LAW YIN POK BOSCO v. DR CHAN YEE SHING

HCPI 369/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 369 OF 2010

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J U D G M E N T

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1. Bosco Law is now almost 4½ years old. As a 14 month old baby boy he sustained a significant laceration to his right ring finger involving the soft tissue of the distal phalanx.

2. On 10 August 2009 he was being taken home by his mother in a push-cart and on the point of entering the home when, possibly as a curious child, he put his finger into a small hole in an iron gate just as his mother was moving the push-cart, with him still in it, forward.

3. It was obviously more than just a scratch and it was wisely decided to take him to the Prince of Wales Hospital for assessment and treatment.  There a doctor decided that the wound needed suturing under a general anaesthetic.

4. On being made aware of this, the mother telephoned the father and informed him of the doctor’s decision.  The hospital had also indicated that the operation could not carried out until that evening in order to be sure that an operating theatre was available.

5. The father decided to contact a Dr Chan (the defendant) whom he knew.  The result of that was that Bosco was admitted to the Baptist Hospital under Dr Chan’s care.  It appears that Dr Chan was of the view that Bosco was too young to have a general anaesthetic and that he proposed to administer an oral analgesic and treat the wound by the application of some form of surgical or medical adhesive known as Dermabond.

6. Bosco was duly treated in accordance with Dr Chan’s assessment and stayed in hospital for about four days.  After the application of Dermabond, his finger was bandaged.  His first night was somewhat uncomfortable and restless, hardly surprising for one so young.  Dr Chan followed him up after discharge from hospital.  It appears that Dr Chan did not open the bandage to inspect the progress of the wound for some days.  When eventually he did so it was clear that the condition of his finger had deteriorated, the blood supply had been severely restricted and gangrene had started to develop. I have seen the photographs taken on 21 August 2009 — 10 days after he had sustained his injury and Dr Chan had applied the Dermabond and bandage — when he was admitted to the Queen Elizabeth Hospital for assessment and treatment.  The distal half of the finger is blackened and I do not doubt that it was painful and perhaps persistently aching as infection was well-advanced.

7. At the Queen Elizabeth Hospital the extent of the problem was soon realized but in order to provide every chance for the finger to survive, conservative measures were adopted with some hope that the infection could be eliminated. Sadly it was not to be and amputation of the distal phalanx and half the medial phalanx was carried out on 30 September 2009.  Every attempt had been made to achieve maximum length of the digit before surgery.

8. After discharge home from hospital following the amputation he was re-admitted to the Queen Elizabeth on 9 October for further antibiotic treatment to deal with a degree of apparent infection.  At the end of October he was discharged for routine follow-up after the scab on the end of the stump came off spontaneously following healing.

9. I have not set out the full treatment in detail but have read the treatment reports and independent reports from the consultants.  Since liability was wisely conceded there is no need for me to review the short‑comings in the assessment and treatment by the defendant.  They are self-evident in an extremely obvious way.

The medical reports

10. I have confined myself to reading the joint reports of Dr Dicky Lam, instructed by the original solicitors for the plaintiff, and Dr Josephine Ip, instructed by the solicitors for the defendant.  Both are orthopaedic consultants of some standing.  Their reports were provided on a joint basis to comply with a court order although on occasions the plaintiff’s solicitors have diverged from that protocol for no good reason.

11. The two reports concerned are dated 8 November 2010 and 7 November 2012 the latter having been made following an assessment of Bosco on 16 October 2012 a matter of about four weeks ago.  The period elapsing between the two reports is exactly two years.

12. In the second report the consultants confirmed the views they expressed two years earlier in their initial report.  It is clear now that his dominant hand is the right one, the injured hand.  The first report is substantially concerned with the question of causation and liability.  I do not need to reconsider this for the reason set out earlier.

Pain and Suffering and Loss of Amentity

13. The initial period of treatment, surgery and hospitalizations were undoubtedly an unhappy and painful time for this child.  Had he received the treatment initially advised he would have had some discomfort and hospitalization with follow up and removal of the stitches.  But the defendant’s ill-advised treatment and its consequences resulted in an extended period of discomfort and troubled sleep which far exceeded that which was reasonable in the context of the appropriate treatment.

14. It has to be remembered that this little boy was only 14 months old when he suffered this loss of half of his right ring finger.  By now his experience of those three months or so in 2009 will have been dimmed if not entirely overcome by his ageing since.  Children are, fortunately, extremely resilient at that age in particular, and the attitude of parents can be extremely beneficial if they are positive, not negative, in their outlook.

15. I do not doubt that from time to time the attention of people especially his own age group and adults, who ought to know better, will be puzzling and transiently embarrassing to him.  He will sometimes want to hide his hand but all the indications are that he is using it normally and well.  What are the factors then that I should evaluate in determining the proper level of damages?  I should enter a caveat at this stage to indicate that his parents’ view of the amount of money he ought to have will be far removed from my assessment.  This is not an exercise in punitive damages but one which fairly reflects, to the extent that one can, the consequential adverse experiences and condition.

16. He will on occasions and for varying periods, experience embarrassment and be self-conscious about the appearance of his hand.  That may mean he will require some psychological handling. I hesitate to use the word treatment because essentially it will be a matter of talking problems through with him. So the experience which leads to such need, and the centre of discussion which will be his hand and other people’s behaviour need to be provided for.  The actual cost of this will be dealt with elsewhere.  I have read the joint report of Professor Wong and Professor Peter Lee dated 10 December 2010 based on an hour’s assessment almost exactly one year after his discharge from hospital and the initial healing of the wound.

17. He was using both hands well and clearly showing the wounded hand to be the dominant one.  He was bright and amiable (he was still only two years and four months).  There were no signs of psychological distress.  Both thought however that he “would be distinctly more vulnerable than his peers in developing psychological difficulties” with “a risk of increased avoidance of activities and withdrawal from social” activity.  Both consultants also highlighted the risk that negative attitudes on the part of parents as he grew up could have on his own handling of the situation.

18. The consultants saw him again nearly two years later and just over 3½ months before my assessment.  Academically the following reflects his progress:

“Could write his name in English.”

“Strong in mathematics.”

“Good memory.”

“He is clever.”

He is sensitive about his finger when comments are made about it.  He gets on well with his peers.

19. His parents confirmed that “on a day to day basis … he is like any normal child.”  The consultants concluded that despite his occasional pre-occupation with his damaged finger, he had no problem in spontaneously putting out his right hand to shake theirs when he left.  All the indications were that he was developing along normal lines as a happy outgoing boy.

20. If and when, he has to undergo some revision of the bone growth and stump, I have to take that period of discomfort, anxiety and immobility of the hand into account.

21. I think that the more difficult period for him will be his teenage years.  In the context of his adolescence and a little beyond, he may wonder from time to time why this event should have happened to him.  However this is not a really serious injury, or one that will constitute a significant handicap and we have already moved beyond the time of initial apprehension and alarm that one so very young should have to experience and what in the minds of those around him, was a mutilating injury.

22. An award of damages under this head must reflect an objective approach as regards feelings and reactions, but a subjective one taking fully into account the realities of life of the victim himself.  Sadly both parents continue to experience a great sense of guilt and this has, I fear been translated into unrealistic expectations.

23. It is an unusual state of affairs at an unusually early age.  Rarely do other cases afford assistance in the evaluation of general damages.  Most of these are concerned with less serious finger injuries or more serious hand injuries the latter being in an entirely different category.

24. I have however reviewed those to which Mr McCoy, SC and Mr Hingorani have helpfully directed my attention but it is not necessary for me to set them out here.

25. As usual I am also aided by reference to the “Guidelines for the Assessment of General Damages in Personal Injury Cases” of the Judicial College in the United Kingdom now published by the Oxford University Press and in its 11^th Edition (2012).  The overwhelming majority of these considered cases do not involve children as young as this plaintiff.

26. The range for the loss of the terminal (distal) phalanx of the ring or middle finger is £2,800 to £5,600.  For the amputation of ring and little finger the figure is in the region of £15,650.  In Bosco’s case he has lost about half of the ring finger.  Fine work tends to involve index and middle fingers and the thumb so that kind of handicap is not likely to affect him.  There are features of this type of injury which affect an adult but not a child and vice-versa.  It is not in my view going to affect Bosco’s eventual career, whereas in many adult cases the opposite is the case, and although such cases will involve loss of earnings, or at least a risk on the labour market, especially in a semi-skilled worker, there is nonetheless a reflection of the physical loss and consequent limitations in the award for general damages.  However in Bosco’s case he has a lifetime’s loss of the substantial part of the ring finger in his dominant hand.  I think the award should be marginally above that advanced by Mr McCoy and will therefore be HK$175,000.  To the extent that it is helpful I think that the range for such an injury to a young boy should be HK$150,000 to 200,000.

The Consequential Losses

27. The Statement of Damages which runs to 16½ pages as far as Bosco’s claim alone is concerned, grossly exaggerates most heads of damage, as it did with the quantification of the damages for pain, suffering and loss of amenity.

28. Happily, Mr Hingorani has not felt constrained by that unrealistic exercise but for entirely understandable reasons has been unable to move entirely away from a process which has probably encouraged the parents to have impossibly optimistic ambitions in monetary terms for Bosco.  Mr Hingorani has helpfully been robust and more moderate in his approach than the author of the Statement of Damages.

Special Damages

Medical Expenses

29. Agreement has been reached in the sum of HK$17,258 now that receipts have been provided.

Travelling Expenses

a)  The parties have agreed the sum of HK$1,000 to cover the visits to the Baptist Hospital.

b)  Similarly, the sum of $750 is agreed for the visits to the Defendant’s clinic.

c)  This relates to visits by parents, grand-parents and other relatives.  I think that there must be some overlapping of persons and travel and a daily visit by the grand-parents is not reasonable.  In general some daily allowance is reasonable and a total of $2,500 is allowed.

(d) & (e)  Follow up visits.  Applying the rough costing, used for the other visits, the defendant’s proposed figure is closer to the likely actual cost.  I will allow $6,500 to provide a margin to allow for some variation in the basis of the costing.

(f) The plaintiff abandons the claim for extra fuel and ancillary expenses.

(g) Private tuition.  Whilst I accept that it was reasonable to postpone his entry into kindergarten it was not reasonable in my view to arrange private tuition at home — if it was so arranged.  There is no documentary support for this alleged expenditure.  Any such tuition for a boy of this age would be provided by parents or grand-parents as part of their natural involvement in his upbringing.  It would be little more than supervised play-time.

Tonic Food

30. Although this is frequently allowed as a cultural necessity, the extent of it must vary from person to person, and also in a wide range of differing circumstances.  For a very young child with this kind of injury it is difficult to justify anything more than a nominal amount.  I will allow HK$2,000.

Sewing machine for pressure garments etc.

31. I cannot see any justification for the purchase of a machine for such limited use over a very limited period.  The defendant however is prepared to allow HK$5,000 under this general heading which I regard as generous.

Value of care of father

32. There is a claim by the father in his action for loss of earnings occasioned allegedly by his need to care for Bosco and/or undertake work closer to home or on a part-time basis.  This therefore falls to be considered in the context of his action.

Value of care by maternal grandmother etc.

33. Very sensibly this has not been pursued.

Domestic Helper

34. Even though the father and mother may have been substantially involved in the care of Bosco their commitment can only be justified for a relatively short period and even then it would not have been reasonable for both of them to have been involved at the same time.  If a domestic helper was required that was not directly attributable to Bosco’s situation.  In any event no records have been produced and it would not be reasonable to make any award under this head.

Future Medical Expenses

35. He is now just over 4 years old.  The initial provision starting with four visits in the first year has already elapsed.  I have serious reservations about the need for private specialist treatment.  The paediatric services of such hospitals as the Queen Elizabeth Hospital are of a high level.  However the defendant has generously suggested an award of HK$12,000 based on private care.  I consider that on the evidence annual follow‑up is the maximum required and I adopt the figure of $12,000.

Occupational Therapy

36. This has been agreed in the sum of HK$12,600.

Treatment of stump pain

37. There is no evidence of any stump pain or phantom limb sensation at present.  The latter is more commonly experienced in more severe amputations such as the lower limb, hand or shoulder.  The finger however remains vulnerable and more susceptible to knocks, occasioning pain which will be relatively transient, particularly in his early years.  There is a short term risk of a need for some hospital treatment which is impossible to quantify on the basis of a formula.  I will allow a figure of HK$2,500 for that risk.

Prosthesis

38. Both Dr Lam and Dr Ip considered this carefully.  Young children for the most part prefer to be without such appendages including plasters, bandages etc. and in many cases it is found to be better to let a child adjust to the situation without such cosmetic additions.  He certainly does not need one to be able to write — what I have seen shows a good level of figure and letter-writing for his age.  It would be counter‑productive for his parents to try and persuade him to wear a prosthesis — he is more likely to react against this.  In later years he will have grown accustomed to a shortened digit.  The development of his right hand being his dominant hand will have substantially compensated for both function and appearance.

39. I have to approach this on the basis of the medical evidence — which is largely agreed on this aspect as it is on most aspects — and the possibility that at some particularly sensitive stage of his development he might opt for a prosthesis on a short-term basis and that over the next 10 years the Prosthesis Industry may develop a particularly sophisticated unit which he might want to try out.  They tend to be expensive and so I will allow a sum of $20,000 to allow for this possibility.

Revision Operation

40. In my view the only real risk under the potential complications considered on this boy’s behalf, and by the consultants, is where bone development extends beyond the soft tissue.  I accept Dr Ip’s view that “bone growth and soft tissue growth will occur at the same rate”, to which I would simply add “in the normal range of experience” which I consider is implicit in her statement.  But should I allow for a possibility outside that “normal experience”?  Again it is the risk factor which I need to consider.  It is not so remote in this case to entitle me to discount it altogether.  That would be unfair to one so young with many growing years ahead of him.  But that risk is not one of multiple revisions.  Of course there is an element of speculation but in allowing HK$20,000 I think I have bridged those shifting bases.

Psychological Counselling

41. The extent of the need for this will be determined largely by how positive the parents are.  Once full settlement has been achieved in all claims, the parents can get on with their lives on a more normal basis.  Undoubtedly negative attitudes and outlooks on their part will influence Bosco as he grows older.  The potentially adverse influence should come only from peers in his class and that too should be short-term.  The older he gets, the less likely his peers will be concerned with the fact that their classmate has a shortened finger.  There will come a time when he can say, disarmingly, that many years ago when he was a baby, an incompetent doctor was responsible for the loss of half his finger.  By then I expect his basketball skills will have outweighed such minor curiosity, in all probability.  But on a pessimistic scenario, I will allow for the cost (HK$1,500) of 25 sessions HK$37,500.  This is the suggestion of the defendant which is rather more than I would have thought necessary, as my view is that a robust psychologist, dealing with a pre-teenager or adolescent, will be able to deal with any problem over a much shorter period.

Future Care

42. Mr Hingorani has realistically conceded that he cannot sustain any claim under his head.

Loss of Future Earnings

43. I think that there is a substantial risk of exaggerating the level of any future disability for this boy as I have indicated in my earlier assessment of general damages.  I have already taken into account the fact that he may lack a degree of dexterity in his right (dominant) hand which could interfere with an aspect or aspects of his future job but the young are known to adapt to and adjust to physical limitations very quickly and comprehensively, and their limbs over the years of physical development are known to compensate for a degree of skeletal loss — and this loss is of a very low order.

44. I do not foresee any realistic interference with his future job prospects.  It is far too early to know with any confidence what type of job or career will be his aim and/or which will be most suited to his talents.

45. There is no realistic basis for a multiplier/multiplicand approach. Everything would be imponderable.  I reject the suggestion that the loss of half a finger “must expose Bosco to some loss of earnings”.

46. In Blamire v South Cumbria Health Authority (English Court of Appeal 1993 P.1Q.R.Q.1., the Court of Appeal (a very strong one) was considering an appeal from McCullough J (an extremely experienced judge in this field) concerning a 22-year-old nurse who injured her lower back which, as a consequence, became permanently vulnerable.  The court confirmed the judge’s rejection of the multiplier/multiplicand approach and approved his broad brush approach.  There the judge had some material from the adult plaintiff’s previous occupations and subsequent part-time work.  The injury sustained had actually caused loss of a career and a permanent handicap.  In Bosco’s case there is no material upon which one could safely say that there is a risk that it will prevent him from having a chosen career or one for which he was otherwise fully equipped. 

47. There is another factor which I should consider.  It would be unfortunate and potentially harmful to Bosco’s eventually mature outlook and his parents’ ambitions for him, if I were to pluck out of thin air, some nominal “broad-brush” figure which had no real basis, and which was purely speculative, but which indicated that there existed a handicap which might blight his working future.  That would simply add to any burden that expectations on the part of family would put upon him.  Accordingly I do not accept that there is any rational basis for an award under this head.

Summary

48.

Pain and suffering and loss of amenity	HK$175,000
Medical Expenses	17,258
Travelling Expenses	10,750
Tonic Food	2,000
Pressure garments etc.	5,000
Future Medical Expenses	12,000
Occupational Therapy	12,600
Treatment of stump pain	2,500
Prosthesis	20,000
Revision operation	20,000
Psychological Counselling	37,500
Sub-total	HK $314,608

Conclusion

49. There will therefore be judgment for the infant plaintiff for the sum of HK$314,608 together with costs on a common fund basis to be taxed and interest on the relevant sums at the usual rates for the appropriate periods.

50. The damages are to be paid direct into court to be invested by the Registrar of the High Court in the usual manner on behalf of a person under a disability.  The reason common funds costs is the normal award is that it is a more generous basis and means that, save in wholly exceptional circumstances, there will not be any deduction from the award for costs.  I cannot envisage such a exceptional circumstance in this infant’s case.

51. In effect I have de-consolidated these actions.  The parents claim is beset by adverse costs orders and it will have to be determined in due course upon whose shoulders such costs orders will fall.  The purpose and effect of de-consolidating the claims is to keep Bosco’s action clean and uncomplicated in that respect.

52. If the Director of Legal Aid seeks to exercise a first charge in respect of the infant’s claim then the matter will have to be argued in due course.  In the past the Director has always waived the first charge in such cases and at present I see no reason why the first charge should operate on the damages of this infant plaintiff.