CHEUNG HAY SHING v. DR PANG KA HUNG PETER AND ANOTHER

HCPI 428/2019

[2026] HKCFI 2386

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 428 OF 2019

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J U D G M E N T

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1.  The plaintiff (“Mr Cheung”) was a patient under the care of the 1^st defendant (“Dr Pang”) and the Adventist Hospital Tsuen Wan (“the Hospital”) for a surgery operated back in December 2016. He commenced this action against Dr Pang and the 2^nd defendant, which was and is the management body of the Hospital, for alleged negligence in the pre-operation advice and the execution of the operation. The claim against the 2^nd defendant was subsequently discontinued. This is the trial of the action between Mr Cheung and Dr Pang.

BACKGROUND

2.  Mr Cheung was born on 19 October 1952 and was 64 years old when he and Dr Pang came across each other for the first time in December 2016. By then, Mr Cheung had been working for Chubb Hong Kong Ltd (“Chubb”), which is part of the Chubb Group renowned as a worldwide fire safety and security service provider, for over 3 decades, including after its corporate structural change in 2000. In December 2016, Mr Cheung was the director of enterprise accounts in charge of luxury retails, banking and hotel sectors in the North Asian region of Chubb.

3.  Due to blurring vision, Mr Cheung had consulted various ophthalmologists and undergone a cataract operation, yet without material improvement. He then came across radio broadcast about possible attribution of condition similar to his to tumour in the brain.  He then made appointment for consultation with his family doctor Dr Chung Tin Tak Leo (“Dr Chung”) at Quality Healthcare Medical Services (“QH”) to find out his condition.

4.  On 29 November 2016, Mr Cheung, accompanied by his wife Madam Suen Pui-Ling (“Madam Suen”), consulted Dr Chung. Dr Chung referred him to a radiologist for a Magnetic Resonance Imaging (MRI) of his brain.

5.  On 2 December 2016, Mr Cheung, accompanied by Madam Suen, returned to see Dr Chung. The MRI result confirmed the presence of a well-defined lobulated mass lesion at the sella and supra-sella region, measuring 1.9 x 1.7 x 1.6 cm. The mass lesion was noted at the sella and supra-sella region and was likely a pituitary mass lesion. It compressed on the optic chiasma with increased severity at the left side, which could account for the symptom which Mr Cheung complained about.

6.  On the same day, Dr Chung signed off an immediate referral of Mr Cheung to Dr Pang, the recommended neurosurgeon. On his Specialist/Service Provider Referral Form (the “Referral Form”), Dr Chung marked “urgent!” with entry:

“Blurred vision: Headache. MRI – Pituitary Mass Lesion. For your expert help please”

This brought Mr Cheung to consult Dr Pang later on the same day (“the 2 December Consultation”). It was a Friday.

7.  Dr Pang graduated from the University of Hong Kong with a MBBS degree in 1992. He became a Fellow of the Royal College of Surgeons of Edinburgh and the Hong Kong College of Surgeons in 1996. He became a Fellow of the Hong Kong Academy of Medicine (Surgery) in 2003. By the time when Mr Cheung came to see him, Dr Pang has been practising in the field of neurosurgery for almost 2 decades.

8.  Dr Pang diagnosed that a pituitary macroadenoma (ie an adenoma over 10 mm) was the cause of Mr Cheung’s complaint about blurred vision. The medical record of the 2 December Consultation disclosed by Dr Pang recorded, amongst other things:

“02 December 2016

Diagnosis: Large pituitary macroadenoma with supra-sellar extension & optic compression causing visual impairment

Complaint: Came with wife

Same day urgent referral from Dr. CHUNG TK of QHMS for large pituitary tumour

S[igns]/S[ymptoms]: recent visual blurring & headache

More vis[u]al blurring at left side than at right side

…

MRI at QDI on 29 Nov 2016:

Large 1.6 x 1.7 x 1.9 cm pituitary macroadenoma with supra-sellar extension & compressing on optic chiasm, more compression at left, accounting for his s[ymptom]”

9.  During the consultation, surgical intervention was raised with Mr Cheung and Madam Suen. A tentative booking was then made for a transsphenoidal excision of the pituitary tumour for optic chiasm decompression (“the Surgery”) to be conducted on the coming Monday 5 December 2016 at the Hospital, and application for approval for coverage by BUPA, Mr Cheung’s insurer, was submitted through QH. Dr Pang prepared an admission letter (“the Admission Letter”) for Mr Cheung’s admission to the Hospital on Sunday, 4 December 2016, which says:

“(Admission Data(sic)/Time: 04 Dec 2016, 9 pm

Transsphenoidal excision of pituitary tumour for optic chiasm decompression at 1 pm on 05 Dec 2016

Anaesthetist: Dr FONG Siu Yan [under] X ray control

HDU [High Dependency Unit] standby”

10.  Dr Pang also prescribed in the Admission Letter a series of pre-operative investigation procedures consisting of blood test for various hormones (T3, T4, TSH, Prolactin, Cortisol and Growth Hormone), Complete Blood Count (CBC), Liver and Renal Function Test (L/RFT), Glucose, Blood Clotting Time, Electrocardiograph (ECG) as well as Chest X-Ray (CXR) on admission.

11.  On 4 December 2016, Mr Cheung presented himself for admission at the Hospital as scheduled. The admission summary recorded the time was about 21:08 hours.

12.  What happened, or according to Mr Cheung did not happen, since his admission to the Hospital on 4 December 2016 until the Surgery on 5 December 2016 is seriously disputed.

13.  The Surgery did proceed as scheduled. It was essentially a microsurgery by accessing the pituitary area via the labial and nasal passages and sphenoid sinus for carrying out partial excision of the pituitary tumour with the goal of decompressing the optic chiasm (or the pressure exerted by the tumour on the optic chiasm). As mentioned in the Admission Letter, Dr Fong Siu Yan (“Dr Fong”) was the participating anaesthetist.

14.  Unfortunately, Mr Cheung suffered from left limb weakness after the Surgery. MRI of his brain on the same day revealed that he suffered from a perioperative ischaemic stroke. The MRI report recorded the following impression:

“Multiple areas of acute infarcts are noted in the right MCA [i.e. Middle Cerebral Artery] territory, involving the right frontal, parietal and temporal lopes as well as the right basal ganglia and perisylvian fissure region. Small foci of acute infract are also noted in the left MCA territory.”

15.  The stroke had disabling impact on Mr Cheung, for which he eventually came to the view that Dr Pang and the Hospital are to blame.

16.  In November 2019, Mr Cheung commenced the present action.

17.  In January 2025, Mr Cheung applied to discontinue his action against the Hospital (hence the 2nd defendant) with costs reserved, and was granted leave to do so in February 2025.

THE PLEADED CLAIM

THE 2 DECEMBER CONSULTATION

18.  Mr Cheung categorises the 2 December Consultation as very brief and rush, when Dr Pang did not:

(1)  fully explain his condition including the nature of the tumour;

(2)  take a full past and present medical history;

(3)  make any enquiry of Mr Cheung other than his insurance coverage;

(4)  make any physical or neurological examination;

(5)  look at the films or DVD images but only at the MRI report;

(6)  make any auxiliary investigation apart from blood/hormone level;

(7)  explain whether or not there were alternative treatments available;

(8)  explain the details of the recommended operation to be performed;

(9)  inform Mr Cheung of the risks of the Surgery beyond the statement that all operations carry risks but this was a simple procedure with very little risk;

(10)  explain what risks were involved in the Surgery;

(11)  explain what the benefits of the Surgery as against alternative forms of treatment and vice versa;

(12)  explain why there was the need for the Surgery immediately and why there was some urgency for the Surgery;

(13)  explain his decision to use the Hospital;

(14)  give Mr Cheung the opportunity to ask questions, ignoring a question raised by Madam Suen as to the choice of hospital;

(15)  give Mr Cheung time to consider his options, discuss his options with his family and come to an informed decision;

(16)  advise Mr Cheung that he could seek a second opinion so as to be able to properly come to an informed decision; and

(17)  keep any contemporaneous note.

19.  Specifically, Dr Pang is said to have failed to warn Mr Cheung at all that the Surgery entailed the risk of arterial bleeding or ischaemic stroke.

20.  2 months before the trial, in January 2025, Mr Cheung amended his pleading. He introduced the further contention that had he been given sufficiently clear and accurate advice during the 2 December Consultation as to the relevant treatment options and the potential risks and complications associated with the Surgery, being the general risks associated with a surgical procedure and the specific risks of Mr Cheung, particularly of a serious reaction and/or serious medical complication, including stroke, he would have deferred his decision to undergo the Surgery so as to take time to consider all options and to discuss with Madam Suen and their daughter, and he would have sought a second opinion.

AFTER ADMISSION TO THE HOSPITAL

21.  After his admission to the Hospital on 4 December 2016, Dr Pang, according to Mr Cheung, did not attend to him at all prior to the Surgery on 5 December 2016. Nor did any other doctor. Mr Cheung was never advised of the nature or the effect of signing the consent form for the Surgery. It was not until after he was lying on the operating table in the operating theatre with an IV-line attached to his forearm for the passing of anaesthetic that a nurse instructed him to sign the consent form, when he was unable to read what was written on the form.

22.  Mr Cheung contends that Dr Pang failed to obtain his informed consent for the Surgery.

THE SURGERY

23.  It was contended that Dr Pang failed to exercise reasonable skill and care as expected of a competent neurosurgeon in carrying out the Surgery, including the failure to perform his blood group and typing pre-operatively. It was contended that the Surgery did not proceed as planned or as promised in that the tumour was not excised or fully excised but caused arterial bleeding. As a result, Mr Cheung suffered the stroke which, he contended, was probably caused by the cutting of the internal carotid artery (“ICA”). He is left with paralysis, particularly of his left face and left limb, resulting in diminished sensation.

24.  The contentions of Mr Cheung in respect of negligence in the execution of the Surgery and the probable cause of the stroke being the cutting of the ICA) are summarised above in the past tense because those acting for him confirmed before the trial their abandonment of the cause in the alleged peri-operative negligence.

QUANTUM

25.  Mr Cheung claims damages in excess of HK$54 million.

THE PLEADED DEFENCE

THE 2 DECEMBER CONSULTATION

26.  According to Dr Pang, Mr Cheung explained that he was surprised by and concerned about the MRI findings, and hence his request to Dr Chung for the urgent referral. Dr Pang, amongst other things, listened to Mr Cheung’s complaint about his blurry vision problem and took Mr Cheung’s past medical history during the 2 December Consultation. That included diabetes mellitus, for which Mr Cheung had been on medication, and hypercholesterolemia. He also enquired about Mr Cheung’s occupation and social background.

27.  According to Dr Pang, he studied the MRI images and report brought by Mr Cheung as well as conducted physical examination of Mr Cheung. Confrontational visual field testing on the spot showed mild impairment of visual field and acuity but otherwise grossly normal. Mr Cheung was noted to have subjective darkness in light perception. Dr Pang noted no other symptom or sign suggesting that the tumour had caused neurological or hormonal dysfunction. He diagnosed that Mr Cheung’s symptoms were possibly caused by the large tumour (or a macroadenoma) at his pituitary gland compressing on his optic chiasm. The tumour was benign and non-functioning (ie non-hormone secreting).

28.  According to Dr Pang, he continued in accordance with his routine practice by explaining to Mr Cheung and Madam Suen that the tumour could grow and exert more compression on the optic chiasm, resulting in slow deterioration of his visual acuity. Normal hormone secreting function of the gland might also be affected. As the growth of a benign tumour would usually be slow, early but not urgent appointment for surgery was recommended. In the rare event of tumour bleeding causing fast deterioration of the clinical condition, urgent surgery might become necessary.

29.  Dr Pang discussed the following treatment options for the tumour:

(1)  Transsphenoidal surgery via nostril or sub-labial incision for tumour debulking or excision under general anaesthesia – the objective would be to firstly salvage Mr Cheung’s vision by decompressing the optic chiasm, and secondly establish a historical diagnosis to confirm the clinical diagnosis of a benign pituitary macroadenoma and rule out possible malignancy.

(2)  Radiosurgery using Gamma-knife or Cyber-knife – the objective would be to control tumour growth or possibly shrink the tumour over 2 years’ time.

(3)  Conservative medical approach – this would be more suitable to patients of very old age with poor health or those having high anaesthetic or surgical risks.

(4)  A tumour of much bigger size and with more suprasellar extension might require a craniotomy to decompress the optic chiasm, but not in Mr Cheung’s case.

30.  According to Dr Pang, he then explained to Mr Cheung and Madam Suen the potential risks and complications associated with the transsphenoidal surgery. In accordance with his routine practice, he explained that every medical or surgical procedure would carry risks. The medical risks included adverse reaction to anaesthesia or drugs, reaction to blood transfusion if necessary, stroke, heart attack, chest infection, etc. The surgical risks included wound healing problem or infection, injury to neural tissues or vessels to cause bleeding, stroke, severe neurological deficits or even death. For a conservative transsphenoidal surgery, ie not aiming at the more radical total tumour excision, the risk of developing severe and irreversible morbidity with neurological deficit or death/mortality, he believed, was about 1%.

31.  With reference to his experience, Dr Pang recommended a conservative transsphenoidal surgery, as the tumour of Mr Cheung appeared to be a non-functioning adenoma. A more radical total tumour excision might carry higher surgical risks such as injury to the surrounding structures or tissues if the tumour was close to those structures. After decompressing the optic chiasm and confirming the diagnosis, other treatment options for the residual tumour would follow, including observation or radiosurgery. In the course of his explanation, Dr Pang showed Mr Cheung and Madam Suen clinical photographs on the computer with a view to assisting their understanding of the tumour and the transsphenoidal surgery.

32.  According to Dr Pang, Mr Cheung enquired about the medical expenses. Dr Pang explained that the average expenses for the type of surgery would be in the region of HK$300,000-400,000, depending on the complexity and length of the surgery, the medical consumables used and the hospitalisation period. Dr Pang would have to seek approval from QH and confirmation from Mr Cheung’s insurer regarding coverage which usually takes 3 to 4 weeks. Mr Cheung mentioned that the insurer was BUPA, in which case Dr Pang relayed his experience that approval might take even longer. Mr Cheung, according to Dr Pang, appeared impatient and anxious, and requested early surgery.

33.  Dr Pang admits that Mr Cheung and Madam Suen did indicate their preference to have the surgery carried out at the Hong Kong Sanatorium Hospital (“HKSH”), which Dr Pang could do but he advised Mr Cheung that booking with HKSH usually had to be made 3 to 4 weeks in advance.

34.  Booking subject to insurance approval was then made for the surgery to be carried out at the Hospital on 5 December 2016. Dr Pang proceeded to explain that Mr Cheung should be admitted the day before the surgery and to undergo pre-surgery body check and investigations. He then prepared the Admission Letter.

35.  According to Dr Pang, the consultation lasted for about 30 minutes. Mr Cheung and Madam Suen then left seemingly in a hurry. Dr Pang then made notes about the consultation just now in his computer clinical records later on the same day. Dr Pang understands that Mr Cheung had since the 2 December Consultation contacted the clinic and the nurse regarding the insurance approval and confirmation of coverage of the scheduled surgery.

36.  Dr Pang denies the alleged failure on his part to advise on the risk of stroke associated with the Surgery. He refers to the circumstances, including the various pieces of information communicated to Mr Cheung, up to this point as mentioned above, and denies Mr Cheung’s contention that the latter would have deferred his decision to undergo the Surgery and/or would have sought a second opinion on alternative clinical course. He categorises Mr Cheung’s claim of no advice on the risk of stroke as ex post facto construction premised on unfavourable outcome of the Surgery.

AFTER ADMISSION TO THE HOSPITAL

37.  According to Dr Pang, Mr Cheung was attended to by the nursing staff of the Hospital after his admission on 4 December 2016. Initial admission assessment was administered, and fact sheet concerning the risks of general anaesthesia, including stroke, was provided to Mr Cheung. The nursing staff and Dr Pang also communicated for confirming the latter’s order for the pre-operative tests and investigations set out in the Admission Letter.

38.  In the following morning, ie the day of the Surgery, Dr Pang attended Mr Cheung in the ward, and explained the Surgery and its potential risks. Such risks mentioned included wound healing problem and infection, injury to neural tissues or vessels causing bleeding, stroke, severe neurological deficits or even death. Dr Pang noted his explanation as “~1% risk mortality/morbidity” in the surgery consent form before the same was signed by Mr Cheung in the presence of a registered nurse of the Hospital as a witness. Mr Cheung was sent to the operating theatre only afterwards.

THE SURGERY

39.  According to Dr Pang, the aim of the Surgery to partially remove the tumour and to decompress the pituitary gland and optic chiasm was achieved uneventfully. Bleeding from the dural arterial bleeder in the course of the Surgery was controlled without causing haemodynamic instability. However, upon reversal from anaesthesia, Mr Cheung was found to have left limb weakness. MRI of the brain showed multiple foci of acute infarct in the left Middle Cerebral Artery (“MCA”) territory. There was no radiological evidence of the alleged injury to the ICA during the Surgery.

40.  After rehabilitation, Mr Cheung was discharged from the Hospital on 25 January 2017. He was able to walk with aid independently but his left arm power remained poor. Dr Pang had since maintained regular contact with the daughter of Mr Cheung and Madam Suen on the neurological, physical and psychological progress of Mr Cheung for half a year until the end of July 2017.

41.  Specifically, Dr Pang denies that he cut or injure the ICA in the course of the Surgery and thus causing the stroke of Mr Cheung. The most plausible cause of the stroke, he contends, was cardio-embolism where some fibrin-platelet aggregates developed at the site of damage on the endocardial surface became dislodged during the Surgery and embolised to the cerebral arteries, occluding the small branches of both MCAs.

QUANTUM

42.  Subject to liability, quantum is projected at no more than HK$4 million.

ISSUES

43.  Between Mr Cheung and Dr Pang, the major issues in dispute are:

(1)  whether informed consent has been obtained from Mr Cheung for the Surgery;

(2)  whether the Surgery was performed negligently;

(3)  whether (1) and/or (2) above caused the stroke of Mr Cheung; and

(4)  what damage has been caused to Mr Cheung; and

(5)  if liability is proved, the quantum.

44.  By letter dated 7 February 2025, ie about a month before the trial, those acting for Mr Cheung confirmed that he would no longer pursue the pleaded claim of peri-operative negligence against Dr Pang. This effectively removed issue (2) from this trial.

45.  For the purpose of issue (3), what caused the damage to Mr Cheung was the fact that the risk of stroke entailed by the Surgery materialised. It was not how the Surgery was executed, let alone negligently, which caused the stroke.

46.  As such, the whole case of Mr Cheung on liability turns on issue (1), namely whether his decision to undergo the Surgery, and hence taking of the risk of stroke, was a matter of informed consent. This hinges upon his awareness of the risk. It was this specific risk which he says, had he been aware of, he would not have taken by consenting to proceed with the Surgery at the time.

PLEADING MEDICAL NEGLIGENCE

47.  Much was said since the opening of, and repeated throughout, the trial about the legal principle of confining a party’s case to his pleading. Whilst this should have needed no introduction, reiteration is necessary in view of the manner in which the case has been argued.

48.  It is the pleaded issues that define the scope of the evidence: see Kwok Chin Wing v 21 Holdings Ltd & Anor (2013) 16 HKCFAR 663 at §21. This is of particular significance in the case of medical negligence where the medical personnel or institution subject to criticism is entitled to know precisely which aspect of the medical advice and procedure provided is called into question: see Ng Yuk Ha v. Yip Siu Keung [2005] HKCU 969 at §18; Bilal and Malik (Administrators on behalf of the estate of Malik, deceased) v St George's University Hospital (2023) 194 BMLR 68 (CA).

49.  Medical diagnosis, advice or procedure is not liable to be questioned or adjudged by mere reference to the result of treatment and care. Nor is that adjudged by hindsight. It is important not to work backwards from the knowledge of what happened to the patient later, and thereby to confuse foresight with hindsight: see Thorp & Ors v Mehta [2024] 199 BMLR 120 at §49; Hii Chii Kok v Ooi Peng Jin London Lucien (2018) 162 BMLR 28 at §161; Diamond v Royal Devon & Exeter NHS Foundation Trust [2017] EWHC 1495 at §46.

50.  The act or omission in the present context must be adjudged according to generally accepted standards expected of a reasonably competent medical personnel and institution in the circumstances of the case at the relevant time. The Bolam test as discussed below, that is. This explains why expert evidence on liability and causation is a pre-requisite to founding an actionable cause for medical negligence in the majority of the cases. As such, the claimant is expected to be able to be precise in his or her claim.

51.  In the context of advice on medical risk, identification of the relevant risk in the claim is key: see Clark v Greater Glasgow Health Board (2017) S.C. 297 at §49; Duce v Worcestershire Acute Hospitals NHS Trust [2018] P.I.Q.R. P18 (CA) at §70. The risk must be associated with the treatment or procedure, which materialised to cause the claimant’s damage as a matter of fact. The patient consented to such treatment or procedure, which he would not have done but for the failure or negligence in the medical advice on the risk in recommending such treatment or procedure. Only then may the patient say the failure or negligence in the medical advice caused him the damage.

52.  Further, I say it is as important to construe a party’s contentions coherently within the context of his entire pleaded case. I say this because of the contention introduced by way of amendment to Mr Cheung’s pleading in January 2025 mentioned above. By this recently introduced amendment (§12A), it is contended that had Mr Cheung been given sufficiently clear and accurate advice during the 2 December Consultation as to, amongst other things, the potential risks and complications associated with the Surgery, being the general risks with a surgical procedure and the specific risks to him of the Surgery, particularly of a serious reaction and/or serious medical complication, including stroke, he would have deferred his decision, considered all treatment options and discussed further with his family.

53.  Immediately preceding this recently introduced amendment, Mr Cheung’s pleaded case (up to §12) is that specifically Dr Pang did not at any time warn him that arterial bleeding or an ischaemic stroke were risks of the recommended procedure (ie the Surgery). By the consent order granting leave for his amendment of pleading mentioned above, which aligned with his stance set out in the letters dated 20 December 2024 and 9 January 2025 from those acting for him, Mr Cheung confirmed no consequential need for further evidence in addition to that already adduced. That included his witness statement[1](at §43) whereby he stated that Dr Pang did not advise him of any risk about the Surgery; and had Dr Pang indicated that any risk of a stroke was involved and that there was no urgency, he would have taken time to consider all options and to discuss this with his family or likely to seek a second opinion. Mr Cheung acknowledged that all surgical operations would have an element of risk, such as that from administering general anaesthetics, but that was very different from being told that there was an identifiable risk of cutting an artery resulting in a stroke.

54.  Read within the context of his entire pleaded case as to the pre-operative advice which is said to have caused his consent to undergo the Surgery ending up with his damage, Mr Cheung’s pleaded case could only be construed as follows.

55.  First, in terms of liability and causation, the decision to undergo the Surgery would not have caused Mr Cheung his damage but for the risk of stroke which materialised. No other risk associated with surgical procedure generally or other specific risk of serious reaction or medical complication materialised and caused Mr Cheung his damage. It is the specific risk of stroke which is relevant.

56.  Second, the case of Mr Cheung is that Dr Pang did not at all advise him of the risk of stroke during the 2 December Consultation. That remained to be the state of affairs until the Surgery because Dr Pang did not attend to him at any time after his admission to the Hospital. There is no question of advice as to the risk of stroke in fact given by Dr Pang either during the 2 December Consultation or after his admission but such advice was insufficiently clear or accurate.

57.  Third, in terms of informed consent, which is said to be lacking, Mr Cheung can only be understood to be suggesting that he was not at all or sufficiently aware of the risk of stroke associated with the Surgery or else he would not have proceeded with it as recommended and scheduled.

58.  The above sets the parameters for considering the issues and the evidence.

INFORMED CONSENT

59.  Counsel for Dr Pang summarise the following principles concerning informed consent in the medical context. They are not in dispute perhaps except for one aspect, in view of how counsel for Mr Cheung formulated them when opening the case.

60.  An adult patient of sound mind is entitled to decide whether to undergo medical treatment and, if yes, which of the available forms of it. The duty of his doctor is to take reasonable care to ensure that the patient is made aware of the material risks involved in the recommended treatment and options: see Montgomery v Lanarkshire Health Board [2015] A.C. 1430 (SC) at §87, applied in Yousaf Akbar v Registrar of High Court [2023] 2 HKLRD 269 at §34. The test, as explained by the court in Duce (above) at §33, is two-fold:

(1)  what risks associated with an operation were or should have been known to the medical professional in question, which is a matter of fact within the expertise of medical professionals;

(2)  whether the patient should have been told about such risks by reference to whether they were material, which is a matter of fact for the court to determine.

61.  The test of materiality of the risk (ie (2) above) is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor was or should reasonably be aware that the particular patient would be likely to attach significance to it: see Montgomery (above) at §88. Circumstances relevant to determining materiality may include (see Duce (above) at §35):

(1)  the odds of the risk materialising;

(2)  the nature of the risk;

(3)  the effect its occurrence would have on the life of the patient;

(4)  the importance to the patient of the benefits sought to be achieved by the treatment;

(5)  the alternatives available and the risks associated with them.

62.  Advice on treatment alternatives and their respective advantages and disadvantages, including the material risks involved in each alternative, is a matter of professional judgment: see McCulloch & Ors v Forth Valley Health Board [2024] A.C. 925 (SC) at §57. The ultimate question of whether the doctor has properly exercised such professional judgment, and thus discharging his duty, is answered with reference to the professional practice test laid down in Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118 (mentioned above) as amplified in Bolitho v City and Hackney Health Authority [1998] AC 232 (HL), namely:

(1)  whether there was a normal practice applicable to the case at the relevant time and, if yes, whether the doctor has adopted it;

(2)  if not, whether the course taken by the doctor was one which no professional man of ordinary skill would have taken, had he been taking ordinary care, in the circumstances.

See also Elijah Saatori v Raffles Medical Group [2010] 2 HKLRD 263 (CA) at §14.

63.  At one point, counsel for Mr Cheung seemed to suggest that the Bolam test does not apply to the issue of consent, citing Winterbotham v Shahrak [2024] Med LR 521 in support. This in my judgment would be over-simplified, if not incorrect, reading of the discussion in that case. In their closing submission, counsel clarified their stance of acknowledging the role of the Bolam test in assessing the issue of consent.

64.  Following from the above, while the doctor is under a duty to ensure that the patient understands the information given, including the risk of a course of treatment, the same does not entail ensuring that the patient did understand: see Al Hamwi v Johnston & Anor [2005] Lloyd’s Rep. Med. 309 at §69. What the doctor needs to do is to take reasonable steps to satisfy himself that the patient understands. What suffices in discharge of the duty depends on the circumstances, including the doctor’s appraisal of the patient’s intelligence, temperament, apparent understanding as well as the simplicity or complexity of the recommendation: see Gover v State of South Australia and Perriam (1985) 39 SASR 543 at 558. Differently put, there should be nothing apparent which would put him on enquiry that the patient may not understand his explanation.

65.  Be it alleged failure in advice on the treatment alternatives or their respective risks, causation between that and the damage must exist before liability may be founded. This is a matter of fact. Essentially, the patient must prove that:

(1)  had he or she been properly warned of the risks or advised on the treatment alternatives, he or she would not have consented to the treatment or procedure adopted: see Chester v Afshar [2005] 1 A.C. 134 (HL) at §39; Diamond (above) at §15; and

(2)  the relevant risks associated with the treatment or procedure adopted materialised and caused the damage: see Duce (above) at §58.

66.  Determination of liability rests on the application of the legal principles rehearsed above to the contentions of Mr Cheung construed in the context of his pleaded case discussed above.

MEDICAL EXPERT EVIDENCE ON LIABILITY

67.  On behalf of Mr Cheung and Dr Pang, Dr Chan Sze Tong (“Dr Chan”) and Dr Kan Yiu Ting (“Dr Kan”) were respectively instructed to provide expert report on liability and causation. Dr Chan produced his first report dated 31 December 2018 and Dr Kan produced his report dated 18 November 2020. Subsequently, Dr Chan and Dr Kan produced their supplemental expert reports dated 20 May 2021 and 17 June 2021. The experts produced their joint statement dated 3 October 2021.

68.  In his report dated 31 December 2018, Dr Chan explained his proposition that injury to the right ICA during the Surgery caused the stroke. On this basis of alleged fault in the execution of the Surgery, the claim for peri-operative negligence was advanced and pleaded. This was cleared by the agreement between Dr Chan and Dr Kan in their joint statement that there was no direct cut or bleeding from the ICA and the uncontrolled bleeding in the case of Mr Cheung came from the dura artery.

69.  For the bleeding from the dura artery, Dr Chan tendered an explanation, namely that the aneurysm clip of the right ICA caused a temporary occlusion of blood flow and formation of clots within the lumen, and when the clip was later released, the clots washed off and blocked the arteries downstream, causing extensive stroke. That said, Dr Chan acknowledged that his explanation fell short of identification of the same as the definite and conclusive cause of the stroke in the case of Mr Cheung.

70.  Counsel for Dr Pang questioned Dr Chan’s proposition, pointing out the bilateral nature of the ischaemic stroke (ie, involving both the left and right MCA territories) and the atypical anatomy of Mr Cheung’s cerebral arteries (ie, non-communication of the left and right MCAs), and therefore the emboli causing the bilateral stroke likely came from a common source such as an embolic shower from the heart. This is not without basis. Indeed, Dr Kan took the view that cardiogenic stroke was the most likely cause as Mr Cheung suffered a simultaneous bilateral cerebral ischaemic stroke, which was likely to have pre-existing abnormal cardiac endocardium in the absence of abnormality in the cerebral vasculature. In other words, it was not caused by the arterial bleeding.

71.  The pleaded case of Mr Cheung apparently founded on Dr Chan’s original opinion on the cause of the stroke being the cutting of the ICA has lost the necessary footing, given Dr Chan’s concession in the joint statement. Whichever alternative proposition in fact caused the bleeding or stroke is not crucial to the issue of liability which no longer involves the contention in respect of per-operative negligence.

72.  Concerning the key dispute in respect of informed consent to the Surgery, the experts are expected to assist on the generally accepted professional standard whereby the reasonableness of the act or omission on the part of Dr Pang in discharge of his duty to advise is to be measured. As summarised above, the contentions of the parties in respect of the act or omission of Dr Pang in his advice to Mr Cheung are diametrically opposite. However, it is important to note that the experts confirmed during their oral evidence in court that which of the two sides’ versions this court finds to be the fact will effectively suggest whether Dr Pang has been in breach of his duty in obtaining informed consent of Mr Cheung to the Surgery.

WITNESSES

73.  Mr Cheung gave evidence. So did Madam Suen and their daughter (“the Daughter”). Mr Cheung also called the following persons to testify mainly in respect of quantum:

(1)  Mr Tang Kwok Hoi Charles (“Mr Tang”); and

(2)  Mr Chan Yin Tim Michael (“Mr Chan”).

74.  Dr Pang gave evidence. He called the following witnesses:

(1)  Ms Ng Wing Man Sheeta (“Nurse Ng”), nurse of his clinic attending to Mr Cheung at the time;

(2)  Ms Li Kai Ting (“Nurse Li”), nurse of the Hospital attending to Mr Cheung at the time; and

(3)  Dr Fong, the anaesthetist of the Surgery.

75.  As mentioned, Dr Chan and Dr Kan gave evidence.

76.  Insofar as credibility of witnesses as to fact is concerned, the court will essentially assess their evidence in terms of inherent plausibility and consistency as well as relative credibility in the light of the other evidence particularly undisputed and indisputable evidence, including contemporaneous documents. Demeanour of the witnesses, whilst not irrelevant, should be taken into account with caution. See for instance Hui Cheung Fai & Anor v Daiwa Development Ltd & Ors HCA 1734/2009 (8 April 2014) at §§76-83; Maryo Development Ltd v Tsang Yau May & Ors [2020] 5 HKLRD 616 (CA) at §42.

77.  At one point in his oral evidence, Mr Cheung somehow still complained about the risk of cutting of the ICA causing his stroke. As mentioned, the pleaded case of such alleged physical cause of the stroke as a matter of Dr Pang’s conduct of the Surgery has been dropped presumably pursuant to his instruction upon legal advice. Maintaining the accusation and asserting unawareness of such alleged risk does not help to cast favourable light on his objectiveness.

78.  That aside, the central theme of the evidence of Mr Cheung and Madam Suen was that:

(1)  in rushing them to proceed with the recommended surgical operation, Dr Pang during the 2 December Consultation emphasized nothing more than his confidence in the Surgery being not complicated and effective in resolving Mr Cheung’s complaint about blurring vision;

(2)  at no time after admission to the Hospital until the actual surgical procedure did Dr Pang or any medical personnel explain and advise Mr Cheung about the risk of stroke associated with the Surgery to be performed; and

(3)  Mr Cheung was asked to sign the consent form when he was already on the operating table without ability to read or understanding the form.

79.  As to all the above contentions, the Daughter was not an eye-witness and does not possess any firsthand knowledge. She was in fact unaware of the Surgery until afterwards on the day.

80.  It was only to be expected that Dr Pang was heavily cross-examined as to what happened, including his record of the 2 December Consultation and the surgery consent form which Mr Cheung signed before the Surgery on 5 December 2016. How Dr Pang put together his consultation note and its quality were put to serious question. It should however be noted that the pleading does not permit Mr Cheung to go so far as suggesting that the note was put together as a matter of afterthought for the purpose of this litigation. Such assertion would have been serious. Had it been made, it would have required unequivocal pleading and evidence of commensurate cogency.

81.  Insofar as the criticism serves to substantiate the pleaded breach of the professional code governing a doctor’s duty to keep his record and the level of its detail and quality, it is trite that the code governing and regulating medical practice per se does not afford an actionable civil cause of claim for damages. While the code may cast light on the generally accepted professional standard of medical practice, breach of such standard, without more, does not prove causation and damage.

82.  In the present case, there is no suggestion that the content or quality of the note of Dr Pang impacted on the treatment plan or the surgical procedure executed on Mr Cheung and that caused the latter’s damage. In their opening submission, counsel for Mr Cheung acknowledged that poor medical note does not necessarily translate into poor clinical practice at the material time. They expect to be held to that rightly made acknowledgement.

83.  With the above clarified, the contents of the consultation record and the surgery consent form essentially form part of the contemporaneous documentary evidence, which will be scrutinised to see if they serve to corroborate Dr Pang’s case as to the advice and explanation allegedly provided to Mr Cheung during the 2 December Consultation and prior to the Surgery.

84.  Pausing here, one should note that there were in fact 2 consent forms pertaining to the Surgery – the surgery consent form and the anaesthetic consent form. No identification of or distinction between the two was made by Mr Cheung in his pleaded case. Nor was specific contention pleaded in respect of them except for what is summarised above.

ANALYSIS

CONSULTATION WITH DR CHUNG

85.  As summarised in the background above, it was following the lack of improvement of his vision problem after consulting the ophthalmologists and the incidental information on the radio about the possibility of his problem being attributable to a brain tumour that Mr Cheung consulted Dr Chung on 29 November 2016. The picture of such state of knowledge on the part of Mr Cheung and Madam Suen did not come about readily and precisely in their own evidence (ie witness statements) though.

86.  It was his expert, Dr Chan, who recorded in his expert report the information from Mr Cheung during the examination that the latter came across the radio broadcast mentioned above and therefore suspected a tumour in his brain which might account for his vision problem before seeking to consult Dr Chung on 29 November 2016 and to enquire about the need for referral for a brain scan. That was admitted by Mr Cheung in court but somehow remained denied by Madam Suen.

87.  Oddly, against the above background behind the consultation with Dr Chung and his referral to the MRI scan of the brain in November 2016, Mr Cheung suggested that his follow-up with Dr Chung did not give him a relatively better, let alone precise, idea about what it was about his brain which went wrong. Armed with the MRI report, Dr Chung, according to Mr Cheung and Madam Suen, nevertheless indicated nothing more than something wrong (or not right) in the scan images and recommended him to consult a neurosurgeon. Whilst such evidence in their witness statements served to consistently convey the message about the degree of ignorance on the part of Mr Cheung and Madam Suen about the former’s condition up to that stage, its inherently credibility is called into question in the circumstances.

88.  In court, Mr Cheung described his sense of hurry in seeking to see Dr Chung at 9:00 am on 2 December 2016 after being informed of the availability of the MRI report. When he got to see Dr Chung, the latter admittedly explained to him the existence of a tumour in his brain compressing on the optic chiasma which would account for his blurred vision. Armed with the bag containing the scan films and report, Mr Cheung and Madam Suen proceeded to see Dr Pang later on the same day.

89.  Be that a matter of own persistence or out of pure subjectiveness, Madam Suen was less prepared than Mr Cheung for the same extent of concession about Dr Chung’s advice. That said, her evidence did corroborate one aspect, namely the perceived urgency of the need for consultation with a neurological specialist. According to her, Dr Chung described the situation of her husband as “a house on fire”.

90.  It was in the above circumstances that Dr Chung issued the Referral Form. Counsel for Mr Cheung in their opening submission seemed to question the entry or entries of “urgent” in the form in terms of handwriting. The record should be set straight that neither notice putting the authenticity of such document entries in issue has been given nor step taken with a view to securing the testimony of the maker of the document.

91.  Whilst detecting the sensitivity of Mr Cheung towards the degree of urgency of the situation at the time as a matter of his case theory, suffice for me to state the objective fact, as clarified in court, that upon the Referral Form, appointment was indeed made for the consultation with Dr Pang as the recommended specialist later on the same day. One readily gets the idea about any urgency of the situation as viewed by Dr Chung as the doctor, and perceived by Mr Cheung and Madam Suen in terms of patient’s concern. Any attempt to downplay that, in my judgment, would be futile.

THE 2 DECEMBER CONSULTATION

92.  The first contact concerning Mr Cheung’s consultation with Dr Pang on 2 December 2016 was Nurse Ng. According to Nurse Ng, she received a telephone call from the Customer Service Officer of QH at about 10:30 hours enquiring about an urgent consultation by a patient with Dr Pang. Mr Cheung and Madam Suen then arrived at Dr Pang’s clinic just before 11:15 hours. Echoing the above discussion, such sequence of events within a short time right after Dr Chung’s referral is objectively telling, regardless of how one may choose to categorise the degree of urgency of the situation then.

93.  As to what happened during the 2 December Consultation, Dr Chan opined that the complaint by Mr Cheung and Madam Suen about inadequate time spent and omission by Dr Pang to explain the nature and risk of the Surgery seemed to align with his reading of the medical records where he did not find what he expected to be the relevant entries. If these complaints are found to be true, Dr Pang’s pre-operative care, in Dr Chan’s opinion, fell below the expected standard of an average neurosurgeon. If the complaint about not being given accurate and adequate information pertaining to the Surgery and its risk is found to be true, then, in Dr Chan’s opinion, Dr Pang has not obtained informed consent from Mr Cheung for the Surgery.

94.  Finding of the relevant facts mentioned above is key but solely the domain of this court. Answering this court’s specific question in the course of his oral evidence, Dr Chan accepted that if Dr Pang’s version of events instead of that of Mr Cheung mentioned above is found to be true, then it could not be said that Dr Pang has acted below the standard of a reasonably competent medical professional in the circumstances at the relevant time.

95.  Nurse Ng gave evidence as to what happened after Mr Cheung and Madam Suen arrived at the registration counter of Dr Pang’s clinic. Mr Cheung provided his Identity Card and BUPA card while he was given the registration form. Nurse Ng checked the form returned against Mr Cheung’s Identity Card. The part of the form relating to past health was somehow left blank. She returned the Identity Card to Mr Cheung. She also received from Mr Cheung the bag containing the MRI report, films and the Referral Form.

96.  As the time spent during the 2 December Consultation is in issue, the documented duration of presence of Mr Cheung and Madam Suen at the clinic on the day was scrutinised. Nurse Ng explained what happened after completion of the registration of Mr Cheung as a new patient. Armed with the registration form, Nurse Ng entered the patient details of Mr Cheung into the computer (an electronic system known as “Clinic Solution”) which generated a time-stamp on its “Visit Record” for a new patient. Mr Cheung’s name was then included in the electronic queuing system. The fact was that Dr Pang was at the time seeing a patient, and expected to see another patient already appointed. Mr Cheung and Madam Suen had to wait at the reception area outside the consultation room.

97.  After the existing patient left the consultation room, Nurse Ng took the bag containing Mr Cheung’s MRI documents into the consultation room and passed it to Dr Pang, who confirmed that in his evidence. The following patient had yet to arrive for his 11:45 hours appointment. Nurse Ng arranged Mr Cheung to “jump the queue” to see Dr Pang. It was therefore just before noon when Mr Cheung and Madam Suen entered the consultation room. She made the entry under “Time Seen” on the Chit Form (expected to be filled in for insurance claim).

98.  According to Dr Pang, he did various things just before seeing Mr Cheung. He consulted the materials in the bag provided by Mr Cheung and passed to him by Nurse Ng. He put the MRI films on the light box, and reviewed the MRI report, noting the impression of a pituitary mass lesion at the sella and supra-sella region compressing on the optic chiasma. He also inserted the MRI disc into his Apple Computer and used a software (known as Dicom viewer) to view the axial, sagittal and coronal cuts of the images.

99.  What happened after Mr Cheung and Madam Suen entered the consultation room was privy to them and Dr Pang.

100.  By way of their witness statements, Mr Cheung and Madam Suen portrayed a rather extreme case of a doctor dictating and pushing for a surgical operation without at all giving the former any opportunity to question and discuss. Dr Pang was also said to have not sought information about Mr Cheung’s health history or conducted any examination or test or explained the medical findings, diagnosis, treatment alternatives and their pros and cons. Specifically, Mr Cheung stated that he was never asked if he agreed to undergo surgical operation. Nor was he given an opportunity to object. Mr Cheung and Madam Suen allegedly did not say much during the entire consultation but effectively followed the way Dr Pang dictated.

101.  It is only reasonable to be on guard about the potential inherent plausibility of an extreme picture of a medical consultation so painted above, given the occupational background and competence of Mr Cheung as well as the professional background and specialist experience of Dr Pang by that time. For what is worth, Dr Kan, expert engaged on behalf of Dr Pang, could not help commenting in his report about the suggestion that any doctor would disregard the MRI documents and findings already brought before him prior to seeing a patient in the normal conduct of medical consultation.

102.  That said, such extreme picture painted by the witness statements adduced on behalf of Mr Cheung was gradually toned down, at least insofar as Mr Cheung’s testimony is concerned.

103.  The instruction to Dr Chan for the purpose of obtaining his expert opinion, as recited in his report, was that Dr Pang did advise Mr Cheung on the risk of the Surgery, though it was then still said to be general than specific. When it came to the trial, Mr Cheung’s evidence in court about what happened during the 2 December Consultation departed further away from the extreme picture painted by his witness statement. Amongst other things, Mr Cheung accepted in court that there was exchange between him and Dr Pang about the former’s occupation and job nature, inquiry by Dr Pang about Mr Cheung’s vision quality to which the latter described his feeling of distortion when viewing a straight line as well as Dr Pang’s conduct of what is understood to be a confrontational visual field test on Mr Cheung.

104.  In court, Mr Cheung accepted that Dr Pang did explain the existence of a tumour at the pituitary gland which was compressing on the optic nerve and caused Mr Cheung’s blurred vision. Dr Pang further advised that surgical operation would normally be recommended, otherwise the tumour would grow and might damage the optic nerve, thus causing vision problem. Surgical objectives to remove the tumour or alternatively to decompress the optic nerve were mentioned, and the latter of these objectives was advised.

105.  In court, Mr Cheung also accepted that Dr Pang did mention alternative surgical approaches, namely opening of the skull (ie craniotomy) or a minimal invasive surgery (ie transsphenoidal[2] surgery). The former approach would have been serious and complicated, but not necessary in the case of Mr Cheung. The latter approach would entail an incision at the upper lip and reaching the pituitary gland through the nostril or oral cavity. Pathology of the specimen taken from the partially removed tumour during the course of the operation would be conducted to verify its malignant or benign nature. In the course of the explanation, Dr Pang made reference to films of some previous patients having undergone similar surgery.

106.  The toning down of the extreme case portrayed by the witness statements on behalf of Mr Cheung however cannot be said insofar as Madam Suen is concerned. She remained adamant about what Dr Pang allegedly did, or more precisely, did not do at all during the 2 December Consultation. Unlike Mr Cheung, she did not back down from that in court. So much so that she categorised her husband was mixed up in his evidence in court. She apparently did that, notwithstanding that (according to her) she had not discussed the case with Mr Cheung for all these years, and had not read her witness statement before giving evidence in court. Objectively, one should be careful about the reliability of such stance and evidence of Madam Suen.

107.  That Dr Chan managed to recite in his expert report his understanding that Dr Pang did advise Mr Cheung on the risk associated with the Surgery must have originated from those acting for Mr Cheung and hence Mr Cheung himself. Even so, that, as Dr Chan understood, was nothing more specific than general remark that surgery entailed risks. That appeared to still align with Mr Cheung’s witness statement whereby he claimed that he was never advised of the specific risk of cutting an artery resulting in stroke. However, even that must now be considered in the light of his evidence in this respect in court.

108.  In court, Mr Cheung revealed his past experience in ultrasound treatment, coloscopy and bilateral cataract extraction. He also came to be aware of the general medical risks of the Surgery under anaesthetics including stroke from his past experience of coming across that in the instances involving relatives or friends. From a patient’s perspective, what matters is the information about the risk of stroke but not whether it was a medical or surgical risk. His own expert, when asked by this court, accepted in his evidence that “a stroke is a stroke”, and it is the risk of such resultant condition which the patient ought to be concerned about and made aware of.

109.  Mr Cheung’s own evidence revealed that he was at least aware of the risk of that in surgical procedures under anaesthetics, though not the risk of cutting of artery resulting in stroke. As discussed, reference to the cutting of artery resulting in stroke ceases to have any footing upon the joint expert opinion. That is not proved to have happened as a matter of materialisation of risk, if it existed.

110.  Apart from mentioning that every medical or surgical procedure would carry risks, Dr Pang gave evidence of his explanation of the list of possible risks associated with the Surgery, namely wound healing problem or infection, injury to neural tissues or vessels to cause bleeding, stroke, severe neurological deficits or even death. He repeatedly referred to that as a matter of routine practice. While what matters is whether he in fact did so on this occasion instead of whether it was his routine practice, his reference to his routine practice must be understandable from his perspective when the practice of giving similar advice could have developed after his experience in some 130 cases involving the similar kind of surgical procedure over 2 decades of practice by the time when he saw Mr Cheung. In my judgment, that lends weight to his confidence in having given such advice without any reason to deviate from his routine practice on this occasion.

111.  The credibility of Dr Pang in this respect was also questioned by reference to other circumstantial and documentary evidence.

112.  First there was Dr Pang’s documentation of the 2 December Consultation after Mr Cheung and Madam Suen had left. He made the record recited under the background above together with the remark:

“1% of mortality & morbidity told & accepted”

113.  Due to the extent and manner of scrutiny of Dr Pang’s above record at the trial, it is necessary to set the starting point for the consideration.  Document of this kind was from the outset a matter of the doctor’s own record for his purposes concerning this patient for the present and the future. How the record was put together, including the terminologies and descriptions adopted, was entirely a matter of judgment of the doctor so long as it would serve his purposes in his practice for this patient. Its accuracy and adequacy are not measured by transcript or verbatim quality. When asked in court, Dr Chan effectively accepted that as a matter of professional practice.

114.  Of course, the doctor’s medical record is not immune from scrutiny when there is a cause for that. One can perceive instances involving the issue of compliance with the professional code governing the keeping of medical note and record. There are also instances where the entries in the medical note and record in fact had bearing on the verification of the follow-up treatment plan or procedure. However, none of these has relevance in terms of liability and causation in the present case.

115.  Dr Pang chose to note down his advice on the risks of the Surgery to Mr Cheung as “1% of mortality & morbidity told and accepted”, denoting his explanation of about 1% risk of developing severe and irreversible morbidity with neurological deficit or death/mortality. Unless such description, objectively read by a reasonably competent man in the profession, is incapable of accommodating such explanation of the risk of stroke, the subjective choice of such description for record purpose could not become the evidential basis for questioning whether the risk of stroke was or was adequately explained.

116.  Indeed, much was said about the accuracy of Dr Pang’s grading of the risk. This brought about extensive references to medical literature and the medical expert opinion discussed below. However, as made clear above, Mr Cheung’s case is not that Dr Pang advised him on the risk of stroke associated with the Surgery and the extent of such risk turned out to be materially higher than that advised, and had he known, he would not have consented to the Surgery. His case is that Dr Pang did not advise him on the risk of stroke at all.

117.  Then Dr Pang’s version is questioned by reference to the duration of the 2 December Consultation. According to Mr Cheung and Madam Suen, the consultation was conducted in a rush manner and concluded in no more than 10 to 15 minutes. In court, Mr Cheung accepted that the consultation might have lasted for more than 15 minutes.

118.  According to the “Time Out” entry on the Chit Form mentioned above, Mr Cheung exited the consultation room at about 12:20 hours, which was about 20 minutes after his entry. If the time spent by Dr Pang on consulting the MRI documents provided by Mr Cheung prior to seeing the latter as well as preparing the Admission Letter and the insurance pre-authorisation form is counted, whether the time spent by Dr Pang on the consultation or that by Mr Cheung at the clinic may be categorised as a matter of rush is no more than arguable.  However, it was the substance, as further discussed below, which matters.

119.  Consistent with his case that Dr Pang effectively dictated and rushed him to surgery, Mr Cheung complains that he was not allowed adequate time to consider whether to agree to undergo the Surgery. In my judgment, this is either untrue or unfair in the circumstances.

120.  Mr Cheung accepted in court that Dr Pang did not actually say that the Surgery was an urgent one. Yet even assuming for argument’s purpose that Dr Pang did strongly advise in favour of surgery on the tumour as soon as practicable, this would not mean that Mr Cheung did not, or was somehow not allowed to, have time to consider. The scheduled admission to the Hospital was not until Sunday night, and the Surgery scheduled on Monday was then still subject to insurance approval. Being present in the entire course of the consultation, what was said then and there should be within the earshot of Madam Suen.

121.  Given the background of Mr Cheung as a matter of fact and to the knowledge of Dr Pang, there was objectively no basis for Dr Pang to suspect that Mr Cheung might be intellectually incapable of perceiving the need for further consideration, if so desired, with Madam Suen or others in the family over the weekend. As he admitted in court and mentioned above, Mr Cheung was already aware of the risk of stroke associated with surgical procedure under anaesthetic.

122.  On behalf of Mr Cheung, argument was advanced to the effect that Dr Pang ought to have been put on enquiry in view of the alleged state of anxiety of Mr Cheung during the 2 December Consultation. The evidence of Nurse Ng and Dr Pang may suggest observation that Mr Cheung was anxious about his condition. That accords with my discussion in respect of the probable state of mind of Mr Cheung and Madam Suen when they went to consult Dr Pang. Yet that is not to be equated with a psychological state of anxiety compromising the capacity to understand and to reason which Dr Pang allegedly ought to have suspected. In court, Mr Cheung at one point even denied that he was in a state of anxiety during the 2 December Consultation.

123.  In any event, according to Mr Cheung, he was close to the Daughter and would have regular or even daily chat as well as gathering at home at least twice a week.  Madam Suen revealed for the first time in her re-examination that during the weekend prior to Mr Cheung’s admission to the Hospital, she might have talked to the Daughter. Nevertheless, the Daughter was never informed of the scheduled admission to the Hospital at Sunday night for the Surgery scheduled on Monday. When asked by this court about that, Mr Cheung answered that he then took the view that that would not be necessary as he trusted Dr Pang. For that matter, he even dismissed alleged suggestion by Madam Suen to seek a second opinion.

124.  Against the personal background of Mr Cheung, as understood by Dr Pang, and the explanation given during the 2 December Consultation, there is no objective basis for putting the latter on enquiry as to whether the former might lack, or feel lacking, the opportunity to discuss with his family about the Surgery, albeit scheduled, if he was so minded after the consultation. Further, in view of the circumstances mentioned in the preceding paragraph, it is hardly reasonable for either of them to complain that they were not being allowed to do so.

125.  In the circumstances, it is not without basis for counsel for Dr Pang to submit that it would be beyond reasonable to impose a positive duty on Dr Pang to specifically advise or to take steps to ensure that Mr Cheung was going to discuss his medical advice with his family or to seek a second opinion before confirming the Surgery.

126.  Worth noting is also the case of Mr Cheung and the evidence of Madam Suen in court in this respect. According to Cheung, he was given the confidence in the competence of Dr Pang in performing the Surgery, which seems to explain why he did not need to think twice about that over the weekend. However, Madam Suen complained that she was, put mildly, taken aback when Dr Pang ignored her enquiry about the scheduling of the Surgery at HKSH as a matter of her express preference, and proceeded with scheduling the Surgery with the Hospital. In other words, on the one hand, they were displeased by such behaviour of Dr Pang, yet on the other hand, Mr Cheung maintained his confidence in Dr Pang. The explanation he gave was that Dr Pang was referred by Dr Chung, who was amongst the doctors at QH who had recommended many uneventful procedures to him previously.

127.  In the circumstances prevailing at the time of the 2 December Consultation, as discussed above, I am not impressed that the alleged failure or omission of Dr Pang, including that to advise that the Surgery carried the risk of stroke, was as a matter of fact instrumental to the operation of mind on the part of Mr Cheung at the time in deciding to proceed with the Surgery, and hence causation.

BETWEEN THE 2 DECEMBER CONSULTATION AND ADMISSION TO THE HOSPITAL

128.  As mentioned, the Surgery was stated in the clinical record to be a “BUPA case” subject to insurance approval before surgery. Nurse Ng, as mentioned, testified that Mr Cheung and Madam Suen left the clinic rather hurriedly. The fact was that he signed the BUPA pre-authorisation form and admittedly left behind his BUPA card.

129.  Much was said about the conversation during the 2 December Consultation about Mr Cheung’s insurance coverage and the alleged manifestation of Dr Pang’s self interest in expediting the insurance approval for covering the surgery expenses. Part of the case theory of Mr Cheung about Dr Pang’s rushing him to the decision to undergo the Surgery, that is.

130.  To begin with, one should not detract from the key issue, which is whether Dr Pang never advised Mr Cheung of the risk of stroke but rushed him to agree to the Surgery. The alleged omission or failure to advise and the rushing of him to agree to the Surgery were not interdependent. Nor must they come or go together. Therefore, whether the pre-authorisation of insurance coverage could be expedited had no correlation with whether Mr Cheung agreed to the Surgery in the absence of advice on the risk of stroke by the doctor.

131.  This court is not called upon to pass judgment on how Dr Pang conducted his professional practice as one for reward. Even assuming that there could be involvement by the medical practice in facilitating the patient’s obtaining of insurance approval for his medical expenses, the ultimate decision is always a matter of business of the relevant insurance company. There is no allegation or evidence contradicting that reality.  Information from the documents from BUPA disclosed belatedly tallied with the oral evidence of Nurse Ng that pre-authorisation approval of insurance coverage normally took 2 to 3 business days. There is no allegation or evidence that things would have turned out differently for either Dr Pang or Mr Cheung, if the surgery appointment had had to be postponed for a few days for that reason.

132.  The evidence failed Mr Cheung in substantiating his suggestion that Dr Pang was instrumental to the approval of his insurance coverage being expedited. The documents showed that the BUPA pre-authorisation form signed by Mr Cheung was faxed to BUPA on the same day at about 13:10 hours on the same day after the 2 December Consultation, which was returned by fax to Dr Pang’s clinic at about 18:01 hours. By then, Nurse Ng, according to her, was already out of the clinic. Due to her unawareness of the pre-authorisation approval, she replied the same to Mr Cheung upon receipt of his calls to the clinic diverted to her on the following day (Saturday) while she was on leave participating her child’s activity.

133.  The annotations written on the hospital consent form for admission signed by Mr Cheung upon his admission at the night of 4 December 2016 (Sunday) recorded:

“此病人入院未收任何按金，因病人話係用Bupa黃咭(俾 only clinical). Bupa直接通知咗佢哋已批可直接入院，但病人話Bupa咭在Dr. Pang 手上，要明天5/12見到Dr. Pang 才可帶回住院部碌voucher + claim form”

134.  Essentially, the Hospital was given to understand that Mr Cheung had been informed directly by BUPA of approval for his admission, and his BUPA card then left with Dr Pang’s clinic would be made available for swiping when Dr Pang conducted ward visit on 5 December 2016 (Monday). Such understanding on the part of the admission staff of the Hospital as recorded could only have originated from Mr Cheung. Nurse Ng came to know about the same only after her return to the clinic on Monday 5 December.

135.  In the circumstances, it is not without basis for counsel for Dr Pang to suggest that approval for insurance coverage for Mr Cheung’s admission for the Surgery was probably his own dealing with BUPA. In any event, it was not Dr Pang. It is also not without basis for counsel to suggest that the circumstances tend to tally with the own mentality and decision of Mr Cheung, instead of Dr Pang, to proceed with the Surgery and to do so sooner than later.

AFTER ADMISSION

136.  Even after his admission to the Hospital, Mr Cheung is not taken to have consented to the Surgery unequivocally until he signified the same by signing the consent forms for the anaesthesia procedure and the Surgery. Put another way, Dr Pang’s duty in securing informed consent from Mr Cheung to the Surgery continued until that moment.

137.  The case of Mr Cheung is that he was never seen by Dr Pang or any other doctor from the Hospital. Nor was he told anything about the Surgery or its risks or whether he consented to that. That was until he was lying on the operating table on 5 December 2016 when he was asked to sign the consent form without reading or knowing its terms and effect.

138.  Several points arising out of that.

139.  First, as mentioned, 2 consent forms were involved for the purpose of the Surgery – the surgery consent form, which was Dr Pang’s responsibility, and the anaesthesia consent form, which was the responsibility of the anaesthetist, Dr Fong. As a matter of pleaded case and evidence as per witness statement, Mr Cheung was not precise about that.

140.  Second, Mr Cheung’s complaint about the failure of Dr Pang to explain to him the risk of stroke associated with the Surgery during the 2 December Consultation aside, the subsequent signing of the surgery consent form still denotes his consent to the risk and the Surgery unless he somehow signed the form in ignorance of such risk.

141.  Third, Mr Cheung has no pleaded case in respect of what Dr Pang contends to have happened in the Hospital which brought Mr Cheung to sign the 2 consent forms before the Surgery. He could deny, but could not have any positive assertion and evidence adduced in this respect save to the extent as pleaded.

142.  As mentioned, Mr Cheung admitted himself to the Hospital at about 21:00 hours on 4 December 2016. According to Nurse Li, she received Mr Cheung and Madam Suen at about 21:20 hours at the interview room of the surgical ward. She documented the information provided by Mr Cheung in the Multidisciplinary Patient Assessment, namely his complaint of “headache for 1 year… (left sided → blur [and] visual loss)” and his medical history of “DM [i.e. Diabetes Mellitus] (FU in 卓健) [and] ↑ cholesterol (FU in卓健)”.  She then completed the pre-operative anaesthesia assessment section of the Anaesthesia Surgical Care form, and recorded that Mr Cheung had diabetes “with DM drug daily + FU in private”.

143.  Nurse Li then explained to Mr Cheung that he would need to sign consent forms for the Surgery and general anaesthesia, which he would do after Dr Pang and Dr Fong had seen him respectively before the Surgery. She then gave a fact sheet on General Anaesthesia (or “成人全身麻醉: 病人須知”) in Chinese to Mr Cheung for him to read. If he had question, he was told to ask her. The fact sheet contained, amongst others, the following information about the degree of risk of complications including stroke and death:

“罕見 [i.e. 1 in 10,000] 或十分罕見 [i.e. 1 in 100,000] 的併發症

…

• 中風

…

• 死亡 (醫院管理局在2003年至2005年期間麻醉死亡的機率為 10,000分之0.61)”

144.  The risk of stroke and death was stated to be rare or very rare.

145.  The Multidisciplinary Progress Notes recorded that Nurse Li proceeded to “ward orientation” at about 21:30 hours when she provided “Tx [i.e. Treatment] plan explanation”, which the “patient shows understanding”. This was recorded under the Patient Care Plan. At about 22:00 hrs, a Nurse Yu Siu-Fun of the High Dependency Unit interviewed Mr Cheung in preparation for post-operative management.

146.  Meanwhile, at about 22:00 hrs, Nurse Li contacted Dr Pang and Dr Fong, and obtained their further orders. Amongst others, Dr Fong ordered “Hstix [i.e. Haemoglucostix] on call” to check Mr Cheung’s blood glucose level after being called to go to the Operating Theatre. Pursuant to the Physician Order, Nurse Li reminded Mr Cheung that he could not eat any food or drink anything after 0000 hours and all the pre-operative investigations would be taken in the following morning. Hence the entry of “Fasting for OT” dated 5 December 2016 in Progress Notes.

147.  The documented events and procedures illustrated above bluntly contradict the case and evidence of Mr Cheung and, as a matter of hearsay from Mr Cheung, Madam Suen that Mr Cheung was effectively cast aside without attendance in connection with explaining the Surgery to him after admission at the night of 4 December 2016. Relevantly, he was in fact given explanation and the Fact Sheet specifying the risk of stroke associated with the Surgery and anaesthesia which he was going to undergo on the following day.

148.  According to Mr Cheung (and Madam Suen who was allegedly with him), at about noon on 5 December 2016, he went inside the operation theatre as instructed by the nurse, and was told to lie on a bed. The medical staff inserted a needle with a long plastic tube into his right forearm which he believed was for infusion or injection purpose. Later someone, whom he believed to be the anaesthetist, arrived and told him that he would administer the anaesthetic for the Surgery. Without being informed of any risk associated with the Surgery or anaesthetic, he was asked by a nurse to sign a form which he was given to understand to be written consent to anaesthesia. At that juncture, he was in a quite uncomfortable state, and could not really read the form. He just signed as told.

149.  According to Mr Cheung, he had by the time when he signed the consent form in the above circumstances yet to see Dr Pang. This does not align with what could only be his instruction to his expert, Dr Chan, who recited in his report his understanding that Dr Pang did see him before the signing of the surgery consent form but simply told him that the Surgery was a simple one and he would be discharged in a few days.

150.  What was documented was that on 5 December 2016, blood was collected from Mr Cheung at about 08:12 hours, and the test result released at about 09:28 hours revealed haemoglobin at 14.4 g/dL and glucose fasting level at 9.6 mmol/L. At about 12:30 hours, Dr Pang accompanied by Nurse Li saw Mr Cheung at the ward for the purpose of obtaining written informed consent, which was documented in the Pre-Operation Check List section of the Anaesthesia and Surgical Care form as follows:

“Consent form completed [:] Pt sign ☑ Surgeon sign ☑”.

“Hstix on call” was done and documented as “8.0 mmol/L”.

151.  Nurse Li testified to what she witnessed during the process of obtaining Mr Cheung’s signature on the surgery consent form. As she managed to recall, the process took place without Madam Suen’s presence. Nurse Li recalled that Dr Pang asked Mr Cheung about his vision, and Mr Cheung replied that his left eye was blurred. The Medical Assessment did record Mr Cheung’s complaint about “visual blurring especially left sided eye, headache”. Dr Pang indeed indicated that the condition would improve after the Surgery.

152.  According to Nurse Li, Dr Pang then explained the surgical procedure. After the anaesthesia was administered, an instrument would be inserted through Mr Cheung’s nasal cavity to reach and remove the tumour. Some body fat graft would be harvested from his abdominal region and inserted via the nasal cavity to reach and fill the wound space. Dr Pang confirmed that he did repeat his previous explanation to Mr Cheung about the risks associated with the Surgery. Again he did so as a matter of routine. The medical risks would include risks of general anaesthesia, drugs reaction, risks of blood transfusion if needed, deep vein thrombosis, heart attack, stroke or chest infections, etc. Surgical risks would include wound infection, poor wound healing (CSF [i.e. Cerebral Spinal Fluid] leak), vascular and neural injury leading to hormonal disturbance, stroke, severe neurological handicap, vegetative state or even death, etc. The chance of serious and irreversible complications would be around 1 %.

153.  Thereafter Dr Pang started to write on the proforma surgery consent Form.  After filling in all the particulars, Mr Cheung, Dr Pang and Nurse Li signed on the form. That explains the entry made by Dr Pang on the surgery consent form: “Transsphenoidal excision of pituitary tumour/GA [i.e. General Anaesthesia] & harvest of fat graft at right lower quadrant”. The prescribed particulars of the proforma surgery consent form consisted of the patient’s acknowledgement of receipt of the information about the proposed surgical or treatment procedure (or “已獲得有關此手術/醫療程序之資料”) (i.e. the Transsphenoidal Surgery for Tumour Excision) as well as the risk of stroke (or “中風”). Dr Pang also made an entry on the form “~1% risk mortality/morbidity” which aligned with what he explained both in the 2 December Consultation and in the process of obtaining Mr Cheung’s written consent before the Surgery on 5 December 2016.

154.  Nurse Li asked Mr Cheung to read the form and sign it to signify his agreement to undergo the Surgery. She asked if he had any question to which he replied in the negative. Mr Cheung signed the form after reading it. Nurse Li then signed as witness. When asked by counsel with reference to the Hospital’s policy whether she had reason for doubt or concern about Mr Cheung’s understanding and acknowledgement at the time, Nurse Li answered in the negative.

155.  By signing the form containing these particulars, Mr Cheung signified his acknowledgement. This is more than “mere say so” but evidence from witnesses, including independent witness, corroborated by contemporaneous medical documents. As mentioned, for what is worth, Dr Kan commented in his report dated 18 November 2020 about the bizarre scenario of a surgeon not seeing the patient at all until after anaesthesia was commenced as alleged by Mr Cheung. The expert also noted that Dr Pang actually studied the results of the laboratory tests which he had ordered in the Admission Letter in order to satisfy himself that the scheduled Surgery was a go in the very morning. In other words, that tends to make the allegation about Dr Pang’s neglect to see Mr Cheung at all before the Surgery unbelievable.

156.  The signing of the anaesthesia consent form followed. At about 13:00 hours, Nurse Li escorted Mr Cheung to the holding area of the Operation Theatre Department. According to Dr Fong, Mr Cheung was sitting in a sofa chair when Dr Fong asked about his general health condition. Mr Cheung told Dr Fong that he went swimming quite often and enjoyed generally good health. Dr Fong also asked about Mr Cheung’s medical history and known allergy. Dr Fong was not alerted to any potential concern during his pre-anaesthesia assessment, which also involved his review of the Multidisciplinary Patient Assessment record of “DM [i.e. Diabetes Mellitus]” and “↑ cholesterol” mentioned above as well as the Clinical Laboratory Report record of Glucose Fasting level at 9.6 mmol/L mentioned above. This is corroborated by the opinion of Dr Chan that the overall risk of developing stroke on account of a patient’s diabetes like that of Mr Cheung should be low.

157.  Dr Fong then explained to Mr Cheung the general anaesthesia procedure for the Surgery. The anaesthetic drugs injected into his body would affect his blood pressure and pulse rate for a short period of time, but the effect would pass upon reversal from anaesthesia. Relevantly, Dr Fong explained that risks of serious complications such as stroke and heart diseases or even death should be low.

158.  After listening to Dr Fong, Mr Cheung signed the anaesthesia consent form in the presence of a Nurse Chan as witness. Dr Fong counter-signed. The process was documented in “First Pre-Anaesthesia Assessment” on the Anaesthesia and Surgical Care form as:

“☑ Doctor explained Potential Risk/ Complication/ Treatment Plan/ Benefit”.

159.  Likewise, the proforma anaesthesia consent form contained prescribed particulars including information about the serious complications arising from anaesthesia including stroke which were stated to be uncommon (or “因麻醉而導致之嚴重併發症並不常見”). By signing the form, Mr Cheung acknowledged receipt of such information.

160.  According to Dr Fong, Mr Cheung did not have question about his explanation or the content of the form. It did not occur to him that Mr Cheung had difficulty in understanding. That should not come surprising when Mr Cheung, as mentioned, admittedly had own knowledge about general anaesthetic risk in surgical procedure such as stroke and experienced the consent obtaining process just conducted by Dr Pang for the Surgery in the presence of Nurse Li before he moved on to see Dr Fong that day.

161.  After completion of the anaesthesia consent form at the holding area, Mr Cheung was taken to the operating table in the operating theatre. The so-called “Time Out” procedure was executed, which entailed the operating theatre nurse cross-checking with Mr Cheung, Dr Pang and Dr Fong including verifying identity of patient and his acknowledgement of knowledge and consent to the procedure in accordance with a checklist. General anaesthesia was administered.

162.  The evidence of Nurse Li up to the point when Dr Fong took over at the holding area outside the operating theatre as well as that of Dr Fong contradict Mr Cheung’s case. The most notable contradiction concerns his case that he was asked to sign a consent form when he was lying on the operating table with drip tube connected to his arm. Dr Fong categorically denied that.

163.  Somehow much was still said about what happened in the course of the Surgery especially the bleeding from the artery. Given the abandonment of the allegation of peri-operative negligence by those acting for Mr Cheung, that ceased to be an issue of liability. In any event, the situation and relevant readings were documented, which Dr Fong also explained well in his evidence.

164.  There is no allegation against Dr Fong. Nor is there suggested basis for questioning why and how he would somehow come to execute his job differently in the case of Mr Cheung by not only failing to follow but also effectively acting contrary to known professional and hospital practice. Nurse Li was scheduled as a witness for the 2^nd defendant, and in that sense not an independent witness. However, that position had since evolved not only upon the discontinuance of the action against her then employer but also after her cessation of her employment with the Hospital. By the time of the trial, Nurse Li has been working as a community nurse for a social welfare organisation. She had to be subpoenaed to give evidence at the trial.

165.  Significantly, these 2 witnesses gave evidence in the most straight forward manner. What transpired in the course of their evidence in court demonstrated that their evidence was credible and reliable. The same cannot be said about the reliability of the evidence of Mr Cheung and Madam Suen. In court, Mr Cheung even denied having seen the surgery consent form until the trial. However, he acknowledged the possibility that the anaesthetic consent form was signed at the waiting room outside the surgery ward. None of these improves his reliability.

166.  When preferring the evidence of Dr Fong and Nurse Li as the credible evidence is beyond question, their evidence serves to corroborate the case of Dr Pang and necessarily knocks out that of Mr Cheung. As Dr Chan accepted in court, accepting the case of Dr Pang as a matter of fact would mean the basis for his adverse opinion about the professional conduct of Dr Pang falls away. This, in my judgment, is the outcome of the assessment of all the evidence. On balance, the risk of stroke associated with the Surgery, I find, was known or in any event made known to Mr Cheung when he agreed to the scheduling and eventually conduct of the Surgery as scheduled.

RE MEDICAL EXPERT EVIDENCE ON LIABILITY

167.  As mentioned, both Dr Chan and Dr Kan accepted, when asked by this court, that the finding as to which of Mr Cheung’s version and Dr Pang’s version of events pertaining to whether Mr Cheung was advised of the risk of stroke associated with the Surgery serves to answer the question of whether Dr Pang has discharged the duty expected of him by reasonable medical practitioners in the circumstances of this case. That said, one aspect of the question, as mentioned, was the parties’ focus on the categorisation by Dr Pang of the risks as “1% mortality & morbidity” in his medical record for the 2 December Consultation and the consent form signed by Mr Cheung on 5 December 2016.

168.  To address this aspect of the question, this court postulated the question mentioned above, namely whether the description as a matter of Dr Pang’s judgment and choice for record purpose was capable of accommodating the reference to the risk of stroke in Mr Cheung’s case. If the question is answered in the negative, this effectively discredits Dr Pang in that the record does not serve to corroborate his case of having advised and explained the risk of stroke. On the contrary, if the question is answered in the affirmative, that should mean the end of Mr Cheung’s case.

169.  Counsel for Dr Pang refer to this court’s recital of the following approach of the court to the assessment of expert evidence in Gurung Romi v Pizza Express (Hong Kong) Ltd [2023] HKCFI 3289 at §144:

(1)  The mere expression of opinion or belief by a witness, however eminent, does not suffice.

(2)  The court has to evaluate the witness and the soundness of his opinion.

(3)  Most importantly this involves an examination of the reasons given for his opinions and the extent to which they are supported by evidence.

(4)  The weight to be given to the opinion of an expert depends on:

(a)  the internal consistency and logic of his evidence;

(b)  the care with which he had considered the subject and presented his evidence;

(c)  his precision and accuracy of thought as demonstrated by his answers;

(d)  how he responds to searching and informed cross-examination and in particular the extent to which a witness has conceived an opinion and is reluctant to re-examine it in light of later evidence, or demonstrates a flexibility of mind which may involving changing or modifying opinions previously held;

(e)  whether or not a witness is biased or lacks independence.

170.  The duty of an expert to assist the court with impartial opinion provided as an expert instead of a hired gun needs no introduction: see for instance Elijah Saatori v Raffles Medical Group [2008] HKCA 414 at §§11-12. Where the parties assert different versions of events, the experts must offer opinion based on different possible scenarios: see Lau Kwai Yin v Tack Hsin Restaurant (London) Ltd [2016] 1 HKLRD 831 at §33. Attempt to form a view of the matter out of disputed factual scenarios as the premise for expert opinion is neither expected nor of assistance.

171.  I can perhaps see why counsel for Dr Pang found it necessary to make it a point in rehearsing the above principles. One again returns to the starting point of this case. Pleading defines the issues and the relevance of evidence. The pleaded case and stance may have evolved by the time when the trial commences. The evolution may continue in the course of the trial prior to the evidence of the experts, which explains the norm of deferring the hearing of expert evidence after the factual witnesses. This indeed happened in the present case.

172.  Whilst Dr Chan accepted that his original proposition of the stroke being bleeding caused by the cutting of the ICA in the course of the Surgery could not be substantiated, he nevertheless raised suspicion about the stroke being the result of the clipping of the right ICA and its subsequent release, but only to conclude at the end that this could not actually be identified as the definite and conclusive cause.

173.  More importantly, the pleaded cause of negligent execution of the Surgery was dropped before the trial commenced, so that the whole case of Mr Cheung on liability rests upon the alleged complete lack of advice on the risk of stroke associated with the Surgery, and hence the lack of informed consent. Those acting for Mr Cheung were expected to have managed their client and witnesses, and to guide the introduction of only evidence, both factual and expert, which would be relevant to the issue.

174.  As much as Mr Cheung referred to the cutting of the artery causing his stroke, Dr Chan questioned the actual blood loss quantity of Mr Cheung during the Surgery as opposed to the documented status and the quality of the pre-operative preparation for possible need for peri-operative blood transfusion.  Not intending to dive into the details, I find the evidence of Dr Fong in this respect in any event fairly explained the pre-operative preparation undertaken as well as addressed such criticism with reference to the circumstances during the Surgery.

175.  Insofar as the attention was placed, and rightly so, on the issue of informed consent prior to the Surgery, the focus of Dr Chan somehow did not stay with the pleaded case of Mr Cheung, namely the alleged lack of advice and explanation in respect of the risk of stroke associated with the Surgery.

176.  For instance, Dr Chan questioned the lack of fundoscopic examination, “Snellen chart” or perimetry conducted for the purpose of recording a baseline for future comparisons, but only to accept that conducting a confrontational visual field test instead was not unreasonable. That Dr Pang did conduct such a test during the 2 December Consultation was pleaded, though denied and only admitted in court by Mr Cheung, was known by the time when Dr Chan gave evidence.

177.  Dr Kan’s evidence in this respect, in my view, sounds more realistic. The fact, as Dr Kan saw, was that Mr Cheung came to consult Dr Pang as the specialist, armed with the MRI results and referral of Dr Chung suggesting diagnosis of a pituitary tumour impacting on his optic pressure and thus his vision problem. Any other further clinical tests and investigations might serve academic purposes but would have no clinical benefit to the patient in the circumstances. It should also be noted that Dr Pang did explain the treatment options, and Dr Chan did not suggest how such explanation could have been different had the further tests and investigations suggested been conducted at that point.

178.  On treatment options, Dr Chan raised for the first time in his second report that Dr Pang should have advised Mr Cheung on the endoscopic, instead of the microscopic, approach to the transsphenoidal surgery recommended. This is not a pleaded particular of omission or failure on the part of the doctor. Further, these would have been different approaches to the surgical plan instead of different treatment initiatives. How the different approach to the same surgical management plan would have been material, not to mention materially better, is unclear. When he came to his evidence in court, Dr Chan then accepted that at the relevant time, the microscopic approach recommended by Dr Pang has been considered to be the gold standard technique for patients in need of such tumour excision. Dr Kan did not share the view that discussion with the patient by the doctor of such possible alternative approach to the surgical plan would be necessary or helpful for the purpose of obtaining his informed consent to the procedure. That in my judgment aligns with the legal principles in the circumstances of this case.

179.  As mentioned, query was raised as to the time spent at the 2 December Consultation. Dr Chan effectively agreed with Mr Cheung, if his version of events is accepted, that it was conducted in a rush, as his estimated duration necessary for the consultation should have far exceeded the time spent. Discussion in this respect above refers. In court, Dr Chan accepted that all would have had to depend on the circumstances which, as I understand, would form part of the professional judgment of the doctor. Such circumstances in the present case must include the background of Mr Cheung and the medical materials known to Mr Cheung and Dr Pang at the time. Against that, and for the purpose of explaining, amongst all possible complications, the relevant risk of stroke associated with the Surgery as a treatment option, there is in my judgment nothing inherently incredible about the time taken. Dr Kan held an effectively similar view of the matter.

180.  Where informed consent to a surgical procedure is in issue, one is readily expected to perceive discovering what the pre-operative documentation and, in the normal course of events, written consent of the patient have to say. The existence of such documentation must be expected when the surgical procedure was performed at a hospital involving surgeon, anaesthetist and nursing staff, where prescribed protocol is expected to be in place. This happened in the present case where proforma consent forms were filled in with additional particulars as well as signed by the parties involved.

181.  In view of Mr Cheung’s assertion that he was not attended to by Dr Pang or any doctor of the Hospital after admission until he was asked to sign the consent form when he was lying on the operating table with drip connected to his arm, it would only be natural to seek further verification by reference to the contemporaneous documents surrounding his signing of the consent forms. In the present case, as discussed, such documentation did exist including the Pre-Operation Check-list (in the Anaesthesia and Surgical Care), the Time Out Procedure and the Medical Assessment. They may be circumstantial, but if put together with the consent forms, they had the quality of casting light on the likely sequence and circumstances. Prudence requires the expert to scrutinise all these documentation globally. I have reservation about the sufficiency of that on the part of Dr Chan. If the expert is on guard in view of the conflicting versions of events contended by the parties, as they do in the present case, he must make his reservation or qualification known. Dr Kan did that.

182.  In any event, finding of the circumstances leading to Mr Cheung’s signing of the consent forms for the Surgery and that for the anaesthesia is a matter for this court. This court did that above. Hence the next focus, which is whether “1% morbidity & mortality” chosen by Dr Pang to record his advice in the 2 December Consultation and the surgery consent form suffices in corroborating the advice in respect of the risks associated with the Surgery.

183.  I am afraid that the exercise of extensive references to the medical literatures with a view to scrutinising the accuracy of allocating 1% instead of any other percentage to the risk of morbidity or mortality was at the fringe of being off the focus. As discussed, Mr Cheung is not in a position to run a purported alternative case on the basis that he was in fact advised of the risk of stroke associated with the Surgery but the advice was inaccurate or inadequate in terms of the (percentage) degree of the risk represented by Dr Pang.

184.  I am not impressed that either expert took the view that the risk of stroke, if in fact advised upon, could not be categorised for Dr Pang’s record purpose as a severe and irreversible morbidity with neurological deficit. According to Dr Pang, the risk of stroke was but one of those associated with surgical procedure which he mentioned in his explanation to Mr Cheung.

185.  Materiality, as discussed, refers to what mattered to Mr Cheung for the purpose of his deciding whether or not to take the risk and opt for the Surgery. For that matter, when the risks represented were a matter of 1%, the message intended for and received by Mr Cheung as the patient was that the risk was minimal or very small. That was what average patients seek to know: see Sidaway v Board of Governors of the Bethlem Royal Hospital & Maudsley Hospital Board [1984] QB 493 (CA) at p.512F to G; 514D to E; Ollosson v Lee [2019] Med LR 287.

186.  By the same token, Dr Chan accepted that it was not necessary to mention each and every risk. There is no exhaustive list of complications for the purpose of informed consent. The medical literatures did not suggest otherwise. The failure to mention some minor and immaterial risk would not render a written consent a nullity. He accepted that reference to “morbidity” is capable of accommodating the risk of stroke and its associated neurological deficits.

187.  So understood, one should be able to see that the extensive medical literature consultation carried out at the trial with a view to demonstrating that the percentage allocated was inaccurate would be insignificant.

188.  Interestingly, there is amongst the medical literatures cited by both experts one[3] which suggested that in one of the largest studies assessing medical and surgical complications associated with microscopic and endoscopic transsphenoidal pituitary surgery, the rate of death or major disability was 0.26%. Dr Kan explained that when all the serious neurological deficits and death are taken in account, the 1% risk for both endoscopic and microscopic approaches of transsphenoidal pituitary surgery would not be far off. Dr Chan did not seek to differ.

189.  In other words, if anything, it was not without basis even for the extent of risk of serious permanent neurological impairment (or morbidity) or even death (or mortality) to be graded as about 1% in quantitative terms or that minimal in categoric terms. The attempt in submission on behalf of Mr Cheung to factor in various other risks, which were not pleaded to be material to Mr Cheung at the material time or causative of his damage, with a view to higher quantification of risk, in my judgment, is not a legitimate or helpful course to take in the circumstances of this case.

190.  The matters so far discussed, including that to the extent as may be necessary for completeness, only tend to demonstrate that the evolution of the case of Mr Cheung by the time of the trial has rendered the part of the expert evidence overworked. All things considered, this court would prefer the opinion of Dr Kan to that of Dr Chan insofar as they are indeed relevant and necessary, and where the two differ.

CONCLUSION

191.  Considering the evidence, including those discussed above, I find that Mr Cheung fails to establish liability.

QUANTUM

192.  I proceed to discuss quantum, assuming liability is established. Liability in the present case, if established, would be that for the damage to Mr Cheung caused by the stroke, which he would not have encountered but for the Surgery carried out in the absence of his informed consent.

193.  To recapitulate, the quantum pleaded exceeds HK$54 million whereas those acting for Dr Pang projects a sum of about HK$4 million. In their closing submission, counsel for Mr Cheung substantially adjusted the quantum of claim by more than half to about HK$25 million.

POST-SURGERY COMPLAINTS

194.  Mr Cheung has the following complaints:

(1)  He is unable to perform or enjoy the pre-stroke activities.

(2)  He has experienced fall in the street and discrimination due to his disability.

(3)  He soils himself for inability to get to the bathroom in time.

(4)  He feels depressed, bad-tempered, low self-esteem and mental stress.

NEUROLOGICAL EXPERT OPINION

195.  Dr Brian Choa and Dr Yu Yuk Ling were instructed on behalf of Mr Cheung and Dr Pang respectively for their neurological expert opinion. They examined Mr Cheung on 6 August 2020 and produced their joint report dated 14 August 2020. They supplemented their joint report on 14 November 2020.

196.  It was the shared opinion of the neurological experts that the stroke affected the left side of Mr Cheung’s body, predominantly his left upper limb. While he has made good progress with his leg, to the extent of being able to walk independently using a walking stick, there has been no improvement in his upper limb, which remains completely paralysed and functionally useless, and is subject to painful spasms. He also has mild cognitive and psychological dysfunction and mild swallowing difficulty with fluids. Such impairments amounted to 60% of the whole person.

197.  Mr Cheung is considered to be no longer employable. His condition would not be treatable but could be improved in terms of future stroke risk prevention. He probably has the requisite mental capacity to manage and administer his properties and affairs. Life expectancy in his condition is 81 years.

OCCUPATIONAL THERAPY EXPERT OPINION

198.  Mrs Tsang Lau Kit Ping Alice (“Mrs Tsang”) and Mrs Shelley M Chow (“Mrs Chow”) were instructed on behalf of Mr Cheung and Dr Pang respectively to provide their occupational therapy expert opinion. They interviewed Mr Cheung on 28 January 2021, and produced their joint report on 25 May 2021.

199.  The experts found his main problems include poorly controlled spasticity affecting coordination and function in his left limbs, slightly poor oral motor ability, slight cognitive impairment and dependence on activities of daily life. They outlined the reasonable needs for Mr Cheung’s long term quality of life, safety, comfort and security based on his residual dysfunction and his socio-economic status and previous lifestyle within reason. Their specific recommendations will be referred to when discussing the items of claims below.

PRE-EXISTING CONDITION

200.  The sole basis of Mr Cheung’s claim is the lack of informed consent to the Surgery, and had the Surgery not been performed as scheduled, he would not have encountered the stroke. Questions arise.

201.  The evidence suggests that the goal of the Surgery in decompressing the optic chiasm, and thus improving Mr Cheung’s blurred vision, was in fact achieved despite the unwanted associated stroke. This was the joint opinion of the neurological experts, which supports Dr Pang’s contention. Therefore, had the Surgery not proceeded with in December 2016, one legitimately questions how such condition, which had irritated Cheung for some time and caused him to consult numerous ophthalmologists and family doctor, would have developed; as well as whether and, if yes, to what extent such condition would have impacted on his daily work and life until it was somehow rectified. If something other than the Surgery would have been done to address his blurred vision problem, one legitimately asks what the result of that would have been.

202.  Counsel for Dr Pang asked a further question: if what Mr Cheung would have done, after further deliberation and perhaps second opinion back in December 2016, was either deferring a surgery with similar approach as the Surgery or opting for a different approach of surgery at a subsequent stage, whether or not the risk of stroke would have materialised in any event. Counsel referred to Dr Kan’s opinion that the cause of the stroke was likely pre-existing abnormal cardiac endocardium. On this basis, they answered this question in the affirmative.

203.  Hence the discount on account of the above eventualities advocated by counsel for Dr Pang in the assessment of quantum.

204.  Counsel for Dr Pang submitted that a defendant is liable for the injuries caused to the plaintiff, even if they are extreme, but he need not compensate the plaintiff for any debilitating effects of his pre-existing condition which the plaintiff would have experienced anyway. The defendant should only be liable for the additional damage not resulting from the pre-existing condition. Likewise, if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant's negligence, then this should be taken into account in reducing the overall award: see Athey v Leonati [1999] Lloyd's Rep. Med. 458 (CA) at §35; Yeung Lai Ping v Secretary for Justice [2019] 4 HKC 1 at §148 (and [2021] 3 HKC 529 (CA)).

205.  Instances of such consideration in the context of medical negligence are cited.

206.  In Greenwood v Higson (unreported, Case No D68YX349, 19 March 2020), the deceased had a history of anxiety, depression and had attempted suicide on two previous occasions. Whilst in the care of the defendant, he committed suicide by hanging. The court dismissed the claim for failure to advise on materials risks of reducing the deceased’s medication. In respect of quantum of damages, the court found that if the deceased had continued to take her medication then her life would have carried on in much the same way as it had previously before with periods of stability followed by relapses. However, she would deteriorate and there would have been times when the deceased was suffering from a deterioration in her symptoms and a time when she would not. The court was of the view that appropriate discount should be applied, which was 33% for all future losses.

207.  In Gordon v Wilson (1992) S.L.T. 849, the pursuer advanced her claim on the ground that there was delay on the part of the defendants in the diagnosis and thus surgical removal of a benign tumour from her brain, and that occasioned and resulted in nerve damage which would not have occurred had the tumour been diagnosed and removed earlier. Whilst the court dismissed the claim, it nevertheless assessed the damages. In doing so, the court held that the fixing of a proportion attributable to negligence would have required a decision as to the point at which surgery would have taken place in its absence. It was contended to be 1983. On the evidence, there was insufficient support for the view that there were material prospects of an improved outcome on surgery after the end of 1985. The court considered that an appropriate discount would have been of the order of 60% at the end of 1983 graduating to 100% at the end of 1985.

208.  In principle, this aligns with the conventional approach of the court in considering the bearing of pre-existing condition in cases in Hong Kong since the often-cited Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958 (CA). The following scenarios were restated by the appellate court in Liu Chun Kow Joe v Lee Sau Wing [2008] 3 HKC 433 at §36:

(1)  The plaintiff would probably go through life without being affected by the disability. In such a case, the defendant would be liable for all damage caused by the proved wrongful act.

(2)  There is a strong possibility that some other event or natural progression of the condition would have brought about the plaintiff’s present state. The court would need to assess the degree of possibility in deciding what reduction is appropriate, as in assessing the effect of other vicissitudes of life.

(3)  The pre-existing condition would certainly lead to disability and loss in the future. In such case, an allowance has to be made, the extent of which depends on the evidence as to when the precipitating event would have occurred.

209.  As recently reiterated by the appellate court in Ip Siu Chi v Kwan Wing Hang trading as Fai Hung Construction Company & Ors [2026] HKCA 204 at §2, in case of scenarios (2) and (3) above, the usual method of assessing the recoverable loss would be to take account of the risks of pre-existing condition by an appropriate assessment of general damages. The pre-trial loss of earnings might also be reduced if the risks during the years concerned were sufficiently high. For future loss of earnings, the most accurate way to take account of the risks usually is by means of reduced multiplier.

210.  Counsel for Dr Pang submitted that Mr Cheung would certainly have suffered deteriorating visual impairment if the Surgery had not been performed in December 2016. Alternatively, had a procedure similar to or different from the Surgery been performed to remove the tumour at a later stage, the cardiogenic stroke would still have happened. Hence, a state of affairs akin to scenario (3) above. Counsel therefore advocated an overall discount of the quantum assessed by 1/3.

211.  The authorities laying down and applying the principles summarised above suggest that all are premised on findings, which in turns depend on the evidence of the circumstances of the case.

212.  Objectively, the pre-existing compression of pituitary tumour was already symptomatic in terms of visual distortion and darkening, which Mr Cheung considered to be irritating, and interfering with his life for some time. The degree of that sufficed in causing him to consult numerous ophthalmologists and eventually Dr Chung out of concern about the tumour in the brain. In view of the evidence, it would be safe to say that had Mr Cheung not proceeded with the Surgery or somehow addressed the vision problem medically, the problem with his optic nerve pressure would have continued, and his visual impairment would have deteriorated. Hence further irritation and interference with his daily life and work. Whilst things could have been done otherwise to rectify the problem, the evidence does not suffice for any concrete projection of what they would have been and their outcome as well as their resultant impact on his work and daily life, for better or worse.

213.  On the basis of the opinion of Dr Kan as mentioned, potential of cardiogenic stroke as a spontaneous thrombotic event would have remained. However, even such pre-existing condition of Mr Cheung made him prone to stroke in given circumstances, the expert evidence falls short of further substantiating that he would have encountered stroke one day, be it in a surgical procedure or merely in the ordinary course of his life, even without the Surgery in December 2016. The fact that such risk materialised in the Surgery, in my judgment, does not serve to prove that this would probably have happened in any event. Such cannot be projected with reasonable confidence.

214.  In the circumstances, I am prepared to factor in the impact of the pre-existing vision problem, which would have remained had the Surgery not taken place, on the work and daily life of Mr Cheung in the consideration of quantum. I am not prepared to do so insofar as the risk of stroke is concerned.

PAIN SUFFERING AND LOSS OF AMENITIES (PSLA)

215.  Mr Cheung was born on 19 October 1952. At the time of the Surgery in December 2016, he was 64 years old. According to him, he used to be a very healthy, active and cheerful person prior to the stroke. He regularly exercised, including jogging for 10 km daily before going to work. He participated in marathon as well as other sports games. He spent about 80% of his time on business trips. He played golf with business associated regularly. He went hiking most of the weekends and on holiday trips with family. He had regular sex. He loved driving, and a new car was bought 2 months before the Surgery.

216.  The health or medical records of Cheung since 2011 were disclosed. Referring to his Body Mass Index and the evidence of Madam Suen that Cheung then weighed about 180 lbs, his opponent queries the extent and routine of healthy life before the Surgery portrayed by him before the court. Exaggeration in this respect is suggested.

217.  Mr Cheung contends that his case falls within the bottom end of the gross disability category as defined in Lee Ting-lam v Leung Kam-ming [1980] HKLR 657 (CA). This category comprises injuries which leave the victim with very restricted mobility or cause serious mental disability or behavioural changes. This bracket includes paraplegics who, particularly if young, can expect to be placed at the upper end of the bracket. HK$1,000,000 is claimed.

218.  On behalf of Dr Pang, reference was made to substantial injury which is one category down the scale. This category extends to injuries which require treatment in hospital for many months and leave the victim with a much reduced degree of mobility, eg a leg amputated from the thigh so that an artificial leg cannot be used satisfactorily; or multiple injuries which leave a condition requiring regular treatment for the rest of the victim's life. Counsel referred to Lam Mo Bun v HK Aerosol Co Ltd [2001] 1 HKLRD 540 and Lau Ka Po v Man Cheuk Ming & Anor [1997] HKCFI 184 as comparable in support of the pleaded proposed award of HK$750,000.

219.  Further, in the quantification with reference to the comparable ranges of award, adjustment to accord with inflation is normally made. Counsel referred to the table of awards for the 4 categories of injury severity set out in the Hong Kong Personal Injury Tables (2019 Edition) (“Chan Tables”) between 1996 and 2018. Counsel for Mr Cheung advocated further increment by reference to the Consumer Price Index (“CPI”) (A) whereas counsel for Dr Pang disagreed as the Chan Tables are based on the mid-year Composite CPI. In their opening submission, counsel for Mr Cheung suggested the range of award for substantial injury should be HK$HK$835,000-1,020,000. When closing, they adjusted that to HK$816,000-998,000.

220.  Counsel for Dr Pang also argued that the award for PSLA ought to be reduced on account of future improvement brought about by the future rehabilitation and restoration of Mr Cheung’s mobility afforded by the damages to be awarded. They attributed what is said to be sub-optimum rehabilitation in Mr Cheung, despite the lapse of some 5 years after his stroke, partly to the over-protective attitude of his wife.

221.  I can understand the above argument in obvious cases tantamount to questionable mitigating effort. Other than that, projection of a patient’s rehabilitation should be part and parcel of the medical prognosis. Rehabilitation is a process, during which future therapies and deployment of assistive facilities should reasonably address and relieve the PSLA and disabilities. This is a give-and-take process in terms of pain and hardship, though hopefully bringing a positive net result to the injured person. With that in mind, I am prepared to take a somewhat sympathetic and realistic view.

222.  In my judgment, the circumstances of Mr Cheung put him within the upper region of the category of substantial injury. In terms of quantification, which is not a strict strait-jacket fitting exercise, I take the view that HK$990,000, inclusive of further inflation by now factored in, would not be unreasonable.

LOSS OF SOCIETY

223.  Mr Cheung claims damages for loss of society in the sum of HK$150,000.

224.  Section 20C(1) of the Law Amendment and Reform (Consolidation) Ordinance, Cap 23 provides for the entitlement to claim for loss of society where the prescribed family members are deprived of the injured person’s society.

225.  Counsel for Dr Pang argued that this is not for transient loss or compromise of the injured person’s society: see Lam Yin Fong v Tsang Kam Cheong [2003] 3 HKLRD 501 at §52; Law Ping Leung v Ng Sze Pong [2009] 5 HKLRD 426 at §§51-58. In my view, it is a matter of degree to be assessed realistically. Therefore, in response to the contrary argument by counsel for Mr Cheung that the court has always been ready to make an award for loss of society in tetraplegic cases, I would say that each case should still be decided on its own facts.

226.  Mr Cheung was assessed to have mild cognitive dysfunction but no mental issue. He retains relevant and coherent speech as well as good memory. He was available and able to remain in company of and communication with Madam Suen and the Daughter. He retains mobility so that he is not wheelchair bound but manages ambulating independently with a walking stick. The family had gone on overseas holiday trip after the stroke at least once in 2017, which Mr Cheung enjoyed but Madam Suen described was an unpleasant experience. He has slight personality change including bad temper. Then there is the age factor.

227.  Quality-wise, the circumstances of the present case, in my judgment, do not fall into obvious deprivation of society envisaged by the statute. All the circumstances considered, I would decline making an award for this head of claim.

PRE-TRIAL LOSS OF EARNINGS

228.  Mr Cheung claims that but for the stroke, he would have continued to work until 80 years old.

229.  This court acknowledges that in current times, retirement at the age of 65 may have become less as a norm as it was in Hong Kong say a decade ago. Working lifespan lasting until the age of 70 out of multiple reasons may not be extraordinary. This situation is not ruled out at least in white-collar occupations. That said, one still considers each case in its own circumstances.

230.  Prudence calls for scepticism on the basis of evidence in the present case. The evidence reveals that in 2013, when Mr Cheung was 60 years old, he was approached by the human resources department of Chubb with a view to his retirement plan. This caused him to plead to a Mr Ross Shuster (“Mr Shuster”), an executive then in Hong Kong, who intervened and eventually secured Mr Cheung’s retention. In the following year, Mr Cheung was placed in his position current at the time of the Surgery. Second anniversary of such positioning by the time of the Surgery, that was.

231.  Mr Cheung’s employment with Chubb ended by the end of 2017 when he turned 65. He claims that but for the stroke, he would have continued to work for Chubb until 75 years old and/or some other institutions beyond that. He was 72 years old at the time of the trial.

232.  The understanding, if any, behind his retention by Chubb back in 2013 cannot be verified, as Mr Cheung was unable to tender Mr Shuster as a witness, who is said to have left the company and Hong Kong, or any other relevant management personnel as witness. Nor can his development in his pre-Surgery position, but for his stroke, be gauged, particularly when first, the senior management personnel instrumental to retaining him against the human resources initiative in 2013 has left, and second, according to him, the volume of sales and his performance would have been affected by factors such as market downturn in the past years. That would include the COVID-19 pandemic years.

233.  Counsel for Dr Pang invited me to draw adverse inference against Mr Cheung on this disputed factual issue from his failure to tender the admittedly relevant witnesses mentioned above, referring to Wisniewski v Central Manchester Health Authority [1998] P.I.Q.R. P324 (CA). Properly understood, the principles apply where the evidence tends to suggest a prima facie state of affairs, which a party believed to be interested in rebutting is reasonably expected to be in a position to adduce evidence to do so. Failure to do so without good reason may afford the court with basis for drawing inference adverse to the rebutting party so as to enable the prima facie state of affairs to be found as fact. This is not quite the situation here.

234.  Mr Cheung claims he could have had other job opportunities if he had to leave Chubb. Specifically, he could have worked for the Hong Kong Security Association (“HKSA”) and/or Interconic Engineering Co Ltd (“IEC”). This is where the evidence of Mr Tang and Mr Chan, whom Mr Cheung called as his witnesses, comes to be considered.

235.  Mr Tang became the Executive Director of HKSA 2 years after his retirement from his previous job in 2002, and was still working there at the age of 78 at the time of his witness statement dated 2019. He received a monthly income of HK$30,000. HKSA, according to Mr Tang, serves as a profession and trade association for the security industry in Hong Kong with membership composed of licensed security companies. Mr Cheung has been one of the executive committee members of HKSA in 2005.

236.  In court, Mr Tang revealed that his position was in reality a “one-man-band” without fixed working hours. Mr Cheung admitted that the appointment of Executive Director, which Mr Tang suggested, would depend on the available candidates and require the unanimous decision of the 14 members of the Executive Committee in accordance with the constitution. There is therefore no question of handing over of the position by Mr Tang to Mr Cheung as if this could be dictated or guaranteed. There was not a trace of evidence indicating the Executive Committee’s understanding, if any. Mere evidence of Mr Cheung and Mr Tang did not come close to establishing the likely prospect of their personal belief or projection becoming reality.

237.  As to Mr Chan, he used to work for Chubb prior to Mr Cheung’s joining. He was at the time of his witness statement dated 2019 the director and person in charge of IEC at the age of 68. He expected that upon Mr Cheung’s retirement from Chubb, IEC would offer Mr Cheung a position with HK$60,000 monthly income subject to no retirement age. According to Mr Chan, he first came across Mr Cheung in 2005 when the latter, as mentioned above, became an executive committee member of HKSA. The level of acquaintance between the two in terms of work and friendship, according to Mr Chan, did not quite match the impression portrayed by Mr Cheung to the court. That aside, his evidence as per his witness statement was an account of his praise about Mr Cheung as a man in the industry. According to him, the thought of inviting Mr Cheung after his retirement from Chubb to join IEC had come about at unspecified point of time, but he somehow described it as his belief that an offer could be made to employ Mr Cheung at HK$60,000 and not subject to retirement age.

238.  Unlike Mr Tang of the HKSA as discussed, Mr Chan is the director, the controlling shareholder and the Chief Executive Officer in charge of the company. Yet he believed an offer would be made to Mr Cheung. In the absence of further evidence of the contemporaneous circumstances, the projection sounds more self-serving than concrete.

239.  The assertions of Mr Tang and Mr Chan share one common feature. Whilst they praised Mr Cheung as a distinguished man in the industry, they somehow testified to the idea of recruiting him only after his retirement from Chubb where, according to Mr Cheung, there was no rigid retirement age. It is not without reason for counsel for Dr Pang to suggest that the evidence of Mr Tang and Mr Chan came about in support of Mr Cheung’s claim essentially out of consideration of friendship. I share that scepticism.

240.  I consider the fact that despite irritation by his vision problem over the 2 years before consulting Dr Chung in late November 2016, Mr Cheung apparently managed his job. Dr Pang took the view that surgical intervention was not urgent at the time, and the medical experts did not say otherwise. One fairly expects that his vision problem, if not properly addressed, would have deteriorated in the ordinary course of events. Mr Cheung could have postponed surgical intervention or taken alternative course of treatment. Either course would have taken some toll on his health condition at his age in any event. Further, one cannot say with confidence about the result of any of those alternative courses and the degree of any impact of that on his capacity to cope with his work. There was evidence of his indication of semi-retirement thought (which he denied in court).

241.  All things considered, I am prepared to accept that he could have continued his job after 2016, had he not proceeded with the Surgery, but the comfort zone of that hardly extends to 70, let alone 75 years old, as alleged. Doing the best I can, I would be prepared to assume 2 more years of work beyond the age of 65 in his case but for the Surgery in December 2016. As Mr Cheung was admittedly fully paid by Chubb until the end of his employment by the end of 2017 after just passing his 65^th birthday, his loss of income would be those from the 2 years after that.

242.  When the trial commenced, the parties agreed that Mr Cheung’s annual income in 2016 was HK$1,664,270. Counsel for him calculated his tax liability net of allowance was HK$220,046. Hence his after-tax annual income of HK$(1,664,270 – 220,046) = HK$1,444,224. Loss of 2 years’ income would be HK$1,444,224 x 2 = HK$2,888,448.

FUTURE LOSS OF EARNINGS

243.  In view of the above discussion in respect of his pre-trial loss of earnings, there will be no award for future loss of earnings.

VALUE OF GRATUITOUS SERVICE

244.  Mr Cheung claims for compensation for the value of service provided by Madam Suen and the Daughter. The value of the service was said to be HK$60 per hour. In the case of Madam Suen, it was said to be 10 hours per day while it was said to be 3 hours per day, both all year round. These give an annual sum of HK$60 x 10 x 365 = HK$219,000 and HK$60 x 3 x 365 = HK$65,700 in the case of Madam Suen and the Daughter respectively. Both items of claim are said to arise and continue since the Surgery.

245.  Much was said in submission about the pressure which Madam Suen has been subject to in caring for Mr Cheung. However, the exercise is not to put a value on the service in accordance with the effort and hardship entailed. Value of service should be awarded on the basis of the value of the earning capacity of the service provider: see Lai Chi Wai v Tong Hung Kwok & Anor [2020] 6 HKC 1 at §140. The natural calculation would be referring to the loss of the service provider sparing himself or herself to provide the service to the injured person.

246.  As such, those acting for Dr Pang criticised the quantification as lacking factual basis and in any event out of proportion.

247.  Madam Suen had always been a full-time housewife since 1981. The extent of service over and above the underlying care expected out of the matrimonial relationship has to be viewed in that light.

248.  In the case of the Daughter, she worked as an associate director in sales operations at the time of the incident. Her evidence was that she visited her parents daily since January 2017 until the end of March 2017. In view of the improvement of Mr Cheung’s condition and the arrival of the domestic helper, the frequency was reduced to 3 occasions a week. These happened after work and during weekends. After quitting her job in January 2020 entirely for personal wellbeing, she started to visit and help her parents more, about 4 days a week. Be that during her employment or unemployment out of her own reasons, there is no evidence of compromise of her earning or earning capacity as a result of sparing herself for such visits and service.

249.  The joint occupational therapy report reveals the information from Mr Cheung/Madam Suen that a new foreign domestic helper (after truncation due to the COVID-19 pandemic) had started by the time of the experts’ examination of him in late January 2021. The existence of such hired outside help should also be taken into account.

250.  Those acting for Dr Pang proposed a monthly rate of HK$4,630 for the value of the service. In the case of the Daughter, it would be half rate, ie HK$4,630/2 = HK$2,315. Account should be given to the change in circumstances over the years with the arrival of the domestic helper in late January 2021 serving as relief.

251.  All things considered, it would appear that the proposed quantum on behalf of Dr Pang is more realistic and reasonable than that quantified on behalf of Mr Cheung. In view of the lack of compromised earning or earning capacity of Madam Suen and the Daughter, this average monthly amount should stand the test of comparison with the remunerated service of a foreign domestic helper. Reference to the rate of remunerated domestic help for such comparison, in my view, was not ruled out by the court in Lai Chi Wai (above) in the circumstances of a case like the present one. Hence the following quantification.

Madam Suen

From hospital discharge (25 January 2017) to January 2021:

HK$4,630 x 48 months = HK$222,240

From January 2021 to the present:

HK$4,630/2 x 63 months = HK$145,845

The Daughter

From hospital discharge (25 January 2017) to March 2017:

HK$2,315 x 2 months = HK$4,630

From March 2017 to January 2020:

HK$2,315 x 33 months x 3/7 = HK$32,741

From January 2020 to January 2021:

HK$2,315 x 12 months x 4/7 = HK$15,874

252.  That makes a total sum of HK$(222,240 + 145,845 + 4,630 + 32,741 + 15,874) = say HK$421,330.

FUTURE EXPENSES

The applicable multiplier

253.  The common opinion of the neurological experts was that life expectancy is reduced in patients with stroke, and the extent of reduction is related to the severity of the residual neurological deficits arising from the injury. Categorising the neurological disability of then 68-year-old Mr Cheung as similar to that resulting from a traumatic brain injury, being able to feed himself and walk short distance with the aid of a stick, the experts projected his life expectancy of 18 more years having been compromised by 27%, ie 13 years. Mr Cheung’s life expectancy has become 81 years.

254.  Mr Cheung was 72 years old at the time of the trial and 73 now. The multipliers applicable then and now should be 8.61 and 7.69 respectively when Mr Cheung would incur expenses in the future due to his disabilities. There is no real dispute regarding them. The latter of the 2 multipliers should be adopted for the present purpose.

Rehabilitative treatment

255.  This includes psychological counselling for Mr Cheung and the family, physiotherapy, occupational therapy and speech therapy as recommended by the occupational therapy experts.

Private or public sector

256.  The occupational therapy experts differed on whether these treatments should be arranged in the private or public sector.

257.  The court in Wong Man Kin v Golden Wheel (C&HK) Transportation & Anor HCPI 913/2011 (17 July 2015) commented (at §64) that where the plaintiff has a genuine intention to seek treatment from private doctors or hospitals, the court should award damages on such basis. This should not be equated with the consideration of the plaintiff’s duty to mitigate his damage. The situation may differ where there is good reason for preferring treatment in the public sector. Instances are the lack of such treatment or services, or their ready availability, in the private sector or the existence of advantage to the plaintiff by seeking treatment or services in the public sector. An instance of the latter would be the advantage of continuation of already commenced and successful treatment in the public sector.

258.  Each case is decided according to its own circumstances as the evidence suggests. In my view, the approach is not necessarily one across the board, but that to consider the circumstances surrounding each recommended treatment. The basket of factors also consists of the plaintiff’s pre-injury lifestyle and pattern of medical consultation, but its significance may not outweigh the considerations mentioned in the preceding paragraph and that of the potential cost-effectiveness. This I believe is partly why the occupational therapy experts described in their report that reference to Mr Cheung’s previous lifestyle must be made within reason.

259.  Mrs Tsang recommended private sector as this would allow more flexibility and continuity, which also aligned with the medical consultation pattern of the family prior to the stroke. This seems to have been the case, particularly when Mr Cheung had medical insurance.

260.  Mrs Chow recommended public sector for the benefit of the setting, which provides peer group support, expansion of social circle and integration into the community as well as wider variety of treatment programmes and equipment. A few home sessions would be beneficial. Cost would be lower.

261.  Mr Cheung did seek treatment from both private and public hospitals after the stroke. When Madam Suen was admitted to the hospital in December 2016 and January 2017, private hospital was chosen. It would appear that given the choice, Mr Cheung would intend to seek treatment in the private sector as he had previously done.

Psychological counselling

262.  The occupational therapy experts noted that Mr Cheung was psychologically disturbed by his dysfunction, and the family members probably under stress. Hence their recommendation for psychological counselling sessions.

263.  Essentially, Mrs Tsang recommends service from the private sector for 85 sessions at HK$2,500@ amounting to HK$212,500 whereas Mrs Chow recommends service from the public sector for each family members once per week for 3 months and then subject to review. That would be 12 sessions for each member at HK$100@ for 3 months amounting to HK$3,600. It appears that even according to Mrs Chow, the frequency of sessions could exceed that mentioned above. The cost of such session in the private sector ranged between HK$2,000 and HK$2,500 or the median amount of HK$2,250.

264.  All things considered, I accept the proposed psychological counselling sessions at the private sector at HK$2,250 per session for each of the family members, and I allow that for 5 months. That would cost HK$2,250 x 4 times/month x 5 months = HK$45,000 for each of the 3 family member. Hence HK$45,000 x 3 = HK$135,000.

Physiotherapy

265.  Relying on the opinion of Mrs Tsang, Mr Cheung claims the cost of 2 double sessions per week of physiotherapy for life. At HK$2,260@, the total cost of HK$2,780,532.20 is claimed.

266.  Mr Cheung started physiotherapy on average twice a month at the public hospital in April 2018. There is no compelling reason why this should be disrupted by changing to the private sector, and the benefit of continuity outweighs personal preference.

267.  Mrs Chow projected lesser frequency of physiotherapy. It be a total of 47 sessions over a course of slightly less than 3 years plus annual review session for 5 years (or 5 sessions). Hence 52 sessions. The initial assessment would cost HK$135 and follow-up session would cost HK$80@. Hence HK$(135 + 51 x 80) = HK$4,215.

268.  I accept the projection of Mrs Chow.

Occupational therapy

269.  Relying on the opinion of Mrs Tsang, Mr Cheung claims the cost of 93 occupational therapy sessions spanning over 2.5 years with additional sessions thereafter 10 sessions for crisis intervention. Each session would cost HK$1,800.

270.  Mr Cheung started occupational therapy at the public hospital in September 2019. There is no compelling reason why he should change to the private sector out of personal preference.

271.  Mrs Chow recommended a lesser frequency of occupational therapy. It will be a total of 47 sessions over a period of slightly more than 3 years plus annual review sessions. She disagreed with the need for crisis intervention as the family would have a contact in case of need, and new referral would be required upon identification of need in medical consultation.

272.  Those acting for Dr Pang proposed to adopt the recommended frequency by Mrs Chow. I accept. However, what they set out in the answer to the revised statement of damages in this respect was at variance with what Mrs Chow stated in the expert report. In line with Mrs Chow’s recommendation, there should be a total of 50 sessions (including initial assessment) and 5 annual review sessions. This would cost HK$(135 + 54 x 80) = HK$4,455.

273.  I accept that.

Speech therapy

274.  Mr Cheung claims the cost of a total of 36 speech therapy sessions spanning over 1 year (and additional sessions thereafter). The occupational therapy experts agreed on the frequency, save that Mrs Chow disagreed on the need for crisis intervention sessions. The explanation mentioned above refers. They also agreed that such arrangement at the private sector would cost HK$1,000-1,600 per session (50 minutes) and HK$2,000 (if provided at home).

275.  I allow this item to be assessed on the basis of service provided in the private sector. In line with the recommendation of the experts on encouraging Mr Cheung to be active on a daily basis, I assess this item on the basis of therapy outside home. Taking the median session rate of HK$(1,000 + 1,600)/2 = HK$1,300, the total cost of 36 sessions would cost HK$1,300 x 36 = HK$46,800.

Other further or alternative treatments

276.  Mr Cheung also claims the cost of other types of future alternative treatments in respect of which the occupational therapy experts have also commented.

Consultation with Professor Lawrence Wong, transcranial magnetic stimulations and stereotactic radiotherapy

277.  The joint opinion of Dr Choa and Dr Yu was that maximum medical improvement would have been achieved in most cases of stroke within a year, and Mr Cheung has far reached that stage so that no available treatment could improve his neurological deficits.

278.  Mrs Tsang expressed her view that such attempts were reasonable if Mr Cheung so wishes. Mrs Chow considered the search for new treatment modalities to be admirable, but expressed reservation about their effectiveness after these years of attempt. These sound more like understanding than recommendation. In any event, they projected further expenses on such treatment but not the alleged lifelong need projected on behalf of Mr Cheung.

279.  The fact was that Mr Cheung at one point in 2019 also stopped transcranial magnetic stimulation treatment by Professor Wong, probably due to the COVID-19 pandemic, and has since purchased for himself a machine of that sort for use at home instead.

280.  Counsel for Dr Pang submit that the claim for further regular consultations with Professor Wong lacks medical expert evidence in support of the need and reasonableness of its costs. All the circumstances considered, I agree.

281.  In their closing submission, counsel for Mr Cheung dropped these items of claim.

Surgery to the pituitary tumour

282.  The claim for cost of further surgery to remove the pituitary adenoma, as I see it, was premised on the alleged faulty execution of the Surgery in that the tumour was not fully excised and thus allegedly unsuccessful. Such case has now been dropped, and it was in any event found that the approach, to begin with, was partial excision to enable the decompression of the optic nerve so as to improve the vision problem of Mr Cheung.

283.  Also as found, in line with the joint opinion of the neurology experts, the Surgery was successful in decompressing the optic nerve pressure and resolving Mr Cheung’s vision problem. Any subsequent therapy entailed by the residual tumour, including control in prevention of recurrence, would presumably be a matter of post-surgery care plan which would have been necessary in the normal course of event even without the stroke. There was no medical expert evidence in respect of Mr Cheung’s vision or any other condition which might have called for the consideration of another pituitary tumour removal surgery.

284.  In their closing submission, counsel for Mr Cheung dropped this item of claim.

Acupuncture

285.  According to Mr Cheung, he had attempted acupuncture. Though helpful, the treatment has been suspended. He would want to resume the treatment. For that, he claims the cost of 2 sessions per week or 104 sessions annually for life at HK$600@.

286.  The claim differs from the recommendation of the occupational therapy experts in that Mrs Tsang opined that Mr Cheung’s wish to engage in other modes of alternative therapy would be reasonable while Mrs Chow disagreed on the ground that they may not be effective, as most recovery would have already occurred after so many years since the stroke. The opinion of Mrs Chow in fact aligns with that of the neurological experts discussed above.

A lump sum award

287.  That said, I am prepared to award a nominal sum to accommodate any other modes of alternative treatments than the specific therapies recommended by the experts. Adopting what Mrs Chow recommended, a monthly allowance of HK$3,000 for 2 years for such purpose would amount to HK$3,000 x 12 x 2 = HK$72,000.

Occupational lifestyle design

288.  This is the concept proposed by the occupational therapy experts relating to more active social lifestyle. In particular, this relates to the recommended joining of recreational club and overseas vacations.

Recreational club

289.  Mr Cheung projects joining the personal trainer guided fitness training programme at the Shatin Racecourse of the Hong Kong Jockey Club, of which Mr Cheung and Madam Suen are a racing member. This would entail an annual fee of HK$21,000 for the use of the Shatin Racecourse and HK$775@ for the personal training session per week. Again this item is claimed for life.

290.  The claim for the annual fee for the use of the Shatin Racecourse is strenuously opposed, and would not have been sustainable in view of the evidence. In their submission, counsel for Mr Cheung conceded this part of the claim, and confined the claim for the cost of personal training.

291.  Whilst the occupational therapy experts recommended the joining of recreational institutions for social engagement and activities, they did not specifically mention physical training under the guidance of a personal trainer. This is not surprising, in view of the future treatment and therapy regime recommended by them, which would consist of physiotherapy as allowed by this court. I am prepared to accept that physiotherapy and physical training are not mutually exclusive. Perhaps the two may proceed simultaneously. However, there is no evidence to show how necessary and effective a personal trainer would be with a person suffering the aftermath of stroke who is still recommended to receive regular physiotherapy for quite a number of years like Mr Cheung.

292.  All things considered, I am not prepared to allow the claim for personal training fee.

Overseas vacation

293.  On the basis of the alleged travel pattern of Mr Cheung and Madam Suen before the stroke, provision is claimed to accommodate that but to the extent of the extra cost of upgraded flight class and transportation arrangement as well as hired help at the destination in view of Mr Cheung’s disability. Relying on the opinion of Mrs Tsang, estimated cost of HK$200,000 per year is claimed for life. In their closing submission, counsel for Mr Cheung conceded at the reduced annual sum of HK$40,000 or the total sum of HK$40,000 x 7.69 = HK$307,600 for this item of claim.

294.  Examination of the travel records and the testimony of Mr Cheung and Madam Suen in court revealed that they might not have been as frequent travellers as represented, at least during the 4-5 years prior to the Surgery. Further, if they were accustomed to travel on higher flight class, no extra cost of that would be incurred for accommodating the needs of Mr Cheung due to the stroke. This was not clarified at the trial. In any event, Mrs Chow in her opinion found the projected need for upgrade to be debatable as she observed that airlines have special seating accommodation for wheelchair user even in the economy class, and good hotels have disabled accommodations available.

295.  I take into account the scepticism expressed by Mrs Chow, but the same is premised on availability and additional administrative steps to be taken for the special arrangement. In the circumstances, I am prepared not to rule out the potential need for upgrade or special transportation arrangement at the destination occasioned by Mr Cheung’s disability. At the rate proposed, I would allow 70% of this item of claim. Hence the amount of HK$307,600 x 70% = HK$215,320.

Global view

296.  I would make a by-the-way comment at this juncture, not because this is a concern arising out of the circumstances of this case. Where medical experts make recommendations for future treatment and therapy needs as well as engagement in social life activities, the regime of these components must be projected with a global and realistic view. Amongst other considerations, one must guard against the possibility of fatigue particularly in the case of an infant and elderly undergoing multi-discipline treatments and therapies as well as engaging in daily life activities. In appropriate case, the court expects to be assisted with specific reference to this consideration, which remains the area of expert opinion.

Domestic helper

297.  Mr Cheung and Madam Suen did not have a pattern of employing domestic helper prior to the stroke. The occupational therapy experts recommended the employment of a domestic helper, who would focus on household daily chores, while a hospital care assistant may be contracted on a 12-hour shift per day basis. A total sum of about HK$8 million is claimed.

298.  In their closing submission, counsel for Mr Cheung confined the claim to that for a domestic helper, though at the current applicable rate of minimum salary HK$4,990, amounting to the substantially reduced claim for HK$1,580,000.

299.  On the basis of an one-domestic helper regime, I accept the calculation proposed on behalf of Dr Pang, which would consist of the initial cost of HK$8,380 (the amount pleaded by Mr Cheung) and the following annual expenses:

Salary (HK$4,990 per month)	HK$59,880
Relief helper	HK$54,600
End of contract home leave air fare	HK$  900
Workers’ insurance	HK$ 675
Contract renewal, visa, etc
(median of HK$1,600 and 2,098) for 2 years	HK$  925
Food (HK$1,121 per month)	HK$13,452
Clothing (HK$500 for 2 years)	HK$  250
Miscellaneous (HK$150 per month)	HK$ 1,800
	HK$132,482

300.  The future expenses on domestic helper would be HK$8,380 + HK$132,482 x 7.69 = say HK$1,027,167.

301.  In their closing submission, counsel for Dr Pang advocated a 25% discount to the amount allowed for this item of claim on account of the likelihood that a domestic helper would have had to be employed in any event when Mr Cheung and Madam Suen are ageing. Reference is also made to the health condition of Madam Suen suggested by the medical documents and her own evidence.

302.  I am sceptical about the attempt of those acting for Dr Pang to effectively back out from their stance pleaded in their client’s answer to the revised statement of damages. In any event, I decide not to apply the proposed discount.

303.  The assessment of the need for a domestic helper is made in the context of the care regime for Mr Cheung and the relief of Madam Suen and the Daughter in participating in such regime. If necessitated by the circumstances now referred to by counsel, additional hired domestic help may have to be engaged but the same would not be responsibility of their client for the present purpose. I am not inclined to reason in a way that a domestic helper would have had to be employed for the household and therefore he or she would readily assume the specific role in the care regime for Mr Cheung.

Technical aids and assistive devices

304.  A total of 33 types of devices are alleged, and their total cost claimed at the annual sum of HK$121,712 or HK$121,712 x 11.83 = HK$1,439,853 for life. Another sum of HK$3,244,192.96 is claimed as one-off cost. This was reduced in closing submission by counsel for Mr Cheung to HK$2,832,102.

305.  As I understand, one reason accounting for the downward adjustment made by counsel for Mr Cheung is the foregoing of the multiplier approach in calculating the cost of the aid and equipment needed. On the basis that the experts have proposed annual cost of the aids and equipment after taking into account their life and replacement need, I maintain the multiplier approach for the purpose of assessment.

Items allowed

306.  Considering the opinion of the occupational therapy experts, I am prepared to allow the items set out below at the annual cost quoted by either expert or the median of the annual cost quoted by the experts respectively.

Walking stick	HK$65
Power wheelchair	HK$6,970
Wheelchair cushion	HK$540
Wheelchair safety belt	HK$110
Portable folding ramp	HK$640
Wheelchair rain poncho	HK$55
Rise and recline high back arm chair	HK$967
Shower chair	HK$300
Bathing aids	HK$160
Grab rails	HK$410
Urinal with lid	HK$80
Hospital type homecare bed	HK$1,715
Bed rail	HK$195
Left in-shoe ankle foot orthosis	HK$500
Left foot drop splint for nightwear	HK$250
Ankle/heel protector	HK$400
Left hand resting splint	HK$1,250
Adapted clothing and aids	HK$1,000
Exerciser for upper and lower limbs	HK$1,280
Exercise items	HK$162
Rehab-video games (set-up HK$4,340)	HK$1,200
Long handled reacher	HK$70
BP monitor	HK$167
Oximeter	HK$300
Thermometer	HK$150
	_________
Total:	HK$18,936

Items refused

307.  As to the claim for expenses on Vitalstim and electrodes, I agree with Mrs Chow that this is not necessary in conjunction with the speech therapy allowed.

308.  The claim for the cost of treadmill at home is unexpected when claim for future cost of physiotherapy and physical training under the guidance of personal trainer, now refused, is also advanced. That the claim for the cost of personal training is now denied, as discussed, does not change my view of the reasonableness of this item of claim. Cost of exercise items at home is allowed in any event.

309.  Biofeedback was proposed for re-educating muscle control during functional activities. When physiotherapy and occupational therapy are in place, I agree with Mrs Chow that this is not reasonably necessary.

310.  Advanced rehabilitation technology was projected as a possible need. In view of the various therapies in place and the age of Mr Cheung, I accept the opinion of Mrs Chow that this is not reasonably necessary.

311.  When the video games serving multiple rehabilitation purposes are put in place, the proposed additional cognitive equipment, as Mrs Chow opined, is not reasonably necessary.

312.  The claim for Ipad/Tab, if not already acquired as an ordinary daily life equipment, is not allowed on top of smart phone which Mr Cheung has and manage as well as the video games for rehabilitation purpose to be set up with the home television set.

313.  TV programme receiver box and home theatre system, if desired and not already acquired for the home, could not be said to be brought about by the needs peculiar to the personal damage suffered by Mr Cheung. Hence refusal to allow.

Computation

314.  Initial set-up cost of video games and the cost of the other allowed items would amount to HK$4,340 + HK$18,936 x 7.69 = say 149,958.

315.  In their submission, counsel for Dr Pang advocated the application of a discount to the above amount on account of the likelihood of Mr Cheung abandoning the aids and equipment as evolved and limited by his advancing age. Short of rejecting the advocated approach in principle, I would be careful about that for reasons.

316.  First, the assessment of such future cost is based on a multiplier applicable to the age of the plaintiff. Second, the multiplicand (ie the annual cost of the item) is projected upon taking into account the life of the items and the probable number of replacements necessary in the case of a particular plaintiff. Unless obviously demonstrated to the contrary by the evidence of the circumstances, the chance of overcompensation for lack of consideration of the possible abandonment of the equipment beyond reasonable contemplation should still be within control.

Miscellaneous consumables

317.  A total of 13 types of consumables are alleged, and their total cost claimed at the annual sum of HK$18,540 or HK$18,540 x 11.83 = HK$219,328.20 for life.

318.  Most of the items were admittedly projected for future use, which would depend on the condition of Mr Cheung down the road. Hence unknown timing or probable consumption rate. Some of them may well be considered as necessary at a later stage of an elderly in any event. Significantly, a lot of them generally belong to items reasonably expected to be acquired and stocked up for ordinary household instead of necessitated by the health care of a person in Mr Cheung’s situation. There was no indication or evidence of the amount projected being the cost of extra acquisition necessitated by such need of Mr Cheung.

Items allowed

319.  The following items are allowed at their respective annual cost:

Thickener	HK$355
Warming pads	HK$292.50
	__________
Total:	HK$647.50

Items refused

Diapers
Underpads
Wet wipes
Toilet paper
Disposable gloves
Face masks
Plastic garbage bags
Antiseptic hand sanitiser
Dressing kits
Massage and moisture lotion

Tonic food

320.  Tonic food and supplements including ginseng, deer tendon and other herbal medicine are claimed at the average annual cost of HK$36,000 for life. Such alleged cost was apparently information given to the experts instead of their proposal or assessment.

321.  Referring to the opinion of Mrs Chow, those acting for Dr Pang pleaded that the reasonable annual cost of tonic food should be HK$24,000, and therefore the total future cost of it should be HK$24,000 x 7.69 = HK$184,560. In their submission, counsel for Mr Cheung now accepted this amount projected. Yet counsel for Dr Pang submitted in their closing submission that the future cost of tonic food should be HK$20,000 instead.

322.  I see no reason either from how the answer to the revised statement of damages was pleaded or from the evidence transpired during the trial that may justify Dr Pang effectively backing out from his pleaded case on quantum. I would therefore allow the amount as effectively agreed now.

Medications

323.  Medications are claimed on the basis of the opinion of Mrs Tsang. The amount claimed is HK$5,000-10,000 per month or HK$60,000-120,000 per year for life. Mrs Chow disagreed.

324.  In their closing submission, counsel for Mr Cheung now accepted the amount proposed on behalf of Dr Pang, ie HK$346.

Computation

325.  The amount allowed under this head of claim would be HK$647.50 x 7.69 = say HK$4,979 + 184,560 + 346 = HK$189,885.

Other appliances

326.  Various appliances such as air-conditioner and bathroom heater plus maintenance and IP camera plus replacements are claimed, with reference to the opinion of Mrs Tsang, at the annual cost of HK$8,930 for life. The calculation was revised in closing submission to a reduced total sum of HK$78,468.

327.  Mrs Chow explained in the joint expert report her opinion about the lack of necessity for the installation of reverse cycle air-conditioning for the purpose of Mr Cheung in the climate prevailing in Hong Kong most time of the year. I tend to agree. In any event, there is a point in counsel’s submission that air-conditioning, which would serve the purpose contemplated by Mrs Tsang in her opinion, would have been installed as a matter of household norm instead of an equipment occasioned by the condition of Mr Cheung. Nor is it suggested that the air-conditioning maintenance would be materially different as occasioned by the condition of Mr Cheung. Claim for this item is therefore refused.

328.  There is no suggestion that heater had been or would have been installed in Mr Cheung’s bathroom in any event. It would not be difficult to imagine the efficiency of Mr Cheung in moving around in the bathroom, and thus reasonable concern about his exposure to cold weather. There is consensus between the experts on the reasonableness of installing heater for the bathroom of Mr Cheung. At the annual cost of HK$2,150, the amount allowed would be HK$2,150 x 7.69 = say HK$16,534.

329.  As claimed under incurred expenses, Mr Cheung has already installed a CCTV system at home in August 2017. Here the proposal is to install an IP camera to enable the family members to view the condition of Mr Cheung and the service received at home when they are outside home. This is controversial insofar as Mr Cheung is concerned, as there is no evidence as to his receptiveness of such installation. So is there insofar as the privacy of the domestic helper is concerned. That said, since Mr Cheung is taken to have endorsed this item of claim, and the installation and arrangement, as the law requires, could be ironed out with the domestic helper as a third party, I am prepared to allow this item of claim.

330.  At the annual cost of HK$1,800, the amount allowed would be HK$1,800 x 7.69 = HK$13,842.

331.  The total amount allowed for this head of claim is HK$16,534 + 13,842 = HK$30,376.

Travelling expenses

332.  Relying on the opinion of Mrs Tsang, Mr Cheung claims cost of a private vehicle and a driver at the monthly cost of HK$30,000. He also claims additional taxi expenses in the monthly sum of HK$2,000. Mrs Chow disagreed.

333.  As mentioned, Mr Cheung used to drive and would buy himself a car, and therefore the cost of that would have been incurred, if so desired, even in the absence of his condition since December 2016. If necessary, Madam Suen and the Daughter could still drive the car for the transportation of Mr Cheung. Otherwise, hired taxi service accommodating his wheelchair should reasonably suffice. This is also Mrs Chow’s opinion, which I prefer.

334.  In their closing submission, counsel for Mr Cheung accepted the sum proposed by his opponent for this item, ie HK$369,120.

SPECIAL DAMAGES

335.  The following expenses allegedly incurred are claimed.

Medical treatment and medications

Medical treatment at the Hospital

336.  Mr Cheung claims hospitalisation and medical expenses, including those paid to Dr Pang, since admission to the Hospital on 4 December 2016 to discharge on 9 January 2017 in the sum of HK$707,212, net of insurance coverage in the sum of HK$356,565, and hence HK$707,212 – 356,565 = HK$350,647.

337.  As pointed by those acting for Dr Pang, the charges payable for the surgical procedure and hospitalisation under the care of Dr Pang would have been incurred even if the stroke had not occurred. Mr Cheung is not entitled to be repaid all those.

338.  Based on the hospital charges summary recording the charges in the total sum of HK$666,119, and net of the amount payable in any event as aforesaid and Mr Cheung’s own insurance coverage, those acting for Dr Pang calculated this item to be a sum of HK$177,005.

339.  In their closing submission, counsel for Mr Cheung accepted the above sum.

Medications

340.  The claim for medication charge in the sum of HK$2,940 is admitted on behalf of Dr Pang.

Consultation at the Baptist Hospital

341.  The claim for the cost of consultation and treatment under Dr So Man Kit at the Baptist Hospital from 10 to 24 June 2017 in the total sum of HK$21,844 is denied. In their closing submission, counsel for Mr Cheung dropped this item of claim.

Chinese herbal doctors

342.  Cost of Chinese medicine treatment from January to May 2017 for 11 times in the total sum of HK$18,226 is claimed. Those acting for Dr Pang question the potential overlapping claim of this with the cost of acupuncture incurred at various Chinese herbal medicine centres during the period between January and July 2017 discussed below. Not doubting that this has been incurred, but the exact amount questionable, I would allow a nominal sum of HK$5,000 for this item in the circumstances.

Consultation with Professor Lawrence Wong

343.  This covers the cost of consultation with the professor during the period between June 2017 and December 2019 in the total sum of HK$68,600. This is agreed.

Consultation at the Prince of Wales Hospital

344.  This covers the cost of diagnostic/therapeutic consultations at the Prince of Wales Hospital from March 2017 to December 2019. Mr Cheung claims HK$25,050 whereas those acting for Dr Pang said it should be HK$11,050.

345.  I accept the figure provided on behalf of Dr Pang.

Consultation with Dr Victor Tsang

346.  This was consultation with the doctor on 7 November 2018 costing HK$3,000. This is agreed.

Consultation at Canossa Hospital

347.  This is the claim for hospitalisation at Canossa Hospital from 18 May to 9 June 2017 at the total cost of HK$286,762. This is denied on the ground that the hospitalisation was for a cause extraneous to the condition of stroke of Mr Cheung. In their closing submission, counsel for Mr Cheung dropped this item of claim.

MRI at the Union Hospital

348.  The MRI was carried out at Union Hospital on 14 March 2017 at the cost of HK$7,800. This is allowed.

Assessment and recovery training at SAHK

349.  This is the claim for the cost of assessment and recovery training at SAHK between early September to October 2022 in the total sum of HK$2,203. Those acting for Dr Pang questioned if this overlapped with the expenses on rehabilitation and physical training at SAHK during the period between January 2017 and September 2019. In view of the different periods concerned, the objection does not sustain. I therefore allow the amount claimed.

Consultation at the Prince of Wales Hospital Eye Centre and Specialist Clinic

350.  These are the claims for consultation expenses during the period between August and October 2022 in the total sum of HK$190. Insofar as they were incurred for Mr Cheung’s visual condition caused by the pituitary tumour, they are disputed on the ground that this was pre-existing condition and not caused by Dr Pang’s management of Mr Cheung. In their closing submission, counsel for Mr Cheung dropped these claims.

Consultation at Lok Yuen GOPC

351.  This was the cost of consultation on 9 October 2022 in the sum of HK$50. This is allowed.

Computation

352.  The total cost of medical treatment and medication allowed is HK$(177,005 + 2,940 + 5,000 + 68,600 + 11,050 + 3,000 + 7,800 + 2,203 + 50) = HK$277,648.

Rehabilitation and physical training, including acupuncture and physiotherapy

353.  These were incurred at various hospitals and clinics between January 2017 and September 2019, but those acting for Dr Pang contend that the amount as documented amounted to HK$108,867 instead of the sum of HK$114,337 claimed. In their closing submission, counsel for Mr Cheung accepted this reduced sum.

Medical care and safety products

354.  Mr Cheung claims the cost of medical care products including tDCS machine and electric stimulation device in the sum of HK$28,330. This is disputed on the ground of lack of medical and medical expert evidence in support of their recommendation or effect. I tend to agree. This was not addressed in the submission of counsel for Mr Cheung. Nor was this included in their quantification of special damages or at all in the submission.

355.  The claim for the cost of CCTV system installed at home at the cost of HK16,820 is disputed on similar ground as discussed above in respect of the IP camera. On the basis that installation of the IP camera is endorsed and its cost allowed, as discussed, I am not prepared to allow the cost of installation of the CCTV system. Again this was not addressed in the submission of counsel for Mr Cheung. Nor was this included in their quantification of special damages or at all in the submission.

Tonic food

356.  Similar to the claim for future expenses on tonic food discussed above, expenses in the notional annual sum of HK$36,000 since the stroke is claimed. Those acting for Dr Pang questioned its evidential support of the amount and their reasonableness in terms of relevance to the condition of Mr Cheung.

357.  In their submission, counsel for Dr Pang borrowed from the answer of the 2^nd Defendant to the revised statement of damages dated 30^th January 2023, which was in turn based on the receipts disclosed by Mr Cheung, those acting for Dr Pang suggested that only a sum of HK$66,128 was evidenced by receipts up to January 2020.

358.  This was not addressed in the closing submission of counsel for Mr Cheung. Nor was this included in his quantification of special damages or at all in the submission.

359.  In principle, I am prepared to allow this item of claim, but the approach should align with the usual practice established by the case law. In the absence of medical evidence in respect of the tonic food as being recommended for the benefit of Mr Cheung other than perceived benefit, the award should only be nominal. Therefore, even the amount actually incurred would be subject to scrutiny on the basis of reasonableness. Hence a nominal amount of HK$70,000 allowed.

Travelling expenses

360.  Travelling expenses including special taxis are claimed as follows:

(1)  From the stroke until December 2019 at HK$800 per week from the stroke for 3 years until the COVID-19 pandemic, and thus HK$800 x 52 x 3 = HK$124,800;

(2)  From 2020 to 2022 for 7 medical appointments per year at average HK$55 per trip or total cost of HK$55 x 14 x 3 = HK$2,310;

(3)  Hence a total sum of HK$(124,800 + 2,310) = HK$127,110.

361.  Those acting for Dr Pang admitted part and questioned part of the above quantification. They instead proposed a total sum of HK$80,310. I accept that.

Medical expenses for Madam Suen

362.  Mr Cheung claims for the medical expenses incurred by Madam Suen for her treatment of stress and fatigue, allegedly entailing hospitalisation on 9 to 11 September 2016 and 14 to 15 January 2017. The amounts were respectively HK$25,164 and HK$15,929 or in total HK$41,093.

363.  I agree with counsel for Dr Pang that this should not be allowed.

Residence modification

364.  The modifications are said to have been carried out in 2017 to accommodate Mr Cheung’s disabilities and to facilitate him. The cost was HK$850,000. For that, temporary rented residence at HK$22,000 per month between February and October 2017 cost another sum of HK$176,000.

365.  Those acting for Dr Pang questioned part of the cost of renovation as recorded in the documents in that it was not necessitated by the need to accommodate or to facilitate the daily activities of Mr Cheung. Examples were pleaded in the answer to revised statement of damages, including certain decorative works as well as works to the kitchen and the helper’s quarter. They offered a sum of HK$482,305, which I consider to be reasonable.

366.  The reasonableness of the length of the renovation period was also questioned, particularly when taking into account works which were not reasonably necessitated by the need to accommodate or facilitate Mr Cheung in his daily life. A period of 5 months was offered, which I also consider to be reasonable.

367.  Again, this was not specifically addressed in the submission of counsel for Mr Cheung or included in the quantification of special damages or at all in submission.

368.  I am prepared to allow a lump sum close to what was conceded on behalf of Dr Pang, ie HK$600,000.

SUMMARY

369.  In summary, the quantum is assessed as follows:

PSLA	HK$990,000
Pre-trial loss of earnings	HK$2,888,448
Value of gratuitous service	HK$421,330
Future expenses
Psychological counselling	HK$135,000
Physiotherapy	HK$4,215
Occupational therapy	HK$4,455
Speech therapy	HK$46,800
Other alternative treatments	HK$72,000
Overseas vacation	HK$215,320
Domestic helper	HK$1,027,167
Technical aids, etc	HK$149,958
Consumables (inc tonic food
and medications)	HK$189,885
Other appliances	HK$30,376
Travelling expenses	HK$369,120
Overseas vacation	HK$215,320
	___________
	HK$2,459,616
Special damages
Medical expenses	HK$277,648
Rehabilitation and training	HK$108,867
Tonic food	HK$70,000
Travelling expenses	HK$80,310
Residence renovation, etc	HK$600,000
	___________
	HK$1,136,825
	_______________
Total:	HK$7,896,219

370.  Interest on general damages runs at 2% per annum from the date of writ, and that on accrued special damages at half judgment rate from 5 December 2016 until judgment. Interest from judgment runs at the judgment rate.

ORDER

371.  Failing to establish liability, Mr Cheung’s claim is dismissed.

372.  Following this event, Mr Cheung shall pay Dr Pang his costs of this action between them, including any costs reserved, to be taxed if not agreed. This costs order is nisi which shall, in the absence of application in 14 days to vary, become absolute without further order.