Lai Kin Shing v. American International Assurance Co (Bermuda) Ltd. and Another

DCCJ3192 & 3193/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3192 & 3193 OF 1999

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J U D G M E N T

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1. In these consolidated actions, the Plaintiff, Mr Lai Kin-shing, sues the Defendants on a number of medical insurance policies arising out of his observation and treatment at Saint Teresa's Hospital, Kowloon from 24 August to 7 September 1998.

2. The background to this is that on 20 August 1998 at about 9.30 am, the Plaintiff boarded a minibus in Kowloon and proceeded to the rear of the vehicle in order to sit down at a vacant seat. The bus driver had moved off before the Plaintiff was able to sit down and braked suddenly and came to a halt as the Plaintiff was in the process of sitting down. This sudden braking caused the Plaintiff to lose his balance and fall against the metal bar that ran across the back of the seat in front of him. His chest struck the bar, resulting in pain and some redness.

3. He consulted his family doctor, Doctor Tong, who diagnosed a contusion of the chest and prescribed analgesic tablets. As the pain did not go away, he went to see a Doctor Chan Wai-chi who recommended hospitalisation at Saint Teresa's so that he might be thoroughly examined to ensure that there was nothing wrong with him. He was admitted on 24 August and finally discharged 15 days later on 7 September, during which time he was given a thorough "going over" on Doctor Chan's advice and recommendation. Doctor Chan, who has given evidence, has told me that he advised these tests to ensure that there was nothing wrong with the Plaintiff as a result of the accident.

4. At the hospital and under Doctor Chan's supervision, he was subjected to a full examination comprising of an X-ray, an endoscopy, whereby a tube was inserted into his chest cavity, ultrasound examination, an electrocardiogram and finally a CT scan on 28 August. Prior to the CT scan nothing was found to be wrong with him but the CT scan showed a partial collapse of the base of the right lung. Everything else was normal. The examination had also included blood, urine and stool tests.

5. Over the whole of this 15 day period, the Plaintiff, again on the advice and recommendation of Doctor Chan, was admitted to the hospital as an in-patient although he was allowed to go home in the evening on 13 of those nights after he had signed an undertaking for the hospital to the effect that he would continue to be responsible for the hospital's fees in keeping his bed available for him. Doctor Chan says that he allowed the Plaintiff to return home at night because the Plaintiff wished to be with his young son because his wife worked nightshifts and also because the Plaintiff's medical condition was such that he was fit enough to return home in the evening.

6. When asked by Miss Leung for the Defendants why the Plaintiff could not have been treated as an ordinary outpatient, Doctor Chan's response was that it was better to have him as an inpatient with his room available to him in case he felt unwell during the night when he could return to hospital and be attended to immediately. Doctor Chan was also asked why, following the CT scan on 28 August when only a partial collapse of a lung was discovered, the patient was kept in for a further nine days and not discharged earlier. His response was that it was necessary to ensure that the lung improved without incident.

7. Part of the Defendants' case in this matter is that the treatment was unnecessarily elaborate and excessive given the nature of the initial complaint which was chest pain caused by a fairly minor blow to the lower chest area following this unexpected braking of the PLB that the Plaintiff was a passenger on. I am bound to say that I can see the force of that submission from a layman's point of view, but Doctor Chan, who has recommended the patient's management in this way, is adamant that this was both proper and necessary.

8. The Defendants have, somewhat surprisingly, elected not to call a medical expert of their own to comment on the appropriateness or reasonableness of the course taken by Doctor Chan. They have in fact called no evidence. I am therefore left to decide this aspect of the case on the evidence of Doctor Chan alone.

9. In the absence of anything really startling about what he has had to say to suggest that he has been a charlatan or even dishonest by inflicting unnecessary expensive tests and treatment on the Plaintiff, I propose to approach the claim on the basis that the treatment proposed by Doctor Chan and undergone by the Plaintiff was referable to the blow that he received whilst he was on the PLB and appropriate for the injury and symptoms produced by it. I say that whilst recognising that had the Defendants chosen to call their own expert, his or her view might have been substantially different from Doctor Chan's. But there is no such evidence and so I must proceed on the basis of what is before me, and in the way that I have previously commented on Doctor Chan's evidence.

10. From that finding, I must now turn to the various elements of the claim to see whether the Plaintiff has succeeded in demonstrating that he is entitled to be paid out under these policies. Miss Ip, who appears for the Plaintiff, has very helpfully prepared a summary of the claims and the extracts from the various policies under which the Plaintiff sues. She has also prepared a table showing the number of hours that the Plaintiff was confined in hospital on the days that he was an inpatient, albeit whilst he was allowed to go home in the evenings. The accuracy of this table, which has been prepared from the hospital medical notes, has been agreed by Miss Leung for the Defendants. Miss Ip has correctly identified the issues as follows:-

1) Did the injury claimed fall within the particular policy?

2) Do the hospital fees and expenses relate to the injury?

3) Was the Plaintiff confined in hospital for the requisite periods of time contemplated by the policies?

I shall attempt to answer these in turn.

11. Did the injury claimed fall within the particular policy?

There is only one answer to this which is one favourable to the Plaintiff. All the policies refer to an illness occurring more than 30 days after the date of issue of the policy and all injuries sustained in an accident after the issue date. I accept the Plaintiff's evidence as to how he came to be injured on 20 August 1998 to which there has been no challenge. Consequently, this is an injury falling within the policies.

12. Next, do the hospital fees and expenses relate to the injury?

As to this, Miss Leung addressed questions to Doctor Chan designed to establish that the sort of examinations carried out were the sort of tests which take place when a patient goes into hospital for a general check-up which is excluded as an insurable event. I accept Doctor Chan's evidence about this which is that whilst many of these tests do form part of a general check-up, on this occasion they related to the Plaintiff's condition following his accident. These were necessary and proper tests and examinations and consequently, this issue must also be determined in the Plaintiff's favour. The fees and expenses do relate to the injury.

13. Lastly, was the Plaintiff confined in hospital for the requisite period of time?

The policies variously require 6 or 12 hours on the recommendation of a registered medical practitioner. The answer is provided by the table prepared by Miss Ip from the hospital notes. On 12 days, the minimum period of 6 hours was achieved and on four days it was for 12 hours. From these findings, I am satisfied that the Plaintiff has proved his claim as follows:-

14. Under Action DCCJ3192/1999:

Policy B - 880203001; which is a claim for daily hospital income benefit. This is payable for each day that the Plaintiff was confined in hospital for a minimum of 6 hours per day (see page 47 of the Trial Bundle). The amount payable is HK$1,000 for 12 days, namely $12,000. So under paragraph (1) of the prayer to the Statement of Claim, there must be judgment to the Plaintiff in this amount (page 4 of the Pleadings Bundle).

15. Policy 7020B

This policy also provides for the payment of daily benefit where confinement is for 6 hours or more. The amount to which the Plaintiff is entitled is US$870 under the policy. I should observe that these amounts are not in dispute (see paragraph (2) of the prayer of the Statement of Claim).

16. Policy 7012B

Relates to the claim for hospital charges. The amount is HK$9,481 for which there must also be judgment in the amount claimed under paragraph (3) of the prayer to the Statement of Claim. This amount relates to the outstanding balance of these charges which the Defendants have, in my judgment, wrongfully refused to pay.

17. Accordingly, there will be judgment in these amounts together with interest thereon at half the judgment rate from the date of the writ until today and thereafter at the judgment rate until payment.

18. Action DCCCJ 3193/1999

This relates to Policy No. 071027151 for daily in-hospital income provided confinement is for 6 hours or more. The amount payable is HK$1,500 per day. The amount is therefore $1,500 multiplied by 12 days, totalling HK$18,000. Accordingly, there must be judgment in this amount with interest thereon at half the judgment rate from the date of the writ until today and at the judgment rate from today until payment.

(Application for payment out of court)

19. I have before me a notice of payment into court dated 7 December in the sum of $26,662.35. The judgment clearly betters the payments in. I make the order that it can be paid out in partial satisfaction of the judgment.

(Submissions on costs)

20. First of all, the issue of costs: quite rightly, Miss Leung cannot resist this. The Plaintiff will have his costs of the action.

21. It seems to me that I should also award certificate for counsel here. Although the amount is small, this was a very proper action. It concerned construction of the insurance policy, there was expert evidence, so the degree of difficulty is such as to justify the employment of counsel, so that it will be costs with certificate for counsel.

22. I then come to the next matter which relates to the basis of taxation. Mr Tse has asked for an indemnity basis. That, of course, if I may say so, is misconceived. That level of taxation is reserved for cases where the defendants have behaved really scandalously and that is not the case here. But, it seems to me that there ought to be taxation on a common fund basis. The reason for that is that the award is a small award, it was always going to be a small award, but I bear in mind that where the Plaintiff has had to come to get his damages, he really ought not to be so out-of-pocket, which he would be if I awarded costs on a party and party basis because the proportion of solicitor and own client costs, that element of the bill of costs on a party and party basis, will be far higher simply because the award is a modest one. And so I think the proper way of compensating the Plaintiff is to say that costs will be taxed on a common fund basis.