KWOK CHI KUEN v. LEE CHUNG LICK

   HCPI 1058/2005

   IN THE HIGH COURT OF THE

   HONG KONG SPECIAL ADMINISTRATIVE REGION

   COURT OF FIRST INSTANCE

   PERSONAL INJURIES ACTION NO. 1058 OF 2005

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BETWEEN

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J U D G M E N T

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ASSESSMENT OF DAMAGES

1.  The plaintiff claims damages against the defendant, a qualified and practicing dentist, for negligent dental treatment given to the plaintiff by the defendant in June and July 2001, which have resulted in personal injuries to the plaintiff.

2.  Interlocutory Judgment, consented to by the defendant, was entered on 25 June 2004 with damages to be assessed.

3.  This is the assessment of damages.

BACKGROUND

4.  The plaintiff, a male, was born in Hong Kong on 21 November 1972 and was aged 28 when the negligent dental treatment by the defendant was made. The plaintiff is now 36 years at the time of this assessment hearing.

5.  The plaintiff is single. He was educated in Hong Kong up to Form 3. After quitting school in 1988 he had worked in different jobs before joining his current employer, Cathay Pacific Catering Services (HK) Ltd (“CPCS”) in 1997 as a general worker.

6.  His average income in 2001, at the time of the negligent dental treatment, was $8,342. However, his average income immediately before his sick leave in April 2005 was $7,955. The difference in income was due to various adjustments although his basic salary has remained the same throughout from 2001 to present.

7.  The plaintiff first consulted the defendant in June 2001 requesting cosmetic crowning for his teeth. The defendant agreed to carry out operation on 21 units of the plaintiff’s teeth for the purpose of installing crowns and bridges costing totally $21,000.

8.  In the first phase of the operation on 22 June 2001, the defendant had trimmed down 19 teeth of the plaintiff in order to have bridges fitted to the 21 units of teeth.

9.  On 3 July 2001, the plaintiff returned to the defendant’s clinic to have the upper and lower bridges fitted with crowns placed on the 21 units of teeth. The plaintiff was then asked to return on the following day for further adjustment. On 4 July, when the plaintiff attended the defendant’s clinic, the defendant carried out root canal treatment (“RCT”) without obtaining the specific consent of the plaintiff. Thereafter, the upper and lower prosthesis caused oral discomfort, pain and speaking difficulty to the plaintiff. Further it did not meet the plaintiff’s expectation for cosmetic appearance.

10.  It was subsequently discovered that the defendant had excessively trimmed down 11 of the 19 units of teeth and that the RCT was neither completely nor satisfactorily performed before the crown and bridges were fitted on.

11.  This was the basis of the plaintiff’s claim for negligence and which has been admitted by the defendant when he consented to Interlocutory Judgment being entered.

12.  The plaintiff’s case was that as a result, the plaintiff has continued to suffer from teethache and headache which gave him constant and severe pain and which also made him very distressed. Subsequently the plaintiff was diagnosed with depression.

13.  Before the plaintiff received treatment from the defendant, the plaintiff had enjoyed good health physically and mentally with no history of any psychological or psychiatric problem. He had good relations with his friends and enjoyed computer games, sports and fishing.

INJURIES AND TREATMENT

(a)  Dental

14.  As a result of the injuries caused to the plaintiff by the defendant, the plaintiff sought remedial treatment from a number of different dentists at different times.

15.  In July 2001, the plaintiff consulted Dr Joseph Luk and the following matters were found by Dr Luk upon examination of the plaintiff:

(a)  Teeth Nos. 15-25 and 36-45 (teeth Nos. 23 and 36 were pontics) were splint together with bulbous porcelain bridges;

(b)  the vertical dimension was increased by the porcelain bridges and the molars were not in occlusion;

(c)  there were premature contacts on teeth Nos. 14, 15 and the mandible displaced to the left hand side on closure;

(d)  the region around Tooth 32 was tender to percussion;

(e)  Teeth Nos. 11, 12, 13, 21, 22, 32, 33, 41 and 43 were endodontically treated with poor quality;

(f)  there was widening of periodontal membrane space around Tooth No. 31;

(g)  11 units out of the total 19 teeth were excessively cut down; and

(h)  RCT was not completely or satisfactorily done before fitting on the crown-bridges.

16.  Dr Luk decided to replace the prosthesis after discussing with the plaintiff. Accordingly, Dr Luk sectioned and removed the bridges fitted on teeth Nos. 36-45 and 15-25. One tooth (Tooth 32) was extracted.

17.  From 9 July 2001 to 28 April 2004, Dr Luk also carried out the following :

(a)  redid RCT for Teeth Nos. 11-13, 21-23 and 41-43;

(b)  cast post and core for the above nine teeth;

(c)  re-established occlusion by adjustment of the temporary crowns and bridges; and

(d)  also did RCT for Tooth No. 31.

18.  During the treatment by Dr Luk, the plaintiff had begun to show signs of depression and also displayed emotional and psychological problems.

19.  Apart from Dr Luk, the plaintiff had also consulted :

(a)  Dr Shum Wai Shing;

(b)  Dr Ng Chin Hong;

(c)  Professor McMillan of Prince Philip Dental Hospital;

(d)  Dr Ho Wing Chung Felix; and

(e)  Bayley & Jackson.

20.  According to Dr Ronald Chen, the specialist in psychiatry jointly appointed by the parties, this was due to the plaintiff becoming skeptical and lacking confidence in the treating dentists after a while and therefore kept switching from one to another which, according to Dr Chen, was part of the features of his depressive illness.

(b)  Psychiatric

21.  Because of his depression, the plaintiff attended Yau Ma Tei Psychiatric Centre (“YMTPC”) on 20 April 2004.

22.  Dr Tam Tin Sung of West Kowloon Psychiatric Centre stated in his medical report dated 30 April 2004 that the plaintiff looked despondent, felt helpless and was on the verge of tears. For the two years before his attendance at YMTPC, the plaintiff suffered low mood, loss of interest and capacity for pleasure, light and broken sleep, lack of concentration and indecisiveness, loss of appetite and body weight loss and had discomfort in his gums and teeth which amounted to exquisite pain. Dr Tam diagnosed depression in the plaintiff.

23.  Between 20 April 2005 to 4 June 2005, the plaintiff attended the outpatient clinic of Kwai Ching Psychiatric Hospital. The progress record showed the plaintiff to have suicidal tendency and ideation on two occasions in May 2004 and once in April 2005.

24.  The plaintiff was brought to the Accident and Emergency Department of Kwong Wah Hospital on 2 May 2005 for suicidal ideation and was diagnosed upon examination to suffer from Dysthymic Disorder. However, the plaintiff refused inpatient treatment and was as a result referred back to YMTPC for follow up.

25.  In his report dated 14 August 2007, Dr Tam stated that the plaintiff had made insubstantial progress over the course of the previous few years (from 2004 to 2007) in spite of his compliance to treatment with anti-depressant drugs of a fairly high dosage and psychotherapy prescribed by clinical psychologist.

ASSESSMENT BY EXPERTS

(a)  Dental experts

26.  Dr William Yung, the plaintiff’s expert, examined the plaintiff on 24 September 2004 and 7 October 2004 and gave two expert reports dated 10 November2004 and 17 August 2006.

27.  Upon examination of the plaintiff, Dr Yung observed the plaintiff’s complaints to be :

(a)  ugly appearance;

(b)  bleeding and discomfort to gums; and

(c)  pain and ineffective chewing surfaces on the denture teeth.

28.  Dr Yung’s findings on examination of the plaintiff revealed :

(a)  left and right bi-lateral late clicking on wide opening of Temporo-Mandibular joints (“TMJ”) noted;

(b)  upper and lower anterior gingival with noticeable inflammation and hyperplastic;

(c)  upper and lower incisors could be in light contact on centric occlusion; and

(d)  multiple interferences on the posterior teeth were observed on left and right lateral excursions.

29.  Dr Yung opined that the plaintiff has lost the natural profile of his teeth which is most important for comfort for muscles of mastication and TMJ.

30.  Dr Yung further opined that 11 units out of the 19 units required RCT which had a poor prognosis for longevity. Eight units of the remaining non-RCT crowned teeth still had a chance of losing their vitality later in life.

31.  The defendant’s expert, Dr Yeung Ka Chun, examined the plaintiff on 4 and 12 May 2005 and gave two expert reports dated 16 May 2005 and 14 June 2007.

32.  In his reports, Dr Yeung stated the plaintiff’s complaints to be (a) poor appearance; (b) fullness feeling of the upper and lower lips, and (c) pain, discomfort and bleeding.

33.  Dr Yeung made the following findings :

(a)  the plaintiff looked depressed;

(b)  his lips were big, everted and incompetent;

(c)  inconsistent bi-lateral TMJ clicking on early mouth closing without pain;

(d)  involuntary clenching of teeth on right side to produce tooth grinding sound; and

(e)  soft tissues: cheeks, tongue, floor of mouth, oral pharynx were normal except a small traumatic ulcer detected at 18 distobuccal regions.

34.  Dr Yeung formed the same opinion as the plaintiff’s expert that the dental mismanagement had caused the plaintiff to lose 19 units of natural dental anatomy, out of which 10 needed RCT and the remaining 8 might lose their vitality in future.

35.  Dr Yeung noted that the plaintiff felt the soft tissue were not comfortable and the teeth always produced tooth-grinding sounds. The plaintiff was afraid to talk to people and even refused to look in the mirror.

36.  Dr Yeung concluded that the plaintiff suffered from :

(a)  generalized regional gingival inflammation associated with overhangs, open margin and over-contoured crowns and bridges;

(b)  occlused disharmony during jaw movements; and

(c)  periapical radioluency on Tooth No. 41.

37.  As for prognosis and further treatment, the plaintiff’s expert Dr Yung opined that although the prognosis of a positive outcome in crowns and bridges work in a depressed patient was only 50%, it still justified an attempt to improve the plaintiff’s prosthesis. Dr Yung further took the view that as the plaintiff was suffering from depression, teamwork with a psychiatrist/psychologist alongside with Dr Yung’s proposed dental work was required.

38.  In terms of maintenance, Dr Yung took the view that dental service twice a year for oral hygiene and prophylaxis was required.

39.  Dr Yeung shared the same view as Dr Yung that an evaluation of the psychiatric condition of the plaintiff was mandatory before the start of the remedial treatment and that a further attempt to improve the existing shortcomings was justified. Better results in terms of aesthetic and functional occlusion was to be achieved if treatment was to be carried out by a specialist in Prosthodontics.

(b)  Joint psychiatric expert

40.  Dr Ronald Chen was jointly appointed by the parties as the joint psychiatric expert. He examined the plaintiff on 17 August 2005 and compiled three expert reports dated 5, 8 and 15 September 2005.

41.  Dr Chen found that the plaintiff suffered from :

(a)  major Depressive Disorder after the dental treatment by the defendant in 2001;

(b)  inability to resume work because of his dental problems and associated mood disturbance;

(c)  lack of confidence in his work ability;

(d)  difficulties and retardation in his daily activities including managing household tasks; and

(e)  symptoms included insomnia, feeling or worthlessness or inappropriate guilt, low self-esteem, indecisiveness, significant weight loss and fatigue or loss of energy.

42.  Dr Chen opined that the clinical picture of the plaintiff matched with the clinical picture of the Depressive Disorder, and there was no exaggeration on plaintiff’s part as to his injury and suffering. The chronic physical disability would continue to perpetuate his mood disorder.

43.  Dr Chen also opined that the dental mismanagement by the defendant in 2001 had caused impairment to the plaintiff’s work performance. Dr Chen noted that the plaintiff could not work properly because of his dental problems and the associated depression.

44.  The plaintiff had difficulty in concentrating and became indecisive at work. He lost confidence in his work ability and made mistakes at work. The plaintiff attended Kwong Wah Hospital after his suicide attempt in May 2005 jumping from height and since June 2005, as advised by his psychiatrist, the plaintiff had stopped working altogether.

45.  As for prognosis and further treatment, Dr Chen opined that although the plaintiff was (at the time of his report) suffering from depression, his rational thinking was maintained and the plaintiff was mentally fit to receive the remedial dental treatment with close support by psychiatrist and/or psychologist in order to control the plaintiff’s depressive disorder. Psychiatric treatment including both medication and psychotherapy would be necessary.

46.  Dr Chen was further of the view that the frequency for both psychiatric and clinical psychologist treatments were to be on a weekly basis for the initial three months, then every two weeks for half a year and subsequently at monthly intervals.

FURTHER TREATMENT RECEIVED BY PLAINTIFF SUBSEQUENT TO EXPERT ADVICE

47.  In March 2008, the plaintiff started to receive treatment from Dr Chung Wai Chung, a specialist in dental surgery, to carry out the remedial treatment proposed by Dr Yung. By the time of the assessment hearing, Dr Chung has completed the following :

(a)  removal of the crown and bridge work in respect of the 21 units of teeth;

(b)  a first set of temporary crowns were provided from 1 April to 21 June 2008;

(c)  long term adjustable temporary crowns were provided from 25 June to 26 July 2008; and

(d)  review and re-evaluation for one year done.

48.  Dr Chung is now reviewing the plaintiff periodically for the purpose of item (d) of Dr Yung’s recommendation.

49.  The plaintiff has also attended Dr K.Singer, a specialist in psychiatry, for treatment as from January 2008 up to June 2009. The plaintiff has stopped attending Dr Singer after June 2009 but now attends the YMTPC for follow up every six weeks.

DEFENCE OF FAILURE TO MITIGATE

50.  Before coming to deal with the individual heads of damage claimed by the plaintiff, it is essential for me to deal with the main argument raised by the defendant which is that there was delay by the plaintiff in seeking treatment.

51.  In this respect, the defendant points to the fact that after the plaintiff had received the remedial dental treatment from Dr Chung and the psychiatric treatment from Dr Singer, the prognosis now is that the plaintiff had substantially recovered both dentally and psychiatrically such that he was able to return to work in early 2009.

52.  It is therefore the contention by the defendant that had the plaintiff sought and underwent such treatment earlier, bearing in mind that such treatment had been recommended by the experts back in 2004 and 2005 when the experts gave their expert opinion in respect of the plaintiff, the likelihood was that the plaintiff would not have been off work as long as he was (from June 2005 until early 2009). Moreover, if the plaintiff had been timely in seeking such treatment, it would also have affected the amount of general damages for pain suffering and loss of amenities (“PSLA”).

53.  This defence of failure to mitigate by the plaintiff therefore affects both the issues of PSLA as well as loss of earnings claimed by the plaintiff.

54.  In deciding on the point taken by the defendant of the plaintiff’s failure to mitigate by not seeking timely treatment, I take into account the following matters.

55.  Almost immediately after the negligent treatment given by the defendant, and as early as July 2001, the plaintiff had already consulted Dr Luk with a view to putting right the injuries caused to him by the defendant’s negligent treatment. Moreover, the plaintiff had also sought opinions by a number of other dentists. In this respect the plaintiff could not have been said to have dallied with corrective treatment.

56.  As for his psychiatric condition, while it is true that the plaintiff, during the treatment given by Dr Luk, had shown signs of depression and had displayed emotional and psychological problems, and that he was advised by Dr Luk to consult psychological advice and treatment. However, it has to be borne in mind that the plaintiff, at that time, did not accept that had had any psychological problem and that Dr Luk was a dentist but not an expert in the field of psychology or psychiatry.

57.  Eventually, the plaintiff did attend YMTPC in April 2004 and did receive psychiatric treatment since that time in the public sector. The psychiatric treatment which the plaintiff received from the public sector did not in any significant way improve the plaintiff’s psychiatric condition, at least not until the private treatment given to him by Dr Singer in 2008.

58.  The defendant’s contention as to the plaintiff’s failure to mitigate in failing to receive timely treatment can therefore only relate to the treatment received by the plaintiff, both dental and psychiatric, from Dr Chung and Dr Singer respectively in 2008, after the plaintiff had obtained the expert advice from the experts in both those fields in 2004 and 2005 respectively.

59.  In putting forward the failure of the plaintiff to receive timely treatment, the defendant relied on the fact that the P.I. Master, had by her orders of 13 November 2007 and 29 January 2008 directed the plaintiff to receive the treatment recommended by the joint psychiatric expert, Dr Chen in his reports.

60.  It also came out in evidence during the cross-examination of the plaintiff that the plaintiff was only able to pay for the services of Dr Chung and Dr Singer for the further treatment received by him from moneys in court.

61.  It would appear that everything on this point as to failure to mitigate hinged on when the money paid into court (as well as its sufficiency) was first made available for the plaintiff to use in obtaining the further treatment.

62.  For obvious reasons, I have not been provided with any further detail as to the moneys in court, including when or how much money was paid into court.

63.  In this respect the only basis for me to go on would be the orders by the P.I. Master.

64.  Therefore since the very first order from the P.I. Master directing the plaintiff to receive the psychiatric treatment as recommended by Dr Chen was made on 13 November 2007, and the fact that the plaintiff did in fact receive treatment from Dr Singer starting in January 2008, the only delay, if there was any delay, would be a delay of at most two months in receiving the recommended psychiatric treatment.

65.  This cannot support the defendant’s contention that the plaintiff’s failure to mitigate affected the sick leave which started in June 2005.

66.  In the circumstances, I do not find on the facts before me that the plaintiff had delayed in seeking the further treatment as recommended even though such recommendation by Dr Chen was given by him as early as 8 September 2005 since there is no evidence before me that the plaintiff was himself financially able to meet the expenses for the further treatment in the private sector as recommended by Dr Chen.

PSLA

67.  Under this head of damage, the plaintiff claims $500,000.

68.  On the other hand, the defendant suggests that a reasonable award should be only $300,000 on the basis that the plaintiff has delayed in seeking treatment and thereby failed to mitigate his loss. That defence of failure to mitigate has already been dealt with above in this judgment and rejected.

69.  I have been referred by the plaintiff to the case of Leung Chau v Incorporated Owners of Kwai Wan Industrial Building (HCPI 1074/1998) in which PSLA award of $500,000 was made as a result of an injury resulting in fractured bones in the plaintiff’s face affecting his teeth and ability to breathe. After an emergency operation to clear his airway, and hospitalization for three weeks, the plaintiff was left with a depressed cheek bone, had difficulty in chewing food properly, poor teeth condition and slurred unclear speech. His facial injury also affected him both mentally and psychologically.

70.  In Cheng Man Chi v Dr Tam Kai Tai Carl (HCPI 1094/2006) the plaintiff suffered not dissimilar injuries to our present case as a result of negligent dental treatment including psychiatric depression for which she needed to receive treatment. There, the PSLA award was agreed by the parties at $700,000.

71.  Given the injuries, disabilities and condition of the present plaintiff and taking into account the award made in Leung Chau’s case, the claim by the plaintiff for $500,000 in the present case is more than reasonable and will be allowed.

PRE-TRIAL LOSS OF EARNINGS AND MPF

72.  The major dispute here between the parties is the failure of the plaintiff to mitigate by delay in seeking treatment. That issue, having been decided above against the defendant, I shall assess the pre-trial loss of earnings and MPF of the plaintiff to be as follows.

73.  The plaintiff’s total annual income for the year 2004/2005 was $95,460. This included his basic salary as well as other payments which he was entitled to.

74.  The plaintiff was on sick leave since June 2005 and only resumed work in late January 2009 with the same employer, namely, CPCS.

75.  When his sick leave started in June 2005, the plaintiff still received his full salary due to the fact that he had accumulated 120 days of paid leave. It was only as from 28 August 2005 that the plaintiff ceased to receive his full salary, but was on sick leave pay. From January 2006 onwards, the plaintiff was only given a 4-day salary payment per month based on his basic salary.

76.  As can be seen from his tax returns, the plaintiff’s total income for the four years from 1 April 2005 to 31 March 2009 came to totally $117,464.

77.  The plaintiff’s loss of earnings for the four years from 1 April 2005 to 31 March 2009 is therefore calculated as :

($95,460 x 4) – $117,464 = $264,376.

78.  After the plaintiff had resumed work in late January 2009 with CPCS, he was unable to carry out his full duties. As a result, the plaintiff has suffered some partial loss of earnings.

79.  A letter from his employers dated 4 September 2009 showed the plaintiff’s total income from May 2008 to August 2009 to be $72,293.

80.  His total income for the year 2008/2009 as shown in his tax return came to $37,675. This figure included the income for April 2008. An adjustment will need to be made since the letter of 4 September 2009 was only from May 2008 to August 2009.

81.  There is documentary evidence to show that for the month of April 2008, the plaintiff’s basic salary was $6,468 and also that for that same month, no-pay sick leave of $5,390 was deducted from his basic salary.

82.  Thus in order to calculate the plaintiff’s earnings for the period of five months from 1 April 2009 to 31 August 2009, it will be necessary to deduct $37,675 from $72,293 and then to make the adjustment by adding the basic salary of $6,468 and deducting from it the no-pay sick leave of $5,390 which comes to $35,696.

83.  On average therefore his monthly income for those five months was $7,139.

84.  Using his total annual income of $95,460 for the year 2004/2005, it can be seen that his pre-accident monthly earnings came to $7,955.

85.  Accordingly, the partial loss of monthly earnings from 1 April 2009 was $7,955 – $7,139 = $816.

86.  For the eight months from 1 April 2009 to judgment, the partial loss of income comes to $6,528.

87.  The total pre-trial loss of earnings therefore comes to $264,376 + $6,528 = $270,904. Adding on the loss of MPF will give $284,449.

OTHER SPECIAL DAMAGES

88.  There is no dispute between the parties in respect of expenses incurred by the plaintiff towards Prince Philip Dental Hospital ($45); Kwai Chung Hospital/Yaumatei Psychiatric Centre ($4,900); Kwong Wah Hospital ($100); and Dr Jeannie Wong ($1,677).

89.  The above four items, having been agreed between the parties, totals $5,362, and will be allowed.

90.  The following items of special damages are disputed by the defendant :

(a)  payment to Dr Luk Chi Wing, originally claimed at $149,720, was reduced to $147,860, the plaintiff having conceded that $360 (for scaling and toothpaste) and $1,500 (for root canal treatment to tooth No. 31) should not be included in the claim;

(b)  payment to Dr Ng Chi Hong at $4,900;

(c)  payment to Dr Ho Wing Cheung at $1,000;

(d)  payment to Bayley & Jackson at $150;

(e)  payment to Dr Chung at $253,700;

(f)  payment to Dr Singer at $119,410; and

(f)  travelling expenses at $4,550.

91.  Items (a) to (d) above can be dealt with together since they relate to the treatment sought by the plaintiff from Dr Luk in an attempt to put right what was done by the defendant and the secondary opinions sought from other dentists in respect of what was done by Dr Luk.

92.  Items (a) to (d) are disputed by the defendant on the basis that these expenses were not caused by the negligent treatment given by the defendant.

93.  The argument of the defendant is that from the report of both Dr Yung and Dr Yeung, it is clear that both experts took the view that Dr Luk should not have provided the treatment which he did in the first place. From this the defendant submitted that the treatment given by Dr Luk was defective and that the work done by Dr Luk were not remedial of the negligent treatment given by the defendant.

94.  It was also submitted by the defendant that the work (and therefore the charges charged) done by the other dentists to whom the plaintiff went for second opinions were all related to the defective treatment of Dr Luk.

95.  Accordingly, the defendant submitted that the charges paid to Dr Luk as well as the other dentists from whom the plaintiff sought second opinions, were not expenses which were caused by the negligent treatment given by the defendant.

96.  I am unable to accept that submission by the defendant for the following reasons.

97.  Firstly, both Dr Yung and Dr Yeung in their respective expert reports referred to the treatment given by Dr Luk as “remedial treatment” and it is also clear in both their reports that they are both in agreement that the treatment given by Dr Luk to the plaintiff was remedial of the treatment given by the defendant.

98.  It is pertinent to note in this respect that Dr Yung in his report dated 10 November 2004 stated as follows :

“On July 9, 2001 dissatisfied with the just made upper and lower fix prosthesis, he [the plaintiff] attended Dr Joseph Luk’s dental clinic.  At Dr Luk’s clinic, most of the work done by Dr Lee [the defendant] was replaced and redone.”

99.  Dr Yeung in his report dated 16 May 2005 stated :

“A few days later, i.e. 9^th July 2001, he [the plaintiff] sought advice from Dr Luk Chu Wing as the patient could not tolerate the symptoms.  At Dr Luk’s clinic all the dental work done by Dr Lee [the defendant] were replaced and re-done…”

100.  It is therefore clear that both experts, Dr Yung and Dr Yeung, were of the same view that the work done by Dr Luk was replacing and redoing the work done by the defendant. In other words remedial of the treatment performed by the defendant.

101.  From the above, it can clearly be seen that both experts are agreed that the treatment given by Dr Luk was to replace and redo what was done by the defendant. Accordingly, the treatment given by Dr Luk must be a direct consequence flowing from the negligent treatment of the defendant.

102.  Secondly, while it is true that Dr Yung in his report, when commenting on Dr Luk’s remedial work, stated that a general dental practitioner (which Dr Luk is) is not trained and is not expected to be able to handle and remake cases of REORGANISED OCCLUSION (which the plaintiff’s case is) as well as being critical of a number of aspects of the work done by Dr Luk, concluding that there were “multiple shortcomings in Dr Luk’s final remake crowns and bridges work”, Dr Yung, however, did not use the word “defective” to describe the treatment given by Dr Luk.

103.  Likewise, Dr Yeung, when commenting on the work done by Dr Luk, also did not use the word “defective” to describe such treatment. In fact, Dr Yeung had this to say of Dr Luk’s work :

“The quality of the existing crowns and bridges work and endodontic treatments of the patient are not too bad for an average dentist.  But it could be better in term of aesthetic and functional occlusion if the works were provided by a trained prosthodontist.”

104.  Given the above matters and also bearing in mind that Dr Yeung is the defendant’s dental expert, I am unable to accept the submission by the defendant that the treatment given by Dr Luk was defective work. I also do not accept that the treatment given by Dr Luk was not remedial of the negligent treatment given by the defendant.

105.  The fact that the treatment given by Dr Luk was not as good as it might have been, or could have been better cannot assist the defendant on the issue of causation.

106.  In law, a plaintiff is required to act reasonably after having suffered an injury.

107.  In the Scottish case of Rubens v Walker (1946) SC 215, in an action brought by a father claiming damages for injuries sustained by his child in an accident, medical experts in London, after taking X-rays, opined that the X-rays showed a fracture and subluxation of the cervical vertebrae, and on such advice the child was subjected to prolonged treatment. The expenses so incurred were included in the claim. The defendant in that case objected to such expenses on the grounds that there had been no fracture or subluxation and such treatment was unnecessary. Expert evidence was adduced by the defendant to support this view.

108.  It was held by Lord Patrick that although the plaintiff had failed to prove any fracture or subluxation, he was nevertheless entitled to recover the disputed expenses in because they had been incurred honestly and reasonably.

109.  In his judgment Lord Patrick said as follows :

“In a former and very similar case Buntine v Caledonia Stevedoring Co., June 15, 1944, unreported, I followed the dictum of Lord Collins in Clippens Oil Co., 1907 SC (HL) 9, at p.14, where he said: ‘The wrongdoer is not entitled to criticize the course honestly taken by the injured person on the advice of his experts, even though it should appear by the light of after events that another course might have saved loss.  The loss he has to pay for is that which has actually followed under such circumstances upon his wrong.’  See also per Lord Dunedin in S.S. ‘Baron Vernon’ 1928 SC (HL) 21, at p.28.  I said then, and see no reason to modify the statement, that this passage must surely apply where a pursuer is reduced by a defender’s fault to a state in which medical diagnosis of his condition is difficult and fraught with the chance or error.  The pursuer is then entitled to act on the advice of his experts, and the defender must pay the cost of that acting….In my opinion, it is a reasonable and probable consequence of a wrongdoer’s breach of duty that a person hurt thereby will incur expense in following the treatment prescribed by reputable experts employed by him to cure him.  Each case must be decided on its own merits.  The result might be very different if the injured person acted on the advice of a quack, or if, considering all the advice he had received, no reputable person would have taken the course he did.”

110.  In the present case, I am unable to see how the plaintiff could be said to have acted unreasonably in consulting Dr Luk, a qualified and practicing dentist, and receiving treatment from him.

111.  There is nothing in the evidence which would suggest that after receiving the injury arising from the negligent treatment given by the defendant, the plaintiff was alerted or put on notice that such injury warranted intervention by a specialist instead of a general dental practitioner. After all, the defendant was himself also a general dental practitioner and not a specialist.

112.  As for the charges paid to the other dentists where the plaintiff attempted to seek second opinions from them, that showed the plaintiff to have been wholly reasonable in seeking second opinions from other dentists when he was not entirely sure of the treatment given by Dr Luk.

113.  Moreover, there is evidence which showed that after the plaintiff had consulted the Prince Philip Dental Hospital for a second opinion, he was referred back by the Prince Philip Dental Hospital to continue his treatment with Dr Luk.

114.  Given all the circumstances of this case, the plaintiff cannot be faulted for obtaining or continuing his treatment with Dr Luk.

115.  I therefore find that the costs and expenses paid to Dr Luk and to the other dentists from whom the plaintiff also consulted or sought second opinions to have been reasonably and honestly incurred by the plaintiff and were incurred as a direct consequence flowing from the negligent treatment given by the defendant.

116.  Turning now to deal with the claim in respect of the $253,700 paid to Dr Chung, being item (e) above under this head of claim. This amount covers only the first four items of treatment as contained in the attachment to Dr Chung’s letter dated 9 March 2008 to the plaintiff’s solicitors (pages 118 and 119 of Trial Bundle refers). The remainder of those treatment items will be dealt with under the heading Future Medical Expenses in the later part of this judgment.

117.  The above amount of $253,700 having already been paid to Dr Chung is now claimed as special damages, a receipt for which appears at page 258 of the Trial bundle.

118.  The defendant does not dispute items 1 and 3 being $25,200 and $126,000 respectively for the removal of 21 units of crowns and bridges and for long term adjustable composite on metal Temporaries.

119.  Only items 2 and 4 (being $52,500 for first set of temporary crowns and $50,000 for review and re-evaluation sessions for one year respectively) are disputed by the defendant.

120.  The basis of the defendant’s objection appears to be that items 2 and 4 were not items of treatment suggested by Dr Yung and Dr Yeung, the two dental experts.

121.  However, in respect of item 2, Dr Yung’s report dated 10 November 2004 in paragraph 8(ii) thereof, clearly states that “More than one set of temporaries may be necessary for ease of changes”. On that footing, the provision of the first set of temporary crowns cannot be said to be unreasonable.

122.  Likewise in respect of item 4, it is implicit in both reports of the experts that regular consultations are required for the proposed treatment plan for the prosthodontist to check and adjust the crowns.

123.  Given the overall circumstances, I am not prepared to entertain the objection by the defendant on this aspect of special damages relating to the charges already paid to Dr Chung.

124.  I turn now to deal with the $119,410 paid to Dr Singer. Such amount having been incurred was confirmed by Dr Singer by letter dated 3 September 2009 enclosing therewith a summary of the charges (pages 259 to 263 of Trial bundle refers).

125.  The objection by the defendant to the amount claimed was put on the basis that the charges paid to Dr Singer should only include 40 sessions as confirmed by Dr Singer. In this respect, the defendant points to a letter from Dr Singer dated 10 March 2008 to the plaintiff’s solicitors to the effect that in an earlier letter, Dr Singer had estimated 20 sessions with the plaintiff, but states that the experience with the plaintiff to date has shown that the plaintiff will require 30, preferably 40 sessions. The defendant also relies on a second letter from Dr Singer dated 3 May 2008 wherein Dr Singer, after 13½ sessions with the plaintiff, recommended the plaintiff to have a total of 40 sessions to attain MMI (Maximal Medical Improvement). There is also a letter dated 3 June 2008 from Dr Singer confirming that his recommendation for 40 sessions still hold good.

126.  The summary of charges attached to Dr Singer’s letter of 3 September 2009 showed that Dr Singer had an initial three sessions with the plaintiff which did not include medicine. Thereafter, Dr Singer had a further 48 sessions with the plaintiff for which the charges included medicine. These sessions the plaintiff had with Dr Singer spanned from 31 January 2008 until 1 June 2009.

127.  On the basis of the above, the defendant objects to the charges paid to Dr Singer over and above the 40 sessions recommended by Dr Singer.

128.  It can be seen that initially Dr Singer had only recommended 20 sessions, that estimate was later revised to 40 sessions. Even then, the 40 sessions recommended could only have been an estimate by Dr Singer. Ultimately, Dr Singer had totally 51 sessions altogether with the plaintiff and payment was made on the basis of those 51 sessions.

129.  The fact that Dr Singer had recommended and thought, even as late as June 2008, that 40 sessions would be sufficient, does not make it unreasonable that the plaintiff ended up having to have 51 sessions with Dr Singer. After all, Dr Singer being the treating doctor was in the best position to decide how many sessions were necessary.

130.  Once again I do not entertain the objection by the defendant that anything over and above the 40 sessions recommended would be unreasonable given that it was an ongoing process which went on until June 2009. It would be far too naïve to expect, even an expert, to be able to gaze into a crystal ball and say with absolute certainty well before the conclusion of the treatment process as to exactly how many sessions would be required.

131.  The total amount paid to Dr Singer for the 51 sessions will be allowed as being reasonable.

132.  As for travelling expenses, the plaintiff claims $4,550. The defendant is only prepared to allow $1,500.

133.  As a rough indication, the plaintiff had attended the Kwai Chung Hospital and Yaumatei Psychiatric Centre on no less than 53 occasions. He had also to attend Dr Luk’s clinic during the period July 2001 throughout to April 2004. The plaintiff also had some 51 sessions with Dr Singer as well as attending Dr Chung for the remedial dental treatment. All these attendances would require travelling expenses to be incurred.

134.  Given the time span for the remedial treatment underwent by the plaintiff both dental and psychiatric, including those received from Dr Luk, the amount claimed by the plaintiff is wholly reasonable and will be allowed in full.

135.  The total of special damages comes to $536,932.

FUTURE LOSS OF EARNINGS

136.  There is evidence that the plaintiff will need a further two years to complete his psychological treatment.

137.  Given that his partial loss of earnings at the time of the trial is $816 per month (i.e. $7,955 – $7,139), the future loss of earnings together with loss of MPF for two years is worked out as :

$816 x 24 months x 1.05 = $20,563.

$20,563 is therefore assessed for future loss of earnings and MPF.

LOSS OF EARNINGS CAPACITY

138.  There is a claim by the plaintiff for $100,000 for loss of earnings capacity on the basis that if in future the plaintiff loses his present employment, there will be a risk of financial loss due to his disadvantage in the labour market.

139.  While there is some evidence that the present employer of the plaintiff did issue warning to the plaintiff one month after he resumed working with them in the early part of 2009, the explanation given by the plaintiff’s legal and medical advisers to CPCS seems to have satisfied CPCS that the plaintiff is not back to full working capacity and nothing more has come of such warnings to the plaintiff by CPCS.

140.  Moreover, CPCS has stuck by the plaintiff throughout the time when the plaintiff was on sick leave from June 2005 until he resumed working with them in late January 2009.

141.  Given that the only impairment to the plaintiff now is his psychological condition but which had improved significantly after treatment by Dr Singer in the first half of 2008, it does not appear to me that the plaintiff faces any real risk of disadvantage in the labour market.

142.  Moreover, the amount of the claim, when looked at against the whole picture as well as the amount assessed for loss of future earnings, appears to be somewhat disproportionate given the circumstances in this case.

143.  Accordingly, and for the reasons given, there will be no award assessed under this head.

FUTURE MEDICAL EXPENSES

144.  Despite what had been pleaded in the Revised Statement of Damages, the plaintiff has now relegated its claim under this head of damage to only the following :

(a)  $252,200 being the total costs for 21 sets of individual poly-ceramic on titanium crowns (at $12,000 for each crown);

(b)  $2,200 being the costs for periodontal prophylaxis and X-ray;

(c)  $10,000 agreed between the parties being provision for endodontic failure for teeth No. 13; and

(d)  $78,000 being the costs of psychological intervention for two years in the private sector.

145.  Totally, the plaintiff claims $342,400 under this head of damage.

146.  Items (a) and (b) above, as well as the amount stated, were the recommendations of Dr Chung enclosed with his letter dated 9 March 2008. However, the recommendation, in so far as item (a) is concerned, differed from that recommended by Dr Yung and Dr Yeung in that both experts (i.e. Dr Yung and Dr Yeung recommended porcelain (but not poly-ceremic) to be used for the crowns.

147.  The defendant is prepared to accede to an amount of $210,000 on the basis that porcelain was the material used.

148.  In my view, this concession by the defendant is a reasonable one and item (a) will be assessed at $210,000.

149.  Items (b) and (c) above have been agreed between the parties, same will be allowed.

150.  Dealing now with item (d) above, the plaintiff’s basis for the claim is that Dr Chen has recommended for the two years of psychiatric/psychological intervention in the private sector.

151.  That recommendation of Dr Chen was made in his supplementary report dated 8 September 2005.

152.  Given that the plaintiff has already received psychiatric treatment from Dr Singer in the first half of 2008, and which has made substantial improvement to the psychiatric condition of the plaintiff such that it has enabled the plaintiff to return to work in early 2009, and in the absence of any further expert evidence that further psychiatric or psychological treatment for the plaintiff was considered necessary, I take the view that the recommendation of Dr Chen contained in his supplementary report dated 8 September 2005 has already been overtaken by events, namely the treatment given to the plaintiff by Dr Singer in 2008, albeit that the treatment given by Dr Singer was only of about six months duration.

153.  In the circumstances, I am not prepared to include the claim of $78,000 being future costs of psychiatric or psychological treatment.

154.  The total amount assessed under this head of claim comes to $222,200.

INTERESTS

155.  Interests will be awarded on general damages awarded for PSLA at 2% p.a. from the date of the Writ.

156.  Interests on pre-trial loss of income and other special damages will be awarded at half judgment rate from the date of the accident, save that since there is evidence that the payments made to Dr Chung and Dr Singer included in the special damages came from moneys held in court, those amounts will not be taken into account for the purpose of calculating interests.

SUMMARY OF ASSESSMENT

CONCLUSION

158.  Accordingly, damages having been assessed totally at $1,771,973 above, there will be judgment for the plaintiff in that amount.

COSTS

159.  There will be a costs order nisi that the costs of the assessment be paid by the defendant to be taxed if not agreed.