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HCPI 749/2015
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES ACTION NO. 749 OF 2015
_________________________
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BETWEEN
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TANG TAK CHUNG,
THE ADMINISTRATOR OF THE ESTATE OF TANG CHING TONG, DECEASED |
Plaintiff |
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And |
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CHUNG FAN SHENG |
Defendant |
_________________________
| Coram: Before Master J Wong in Court |
| Date of Hearing: 10 July 2017 |
| Date of Handing Down: 28 July 2017 |
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ASSESSMENT OF DAMAGES
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1.This is an assessment of damages.
2.The defendant has taken no step in the present proceedings. Judgment on liability was entered herein on 4 January 2016 leaving damages to be assessed.
3.The assessment was heard by me on 10 July 2017, papers were duly served upon the defendant. He continued to be absent.
4.From the medical evidence before me, I note the following (un-contradicted) expert evidence of endocrirology, diabetes & metabolism from Mr. N. Chan.
(a) Report dated 17 July 2014
“15. In summary, after reading the defendant’s medical report, his hand written notes, it can be concluded that the patient was suffering from symptoms of thyrotoxicosis. The defendant has wrongly prescribed thyroxine which is the wrong and opposite treatment for this condition. The dosage used was 100 times more than usual.
16. The use of thyroxine at the wrong dose of 100 mg daily from 9/8/2012 – 15/1/2013 have directly caused the deceased (who has a history of thyrotoxicosis and was having active symptoms) to develop thyroid storm resulting in this grave outcome.
…
(3) Is there any wrong clinical diagnosis or clinical move in carrying out the treatment?
The patient was wrongly diagnosed hypothyroidism when he had hyperthyroidism (thyrotoxicosis). This resulted in the wrong treatment and worse, wrong dose of thyroxine.”
(b) Report dated 13 June 2016
“1. The likely prognosis and life expectancy of Tang Ching Tong (the Deceased) if he were given correct treatment for hyperthyroidism.
Had the Deceased, Tang Ching Tong, been correctly treated, the prognosis is excellent and he would be expected to have a normal life expectancy as those without hyperthyroidism.
2. The chance of full recovery from hyperthyroidism if the plaintiff were given correct treatment.
The chance of full recovery from hyperthyroidism is good if the correct treatment were given. The usual treatment for hyperthyroidism is an 18‑months course of medical therapy. Following this medical treatment, about half the patients will have a relapse later in life and will need further treatment. At this stage, surgery or radioiodine will be considered as definitive treatment.
3. Whether this disease would have any impact on his work capacity and if so, how?
The plaintiff had a 50% chance of being fully cured with correct treatment. However, even if he has a relapse of hyperthyroidism in the future, it would not have a major impact on this work capacity. The worse scenario would be absent from work due to fatigue, heart palpitation and difficulty with concentration for a few days while he receives medical treatment.”
(c) Report dated 13 October 2016
“1. The usual symptoms of the Deceased’s hyperthyroidism.
The usual symptoms are hyperthyroidism are palpitations, abnormal heart rhythm, shaky hands, weight loss, increased sweating, diarrhoea.
2. Symptoms of thyrotoxicosis suffered the Deceased at the time of admission to AED of UCH.
Symptoms were irregular fast heart beat (atrial fibrillation), weight loss, anxiety, diarrhea and vomiting.
3. Whether the Deceased would still have the symptoms of weight loss, anxiety, severe vomiting, and diarrhea if he were given the correct treatment.
The Deceased would not have had all these symptoms had he received correct medical treatment.”
5.Two witnesses attended before me. They are the parents of the deceased. The father is also the plaintiff herein, as the administrator for the estate of his deceased son. The parents deposed the health condition of their deceased son as well as their financial position at all material times. Their evidence was simple and straight-forward. They were also honest witnesses.
6.The evidence of the parents was summarized as follows in the opening submissions of Mr. Yip, counsel for the plaintiff.
“30. According to the available documents, the Deceased had worked,
- as a trainee in a jewellery company from 1 December 2000 to June 2001;
- as a foreman in Po Leung Kuk (“PLK”) from 15 October 2002 to 28 February 2003;
- as a relief worker in PLK from in May 2004;
- as an assistant instructor in PLK from June 2004 to May 2006.
…
32. Since May 2006, the Deceased ceased to work full‑time in order to look after his Father who was later confirmed to have stage III carcinoma of sigmoid and requested the care and help of the Deceased. During that period of time, the Deceased took up odd jobs occasionally, such as giving assistance in logistics or technical arrangements for events, cleaning works and sales work, etc. to financially support himself.
33. The Father was gradually recovering from his illness since 2012 and resuming the ability to look after himself. As such, it was expected that the Deceased should be able to work full‑time again in mid 2013 but for his un‑timely death.
34. …
35. Although there is no documentary evidence regarding the Deceased’s earnings in casual odd jobs between June 2006 to March 2013. It is evident that the parents did not provide any financial support to the Deceased in this 7 years period. The Deceased also incurred no debt. Apparently, he managed to earn sufficiently to support himself despite not working full-time.
36. …
37. Before his death, the Deceased was living with his parents, one adult younger and one adult younger sister in a public housing estate. The household expenses of January 2013 was around $7,759.
38. On equal share basis, the monthly expenses per head was about $1,550 ($7,758 ÷ 5).
39. When working full‑time in PLK, the Deceased used to regularly give around $3,000 to his parent to support them. This amount to 3⁄7 of his monthly salary.
40. At the request of and out of the need to look after his Father, the Deceased gave up working full‑time since 2006 and only worked in casual odd jobs. The parents were partial dependants of the Deceased by virtue of the followings,
- the Deceased used to work full‑time before his Father got sick with cancer;
- when working full-time, the Deceased used to contribute about $3,000 to his parents;
- the Deceased gave up full‑time work in order to personally take care of his sick Father and family;
- during the period of looking after his Father and family, the Deceased worked causally and managed to financially support himself…”
7.I agree to accept the above evidence on balance and move to assess damages payable to the plaintiff.
PSLA
8.I have no hesitation to accept that the deceased suffered pain and sufferings for those 6 months the defendant treated him. He got skinner, lost stamina/weight and had frequent vomiting/diarrhea. He became so ill that he was admitted to ICU for treatment. The resuscitation included hemodialysis, cardioversion, tracheostomy, continuous mechanical ventilator support and extracorporeal membrane oxygenation.
9.The mother further informed that (as in her witness statement):
“5. 我於鄧正堂入院後基本上每天都有去探望鄧正堂。雖然鄧正堂沒有清醒過，但我在探望他時，他有時會在我跟他說話時有反應，眼皮會郁動，眼珠亦會轉動，心跳機亦顯會有較大的跳動。
6. 於探望他時，護士不時會幫他輸血洗腎，另外亦有洗血機及其他機器維持他的身體運作。當時因為鄧正堂有腎衰竭會失禁，所以我或家人也要自行購買成人紙尿片給醫院的護士為鄧正堂更換。我當時購買了大約12包紙尿片，每包約$100。”
10.With the assistance from Rai Rane Magar Pabitra v Pacific Corst (HK) Co. Ltd[1], HCPI 398/2008 (Judgment of Deputy HC Judge Russell dated 7 March 2011), I will award PSLA in the sum of $200,000.
LOSS OF BEREAVEMENT
11.The statutory sum of $150,000 is also to be awarded for loss of bereavement under s.4 Fatal Accidents Ordinance, Cap. 22.
PRE-TRIAL LOSS OF DEPENDENCY
12.I agree to accept the parents were dependants of the deceased. I also agree to adopt the calculations in the sum of $129,850 ($64,925 + $64,925).
“43. But for his un‑timely death, it is reasonable to assume or expect that the Deceased would have worked full-time again soon and would have resumed giving maintenance or making contributions to his parents soon in the monthly sum of about $4,000 in light of the followings,
- the Deceased used to work full‑time with good appraisal;
- he ceased working full-time so as to personally look after his Father;
- his Father was gradually recovering from his sickness and could take care of himself in about mid 2013;
- the Deceased used to give about $3,000, i.e. 3⁄7 of his monthly salary to his parents when working full‑time in 2006;
- when he resumed working full‑time again in mid 2013, his monthly earnings would no doubt higher than that in 2006 and estimated to be not less than $10,000 a month [see salary statistics at p.899b];
- the Deceased expectedly would have contributed not less than 3⁄7 of his monthly salary to his parents like he used to when he resumed working full‑time in mid 2013;
- each of the younger brother and sister of the Deceased were also contributing about $4,000 to $5,000 to their parents [p.117].
44. …
45. The parents agreed that they shared the Deceased’s maintenance equally. So, each of the Father and Mother would be benefitting the contribution of the Deceased in the sum of $1,225, i.e. ($4,000 - $1,550) ÷ 2.
46. The pre‑trial loss of dependency would be,
Father:
$1,225 x 53 months = $64,925
Mother:
$1,225 x 53 months = $64,925”
(opening skeleton of Mr. Yip)
POST‑TRIAL LOSS OF DEPENDENCY
13.In the present case, I prefer to adopt the conventional way to assess the post‑trial loss of dependency. Hence, the calculation of multiplier is from the date of death of the deceased. I further agree that the father has fully recovered and his earlier illness will not affect his usual life expectancy. As submitted orally at the hearing by Mr. Yip, the calculations are:
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Father: |
$1,400 x 12 x 13.16 |
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$221, 088 |
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Mother: |
$1,400 x 12 x 17.60 |
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$295, 680
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$516, 768
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LOSS OF ACCUMULATION OF WEALTH
14.The deceased is a frugal person and it is more likely than not that he would be able to accumulate some wealth, but for the present medical negligence on the part of the defendant. The suggested sum of $400,000 is reasonable in the circumstances.
“60. There are ample evidence that the Deceased was a frugal person with a real likelihood of future accumulation of wealth,
- he had good appraisal in his past employment;
- during the 7 years before his death when the Deceased was taking care of his Father, he was financially independent and self‑sustainable without incurring any debt;
- he lived a regular and relatively quiet life without vice habits;
- he managed to keep all the gold ornaments;
- there were surplus in his earnings (see below).
61. As discussed hereinabove, but for the un‑timely death, the Deceased would likely resume full time employment in around mid 2013 with a monthly earnings of not less than $10,000. Using the salary of a building attendant as a reference, i.e. $10,397 [p.899b], and taking into account his expenses at that time.
- personal monthly expenses of about $3,900 [p.121];
- monthly contribution to his parents of about $4,000;
- MPF contribution of about $520,
the Deceased would have about $2,000 a month as surplus at his own disposal or savings in 2013, which is around 20% of his earnings.
…
66. Admittedly, a global award will have an arbitrary element. In assessing the appropriate global award for loss of accumulation of wealth, it is submitted that some regards may be made to the followings:
(a) the Deceased might have 20% of his future earnings for savings;
- as a very rough reference and without regard to future pay‑rise and interest, such savings might be $2,000 x 12 x 31 (remaining working years), i.e. $744,000;
(b) he also would have accumulated MPF benefits after his retirement;
- as a very rough reference and without regard to future contribution increments and investment returns, such benefits may might be $520 x 2 x 12 x 31, i.e. $386,880.
67. Discounting the above rough estimations by 65% to cater for factors like vicissitudes of life and accelerated receipt, etc, it would be around $400,000.
68. …”
SPECIAL DAMAGES
15.The claim of $43,015 is reasonable and/or supported by documents. I allow them in full.
SUMMARY
16.To sum up, I allow the plaintiff’s assessment in the followings.
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PSLA |
200,000 |
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Loss of bereavement |
150,000 |
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Pre‑trial loss of dependency |
129,850 |
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Post‑trial loss of dependency |
516,768 |
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Loss of accumulation of wealth |
400,000 |
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Special damages |
43,015
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1,439,633
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INTEREST
17.The plaintiff is further awarded interests of:
(a) 2% per annum on general damages (PSLA) from date of writ to date of this judgment,
(b) judgment rate per annum on loss of bereavement from date of death of the deceased to date of this judgment,
(c) half judgment rate per annum on pre‑trial loss of dependency and special damages from date of death of the deceased to date of this judgment.
Of course, the total judgment sum of $1,439,633 carries interests at judgment rate from date of this judgment until payment.
COSTS
18.The defendant shall also pay the plaintiff costs of the assessment, including all costs served and certificate of counsel for the assessment before me, to be taxed if not agreed. The plaintiff’s own costs will be taxed in accordance with Legal Aid Regulations.
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(J Wong)
Master of the High Court
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Mr. Timmy Yip, instructed by Messrs. Wan and Leung, for the plaintiff
The defendant was not represented and did not appear
[1] Facts of the case, as summed up by Mr. Yip: The deceased worker was injured in a construction site accident. He died from his injuries 25 days later during which he had varying levels of consciousness. The Court considered that the accident itself must have been terrifying and the pain suffered considerable. His wife visited him constantly and comforted him when he was not unconscious. Whilst in this state of uncertainty and semi consciousness he was operated 6 times. PSLA $150,000
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