Tsang Ka Hung Barry v. 鄧玉玲
Read the full judgment text of DCPI 525/2007 on BabelCite. This District Court judgment.
1. The Plaintiff, a medical doctor since 1 st July 1995 and now in private practice, claimed against the Defendant for damages for personal injury, loss and damages he suffered as a result of a dog-bite incident that happened at about 8:00am on 19 th November 2005 outside the main entrance opposite the Plaintiff’s residence in Tai Po, New Territories (“Site”) that arose out of negligence and/or breach of statutory duties on the part of the Defendant (“Accident”).
Cited by 9 cases
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DCPI 525/2007 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES NO. 525 OF 2007 ---------------------- BETWEEN
---------------------- Before: Her Honour District Court Judge Marlene Ng in Court Date of Hearing: 13th January, 2009 Date of Handing Down Judgment: 20thJanuary, 2009 ----------------------------------------------- ASSESSMENT OF DAMAGES --------------------------------------------- I. Introduction 1.The Plaintiff, a medical doctor since 1st July 1995 and now in private practice, claimed against the Defendant for damages for personal injury, loss and damages he suffered as a result of a dog-bite incident that happened at about 8:00am on 19th November 2005 outside the main entrance opposite the Plaintiff’s residence in Tai Po, New Territories (“Site”) that arose out of negligence and/or breach of statutory duties on the part of the Defendant (“Accident”). 2.The Defendant did not give any notice of intention to defend. On 25th April 2007, interlocutory judgment on liability was entered against the Defendant for damages to be assessed. 3.On 28th April 2008, the Plaintiff filed his Statement of Damages. On the following day, the Plaintiff’s solicitors served on the Defendant by ordinary post the Statement of Damages together with the medical report of Dr Jonathan K C Wong (“Dr Wong”), the doctor who treated the Plaintiff’s injuries caused by the Accident, dated 30th July 2007 (“Report”) (see affirmation of service filed on 23rd September 2008). 4.On 17th July 2008, the Plaintiff filed his List of Documents. At the assessment hearing before me, I granted leave to the Plaintiff to file (which the Plaintiff did on the following day) an affidavit of service to prove service of his List of Documents on the Defendant by ordinary post on 17th July 2008. 5.On 2nd October 2008, in the absence of the Defendant, Master Clement Lee granted inter alia the following orders (“CLR Order”) :
6.Notwithstanding paragraph 5(b) above, Mr Wong, counsel for the Plaintiff, confirmed the Plaintiff would only rely on the Report that recorded his medical treatment and would not be adducing any expert medical evidence. 7.On 15th October 2008, the Plaintiff filed the Notice and his witness statement. On the same day, the Plaintiff served the Notice, his witness statement and the CLR Order on the Defendant by ordinary post (see affidavit of service filed on 7th January 2009). 8.On 7th January 2009, the Plaintiff served the assessment bundle on the Defendant by ordinary post (see affidavit of service filed on 7th January 2009). 9.The Defendant had not complied with the CLR Order and was absent at the assessment hearing before me. As evident from the above, the Plaintiff had complied with the CLR Order, and the Defendant had been properly served with notice of the assessment hearing. In my view, there was no reason not to proceed, and the assessment hearing continued. 10.The Plaintiff gave evidence and adopted his witness statement as part of his evidence-in-chief. II. Plaintiff’s medical practice 11.The Plaintiff was 36 years old at the time of the Accident. At the time of the Accident, he carried on his medical practice at his clinic in Mongkok, Kowloon, not far from where his clinic is presently located. At the time of the Accident, the Plaintiff’s work included attending patients for medical consultations and performing minor medical procedures at his clinic, and working off-site on emergency calls. The Plaintiff also had operating privileges with St Teresa’s Hospital, Central Hospital, Union Medical Centre and Precious Blood Hospital. If his patients required surgical or hospitalised care, he would arrange for their admission to these hospitals where he would perform medical procedures or operations for them and continue to medically care for them on ward rounds. III. Accident 12.The Plaintiff gave a brief account of the Accident. At about 8:00am on 19th November 2005, he walked past the Site on his way his home. A foreign domestic helper was walking a mongrel dog owned by the Defendant. Suddenly and for no reason, the dog attacked him by biting his left hand causing bleeding and injuries. IV. Injuries and treatment 13.The Plaintiff gave evidence that after he was bitten his left hand was red and swollen, and there was oozing from the bite wounds. He attended the clinic of Dr Wong for treatment. According to the Report, physical examination revealed a penetrating wound and an abrasion wound on the back of the left hand. The penetrating wound was about 5mm in diameter, round in shape and deep down to the subcutaneous layer. The abrasion wound was about 2cm long but rather shallow in depth. Swelling and pain were found in the soft tissues around the wound site, but there was no active bleeding at the time of the examination. Active movement of the fingers and wrist joint of the left hand was limited by pain, but passive range of movement was not affected. The wounds were cleansed and dressed. The Plaintiff was given a booster injection of anti-tetanus toxoid vaccine and a course of antibiotics. 14.On 21st November 2005 (ie 2 days after the Accident), the Plaintiff attended Dr Wong for follow-up treatment. According to the Report, recovery was not complicated, but there were still symptoms of pain, swelling, numbness and restricted movement of his left hand and fingers which prevented use of the computer keyboard or wearing of gloves during work as a physician. 15.Nevertheless, the Plaintiff confirmed he did not take any sick leave and carried on his medical practice as usual. He was confident he would be able to function and manage since apart from his left hand he did not suffer any other injury. 16.On 26th November 2005 (ie 7 days after the Accident), the Plaintiff attended Dr Wong for further follow-up treatment. According to the Report, the wounds had healed satisfactorily, but there was some residual pain, swelling and numbness of the left hand. At this last examination, the Plaintiff was as yet unable to put on gloves. Dr Wong advised the Plaintiff to rest for two weeks or until the symptoms subsided. But, as explained above, the Plaintiff continued to work and did not take any sick leave. 17.The Plaintiff in his witness statement claimed that the symptoms eventually subsided in/about March 2006. But he gave evidence that after 26th November 2005, ie 7 days after the Accident, he was able to carry out minor medical procedures at his clinic or even more complicated surgeries in hospital setting with no trouble at all. Plainly, by that time his wounds had healed and he could wear doctor’s gloves, and his left hand had already recovered the dexterity required for carrying out medical procedures or surgeries. I am persuaded that no reasonable medical doctor would put his patients at risk with a less than fully functional hand when carrying out medical procedures and/or operations, and there is no suggestion that the Plaintiff was other than a reasonable medical doctor in this respect. In my view, the Plaintiff would have substantially or even almost fully recovered by early December 2005, and I am not convinced there would be have been lingering symptoms up to and until March 2006. V. Pain, suffering and loss of amenities (”PSLA”) 18.The Plaintiff claimed for damages for PSLA as a result of injuries to his left hand and the consequent pain, stiffness and other symptoms he suffered. Mr Wong submitted that the appropriate award for PSLA is HK$80,000.00, and cited two authorities in support. 19.In Susi Yanti & anor v Chu Shiu-chuen HCPI176/2000, Master de Souza (unreported, 2nd November 2001), a 4-year old girl was attacked by a pack of dogs, and suffered three laceration wounds over both thighs with multiple minor bite/scratch marks over her thighs and left arm. She was treated with analgesics, dressings and antibiotics as well as a course of anti-rabies vaccinations. She suffered nightmares and developed a fear of dogs. About a year later, various scars with differing but slight degrees of being noticeable, pigmented and/or raised, barely perceptible bite marks, and noticeable stitch marks were found. An award of HK$130,000.00 was made for PSLA. 20.In Chiu Oi Lung by his mother and next friend Shek Kam Kiu v Wong Yuet DCPI115/2006, Deputy Judge A B bin Wahab (unreported, 22nd February 2007), the 10-year old boy was bitten by a dog just below the left eye. Physical examination showed a 1.5cm x 1cm wound with tissue loss over left infra-orbital area. He was given daily dressing and injection of anti-rabies vaccination. He attended regular outpatient treatment for over two months and was granted 18 days of sick leave. Subsequently, the plastic surgery expert found that the 33mm x 2mm pale atrophic scar caused mal-function of the plaintiff’s left lower eyelid, which could not close tightly and thus often caused his left eye to be dry leading to itchiness and frequent rubbing of the eye. The plastic surgery expert recommended revision surgery. The plaintiff also developed some degree of cynophobia. The PSLA award was HK$100,000.00. 21.Obviously, the injuries suffered by the Plaintiff in the present case are much less severe. When the Plaintiff gave evidence, he was able to move and flex his left hand with no problem. He also did not identify any scar on his left hand. Mr Wong conceded there were no lasting physical disability and no psychiatric symptoms at all. Apart from the general inconvenience of using the computer and carrying out activities of daily living with one hand and a need to refer some of his patients to other medical doctors/institutions for a few days after the Accident, the Plaintiff did not appear to have suffered any other significant loss of amenities. As concluded above, I am not convinced there were lingering residual symptoms that lasted until March 2006. In all the circumstances, I consider that an appropriate award for PSLA is HK$50,000.00. VI. Medical expenses 22.According to the Statement of Damages, the Plaintiff claimed reimbursement of medical expenses paid to Dr Wong in the sum of HK$1,500.00. HK$1,000.00 out of such sum was supported by receipts issued by Dr Wong dated 19th, 21st and 26th November 2005. I have no hesitation in allowing such medical expenses. As regards the remaining balance of HK$500.00, Mr Wong confirmed the Plaintiff would not claim for the same. VII. Pre-trial lost of earnings 23.The Plaintiff claimed that as a result of the symptoms of pain, swelling, numbness as well as the restricted movement of his left hand and fingers caused by the Accident, he was unable to carry out the following medical procedures or operations (“Procedures”) for his patients which were scheduled for 20th to 23rd November 2005 and had to refer them to other medical doctors :
24.In support of such claim, the Plaintiff disclosed copy extracts of his contemporaneous patient records (with personal identifiers redacted) (“Records”) for the Procedures in items 1-7 and 9-10 above. 25.At the commencement of the hearing before me, Mr Wong applied for leave to adduce the Records for the Procedure in item 8 above, which document had not been disclosed to the Defendant. Mr Wong fairly accepted the application was late and there was no reasonable excuse for the omission in discovery or the lateness of the application. However, as Mr Wong pointed out, the Records for the Procedure in item 8 above did not raise any new matter for the relevant claim had already been made in the Statement of Damages and the Plaintiff’s witness statement. Further, the nature of the document to be disclosed would not have caused any surprise since it was similar to the Records already disclosed for the other items. 26.Taking into account all of the above matters and the lack of prejudice to the Defendant who had taken no interest in these proceedings since their commencement, I granted leave to the Plaintiff to produce the Records for the Procedure for item 8 above at the assessment hearing. The Plaintiff formally produced such Records as exhibit P1 when he gave evidence. In view of its nature as a patient medical record which the Plaintiff was professionally bound to keep and preserve, I allowed a true copy of such Records to be retained as exhibit and released the original Records to the Plaintiff’s custody. 27.In respect of item 1 above, the Plaintiff explained that on 20th November 2005 a 9-year old boy came to his clinic for treatment of an abscess at his left buttock. The usual mode of treatment was to open the abscess with a surgical knife, and then clean and dress the wound. Because the abscess was large and the patient young and frightened, the accompanying adult preferred to have the Procedure done in a hospital setting. The Plaintiff explained he could not carry out the Procedure due to his injured left hand, and referred the patient to the accident and emergency department of a public hospital. The Plaintiff claimed that but for his injured left hand he would have made arrangements to admit the patient into one of the hospitals where he had operating privileges and performed the Procedure himself. 28.I note the Plaintiff’s evidence is supported by the Records for item 1 above. Since the patient’s condition required urgent attention and there was expression of willingness to undergo the Procedure albeit in a hospital setting, I accept the Plaintiff suffered loss of income by turning away the patient as a result of the injuries to his left hand. 29.In respect of item 2 above, a female patient attended his clinic on 21st November 2005 to seek treatment of her infertility problem. In fact, she had seen the Plaintiff for this problem for some time without being able to diagnose the cause of her infertility. The Plaintiff had prior to this visit advised her to have (a) a diagnostic laparoscopy to look for blockage of the fallopian tubes and (b) an endometrial biopsy by dilatation and curettage to ascertain any underlying disorder. The Plaintiff gave evidence that the patient had already indicated willingness to undergo such Procedures, but such Procedures had not been immediately scheduled. Such Procedures had to be performed under general anaesthesia in a hospital setting, so the patient had to take time off from her work and make appropriate arrangements beforehand. The Plaintiff claimed the patient visited his clinic on 21st November 2005 to confirm the date for the Procedures, but since he could not carry out such Procedures with his injured left hand he suffered loss of income. 30.It is interesting to note there is no evidence before me that the Plaintiff referred the patient to another doctor or hospital to carry out the relevant Procedures. The Plaintiff’s witness statement is silent on the matters in the above paragraph. However, the entry for 21st November 2005 in the contemporaneous Records for item 2 above noted “Postpone Lap dye + D&C”. Plainly, the Plaintiff did not refer the patient to another doctor or hospital for the Procedures because there was understanding that the Procedures of diagnostic laparoscopy (ie “Lap dye”) and dilatation and curettage (ie “D&C”) would be postponed. In light of such Records, I am unable to accept the Plaintiff’s evidence in the above paragraph. 31.The Records for item 2 above went on to note that on 26th November 2005 (ie 5 days later) x-ray of the whole spine was done, and on 8th and 9th April 2006 the patient again consulted the Plaintiff. There is no evidence before me that the subject of the relevant Procedures were ever raised again despite such opportunities for enquiry. In my view, there is insufficient evidence before me to support any real likelihood of loss of income given the patient’s willingness to postpone the Procedures and the lack of evidence that the Procedures were done or probably would have been done at all. I disallow the Plaintiff’s claim in respect of item 2 above. 32.I will deal with items 3, 7 and 8 above together as they all deal with termination of pregnancy (“TOP”). In respect of item 3 above, the female patient consulted the Plaintiff for chest discomfort on 21st November 2005. But in the course of discussions, she expressed her worries over her pregnancy and her desire to terminate her pregnancy. The Plaintiff advised she should not wait much longer for TOP since she was already at 7 weeks’ gestation, and referred her to a Dr Lee. In respect of item 7 above, the 20-year old female patient consulted the Plaintiff for TOP on 22nd November 2005. She was at 8 weeks’ gestation, so the Plaintiff also referred her to Dr Lee. In respect of item 8 above, the female patient, who was unmarried, had regularly consulted the Plaintiff for medical treatment. On 22nd November 2005, she consulted the Plaintiff and expressed her desire to terminate her pregnancy. Again, the Plaintiff referred her to Dr Lee. 33.The Plaintiff claimed he would have performed TOP for the above 3 patients himself but for his injured left hand, but since he could not he referred them to Dr Lee. However, he never followed up with these patients again as to whether they had undergone TOP even though, say, the patient for item 8 above consulted him again a few days later on 25th November 2005. 34.Mr Wong did not refer to section 47A of the Offences Against the Persons Ordinance Cap.212 (“Ordinance”) which made it a crime to perform an abortion unless the provisions therein were complied with. Section 47A provided inter alia as follows :
35.But apart from (a) the above 3 patients expressing a desire to terminate their pregnancies, (b) the youth of the patient for item 7 above, and (c) the unmarried status of the patient for item 8 above, there is no evidence before me that even begins to suggest some basis for satisfying the criteria for TOP in section 47A(1) of the Ordinance let alone the probable availability of a second concurring medical opinion. In such circumstances and bearing in mind that the subject of TOP was raised by the way when the patient for item 3 above consulted the Plaintiff for other complaints and that the visits to the Plaintiff by the patients for items 7 and 8 above on 22nd and 23rd November 2005 respectively were the first time TOP was raised, I am not persuaded there is sufficient evidence of real likelihood that TOP would have been carried out for these 3 patients. Indeed, the Plaintiff agreed that given the nature of the Procedure, patients would normally be recommended to confer with their partners/family and re-consider their position, and even if an appointment were fixed for TOP, the same advice would be given before the patient signs any consent form. The Plaintiff therefore acknowledged there would have been ample opportunities for the patients for items 3, 7 and 8 above to change their minds. This reinforces my view that the Plaintiff has failed to establish loss of income for items 3, 7 and 8 above. 36.In respect of item 4 above, the Plaintiff explained that this patient had epigastric pain for a long while and had been consulting another doctor (but the relevant Records noted “epigastric pain for one week”). When the patient’s mother brought the patient to see the Plaintiff on 22nd November 2005, the patient gave information that he had vomited blood (see note of “mild haematemesis” in the relevant Records). The Plaintiff therefore advised the patient to undergo gastroscopy because he suspected ulcer was the underlying cause. In any event, it was necessary to determine the diagnosis to work out the treatment plan. The Plaintiff claimed he could not carry out the relevant Procedure with his injured left hand, so he referred the patient to the accident and emergency department of Kwong Wah Hospital. 37.I accept the referral to an accident and emergency department lends support to the Plaintiff’s case that the patient accepted his condition required urgent medical attention and that he agreed to undergo the relevant Procedure. I further accept that but for the injuries to his left hand caused by the Accident, the Plaintiff would have been able to carry out the gastroscopy himself, and he suffered loss of income because he was unable to do so. 38.In respect of item 5 above, the patient consulted the Plaintiff on 22nd November 2005 for low abdominal pain and haematuria (blood in his urine). The Plaintiff’s diagnosis was “bladder stone” and recommended cystoscopy for diagnostic purpose and, where appropriate, for removal of small bladder stones during the Procedure. 39.The Plaintiff claimed he could not carry out the relevant Procedure because of his injured left hand, and he suffered loss of income because the patient must have approached another doctor on 22nd November 2005 (ie the same day the patient came to see him) or the following day to undergo the Procedure. The Plaintiff further claimed that the patient would not have waited because the condition was painful. 40.I am unable to accept the Plaintiff’s assertions. In fact, the Plaintiff as he admitted did not refer the patient to another doctor because the patient wanted him to continue as his doctor. Such fact sat well the relevant Records for item 5 above which noted “Cystoscopy : FU 1/52 for OT arrangement”, which plainly showed that on 22nd November 2005 the Plaintiff scheduled a follow-up consultation for making arrangements for the relevant Procedure a week later (ie “1/52”) by which time the Plaintiff could have performed the relevant Procedure himself. Such Records plainly contradict the Plaintiff’s assertions as to the urgency of the relevant Procedure in the above paragraph and his claim of loss of income based on such evidence. I note that the patient did not return for follow-up, but the patient was free to choose whether to further consult the Plaintiff or to undergo the relevant Procedure at all. In such circumstances, I am not satisfied that there was any real likelihood the patient would have retained the Plaintiff for carrying out the relevant Procedure. 41.In respect of item 6 above, the 44-year old female patient consulted the Plaintiff on 22nd November 2005 for “intermenstrual bleeding + metrorrhagia for 3 months”. Given her age, the Plaintiff advised her to undergo hysteroscopy and dilatation and curettage to determine whether there was any underlying uterine disorder such as tumour or cancer. The Plaintiff claimed that but for his injured left hand he would have carried out such Procedures himself, but as he could not he referred the patient to Queen Elizabeth Hospital. 42.However, I note the relevant Records for item 6 above stated that “FU 1/52 for OT arrangement ± Refer QEH Gyn”, which plainly showed that the Plaintiff gave the patient the option either (a) to return for follow-up in a week’s time (ie “1/52”) to make arrangements for the relevant Procedures (by which time the Plaintiff would have been able to carry out such Procedures himself) or (b) to refer to Queen Elizabeth Hospital. Such option indicated there was no immediacy for the relevant Procedures. However, the Patient did not return for follow-up, so it was the patient’s choice not to have the Plaintiff carry out such Procedures. In such circumstances, I am not persuaded the Plaintiff has shown sufficient basis for establishing loss of income for item 6 above. 43.In respect of item 9 above, a female patient consulted the Plaintiff on 23rd November 2005 for a wart on her left index finger. Since a wart can cause infection, the Plaintiff advised electrocauterisation which could be done in a clinic or hospital setting. The Plaintiff agreed such Procedure was not urgent. In view of his injured left hand, the Plaintiff told the patient to go away and think about whether she wanted to undergo the relevant Procedure and then return for a follow-up (see “FU 1/52 for electrocauterisation” in the relevant Records). The patient told him she would think about it, but did not return for follow-up. 44.In my view, as accepted by Mr Wong, whilst it is the doctor’s duty to give medical advice, ultimately it is for the patient to consent or refuse to undergo the recommended medical procedure, and such decision should be respected. Here, the patient expressed her intention to consider the Plaintiff’s advice and elected not to return for the relevant Procedure. In such circumstances, there is insufficient evidence to establish any real likelihood that the patient would either have undergone electrocauterisation elsewhere and/or retained the Plaintiff to carry out such Procedure. 45.In respect of item 10 above, the patient consulted the Plaintiff on 23rd November 2005 for rectal bleeding (ie “PR bleed for one week” in the relevant Records) and for persistent epigastric pain and blood vomit (ie “haematemesis” in the relevant Records). The Plaintiff advised the patient to have gastroscopy and colonscopy, but he could not carry out such Procedures himself due to his injured left hand. The Plaintiff said the patient knew that with rectal bleeding for one week his condition required urgent attention, and he assured the Plaintiff he would seek medical treatment immediately. 46.In the circumstances, I agree that the patient accepted the Plaintiff’s medical advice and that he would have sought urgent medical attention elsewhere. I further accept that but for the injuries to his left hand as a result of the Accident, the Plaintiff could have carried out the relevant Procedures for the patient himself and would have made arrangements for such purpose at the consultation on 23rd November 2005. I am satisfied that the Plaintiff suffered loss of income for item 10 above. 47.The Plaintiff gave evidence (and I accept) that the fees set out for the relevant Procedures in paragraph 23 above were his usual fees at about the time of the Accident. Thus, I am satisfied the Plaintiff suffered pre-trial loss of income for items 1, 4 and 10 above in the total sum of HK$10,000.00. VIII. Conclusion 48.I summarise the award for the Plaintiff’s loss and damages as follows :
49.I therefore order the Defendant do pay damages in the sum of HK$61,000.00 to the Plaintiff. Interest is payable on the award for PSLA at 2% pa from the date of the Writ of Summons to the date of judgment herein, and on pre-trial loss of earnings and medical expenses from the date of the Accident to the date of judgment herein at half judgment rate and thereafter at judgment rate until payment. 50.There is no reason why costs should not follow event. I therefore make a costs order nisi that the Defendant shall pay the Plaintiff costs of the assessment of damages (with all costs reserved, if any) to be taxed if not agreed. As Mr Wong fairly conceded, there shall be no certificate for counsel.
Mr Damian Wong instructed by Messrs Paul C W Tse & Co for the Plaintiff. The Defendant in person and absent. |