that he guaranteed full recovery for him.

5. On 22 June 1994, the plaintiff paid to the defendant $8,000 for the whole treatment programme and the defendant and his wife proceeded to work on the plaintiff's haemorrhoids for about an hour. The plaintiff was told to return every day, thereafter, to change the dressing on his haemorrhoids.

6. Subsequent to that treatment, the plaintiff began to experience acute pain in his anus and had difficulty with his bowel movements.

7. On 10 July 1994, when the plaintiff was at the defendant's clinic for one of his daily treatments, the defendant informed the plaintiff that a complication had developed which required that a "second procedure" be done. The plaintiff was not told what this entailed but subsequently the plaintiff suffered severe pain and profuse bleeding.

8. The plaintiff sought medical treatment from Princes Margaret Hospital in the early hours of 11 July 1994 and Dr Lai, who examined him, found that there was a 2cm x 3cm cut wound at "6 o'clock of anal verge with active oozing." This can be seen from the photograph (Exhibit 6) taken at that time.

9. The defendant did not appear at trial to defend the claim. It is clear from the tape of the conversation between the plaintiff and the defendant, which the plaintiff had taped in September 1994, that the defendant admitted that he had made a cut at the anal area of the plaintiff, without seeking the prior consent of the plaintiff, as he considered it a part of the treatment.

Liability

10. After listening to the plaintiff and his witnesses, I am left in no doubt that the plaintiff's injuries were caused by the defendant's negligence.

11. According to the plaintiff's expert in Chinese medicine, Professor Cheung Lap Sun, the ointment used by the defendant to treat the plaintiff's haemorrhoids contained two poisonous substances. They were "Hong Dan" and "arsenolite". The use of these two together would cause corrosion, erosion and necrosis of the skin tissue. Arsenolite is no longer used in China as it had caused 5 reported cases of fatalities in China. Professor Cheung's opinion is that the defendant's misuse of the toxic medicine caused the skin around the plaintiff's anal canal to corrode leading to necrosis of the skin tissues which led to his having a right anal stricture and the defendant compounded his error by his operation on the 10 July 1994, which damaged the walls of the blood vessels thus causing severe bleeding.

12. Dr van Langenberg, who subsequently had to perform an "anoplasty" on the plaintiff by translocating skin from the plaintiff's buttock area to the anal canal in order to restore partial function to his anal canal, was of the opinion that the plaintiff's right anal stricture was caused by a severe chemical burn or surgical excision or both.

13. After the "anoplasty", Dr van Langenbery's expert opinion is that the plaintiff has regained 60% of his anal function but he has permanently lost 40% of his anal function. The plaintiff is able to pass stool reasonably comfortably but has partial incontinence (leakage) of stool from time to time. Dr van Langenberg added that although the plaintiff had "third degree" haemorrhoids when he went to consult the defendant, his condition did not affect his anal function at all, as haemorrhoids do not affect one's ability to pass or retain stool.

14. Professor Cheung was of the opinion that the defendant's treatment of the plaintiff fell for below the "reasonable standard of a herbalist who specialized in curing haemorrhoids", and Dr van Langenberg's opinion was that the injuries sustained by the plaintiff was as a result of inappropriate use of caustic chemical resulting in a severe chemical burn or surgical excision or both.

15. I have no hesitation in accepting the opinion of both experts and I find as a fact that the plaintiff's injuries were a direct result of the defendant's negligent and improper treatment.

16. The plaintiff also pleaded battery but I am not satisfied that the plaintiff has proved battery in this case because prior to the surgical excision of the skin, the defendant had informed the plaintiff that complications had arisen in the form of an ulcer. Although it was not made clear to the plaintiff how the defendant would proceed, the plaintiff, nevertheless, willingly submitted to the defendant's treatment without making any enquiry as to what form the treatment would take and it may, therefore, be argued that the plaintiff had given "carte blanche" to the defendant to treat him in whatever way he considered necessary.

Injuries and treatment

17. I now turn to the question of quantum. As a direct result of the defendant's treatment, the plaintiff suffered from rectal bleeding and was admitted to Princes Margaret Hospital for treatment. The plaintiff was hospitalized for a total of 34 days during which time he underwent an "anoplasty" operation. He could not work for a total of 143 days.

18. The plaintiff also gave evidence that his relationship with his wife was affected by his incontinence and about a year after the incident he separated from his wife and they are now divorced. His work has also been affected. He is a taxi driver by occupation but he can only now work at 75% capacity because he has to use the rest of the time for his toilet breaks, and due to his incontinence he could no longer join group tours for holidays abroad.

19. As I have mentioned earlier, Dr van Langenberg's opinion is that the plaintiff has lost 40% of his anal function and I have no reason not to accept his opinion.

PSLA

20. The plaintiff claims $600,000 under this head.

21. I accept one plaintiff's submission that the injuries suffered by the plaintiff would fall under the "serious injury" category in the guidelines laid down by the Court of Appeal in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657.

22. Mr So, Counsel for the plaintiff, submitted that the guideline for the level of award for pain and suffering and loss of amenities for serious injury, approved by the Court of Appeal in Chan Pui Ki (an infaut) v Leung On & The Kowloon Motor Bus Co (1993) Ltd (Civil Appeal No. 263 of 1995), is between $340,000 to $450,000 and after taking into account inflation and the subsequent fluctuations in the economy, Mr So, fairly put the level of awards for serious injury in present day monetary value to be between $400,000 to $550,000.

23. Mr So submitted that the plaintiff's award should fall into the middle of that, thus he should be awarded $475,000 under this head.

24. I am satisfied that the plaintiff's life has been affected by the injuries he suffered due to the defendant's negligence: that he has now got partial incontinence thus affecting his daily life and work. I also accept Dr van Langenburg's opinion that he has lost 40% of his anal function which ultimately led to the collapse of his marriage. I, therefore, consider that in the circumstances a suitable amount to be awarded to the plaintiff under this head is $450,000.

Pre-trial loss of earnings of the plaintiff

25. Insofar as this head of damage is concerned, I accept the plaintiff's evidence that prior to the incident, he worked every day of the week and that he had suffered a total loss of earnings for a period of 143 days which included his hospitalisation and convalescence. I also accept the plaintiff's evidence that his net earnings per day as a taxi driver in 1994 was $400. So the total loss of earnings for 11 July 1994 to 30 November 1994 was $57,200.

26. I accept that the plaintiff was able to return to work during the latter part of his convalescence but was only working at 50% capacity until 31 December 1995. I also have no reason to doubt that his average daily net earnings in 1995 would have increased to $440. So from 1 December 1994 to 31 December 1994 he had a 50% loss of earnings amounting to $6,200 and from 1 January 1995 to 31 December 1995 his loss of earnings would amount to $80,300. Thus his total loss of earnings in the period between 1 December 1994 to 31 December 1995 would be $86,500.

27. Finally, I accept the plaintiff's evidence that, since 1 January 1996 to the date of trial he has only been able to work at 75% of his capacity as he needed to go home each time he has a bowel movement due to the fact that he has to wash himself each time because he could not properly clean himself, using only toilet paper, due to his injuries. I accept Mr So's calculation that the plaintiff's loss of earnings between 1 January 1996 to 26 February 2002 amounted to $260,701, after having taken into account the fluctuation of his average earnings due to the economic climate.

28. The total loss of pre-trial earnings amount to $404,401.

Future loss of earnings

29. I accept that because of the plaintiff's permanent loss of 40% of his anal function he will not be able to achieve his full earning capacity as a taxi driver, for apart from having to return home when he has a bowel movement he is also unable to sit for a long time without discomfort. The plaintiff is aged 52 now. I accept a multiplier of 7 is a reasonable one. I accept that the plaintiff with his disability can only work at 75% of his capability and I accept that a multiplicand of $461.20 as his average daily earnings should be used. Using that multiplier, the loss of future earnings come to $290,556.

Pecuniary Expenses

30. I accept the sums claimed by the plaintiff for medical and travelling expenses and for tonic food. I award the total sum claimed as $53,860.

Interests

31. The interest on past pecuniary losses and expenses calculated at half the current judgment rate from the date of the accident to date of judgment and thereafter at full judgment rate.

32. Interests on general damages for pain, suffering and loss of amenities will carry interests at 2% from the date of service of the writ to the date of judgment and thereafter at judgment rate.

33. I shall leave the actual calculation of the interests to the solicitors for the plaintiff to work out.

Order

34. There will be judgment for the plaintiff in the sum of $1,474,602.80 together with interests to be calculated in the manner already stated above.

Costs

35. There will be a cost order nisi that the defendant do pay the costs of this action to the plaintiff, to be taxed if not agreed.