Wong Yuen Mei v. Young Yau Yau Cecelia

DCPI 1504/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO.1504 OF 2007

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BETWEEN

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Coram: Master B. Mak in Court

Date of Hearing: 18^th January 2010

Date of Handing down of Judgment: 9^th February 2010

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ASSESSMENT OF DAMAGES

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Background

1.This is an assessment of damages of the Plaintiff’s claim against the Defendant.

2.Interlocutory Judgment was entered on 30^th October, 2008 with damages to be assessed due to her failure to give notice of intention to defend.

3.At the hearing on 18^th January, 2010, the Defendant was absent.  A Notice of Trial sent to the Defendant by the Court Registry at 105A, 1^st Floor, Liberte Place, No.833 Lai Chi Kok, Kowloon by post was returned by the Post Office.  According to the online search record in relation to the Defendant’s up-to-date address from the web-site of the Dental Council of Hong Kong, the said address is the current address of the Defendant.

4.A clerk of the Plaintiff’s solicitors, Mr. Cheng Ka Kuen, took pictures in the vicinity of the said address in the morning of 18^th Juanary, 2010.  After reading the 11^th Affirmation of Cheng Ka Kuen and the exhibits thereto, I am satisfied that the said address is the current address of the Defendant.  Therefore, the hearing continued in the absence of the Defendant.

The Plaintiff’s case

5.The Plaintiff was a flight attendant.  She has been suffering from buck-teeth condition, i.e. a condition concerning her protruding upper central incisors.

6.On or about 22^nd July 2004, the Plaintiff consulted the Defendant, who was a registered dentist, with a view to treat her buck-teeth condition.

7.The Defendant prescribed a course of orthodontic treatment (“the treatment”) which involved the extraction of her 4 first molars with regular check-up sessions about once every 2 weeks after the extraction.

8.As a result of the treatment, the Plaintiff suffered serious pain, suffering, discomfort and inconvenience as follows :-

(1)her upper teeth could not fit comfortably with her lower teeth;

(2) she suffered from ulcer of gum, causing serious pain when she ate, drank or spoke;

(3) she also suffered from headache, depression, anxiety and insomnia;

(4) due to the above problems, she could not discharge her duties properly as a flight attendant, including but not limited to the making of announcements to passengers;

(5) she could not chew food properly.  By reason thereof, she have to cut food into small pieces and swallow the food without chewing;

(6) that caused her to suffer from serious loss of appetite and serious loss of weight.

9.The Plaintiff sought advice from Dr. Lee Man Biu and eventually received remedial treatment from Dr. Leung Ting On.  Due to the extraction of her 4 first molars, there are now huge gaps between her teeth, which cannot close up significantly despite Dr. Leung’s effort.  Food would be trapped in those gaps, which resulted in tooth decay in 13 of her teeth.   In order to deal with her tooth decay problem, she engaged the service of Dr. Yu Kin Kuen.

10.The treatment by the Defendant did not improve the Plaintiff’s buck-teeth.  Worse still, her teeth have become even more out of alignment.  Coupled with the worsening of the health condition of her teeth, the Plaintiff feels upset and depressed.  She also feels uncomfortable with her appearance.

11.The Plaintiff was examined by Dr. John K.Y. Ling.  He is a specialist in Orthodontics in the “Specialist Register” of the Dental Council of Hong Kong.  Dr. Ling found that the 2^nd molars of the Plaintiff were tipped and tilted, the grinding surfaces of the teeth would be adversely affected and the ordinary chewing function would diminish.   Further, the Plaintiff is found to have symptoms of mild temporo-mandibular joint dysfunctions, which included the symptoms of pain and of the clicking and crepitus of jaw joints. 

12.Dr. Ling further opined that because the treatment by the Defendant was unduely prolonged, the longevity of the teeth of the Plaintiff would be decreased.  Due to food remains can be easily trapped in the space left behind by the extraction, there is an increased risk of tooth decay for the adjacent teeth.

Pain, suffering and loss of amenities

13.Mr. Hui, Counsel for the Plaintiff, referred me to the case of Lee Hau Chi Mariam Teresa v. Chung Chee Keung Peter & ors. (2007) DCPI1594/2006.  In this case, the Plaintiff received a prolonged and underperformed orthodontic treatment by having her 4 first premolars extracted.  She has suffered unnecessary pain and sufferings in having to undergo a 2^nd surgery.  Deputy District Judge S.T. Poon (as he then was) awarded $300,000 under this head.    

14.I accept that both cases are closely comparable.  Accordingly, I take the view that the sum of $300,000 claimed by the Plaintiff under this head is appropriate.

Costs of future medical treatments

15.Dr. Ling recommended that the Plaintiff should receive a number of remedial treatments in order to rectify (or at least to alleviate) the Plaintiff’s on-going problems, which include :-

16.I accept that the above costs of future medical treatments are reasonable and necessary and I so award.

Special damages

17.The Plaintiff has incurred the following expenses :-

18.I accept that those were the expenses reasonably and necessarily incurred and I so award.

Summary of Quantum

19.In summary, the award is as follows :-

Interest

20.I award interest as follows :-

(1) interest on the award for PSLA is to run from the date of the Writ (i.e. 20^th July 2007) to the date of Judgment (i.e. 30^th October 2008) at 2% per annum;

(2) interest on the award for special damages is to run from 31^st July 2007 to the date of Judgment (i.e. 30^th October 2008) at half judgment rate and thereafter at Judgment rate until payment.

Costs

21.I order that the Defendant shall pay costs to the Plaintiff with Certificate for Counsel.

22.I have considered the Plaintiff’s Statement of Costs.  The Plaintiff’s costs is assessed by summary assessment in the sum of $80,134.

Mr. George Hui instructed by Messrs. Siao Wen & Leung for the Plaintiff

Defendant: absent