TANG CHI WA v. DR ALBERT Y.H. CHAN

HCPI 482/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.482 OF 2002

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J U D G M E N T

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INTRODUCTION

1. In this matter, the plaintiff who had been suffering from the effects of an injury to his left shoulder and neck which he had sustained at work on 3 October 2000, consulted the defendant who is a medical practitioner. After about six weeks, by which time the pain had not subsided, the defendant advised him to undergo a course of injections which started on 28 November with a view to relieving his pain. On 7 December 2000, the plaintiff again attended the defendant's consulting rooms and was given the fourth such injection by the defendant's nurse. This was administered to his right buttock. Unfortunately, it was done in such a way that it caused damage to his right sciatic nerve which in turn caused "foot drop", a condition which will now be permanent.

2. The plaintiff has brought this action for damages for personal injury based on the negligent administration of the injection by the nurse, for whose actions the defendant is said to be vicariously liable. The Writ was issued on 7 June 2002 and on 16 July 2002, interlocutory judgment was entered, in circumstances where the defendant had failed to enter an appearance, with damages to be assessed. I am now required to assess those damages.

THE PLAINTIFF

3. The plaintiff is 27 years old, having been born in China on 19 November 1975. He is single and was educated in China up to Form 3. He came to Hong Kong in 1991 when he was 16 and initially worked as a salesman at a Chinese medicine shop for about a year. Thereafter he changed employment to work as a trainee-surveyor on building sites. In 1996, he was promoted to the post of surveyor and on 12 April 2000 he started a job with Hyundai Engineering & Construction Limited ("Hyundai") which is a major Korean concern. His average earnings were $20,000 a month. He worked long hours from 8 a.m. to 7:30 p.m. for 28 days each month. This employment required climbing up and down buildings, using both internal staircases and scaffolding. His shoulder injury, with which I am not directly concerned, was sustained in the course of this employment.

4. I must describe the effects of the damage to his sciatic nerve more fully presently but suffice to note at this stage that before the negligent administration of the injection, the plaintiff enjoyed an active social life - he went to discotheques once a week on average and enjoyed dancing there, as well as occasionally going for country walks and jogging with friends. He would also indulge in occasional games of basketball.

THE INJURY

5. I have had the benefit of a number of medical reports from the Caritas Medical Centre where the plaintiff was treated following the injection. Almost immediately after the injection, he felt acute pain at the site of the injection and shortly after that weakness and numbness of the lower part of his right leg. The hospital provided physiotherapy but the medical staff also realized that something more serious had occurred. As a result, he was admitted on the same day until 9 December. The diagnosis was right "foot drop" and right sciatic nerve palsy. He was provided with a splint to prevent foot drop. On 20 December, there was a further period of admission for seven days. Physiotherapy was provided but to no significant effect.

6. I also have the advantage of a report dated 30 November 2001 from Mr Michael Lau FRCS, a specialist orthopaedic surgeon. It serves to confirm that foot drop will be permanent as will be the wearing of a foot brace or splint which prevents "the drop" and enables the plaintiff to walk relatively normally and for fairly long distances. He was able, at my invitation, to demonstrate his walking ability in the well of the court. His gait appeared to be reasonably good although a slight abnormality was detected. On examination, Mr Lau found, weakness of the lower right leg. Knee flexion was 4+/5 and 0/5 on ankle extension, sub-talar eversion and toe extension. He has come to the view that the plaintiff can no longer "run or play sports at the pre-accident level". As to earning capacity, Mr Lau has expressed the view, which I accept, that the plaintiff can no longer return to his pre-accident employment because this involves climbing stairs, ladders and scaffolds. He will be able to take up less physically demanding work in an office or as a sales assistant, store keeper, caretaker and so forth.

THE POST-INJURY CIRCUMSTANCES

7. The plaintiff was given sick leave for this matter until 4 December 2001 and for the shoulder injury, which predates this by some two months, for a longer period up to 28 February 2002. Once the sick leave expired, he returned to his job with Hyundai until 3 October 2002 when they terminated his employment, citing :

"The natural reduction in workforce required as this project comes to a close.".

In their letter to him, they referred to his contribution to the project and assured him that the termination was no reflection on his abilities. Mr Wong, who appears for him, does not accept this and submits that the real reason was the fact that he had made a claim against them in respect of the shoulder injury which has yet to come to court and that just prior to his termination his loss of earning capacity had been re-assessed upwards by the medical board. It is impossible for me to come to a view on this and I ought, therefore, to take this letter at face value. The fact is that since his termination, he has remained unemployed. He has made a number of efforts to find work but so far without success. This is not entirely surprising, having regard the economic climate and now considerably exacerbated by the permanent disability to his right foot. I accept that he is now unlikely to find work in the building industry as a surveyor, requiring as it does, a degree of mobility which is now diminished in his case. Any potential employer is likely to choose a fully-fit applicant over the plaintiff despite the fact that the plaintiff is now a fairly experienced surveyor who has also got some paper qualifications under his belt. This will of course have to be reflected in his loss of future earnings claim to which I will come in a moment. From that general review I must now turn to the various heads of claim.

THE OTHER ACTION

8. Some elements of the claim in this action have also been brought in identical terms or at the very least on an overlapping basis in the other action which relates to his neck and shoulder injury. It seems to me that it would not be right to visit this particular defendant with the entire amount of these claims and, in effect, let the other defendant go scot-free and so I propose to arrive at an apportionment and make this clear in the course of the judgment, so that whoever is required to assess damages in respect of the other action will have regard to what I have done in this matter and reflect it on quantum in that other action.

PAIN, SUFFERING AND LOSS OF AMENITY

9. This was an unpleasant occurrence which has left the plaintiff with a permanent disabling condition. Although the pain has not been prolonged or in any sense excruciating, the consequences of the negligence which are permanent must be the principle feature which ought to sound in damages under this head. The plaintiff is still a young man who would have looked forward to many years of indulging himself in his favourite pastimes such as dancing at discotheques and going on long country walks as well as playing basketball with his friends. These activities, although perhaps not completely unavailable to him, have been very seriously curtailed. Added to this, he will now be required to wear a brace all the time. I had an opportunity of looking at the brace in the course of the hearing and although it is not specially unsightly, I can well imagine that the plaintiff would feel inhibited in wearing shorts, particularly during the summer months. Fortunately, it is otherwise completely covered by his trousers. He is also able to wear ordinary footwear although perhaps of a larger size than he would normally expect to wear.

10. I have been referred to two comparables which, on this occasion, I have found especially helpful where so often one is referred to injuries which are substantially dissimilar to the ones that one is having to deal with in the particular case. Both of the comparables referred to identical injuries caused in precisely the same way. The first is the case of Cheung Chun Wing v. Szeto Sau Ha & Another [2000] 3 HKLRD J10 (Master de Souza) where $480,000 was awarded under this head. The other is Choy Chung Shing v. Dr Ng Hon Chun, HCPI 201/1998 (Master Barnes) where she awarded $436,000. I accept Mr Wong's submission that this case falls at the low end of the serious injury category established in the case of Chan Pui Ki v. KMB [1995] 3 HKC 733. Having particular regard to the permanent nature of the disability and the diminution in "amenity", I award the plaintiff $440,000 under this head.

PRE-TRIAL LOSS OF EARNINGS

11. There are two elements to this aspect. Following this matter the plaintiff was given sick leave and was paid 80% of his basic monthly earnings. The period that I am concerned with is 7 December 2000 until 4 December 2001. It should be remembered that the sick leave in respect of the shoulder and neck injury started on 3 October 2000 and expired on 28 February 2002 and that this period and the injury which required that sick leave relates to the other action. The calculation which I accept is as follows :

($21,837 x 12) This being what he was earning at the time -
($20,000 x 12 x 80%) = $48,000.

I indicated earlier that I did not think it right to award the whole of this amount against this defendant and I will make an apportionment so that this element is shared between this defendant and Hyundai, the defendant in the other action. So damages under this head will be $24,000.

12. The next element relates to the period following his termination on 3 October 2002 until 2 April 2003 being, a period of six months. This is put forward on the basis that the plaintiff should be given a reasonable period to find other employment and therefore should be compensated at the rate that he was earning. On reflection, in respect of this head of claim, I take the view that this is not something that can properly be laid at the door of this defendant. The logical basis for the claim is that the plaintiff was terminated by the employer because of his disability rather than on the basis of their expressed view that they did not require his services any longer because of the impending completion of the particular project that he was employed on. This is something that will need to be tried between the plaintiff and Hyundai in the other action and I am not disposed to award anything against this defendant in the absence of a finding that the disability caused by this defendant's negligence in any way contributed to the premature termination of his employment. Accordingly, I award nothing under this head.

FUTURE LOSS OF EARNINGS

Multiplicand

13. The claim is put on the basis that the appropriate multiplicand should be $15,837, that is obtained by deducting $6,000 which is said to be his present earning capacity, from his last earnings with Hyundai which were $21,837. It seems to me that I need to take a much broader approach to this matter. Even without the defendant's negligence, there is no basis for saying that a plaintiff would have continued to earn at the rate of $21,837. The likelihood, given the downturn in the economic climate, is that he would in fact have become unemployed and if he were to become re-employed that his salary would have been considerably less than $21,837. He told me in the course of his evidence that he applied for a job as a surveyor after he had been terminated by Hyundai and those employers were offering $18,000 a month. It seems to me in the absence of any hard and fast figures that I should tread carefully in this matter and I have come to the view that but for the defendant's negligence, the plaintiff might have been expected to earn something in the order of $17,000 a month overall. I have no precise figures as to what his present earning capacity is simply because he has not being able to find employment and so I have to do my best on the available material. The plaintiff comes over as an able individual who has the capacity to hold down a responsible job. He has already demonstrated that since he became a surveyor and has been able to obtain a number of paper qualifications in that occupation. I am confident that at the very least he should be able to hold down some responsible office job. There is no doubt that he has suffered a loss in earning capacity. I am satisfied that he will be able to earn, once he finds employment, at the rate of $10,000 a month. In the circumstances, I am going to adopt a multiplicand of $7,000 being the difference between $17,000 and $10,000.

The multiplier

14. The plaintiff is a young man; 26 at the time of the accident and now aged 27. Mr Wong has shown me the cases of Ng Tat Ping v. Cho Shui Leung [2001] 2 HKLRD F11, where Master Yuen adopted a multiplier of 16 for a male plaintiff aged 26 at the time of trial and the case of Wong Chi Sing v. Argos Engineering & Heavy Industries Co. Ltd & Others [1993] HKLY 477, where a multiplier of 15 was adopted for a male plaintiff aged 31 at the date of trial, and lastly Tsang Wah Lam v. Sun May King Publishing Co. Ltd, HCPI 843/2000 (unreported) where Judge Longley (sitting as a Deputy High Court Judge) applied a multiplier of 15 for a 28-year-old at the date of accident and 31 at the date of trial. It seems to me reasonable that I should apply a multiplier of 15.

15. Accordingly, the award will be $7,000 x 12 x 15 = $1,260,000.

LOSS OF RETIREMENT BENEFIT

16. The basis of the claim is the plaintiff has lost his retirement benefit which equals 5% to his earnings since 1 December 2000. Calculation is on the basis of 5% of his future loss of earnings and so 5% of $1,260,000 = $63,000 which I award under this head. There is also a small element for the past loss which is an insignificant amount now that I have declined to allow anything in respect of the period from 3 October to 1 April 2003. This element of the claim will need to be pursued against the employer rather than this defendant.

LOSS OF EARNING CAPACITY/HANDCAP IN THE LABOUR MARKET

17. In view of the fact that I have awarded the plaintiff a substantial amount for future loss of earnings, it is not appropriate that I should make any award in respect of this part of the claim. This is particularly so in a case such as this where the plaintiff has already been awarded general damages to cover future loss of earnings. Accordingly, I decline to make any award under this head.

SPECIAL DAMAGES

18. The plaintiff has incurred the following special damages :

(1)	Medical expenses
(a)	Hospitalisation at CMC from 7 December 2000 to 9 December 2000	HK$136.00
(b)	Hospitalisation at CMC from 20 December 2000 to 26 December 2000	HK$476.00
(c)	Follow-up treatment at O & T Department of CMC on 13 occasions from 19 December 2000 to 4 October 2002	HK$572.00
(d)	Physiotherapy treatment at CMC on 79 occasions from 7 December 2000 to 16 April 2002	HK$3,476.00
(e)	Follow-up treatment at Prosthetic & Orthotic Department of CMC on three occasions from 6 November 2001 to 23 October 2002	HK$132.00
(f)	Dr Kwok Che Cheung on 16 September 2002	HK$170.00
(g)	Yan Wai Chuen Clinic on 7 December 2000	HK$250.00
(h)	Bonesetter treatment by two bonesetters at Sham Shui Po and Yuen Long on four occasions from 7 December 2000 to 10 December 2002	HK$760.00
(i)	Bonesetter treatment on different occasions by 20 bonesetters in China from 7 December 2000 to 10 December 2002	RMB5,000.00
(j)	Medical treatment at different hospitals or clinics in China from 7 December 2000 to 10 December 2002	RMB2,000.00
(k)	Treatment at Hospital Kiang Wu on 19 November 2001	HK$38.00
	Total :	HK$6,010.00	&
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		RMB7,000.00
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(2)	Travelling expenses
(a)	Hospitalisation at CMC from 7 December 2000 to 9 December 2000 (from Yan Wai Chuen Clinic to CMC by bus and taxi)	HK$25.00
(b)	Hospitalisation at CMC from 20 December 2000 to 26 December 2000 (from home to CMYC by taxi)	HK$50.00
(c)	Follow-up treatment at O & T Department of CMC on 13 occasions from 19 December 2000 to 4 October 2002 (round trip by MTR - $5.6 x 13 x 2)	HK$145.60
(d)	Physiotherapy treatment at CMC on 79 occasions from 7 December 2000 to 16 April 2002 (round trip by MTR - $5.6 x 79 x 2)	HK$884.80
(e)	Follow-up treatment at Prosthetic & Orthotic Department of CMC on three occasions from 6 November 2001 to 23 October 2002 (round trip by MTR - $5.6 x 3 x 2 )	HK$33.60
(f)	Yan Wai Chuen Clinic on 7 December 2000 (by bus - $6.60)	HK$6.60
(g)	Bonesetter treatment by two bonesetters at Sham Shui Po and Yuen Long on four occasions from 7 December 2000 to 10 December 2002 (round trip by MTR and by bus - $4.60 x 2 x 2 + $10.70 x 2 x 2)	HK$61.20
(h)	Bonesetter treatment on different occasions by 20 bonesetters in China and medical treatment at different hospitals or clinics in China from 7 December 2000 to 10 December 2002 (by train and by bus)	RMB979.00
(i)	Treatment at Hospital Kiang Wu on 19 November 2001 (round trip by ferry to and from Macau)	HK$400.00
	Total :	HK$1,606.80	&
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		RMB979.00
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(3)	Tonic food	HK$4,135.00

I am satisfied that all these are reasonable claims in the circumstances and that they have been sufficiently proved by the plaintiff. Accordingly, the total special damages is HK$11,752 and RMB7,979.

SUMMARY

General damages

Interest

20. There must be interest on general damages from the date of the Writ to the date of judgment at 2% per annum and interest on pre-trial losses and special damages at half the judgment rate, being 4% per annum from the date of the accident (7 December 2000) to the date of the judgment.

COSTS

21. The plaintiff must have his costs of this assessment to be taxed on a party-and-party basis together with legal aid taxation.