Personal Injuries Action2007

TSANG KA HUNG BARRY v. TANG YUK LING DOBE

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70217-EN-2010-03-17

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DCPI 525 OF 2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO.525 OF 2007

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BETWEEN
	TSANG KA HUNG BARRY	Plaintiff
	and
	TANG YUK LING DOBE (鄧玉玲)	Defendant

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Coram: Before Deputy District Judge Alfred H H Chan in Chambers (Open to Public)

Date of Hearing: 17 February 2010

Date of Handing Down of Ruling: 17 March 2010

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DECISION

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1. This is the Defendant’s application to set aside an interlocutory judgment for damages to be assessed, in default of notice of intention to defend, and the final judgment in the sum of $61,000, entered against the Defendant after assessment.

2. The alleged incident from which the Plaintiff’s claim for damages for personal injury arose took place on 19 November 2005. The Plaintiff, a doctor, used to live at House No.299, Ha Hang Village in Ting Kok Road in Tai Po. The Defendant resided with her husband at the house opposite, House No.300. The Defendant’s domestic helper was walking the Defendant’s dogs at the time. The Plaintiff was on his way home. He was bitten by one of the dogs in the vicinity of his house.

History of Proceedings

3. On 19 September 2006, the Plaintiff sent a pre-action letter to the Defendant by registered post. On 13 March 2007, the Plaintiff issued the writ in this action with a general endorsement of claim, seeking damages for personal injury allegedly caused by the Defendant’s negligence or breach of statutory duties. On 15 March 2007, the writ was served by posting the same by registered post in a sealed envelope addressed to the Defendant at House No.300 Ha Hang Village (“the said address”), being her usual or last known address according to the Plaintiff. The letter was not returned by the Post Office through the dead post service.

4. No acknowledgment of service was filed by the Defendant. Default judgment was entered against her on 25 April 2007 for damages to be assessed. Thereafter, notices and documents relating to checklist reviews, a Statement of Damages, the Plaintiff’s witness statement, notice of hearing for the assessment of damages, hearing bundles and so on were served on the Defendant either by ordinary or registered post, unreturned, but the Defendant took no part in the proceedings. The assessment was heard on 13 January 2009 by HH Judge Marlene Ng in the absence of the Defendant. Judgment was handed down on 20 January 2009, and the Defendant was ordered to pay damages in the sum of $61,000.

5. From March to May 2009 the Plaintiff’s solicitors attempted to effect personal service of a statutory demand on the Defendant at the said address a number of times to no avail, including sending letters to her making appointments for their next visits. None of these letters were returned.

6. The Plaintiff then obtained an order for substituted service of the statutory demand, which was served by inserting a notice in the Oriental Daily on 17 July 2009. In September 2009, the Plaintiff issued a bankruptcy petition. More attempts were made by the Plaintiff’s solicitors at personal service of the petition at the said address in September and October 2009, including again sending letters of appointment by post to the said address which were not returned. An order for substituted service was granted, and the petition was served by sending the petition by ordinary post to the said address and inserting a notice in Wen Wei Po on 6 November 2009.

7. According to the Defendant, she has not resided at the said address since some time in 2006 and had no knowledge of the present action or the bankruptcy proceedings against her until late November 2009 when her brother visited the said address and found a parcel containing the bankruptcy petition which he passed on to her.

Summons to Set Aside Default Judgment

8. On 4 January 2010, the Defendant’s solicitors issued the present summons on her behalf seeking to set aside the judgments against her in this case.

9. The grounds of her application are: (1) that the service of the writ was irregular in that the writ was not served at her usual or last known address; (2) that she has a meritorious defence to the Plaintiff’s claim; and (3) that judgment has been entered for too much.

Service of the Writ

10. The Defendant claims in her affirmation evidence that in 2006 she separated from her husband and stopped residing at the said address. She is not specific about the date but she has exhibited a Chinese separation agreement by which she and her husband agreed on a separation, to take effect as from 8 August 2006, and she agreed to leave the said address. She says that by the time the Plaintiff purported to serve the writ on her in March 2007, the Plaintiff, living in the house opposite, should have noticed her absence and would have been put on inquiry as to whether the said address was still her usual or last known address. Had he attempted to check, he would have found out that she no longer lived there. Therefore, it is submitted on her behalf by Mr Yau of the Defendant’s solicitors that the said address was no longer her usual or last known address within the meaning of O.10 r.1(2)(a). She also claims that her business operations were in mainland China and she had to take frequent trips outside Hong Kong and so she was not within the jurisdiction at the time of the purported service.

11. On this last point, as to whether she was outside the jurisdiction at the time of the deemed service by registered post, she has produced no documentary evidence, e.g. of her immigration records, and I am not satisfied that she was indeed out of the jurisdiction at the time of the deemed service.

12. As to her argument that the said address was no longer her usual or last known address, Mr Damian Wong, counsel for the Plaintiff, submits that the words “usual” and “last known” must be read disjunctively, relying on Hong Kong Civil Procedure 2010 (Vol 1) para 10/1/12, and that the words “last known” mean last known to a plaintiff. The said address may not have been her usual address according to her, but it was still the address last known to the Plaintiff.

13. Mr Yau for the Defendant has referred me to Incorporated Owners of May Moon House v Lai Mun Han Rossetti (unrep, DCCJ 1269 of 2005, HH Judge H C Wong, 6 January 2006), in which it was held that service by leaving the writ in the letter box of the defendant’s address in the building in question was not good service when the plaintiff in that case had been told repeatedly that the defendant’s preferred address for service was her actual residential address.

14. The Defendant’s own evidence suggests that she was often away from Hong Kong before the separation, and even after the separation, she would from time to time (about once in every two months) return to the said address, although when her children were back in Hong Kong from their overseas studies, she would visit the house a little more. Her husband still resided there. In these circumstances, an outsider would not in my view have noticed anything significantly different about the Defendant’s residential arrangements, and the house at the said address would appear to remain the home of that family. I am not satisfied that the Plaintiff knew or ought to have known that the Defendant no longer resided at the said address, unlike the case of Incorporated Owners of May Moon House (above) where the plaintiff had ample notice of the defendant’s actual residential address. I therefore find that the said address remained her “last known address” to the Plaintiff.

Lack of Notice of Proceedings

15. What is more important is her allegation that she had no notice of this action until about late November 2009. I have not been referred by either party to the relevant authorities on this issue. Mr Wong for the Plaintiff submits in his skeleton argument that the issue is not whether the Defendant actually resided at the said address, or even whether she actually received the writ, but only whether the said address was the one last known to the Plaintiff.

16. I do not agree. The test for good service of a writ is not whether the writ has been delivered to the address, but whether the proceedings have been brought to the notice of a defendant: Forward v West Sussex County Council [1995] 1 WLR 1469; Cosec Nominees Ltd v Lau Hon Ming Alan [2001] 3 HKC 290.

17. The Defendant has stated in her affirmation evidence that she did not know about the proceedings until late November 2009. She had separated from her husband since about August 2006 and has exhibited the separation agreement. Her husband’s current domestic helper has also sworn an affidavit to the effect that she started her service at the said address in early 2009 and the Defendant’s husband had instructed her to put all the letters and parcels in his room. The Defendant has also been told by the previous domestic helper who has since returned to Indonesia that she was given the same instructions by the Defendant’s husband. The Defendant says that she only realised recently that letters addressed to her had been passed on to her husband on his strict instructions, and not to her, the implication being that her husband had for whatever reason failed to pass on the correspondence to her.

18. The Plaintiff, in opposition to the present application, has adduced evidence about the letters and notices which his solicitors sent to the said address by post, none of which were ever returned. There is also evidence of how the Plaintiff’s process-servers attempted personal service of the statutory demand and the bankruptcy petition at the said address, of how the process-servers were told by the Defendant’s daughter or a domestic helper that the Defendant was not at home or was in mainland China but would return to Hong Kong later, but never that the Defendant no longer resided there. On one occasion, a copy of the statutory demand was also left with the daughter. The purpose of the evidence is to show that the Defendant has been trying to evade service all along, and that she must have learnt about the action against her earlier than she is now prepared to admit. This in turn throws doubt on the Defendant’s assertion that she never received the writ.

19. The Plaintiff also says that between March 2007 (when the action was commenced) and September 2007 (when he moved out of House No.299), he saw the Defendant in the vicinity of House No.300 on many occasions. His sister Tsang Yee Wah has also made an affirmation. She lived and still lives at House No.302. She says that there has been no difference in the frequency of her seeing the Defendant in the village before and after August 2006, when the Defendant is supposed to have separated from the her husband.

20. The Defendant, on the other hand, in her affirmation in reply, says that she has been informed by her daughter that her daughter did inquire about the identity of the relevant process-servers and ask them to divert all letters to the Defendant’s new address in Sheung Shui, but the visitors refused to disclose their identities and left without any messages for the Defendant.

21. The relevant issue before me is whether the Defendant received the writ, before default judgment was entered against her, and not whether subsequently she evaded service of the statutory demand and bankruptcy petition, although evidence relating to the latter issue may affect my consideration of the first issue. The court is not bound to accept any assertion, however improbable, by a defendant, and the onus is on a defendant to satisfy the court by convincing evidence that he did not receive the writ, despite its having been sent by post, unreturned, to the his usual or last known address: see Forward v West Sussex County Council (above); Bank of China (Hong Kong) Ltd v Cheung King Fung, Francis (unrep, CACV 66 of 2005, 22 July 2005).

22. Mr Wong submits that it is highly doubtful that the Defendant was telling the truth about her having moved out of the said address, in the light of (1) the fact that none of the letters sent by the Plaintiff’s solicitors were returned, and (2) the answers given by the Defendant’s daughter and the domestic helper to the process-servers, none of which suggested that the Defendant was no longer residing at the said address.

23. In considering the evidence, I am mindful that I am not in a position to resolve disputes of fact, and I do not intend to. I do bear in mind that the burden is on the Defendant to satisfy me convincingly that she did not receive the writ. It cannot be disputed that numerous letters and notices, including the writ, were sent to the said address, unreturned, over a period of over 3 years (from the letter before action which was sent in September 2006, just after the alleged separation). The effect of the Defendant’s account is that all of these letters and parcels for her had been passed on by the domestic helpers to the husband who simply failed to give them to the Defendant. No reason has been provided by the Defendant in her affirmations as to why her husband might have done that.

24. In her first affirmation in support of the summons, what she says about her husband, apart from their “frequent disputes” and the separation, is that he was also very busy and was out of Hong Kong more often than not. It is not clear what exactly the purpose of giving that piece of information was, but one is left with the impression that the postal package enclosing the writ may have escaped the notice of the husband because of his very busy schedule.

25. The Plaintiff then filed his affirmation evidence in opposition, which refers to the numerous letters and notices sent to the Defendant by post, unreturned. That was quite a large amount of correspondence for the husband to have missed.

26. Then came the evidence in reply from the current domestic helper that the Defendant’s husband had given “strict instructions” that all correspondence should be left in his room. The effect of this evidence is, since the Defendant does not admit having received any of these letters, that the husband must have withheld them from the Defendant. In that case, she must have been shocked, after reading the Plaintiff’s affirmation in opposition, to find for the first time that her husband had kept all this important correspondence from her. Yet in her own affirmation in reply she has not told the court whether she confronted or at least inquired of her husband about this matter after she learnt about this serious lapse (deliberate or not) on his part, and what answers if any he may have given. The frequent disputes between them and their separation do not necessarily explain why the husband might have withheld the correspondence from her, especially when the Defendant’s own evidence suggests that she and her husband have managed to separate from each other on mutually agreeable terms, and she was able to go back to the said address to see the children without incident.

27. If she could not get any help from her estranged husband, she could have produced evidence of her own relating to her alleged move. Noticeably missing is any evidence of the following: what arrangements, if any, she may have made about forwarding her correspondence to her new address; any notifications she may have given to other parties (such as her banks) about her change of address; any correspondence she may have received at her new address in Sheung Shui (the full address of which has not been disclosed in her affirmations), after residing there since August 2006; any tenancy agreement or title documents relating to her new residence if she has been renting it or has bought it. If she had been living at another address since August 2006, one would have expected at least some of this evidence from her. There is none.

28. In short, her account that she never received the writ because she had moved out of the said address leaves a lot of obvious questions unanswered. It is a distinctly unconvincing account. I am not satisfied on the evidence filed in this case that she did not receive the writ. It follows that she has failed to show that the default judgment was irregular. In order to set aside the judgment, she would have to show a meritorious defence.

Defence

29. I will first deal with the submission by Mr Yau for the Defendant that judgment has been entered for too much. The thrust of his argument is that the injury suffered by the Plaintiff is relatively minor, and the amount of damages in the sum of $61,000 is too high. This ground usually applies to situations where the amount can be shown by undisputed evidence to have been too much. Where a defendant contends that the amount ordered to be paid is more than is due, it is more a matter of defence for which the defendant should provide some evidential or legal basis for impugning the amount so ordered. HH Judge Marlene Ng, in a typically meticulous judgment, rejected a number of the Plaintiff’s claims, and allowed a sum of $50,000 for PSLA and $11,000 for other losses. Mr Yau has not shown me any personal injury precedents which shows the learned judge may have erred, apart from his very general argument that the Plaintiff’s minor injury does not merit the amount of damages ordered.

30. Dealing with the alleged incident itself, the Defendant herself was not present. She relies on what she has been told by the domestic helper at the time, a Miss Ida Susiana, who has since returned to Indonesia. Miss Susiana was walking the two dogs when she paused to speak to another domestic helper. The Plaintiff approached the dogs and hit them intentionally. The dogs then barked at him but she held the leashes tight and kept the dogs under control. She did not see the dogs bite him. The Defendant also refers to a prior incident in which a neighbour allegedly saw the Plaintiff throw a flower pot at the dogs who were barking at the Plaintiff and a female companion of his. The purpose of the evidence is to show a possible motive for the Plaintiff to hit the dogs on the day in question.

31. According to the Defendant, she spoke to Miss Susiana on the telephone in late December 2009 and late January 2010 and the latter indicated that she was prepared to make a statement or affirmation in support of the Defendant’s application. A draft affirmation was then prepared for it to be made in Indonesia, for the purpose of filing it in the round of affirmation evidence in reply, but the Defendant had not been able to get in touch with Miss Susiana again by the time of the hearing of the summons on 17 February 2010.

32. Mr Wong for the Plaintiff, while accepting that the court may still rely on the hearsay evidence from the Defendant, criticises the alleged defence, in that all it amounts to is a bare allegation that the dog bite did not occur, which is contradicted by the Plaintiff’s medical evidence of another doctor who treated the Plaintiff on the same day, and the Plaintiff’s report the following day to the Agriculture, Fisheries and Conservation Department. Mr Wong submits that the defence has no real prospects of success.

33. However, even if the dog bite did occur, the allegation of the Plaintiff’s provocation of the dogs, if true, could potentially provide a defence that the Plaintiff’s injury was caused solely by his own act, or partly as a result of his contributory negligence. I do find the Defendant’s account of the incident as allegedly related by Miss Susiana slightly unsatisfactory, in that Miss Susiana’s allegation that she had kept control of the dogs and did not see the dogs bite the Plaintiff seems inconsistent with the Plaintiff’s injury, albeit minor. Nevertheless, the outcome will ultimately depend on whose account is believed and the credibility of witnesses, and the Defendant’s case is one which could well be established at trial.

Orders

34. In these circumstances, I am inclined to set aside the judgment against the Defendant but on condition that the Defendant pay $61,000 into court within 14 days from today. The reasons I have decided to impose the condition are (1) that there are reasonable grounds to believe that the Defendant may have tried to evade service on her; and (2) that despite having found out about these proceedings in late November 2009, the Defendant has left the important evidence of Miss Susiana to a rather late stage, i.e. to the round of affirmation evidence in reply, and as a result the court has been left without a precise account from the witness herself, and instead has had to rely on a hearsay account from the Defendant which is not entirely satisfactory.

35. The Defendant having failed to show that the judgment entered was irregular, I also make an order nisi that the Defendant should pay the Plaintiff in any event the costs of these proceedings so far including the costs of the enforcement proceedings, to be taxed if not agreed, with no certificate for counsel for the hearing on 17 February, 2010.

Alfred H H Chan
Deputy District Judge

Mr Damian Wong, instructed by Paul C W Tse & Co for the Plaintiff

Mr Jimmy M F Yau of Y S Lau & Partners for the Defendant

64020-EN-2009-01-20

TSANG KA HUNG BARRY v. 鄧玉玲

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DCPI 525/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES NO. 525 OF 2007

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BETWEEN

	TSANG KA HUNG BARRY	Plaintiff
	and
	鄧玉玲	Defendant

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Before: Her Honour District Court Judge Marlene Ng in Court

Date of Hearing: 13^th January, 2009

Date of Handing Down Judgment: 20^thJanuary, 2009

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ASSESSMENT OF DAMAGES

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I. Introduction

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”).

2. The Defendant did not give any notice of intention to defend. On 25^th April 2007, interlocutory judgment on liability was entered against the Defendant for damages to be assessed.

3. On 28^th 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 30^th July 2007 (“Report”) (see affirmation of service filed on 23^rd September 2008).

4. On 17^th 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 17^th July 2008.

5. On 2^nd October 2008, in the absence of the Defendant, Master Clement Lee granted inter alia the following orders (“CLR Order”) :

(a)  the parties were to file and serve their respective witness statement(s) within 14 days from the date thereof;
(b)  the medical evidence is to be limited to one orthopaedic expert for each party;
(c)  the action be set down for assessment of damages to be heard before me with an estimated time of 1 day;
(d)  save that the Plaintiff was to take out Notice of Appointment for Assessment of Damages (“Notice”) within 14 days from the date thereof, all the requirements set out in Order 37 of the Rules of the District Court be dispensed with.

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 15^th 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 7^th January 2009).

8. On 7^th January 2009, the Plaintiff served the assessment bundle on the Defendant by ordinary post (see affidavit of service filed on 7^th 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 19^th 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 21^st 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 26^th 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 26^th 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, 2^nd 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, 22^nd 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 19^th, 21^st and 26^th 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 20^th to 23^rd November 2005 and had to refer them to other medical doctors :

Date of operation
Type of operation
Fees (HK$)
1
20^th November 2005
Incursion & drainage
2,000.00
2
21^st November 2005
Diagnostic laparoscopy, dilatation and curettage
12,000.00
3
21^st November 2005
Termination of pregnancy
4,000.00
4
22^nd November 2005
Gastroscopy
4,000.00
5
22^nd November 2005
Cystoscopy
4,000.00
6
22^nd November 2005
Hysteroscopy, dilatation and curettage
12,000.00
7
22^nd November 2005
Termination of pregnancy
4,000.00
8
22^nd November 2005
Termination of pregnancy
4,000.00
9
23^rd November 2005
Electrocauterisation
2,000.00
10
23^rd November 2005
Gastroscopy and colonscopy
4,000.00
56,000.00

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 20^th 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 21^st 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 21^st 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 21^st 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 26^th November 2005 (ie 5 days later) x-ray of the whole spine was done, and on 8^th and 9^th 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 21^st 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 22^nd 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 22^nd 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 25^th 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 :

“(1) Subject to this section, a person shall not be guilty of an offence under section 46 or 47 when a pregnancy is terminated by a registered medical practitioner if 2 registered medical practitioners are of the opinion, formed in good faith that-
(a) the continuance of the pregnancy would involve risk to the life of the pregnant woman or of injury to the physical or mental health of the pregnant woman, greater than if the pregnancy were terminated; or
(b) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormality as to be seriously handicapped.
(2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in subsection (1), account may be taken of the pregnant woman's actual or reasonably foreseeable environment.
……”

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 22^nd and 23^rd 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 22^nd 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 22^nd 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 22^nd 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 22^nd 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 22^nd 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 23^rd 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 23^rd 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 23^rd 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 :

HK$
PSLA
50,000.00
Pre-trial loss of earnings
10,000.00
Medical expenses
1,000.00
Total :
61,000.00

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.

	(Marlene Ng)
	District Court Judge

Mr Damian Wong instructed by Messrs Paul C W Tse & Co for the Plaintiff.

The Defendant in person and absent.

	Date of operation	Type of operation	Fees (HK$)
1	20^th November 2005	Incursion & drainage	2,000.00
2	21^st November 2005	Diagnostic laparoscopy, dilatation and curettage	12,000.00
3	21^st November 2005	Termination of pregnancy	4,000.00
4	22^nd November 2005	Gastroscopy	4,000.00
5	22^nd November 2005	Cystoscopy	4,000.00
6	22^nd November 2005	Hysteroscopy, dilatation and curettage	12,000.00
7	22^nd November 2005	Termination of pregnancy	4,000.00
8	22^nd November 2005	Termination of pregnancy	4,000.00
9	23^rd November 2005	Electrocauterisation	2,000.00
10	23^rd November 2005	Gastroscopy and colonscopy	4,000.00
			56,000.00

	HK$
PSLA	50,000.00
Pre-trial loss of earnings	10,000.00
Medical expenses	1,000.00
Total :	61,000.00