Chau Sut Nga v. Hop Lee Construction Engineering and Another

HCPI000300/2000

HCPI 300/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 300 OF 2000

(Transferred from HCA 1955/1994)

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Coram: Deputy High Court Judge Gill in Court

Dates of Hearing: 12-16 & 23 February 2001

Date of Judgment: 9 March 2001

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J U D G M E N T

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1. This is a claim for damages for loss suffered arising out of an industrial accident.

Background

2. The accident occurred in March 1991. Chau Sut Nga, the plaintiff, was then aged 47, married and with a grown up family. Then as now he lived in his home with one of his sons Chau Cheung Tung. A year later the son married Chan Lai Fan. She joined the household and has remained ever since. The plaintiff's wife at the time of the accident was living in her native village in China. Subsequently, in 1996, she was permitted to emigrate to Hong Kong and has since then come to live in the family home as well.

3. In 1991 the plaintiff was a casual construction site worker, generally employed for the purpose of laying concrete. Win House Industrial Limited, the second defendant, was the principal contractor engaged to build a multi-storey building on a construction site in Kowloon. The second defendant sub-contracted certain concreting works to Hop Lee Construction Engineering, the first defendant. The first defendant employed the plaintiff as one of a team of concreting workers to work on the site.

4. By 10 March 1991 the plaintiff had been so employed for about 3 months. On that date the team was occupied spreading and compacting liquid concrete as it was being poured, which when set was to become an integral part of the floor slab at first floor level. They were working on top of scaffolding erected for the purpose of supporting wooden form work into which the concrete was pouring, some 24 feet above ground floor level. It was the task of the plaintiff and his fellow workers to spread the concrete evenly and to compact it using portable vibrators.

5. Without warning, the scaffolding collapsed. It brought down with it the form work, the liquid concrete and the workmen, including the plaintiff, who suffered injury.

6. The cause of the collapse is a matter of conjecture. It seems likely that the scaffolding was built on uneven ground and was not sufficiently stabilized to cope with the altering weight distribution as the concrete was being laid, coupled with the activities of the workmen, spreading and compacting and moving about. At any event liability has been admitted by the defendants, so that how and why it happened is not an issue. What remains to be determined is the extent of the plaintiff's injuries arising from the accident and the amount of loss suffered by him.

The Plaintiff's Injuries

7. There is no eye witness account of the accident and how the plaintiff fell and where and how he landed. In an unsworn statement of 9 February 1995 made for the purposes of an ECC claim the plaintiff said he had the impression of falling amongst the metal bars and wooden boards of the scaffolding and form work and the as yet uncured concrete, but otherwise had no recall. Medical notes reveal that he was admitted to United Christian Hospital, (UCH) complaining of having been knocked unconscious for half an hour, of a headache, nausea and blurred vision, tenderness in the chest and a sore right knee. Examinations including X-rays revealed no skull or other head injury and no internal injuries. His neurological status was checked and found to be unaffected. He recorded 15/15 on the Glasgow coma scale. He was kept in hospital for 7 days under observation before being cleared for discharge on 17 March, with a sick leave certificate to 30 March 1991.

8. In April 1991 he returned to work. During that month he suffered another injury which I do not need to expand on because it was minor and unrelated to that of 10 March and did not impact upon it. But he stopped working after April because pain and stiffness persisted in his right knee. Thereafter he was treated conservatively at UCH's Department of Orthopaedics until January 1993. His sick leave certificate was extended to 1 March 1993.

9. I pause here to mention that the nature and extent of the damage to the knee and how, in isolation, it would have affected the plaintiff's ability to work after it was suffered is not materially in dispute. Dr Tony Loy, the orthopaedic surgeon engaged by the plaintiff to examine and report on this injury in August 1993 said at page 2 of his report:-

"Radiological examinations revealed moderate degrees of degenerative osteoarthritis changes in the medial and patello-femoral compartments of his right knee. There was no evidence of old fractures nor calcifications suggestive of severe ligament injury.

The picture was that of a manual labourer presenting with knee arthritic pain and stiffness after a severe industrial accident. Some of the radiological changes in his knee would have been present even before the accident. The injury, however, would have increased and accelerated the onset of osteoarthritis of his right knee through an inordinate amount of stress and soft tissue damage which was not documented.

Permanent disability of his right knee in the way of pain, stiffness which may lead to a future operation was assessed at 6% (six per cent)."

10. The defence's appointed orthopaedic surgeon, Dr Danny Tsoi, who examined the plaintiff in July 1997, said at page 7 of his report:-

"The sprained injury over the right knee was also treated conservatively but persistent pain was experienced. On examination, the source of pain arose from the patellofemoral joint as demonstrated by the positive patellar grinding test. The degenerative changes as seen in the most recent X-ray are common radiological findings in middle age manual laborer and may not be related to the injury. I agree with Dr. Tony Loy that the injury only acted as a triggering factor that accelerate the degenerative process. Further treatment should be conservative. It accounts for 5% permanent impairment of the whole body but I estimate that only 2.5% was attributed to the accident."

11. The plaintiff returned to work as a casual construction site worker in July 1993. However the persistent soreness in the knee meant he was no longer able to work as a concrete worker. He had to settle for less physically demanding light construction work, and then for only a few days per month. That intermittent activity was to last until December 1994. He tried to find work in January and February 1995, but none was available.

12. Thereafter he was not to work again.

13. It is the plaintiff's case, not accepted by the defence, that by 1995 another medical issue was emerging.

14. The plaintiff's live-in son and daughter-in-law came to realise that the plaintiff was becoming increasingly hard of hearing, forgetful, slow to respond to straight-forward requests and was spending much of his time apparently away in another world. He was to become less and less independent, capable of dressing and undertaking his personal hygiene, but needing to be reminded of what to do and when, and needing help with basic tasks. Gradually his condition deteriorated, so that by 1998 his daily routine had shrunk to eating and sleeping and pottering about the home or in the vicinity, taking no interest in newspapers, televisions or conversations carried on in his presence.

15. The extent to which this intellectual impairment is genuine and linked to the accident is the major area of dispute between the parties. During the time since the accident the plaintiff has been examined by a battery of doctors and specialists appointed to assist the court in establishing these issues.

16. Of less moment but contentious nonetheless is that as from 1994 the plaintiff began to complain of pain and weakness in his right elbow. Dr Tsoi examined it in July 1997 and said in his report at page 7:-

"The cause of the severe right elbow injury needs further discussion. The most recent X-ray revealed gross destruction of the elbow joint with severe post-traumatic osteoarthritis. However none of the available medical reports mentioned in details about the elbow injury. For injury that gave rise to such degree of degenerative, the initial trauma must be very severe and most likely involved fractures around the elbow joint. Such kind of injury should not be missed by any qualified doctor. Mr. Chau has been staying in United Christian Hospital for one week after his initial admission and yet Dr. Wu in his report only mentioned that "There are no deformity over the four limbs except the small area of abrasions over the both knees". Mr. Chau was first seen by orthopaedic surgeons of United Christian Hospital on 2 October 1991. Had the accident caused the elbow injury, Mr. Chau should have mentioned in detail about such condition to the attending doctor. Yet Dr. James Cheng mentioned nothing about the elbow injury in his report. Further more, Mr. Chau had attended three Medical Board Assessments, and it is hard to believe that Mr. Chau would have failed to mention his right elbow condition to the members of the Board. In light of all these facts, I am of the opinion that the right elbow condition is unrelated to the captioned accident."

17. That is the position adopted by the defence. It is the plaintiff's case that the plaintiff was the victim of no other reported trauma that could have given rise to a fractured elbow except that of 10 March 1991; whilst undetected at the time the injury must have been caused by his fall.

18. I come now to deal with how the trial proceeded.

Conduct of the Trial

19. Dr William Green, one of the examining psychiatrists appointed by the plaintiff, said in a report dated 20 April 1997 at page 3:-

"At our meeting on 13 March 1997 I felt that CHAU Sat-nga's condition had deteriorated since his earlier visit on 27 October 1995 and this was confirmed spontaneously by his son on 13 March 1997.

Such deterioration could of course be measured by repeated psychometric tests but I can see no merit in recommending such a course of action for a man who is 100% disabled and permanently incapable of meaningfully re-entering the work force. However, CHAU Sut-nga's further cognitive decline inescapably leads me to the conclusion that he is incapable of managing his own affairs, that this incapacity will be permanent and that an Application should be made to the Court for the appointment of a Next Friend."

20. This led to the son Mr Chau applying to represent the plaintiff, and an order was made to this effect in September 1997.

21. On issues of fact only Mr Chau the son and his wife Miss Chan have made statements. By their accounts when it came for the plaintiff to do so he was no longer intellectually capable. It was ordered that the son's and daughter-in-law's statements should be treated as evidence in chief. In the event that was what happened and they were called and cross-examined on that evidence. The defence did not oppose the production of the plaintiff's ECC statement (to which I have referred at p. 3) save as to weight.

22. I come now to the medical evidence. The plaintiff had engaged nine doctors and specialists to examine and report on the plaintiff; many did so more than once. The defence engaged another five. There were in all 35 reports. It was ordered that these reports alone should comprise the medical evidence with the exception that two psychiatrists, Dr K Singer for the plaintiff and Dr S Y Chung for the defence, should be called. This is because of the variety of opinions expressed by various doctors and specialists during the history of this case it is Dr Singer's conclusions upon which the plaintiff seeks to rely, whilst the defence depends primarily upon those expressed by Dr Chung. They appeared accordingly.

23. The plaintiff was the subject of an undercover video surveillance undertaken by the defence on various occasions from August 1994, the purpose of which was to invite the prospect that he might be a malingerer, or at least that the extent of his physical disabilities and mental impairment have been overstated. These tapes were played and produced.

24. I come now to the issues that had to be resolved.

The Issues

1) Is the plaintiff now suffering from post concussional syndrome and a depressive disorder, or intellectual impairment deriving from some other cause?

2) If so was the condition caused or triggered by the accident of 10 March 1991?

3) Was the accident to blame for the plaintiff's right elbow injuries?

4) In the light of the answers to the above, and having regard to the effect of the injuries suffered in the accident not disputed, what is the plaintiff's provable loss?

25. For the purpose of finding out the answers, I come now to consider the evidence.

The Evidence

26. Mr Chau the son was called first. He confirmed the contents of his witness statement. He said that prior to the accident his father worked as a construction site labourer generally as part of a team laying concrete. He rarely took days off, working on average 28 days per month. Following the accident he returned to work for a short time in April 1991, but then not until July 1993. Between then and December 1994 he worked between 5 and 7 days per month, undertaking light labouring duties. He has not worked since December 1994.

27. After the accident his father lacked energy; in particular he complained of pain in his right knee after standing or walking for a while. His right arm was weak and he was unable to extend it fully. He also complained of headaches and dizziness.

28. It was not until some time later that other symptoms emerged. First there was an apparent hearing loss. Then he became more and more forgetful, mentally slow and dull, slow to respond to questions, sometimes not able to understand what was asked or said. As time has passed he has had to be assisted more and more with basic functions or told when to perform one, such as taking a bath or coming to the table. Gradually his routine has shrunk to sleeping, eating and sitting around the house or lying on his bed. He does not, because he cannot, read the newspaper and has no interest in television. He does not engage in conversation. He will go out occasionally but not without someone to go with. He cannot perform simple chores like shop for an item or clean around the house or prepare food. He can attend to his personal hygiene but has to be told and needs assistance. He walks with a limp and usually needs support.

29. Next came Miss Chan, the plaintiff's daughter-in-law. She, too, adopted and confirmed her witness statement. Having arrived at the Chau family home in 1992 she has since then been a full-time housewife and in charge of the household.

30. She said that as from 1993 the plaintiff began to feel faint periodically, and suffered dizziness regularly; sometimes this was followed by nausea and vomiting. From the same time he was complaining of headaches, which occurred at first once per month and then increased gradually to almost daily. Then he started becoming less and less responsive to what was said to him. To her mind he was always slow to reply. But by 1995 he seemed no longer to understand even simple matters. He was withdrawing more and more into a world of his own.

31. By 1998 his condition was such that it was difficult to have any conversation with him. Now he sits around, not watching television or doing anything meaningful. His physical movements are slow. He can wash himself and so on but has to be told what to do and when to do it.

32. I come now to the plaintiff's own statement made in February 1995 for the purposes of the ECC proceedings. In it he recorded that for ten years prior to March 1991 he had been a concrete worker employed on a casual basis. Prior to the accident he had been working for the first defendant on site for 2 to 3 months. On the day of the accident he was on the scaffold 20 to 30 feet above the ground when he felt it start to slip to one side and he fell as it collapsed amongst the debris. But apart from that he had no recollection until hospital.

33. After the accident he resumed work but that did not last because of continuing pain and discomfort. Having resumed work in July 1993 he could not work more than a few days in a month, particularly because pain in his right knee prevented his walking or standing for any length of time. He also complained of headaches and dizziness. (He made no reference to pain or discomfort in his right elbow or arm).

34. He spelt out the days and months when he did work between July 1993 and December 1994, and concluded by recording that he had tried to find work in January and February 1995 but none was available.

35. I come now to the surveillance tapes. These were four video recordings taken of the plaintiff but without his knowledge between August 1994 and October 2000.

36. The first, taken in August 1994, depicts the plaintiff leaving premises in Central following a medical appointment relating to this litigation and returning to his home in Fanling by public transport and on foot. Then 6 days later it shows him leaving home, taking breakfast nearby and then, by public transport and on foot, making his way to a large construction site in Shatin. There he is seen working in a team removing and scraping wooden moulds and stacking debris. The plaintiff when walking did not seem to limp although I believe I saw a slight stiffness in his gait, as if favouring a limb or joint. The work he was seen on tape to be doing was by no means strenuous.

37. The second tape was a short one taken in March 1997 outside in the vicinity of the plaintiff's home. It showed him coming out of the building where he lives, strolling around, slowly, with a noticeable limp, sitting for a while before rising and returning to his home about an hour later. He was by himself, did not perform any duty nor engage in any conversation.

38. The third tape was filmed in June 1998. The plaintiff and his son were viewed coming out of a building in Nathan Road following another medical examination and taking a bus home.

39. The fourth and final tape was taken on the 21 and 25 September 2000. On the 21 the film depicted the plaintiff and his son travelling by public transport and on foot from Pokfulam to Fanling, pause at the local Jockey Club betting shop, buy fruit and return home. (In evidence Mr Chau the son said that at the Jockey Club he had given his father $20 and told him to queue to buy a random selection mark 6 ticket. At the fruit shop it was he who was buying the fruit, including a bunch of grapes his father picked out). On 25 September they were both filmed in and round Central where the plaintiff was again being medically examined before returning home by public transport and on foot. My impression was that the plaintiff seemed to be supported by his son most of the time, assisted where necessary up or down flights of steps, walking slowly and with a limp.

40. The tapes were accompanied by reports. These revealed that there were many more attempts to capture the plaintiff on film as the operatives waited outside the building where he lives for him to emerge when he did not. The significance of these unproductive engagements is that they support the family's account that he seldom leaves home.

41. I come now to the medical evidence.

42. The apparent onset of the plaintiff's mental impairment as reported by the family from 1995 began a series of examinations by specialists in neurology and psychiatry appointed by both sides. Dr Fali Shroff, neurologist, saw him in July 1995. He reported that "he manifested slow mental processes" and "appeared visibly mildly depressed." He carried out tests including taking head X-rays and conducting EEG and MRI scans. All readings were normal. But he recommended a psychiatric examination and Dr Green was appointed for the task. He did so and reported. But his findings and opinion have not been accepted by either side as I shall come to.

43. All those who examined and reported on the plaintiff after 1995 made reference to his displaying a flat or dull demeanour, to his being slow to respond to straightforward questions and to not being able to recall some obvious personal details. He also answered incorrectly elementary problems.

44. It was not until December 1997 that the plaintiff was first examined by Dr Chung, the psychiatrist appointed by the defence, and November 1998 that he was seen by Dr Singer upon whose opinions the plaintiff now relies. He was seen for a second time by Dr Chung in September 2000 and by Dr Singer in January 2001.

45. Both psychiatrists interviewed the plaintiff and family members and received copies of the UCH medical notes and the numerous reports which by then had been prepared by the various doctors and specialists who had already examined the plaintiff. They also had a copy of the first of the surveillance tapes.

46. Dr Singer began his report by repeating what he had been told happened to the plaintiff on the day of the accident; namely, that "a torrent of concrete mixture poured on him carried him down from a height of three stories and buried him." Pausing here, it is obvious that he was given an exaggerated and thus inaccurate account of what happened. But when subsequently asked if that coloured his findings and diagnoses he said it did not; that he relied on the clinical evidence to establish the extent to which the plaintiff was hurt. He noted that on the plaintiff's and son's own accounts and according to the records and reports the headaches and dizzy spells he experienced from the date of the accident had persisted to the time of the examination. On the son's account he noted that there was no apparent impairment of intellect or memory for the first two years, but that there was a decline thereafter, and soon the impairment was obvious. Deterioration continued until 1997; his condition was constant after that. He was told and noted the following psychiatric complaints:-

"Current Psychiatric Complaints

1. Headache. He complains of this once in a few days and sometimes he takes pain-killers for it.

2. Dizziness. This is the main complaint, appears to be fairly constant.

3. Reduced mental acuity. He is slow, impaired in thinking, unable to cope with the more difficult questions. Memory is impaired - he cannot tell what he did recently, misplaces things. The wife accompanies him out to prevent him from getting lost. He is not given money to handle. These (sic) are no entirely lucid intervals.

4. He is apathetic, flat in affect, morose, irritable, and scolds for no apparent reason, but he has not been violent.

He has not shown incongruous mood like laughing or crying for no apparent reason. He has not talked to himself, complained of "voices" or being "persecuted".

Sleeping much of the time he sometimes confuses day with night.

Activities of Daily Living

Though independent in self-care and personal hygiene subject has to be prodded and things got ready for him otherwise he lies in bed or sits idle which he does most of the time. He has also to be prodded to eat. He seldom talks or asks questions. The wife cuts his nails, shaves him. He will go to the toilet by himself.

He does not socialize."

47. Following the examination he reported:-

"EXAMINATION

(A) Mental

Appearance and Behaviour

It was very difficult to get information out of him as he was consistently dull, slow and apathetic throughout the interview. He often did not respond to question or took a long time to do so. Questions had to be repeated many times. Much of the time he was self-absorbed or staring at the examiner.

He was well groomed, clean, neatly dressed in pyjamas.

Affect and Mood

Depressed. He wore a defeated wounded look. He had some flattening of affect. Pessimistic.

Talk and Thought

Very slow in thinking. Able to give a sketchy account in response to repeated questions only. Aspontaneous.

Delusions and Hallucinations

Not elicited.

Orientation and Intellectual Function

Orientation (awareness of time, place, identity of examiner):

He could not tell the day or the month.

Asked if it was winter or summer he correctly said it was summer.

Asked if it was day or night he correctly said it was day.

He told his address correctly, was unable to tell his telephone number.

He was able to give only a very approximate account of past events with some mistakes. His account of the accident and symptoms was somewhat clearer.

Memory was impaired as shown by mistakes in recalling the dates of significant life events (e.g. when he came to Hong Kong, got married). He was unable to give the ages of his children, said wrongly he had three sons and two daughters. He could not recall the names of three objects given for the purpose five minutes later.

He had difficulty finding words. E.g. asked what he had to eat at breakfast he said "I had a slice of .... what it's called". When examiner suggested "bread" he agreed.

Abstract thinking was intact as shown by similarities/differences test.

Simple arithmetic : He did simple arithmetic correctly (1+1 = 2, 2+2 = 4), failed to do more difficult arithmetic (100-7).

Shown fingers he counted their numbers correctly.

He was able to name common objects correctly, e.g. pen, watch, shirt.

He was able to indicate by gesture the uses of the above objects.

Asked how many legs a cow had he said "two". Asked to think again carefully he said after a while "four".

Asked how many days there are in a week he said "seven".

Asked how many days in a month he said "I don't know".

When the examiner challenged him for faking and being unable to answer simple questions he protested feebly and showed some anger."

48. Dr Singer's opinion was detailed, as follows:-

"OPINION

Subject is suffering from the following psychiatric conditions in direct consequence of the accident:

(1) Post-Concussional Syndrome. This is a syndrome following concussion - impairment of consciousness following a blow to head - characterized by symptoms such as headache, giddiness, impaired concentration and emotional disturbance. The condition is though to be partly physical due to disturbance of brain function and partly psychological in reaction to psychological and environmental factors resulting from the accident.

In Mr. Chau's case the features of the Syndrome are headache, dizziness, impaired concentration and memory and emotional disturbances such as irritability. The condition is moderate to severe in degree and is a consequence of the head injury caused by the accident.

Evidence for head injury includes his claim that he lost consciousness for a period after the accident, his son's claim that he did not recover full consciousness for the better part of the day and Dr. James K. Wu's report (16th September 1994) that he was admitted with head (and chest) injury.

The clinical features in this case are typical of the Syndrome and the diagnosis is made, as is the practice, on the basis of such features.

The central features of Post-Concussional Syndrome are headache and dizziness. These have been the dominant features in Mr. Chau's case from the time of the accident till the present and gives consistency to his condition.

(2) Depressive Disorder. This is a psychiatric disorder characterized by depressive mood and associated symptoms such as loss of interest, energy and initiative, loss of self-esteem, insomnia, poor appetite and impaired cognitive functioning. Depressive features in this case include depressive mood, loss of interest and initiative, impaired mental acuity, and fatiguability.

The condition is moderate to severe in degree and is a psychological reaction to the accident and its physical, psychological and social aftermath.

The condition had an insidious onset and was not obvious till some two years or so after the accident. It has been running a progressive course since with fluctuations and accounts for the impaired mental acuity."

49. He went on to report that he was alive to the prospect that the patient and his family might have been feigning his condition. He dealt with this in the following way:-

"Reliability of Date Elicited

Factors which cast doubt on his reliability are the following:

- He appears neatly groomed and dressed which does not suggest apathy and self-neglect. However he is said to have been well taken care of by his wife.

- He fails in easy tests and succeeds in more difficult ones - a hallmark of malingering. E.g. he answers at first that a cow has two legs. However with this exception he is generally consistent in his answers in tests of intellect and memory. I.e. he does generally succeed in simple tests, fail in difficult ones. It should also be noted that giving bizarre or approximate answers does not preclude psychiatric illness as it is found in hysteria. Hysterical features often complicate organic, neurotic and depressive disorders.

- Reports of his having worked intermittently post-accident till 1995. This certainly shows he was better than now. Such work precludes total, not partial incapacity. It is likely that he has deteriorated since as shown by his condition on examination. A person with Post-Concussional Syndrome and Depressive Disorder can work "intermittently" depending on the work capacity required.

Factors in favour of reliability of the data include:

- The symptoms fit the diagnoses. These are no symptoms not accounted for by the diagnoses.

- The specific content of symptoms reflects the traumatic events. The Depressive Disorder reflects the reaction to the psychological and social aftermath of the accident. Post-Concussional Syndrome is a typical and expected complication of concussion from head injury. Subject would have to have an exceptional knowledge of psychiatry to invent these conditions and no other - and to be able to act them out.

- When given the chance he and informants did not exaggerate.

The faker who fakes insanity makes himself out to appear madder than mad. Subject however denies phenomena like delusions, hallucinations, laughing and crying without reason, when given the chance to claim he has them. Likewise regarding his physical condition he denies abdominal pains, paralyses, sensory impairment, convulsions.

- His look of marked affective impoverishment, depression and defeat, and vacuity of mind sustained throughout the interview is difficult to fake.

Conclusion

The evidence strongly suggests that the data are reliable. It is impossible to rule out some slight exaggeration of symptoms but the Post-Concussional Syndrome and Depressive Disorder are genuine in the main."

50. I come now to Dr Chung's report. He recorded what Mr Chau the son said as follows:-

" 16.3 He has headache.

16.4 ......

16.5 His intellectual and memory function have deteriorated since around 1993. The problems get worse and worse. He cannot differentiate bank notes of different value. He forgets soon after he has said something.

17. His intellectual function was not bad in 1991 or 1992. Cheung-tung told me that his father did work for several days in either 1991 or 1992. He was able to go to the place of work and back by himself. He is now not capable of going out by himself. He gets lost when he is not accompanied.

18. His activities of daily living are markedly affected. He cannot look after his own hygiene. He has to be reminded for brushing teeth and bathing. He would not have dinner with them if he is not asked to go to the table. His wife helps him take a bath, cut finger-nail and shave. His wife and family members have to keep an eye on him 24 hours a day. He cannot be left alone by himself at home.

19. He chiefly spends his time at home. He occasionally goes to a nearby park with his wife. He goes to China with his relatives once or twice a year. He could go to China by himself soon after the accident."

51. He examined the plaintiff and reported as follows:-

"Mental state examination on 1 December 1997

26. He was clean and tidy. His finger-nails were cut recently and he was cleanly shaven. He was co-operative, stable and calm. He sat quietly when his son was giving the history.

27. He was dull and apathetic. He lacked facial expression. His speech was relevant and coherent. He spoke slowly. He solely gave short replies.

28. His intellectual function was poor. He could understand my questions and gave appropriate answers. He could not tell the date of the interview. He could only tell the year. He could not tell the time. His arithmetic was poor. He could not do 100-7 and 10-3. His abstract thinking was impaired. He could not tell the similarities and differences between a chair and a table. His general knowledge was poor. He did not know the Chief Executive of Hong Kong Special administration Region and the population of Hong Kong. He could name common objects like pen and telephone, but not briefcase and watch. He could not draw a clock face. I showed him some bank-notes. He could tell the value of $20, but not $100 and $500 notes.

29. His memory was very poor. He forgot information of his personal particulars including birthday. He could not give useful information related to his parents, siblings and children. His distant memory was bad. He could not tell his background and his work history. His recent memory was poor. He could not tell what food he had taken on the day of interview."

52. He gave his opinion after that. He said the plaintiff displayed marked intellectual and memory impairment compatible with an advanced stage of dementia. This is a syndrome resulting from severe brain damage. But the UCH medical records made following the plaintiff's admission gave no indication of a serious head injury. He referred to the tests undertaken by neurologist Dr Shroff that is the X-ray and EEG and MRI scans producing normal results. And he said further:-

"30.3. If the brain damage is the cause of Dementia, the intellectual and memory function impairment would be at its worst just after the accident and would gradually improve during the ensuing months. The contrary is evidenced in this case. His mental condition was quite all right when he was admitted to United Christian Hospital on the day of the accident. There is no mention of any mental problems in the Certificate of Assessment dated 4 November 1991, several months after the accident. He was able to work in 1993. His mental function was satisfactory when he was assessed by the occupational therapist in 1994. His mental condition is extremely poor during the present assessment. It appears that his mental condition has run a progressively downhill course since 1994. The clinical feature of progressive deterioration of cognitive function occurring about 3 years after the accident cannot be explained by brain damage sustained in 1991, even if he had suffered from head injury."

53. Dr Green in his report had found that the plaintiff had suffered "a severe and permanent intellectual loss due entirely to the accident". Dr Chung for the reasons given disagreed with this opinion. (I should mention here that Dr Green's report was produced for completeness. But the plaintiff does not seek to rely on his conclusions; those advising him accept there is not and never has been dementia).

54. Dr Chung went on to report:-

"30.4 His memory function impairment is erratic. The memory of patients with brain damage are impaired for events occurring after the injury. The memory of events prior to the accident is often well preserved unless the injury is very extensive. The personal particulars are often preserved in demented patients unless in very advanced stage of the disease. It is unusual that Mr. CHAU's distant and recent memory are equally impaired. This pattern of memory impairment cannot be explained by medical causes.

31. I am of the opinion that the mental impairment of Mr. CHAU is not caused by the accident in 1991 after careful consideration of all the available information and the present examination.

32. The intellectual and memory impairment observed are random and erratic. They cannot be adequately explained by medical diseases. It is likely that Mr. CHAU has exaggerated or feigned the symptoms."

55. He concluded:-

"34. No psychiatric treatment is indicated as there is absence of a definite mental disorder."

56. It is to be noted that Dr Chung did not consider or otherwise seek to report on the syndromes of post-concussional syndrome and depressive disorder.

57. Following the examination that he conducted in September 2000 he concluded:-

"Opinion

17. Mr. CHAU's mental condition is essentially similar to my assessment in December 1997. I am still of the view that Mr. CHAU is exaggerating his complaints or feigning illnesses and the mental impairment of Mr. CHAU is not caused by the accident in 1991. The opinions stated in my previous reports need no revision."

58. By this time he had read Dr Singer's report and diagnosis. Of the post-concussion syndrome he said:-

"21. I agree with Dr. Singer that the presence of headache and dizziness are compatible with the diagnosis of postconcussional disorder and is consistent with the injury. It is difficult to make an accurate assessment of Mr. CHAU's conditon as his history is not reliable. I believe that postconcussional disorder is mild, even if he is really suffering from it, because the injury is mild. The disorder, even if that is present, should not have prevented him from working."

59. Of the depressive disorder he said:-

"20. I do not agree with Dr. Singer that Mr. CHAU is suffering from a depressive disorder because:

20.1 Both Mr. CHAU and his son have not revealed any mental symptoms suggestive of a depressive illness when I saw them in December 1997. No depressive symptoms or signs were detected during the mental state examination in December 1997.

20.2 Both Mr. CHAU and his son have not revealed any mental symptoms suggestive of a depressive illness during the present interview. I have asked them directly on whether Mr. CHAU was having depressive symptoms during the interview. They gave definite answer that he was not suffering from any depressive problems. I have not detected any symptoms and signs of depression during the interview. He was not depressed. He has not revealed any negative feelings or pessimistic thinking.

20.3 Dr. Peter Lee saw Mr. CHAU in December 1995. Dr. Lee was of the view that "Mr. Chau did not present with any undue anxiety or depressive symptoms." (Page 3 of Dr. Lee's report dated 3 January 1996)

20.4 Dr. William Green's report dated 27 October 1995 did not reveal any symptoms of a depressive illness.

20.5 Mr. CHAU did not appear to be depressed when he was being observed in the videotape taken in 1994."

60. Dr Singer in the meantime had considered and formed his own views on Dr Chung's findings and opinions. Having stated that he agreed the plaintiff was not suffering from dementia, and that in his view Dr Green had erred in his diagnosis, he went on to say:-

"As to paragraph 30.4 I do not agree that Mr. Chau's memory impairment is erratic, or that it is unusual that distant and recent memory are equally impaired. Mr. Chau's memory impairment is fairly consistent. Distant and recent memory can be equally impaired in Dementia. Although distant memory is typically more impaired absence of this finding does not preclude Dementia.

However, more important, Dr. Chung concludes erroneously that because Mr. Chau is not suffering from Dementia from brain damage therefore his mental impairment is not caused by the accident. He has failed to consider that apart from Dementia a number of other psychiatric conditions could have been caused by the accident, such as Post-Concussional Syndrome and various psychoses and neuroses including Depressive Disorder. These can have a later onset and a deteriorating course.

Again in paragraph 32 Dr. Chung states that Mr. Chau's "intellectual and memory impairment observed are random and erratic". This is not so as is shown by Dr. Chung's own findings (paragraphs 20, 21). Any inconsistencies would be explained by the fact that Mr. Chau's impairment is not due to organic damage causing Dementia but other causes including Depression. Indeed Depressive Disorder can mimic and be mistaken for Dementia when reduced mental acuity is a prominent feature, a fact recognized clinically by the name given to it of Pseudo-Dementia, i.e. not real Dementia. In such cases careful clinical examination will show inconsistencies which differentiate Pseudo-Dementia from Dementia. The inconsistencies in Mr. Chau are of this order, are consistent with Depressive Disorder or Pseudo-Dementia. Dr. Chung therefore concludes illogically that because the memory impairment is not typical of Dementia Mr. Chau has exaggerated or feigned the symptoms."

61. In a later report of August 2000 he responded to a request to rationalize why the plaintiff's health did not deteriorate until some years after the accident. He said:-

"1. Mr. Chau's apparent deterioration seemingly starting a few years after the accident is consistent with the diagnoses in my report of Post-Concussional Syndrome (a disorder due to physical - concussion - and psychosocial causes) and Depressive Disorder (a disorder due to psychosocial causes). The symptoms of Post-Concussional Syndrome usually start soon after the concussion but may be delayed for weeks or months and become increasingly severe thereafter. This is because the Syndrome has a psychological component (which subsequently becomes the main component) caused by the psychosocial aftermath of the accident (e.g. disruption of routine, difficulty coping with work due to symptoms, financial stress, fear of increasing disability). These psychosocial stresses kick in at varying times alter. The Depressive Disorder is caused by psychosocial stresses which may also kick in later. The later onset of the Disorder is often also due to the fact that the individual's coping mechanisms may eventually fail later with mounting stresses over a long period. He is then faced with his symptoms, disabilities, difficulty finding and keeping employment, inability to earn, inability to sustain his role as husband, parent, citizen, etc."

62. Following the examination carried out in January of this year Dr Singer gave the following up-dated opinion:-

"OPINION

Subject is suffering from the following psychiatric conditions in direct consequence of the accident:

(1) Post-Concussional Syndrome.

In Mr. Chau's case the features of the Syndrome are headache, dizziness, impaired concentration and memory and emotional disturbances such as irritability. The condition is moderate to severe in degree and is a consequence of the head injury caused by the accident.

The central features of Post-Concussional Syndrome are headache and dizziness. These have been the dominant features in Mr. Chau's case from the time of the accident till the present and give consistency to his condition.

(2) Depressive Disorder.

Depressive features in this case include depressive mood, loss of interest and initiative, retardation impaired mental acuity, fatiguability, impaired sleep, feelings of worthlessness."

63. It closely matched his original diagnosis. But, if anything, he found the plaintiff's condition slightly worse. He said:-

"A notable feature is that he now presents with a clinical picture of dementia rather than depression.

......

In Mr. Chau's case the Post-Concussional Syndrome with its impaired concentration has contributed to the dementia-like picture of the Depression. However he is suffering from Depression and fulfils its diagnostic criteria.

Mr. Chau is not suffering from Dementia and the resemblance to Dementia is only apparent. Patients with Depression, especially those who are elderly can present with a dementia-like picture with little apparent depressive mood. This is sometimes referred to as Pseudo-Dementia. The real diagnosis of Depression is often missed by doctors and even psychiatrists."

64. He also responded to Dr Chung's criticisms of his diagnoses of post concussion syndrome leading to a depressive disorder. He noted Dr Chung had said:-

"20. I do not agree with Dr. Singer that Mr. CHAU is suffering from a depressive disorder because: 20.1 Both Mr. CHAU and his son have not revealed any mental symptoms suggestive of a depressive illness when I saw them in December 1997. No depressive symptoms or signs were detected during the mental state examination in December 1997."

and commented:-

"Neither a psychiatric patient nor his relative may be in a position to "reveal" any mental symptoms e.g. with mute or stuporose patients. Detection of depressive symptoms or signs is the responsibility and depends on the initiative of the psychiatrist.

In fact Dr. Chung's finding in December 1997 are supportive of Depressive Disorder and he should have looked for further evidence to confirm or refute the diagnosis : "27. He was dull and apathetic. He lacked facial expression. His speech was relevant and coherent. He spoke slowly. He solely gave short replies." (Dr. Chung's report P. 8), "28. His intellectual function was poor." (Dr. Chung's report p. 8).

65. Dr Chung had said further:-

"20.2. Both Mr. CHAU and his son have not revealed any mental symptoms suggestive of a depressive illness during the present interview. I have asked them directly on whether Mr. CHAU was having depressive symptoms during the interview. They gave definite answer that he was not suffering from any depressive problems. I have not detected any symptoms and signs of depression during the interview. He was not depressed. He has not revealed any negative feelings or pessimistic thinking." (Dr. Chung's report P. 7).

66. Dr Singer commented:-

"Mr. Chau does reveal mental symptoms suggestive of depressive illness as shown in my present examination (Pp. 9-11). Dr. Chung did not elicit these possibly because he made little effort to elicit the symptoms in detail and Mr. Chau is retarded and apathetic and will not "reveal" unless prodded. This is because of retardation and impaired cognitive functioning which are symptoms of depressive illness.

As to his son giving "definite answer that the father was not suffering from any depressive problems...", "He told me that he had not noticed that his father was depressed. Mr. CHAU seldom said he was frustrated by his problems. He had not cried or talked about suicide. Mr. Chau Cheung-tung said his father had not mentioned that he was worried about his financial problems." (Paragraph 6.7 of Dr. Chung's report) : This is because of Mr. Chau's presentation as dementia rather than depression, a presentation which can be misleading even for the expert.

As for "He told me that his father had not been depressed since the accident" (Paragraph 6.7 of Dr. Chung's report) : The son says his father has been depressed with fluctuations from the time of the accident.

As for Dr. Chung not detecting "any symptoms and signs of depression during the interview" : Evidence of depression in his report includes "His memory is poor" (Paragraph 3.5) and poor performance in tests on cognitive functioning (Paragraphs 13-16) suggesting cognitive impairment and retardation; "He mostly lies on his bed" (Paragraph 8) suggesting much diminished interest in activities.

As for "He was not depressed. He had social smile. I asked him about his mood. He told me that he did not feel depressed or anxious." (Paragraph 10) : A social smile does not preclude depression. He told me he did feel depressed. At first he made no response to the question about his mood and answered only after the question was repeated a number of times. It is possible that Dr. Chung mistook his lack of response for denial he was depressed.

As I have pointed out earlier Mr. Chau's retardation and impaired cognition (due also to Post-Concussional Syndrome) have tended to overshadow his depressive mood and make it appear less obvious."

67. In the witness box both maintained the belief that their respective diagnoses and prognoses were correct and to be relied on whilst the other's were not. However Dr Chung whilst making no concessions as to the accuracy of his opinions did, in cross examination, come to accept that the symptoms displayed were consistent with Dr Singer's findings of post-concussional syndrome (PCS) coupled with depressive disorder (DD) albeit in a non-typical way.

Findings of Fact

68. First and foremost, I deal with the plaintiff's psychiatric condition. Clearly what is crucial to my findings is how I deal with the conflicting viewpoints and conclusions of two eminent psychiatrists.

69. Dr Singer having been engaged late in the post-accident history had the advantage of having before him not only the patient for examination but also all the reports from a parade of doctors and specialists who had over the years examined him. He considered and rejected dementia, finding Dr Green had led himself and others up a wrong path, before considering PCS and DD, and finding that it was a combination of these syndromes from which the plaintiff was suffering, caused by the accident though not manifesting itself for three years. Having arrived at that conclusion he tested it by looking at other possible alternatives including malingering. He gave carefully considered reasons why he found there was no malingering or other cause.

70. Dr Chung, on the other hand, in his first report focused on the earlier held opinions of dementia before rejecting that as the complaint. Although from the witness box he said he considered other types of psychiatric disorder he did not refer to them in his report, which rather suggests he did not. It was not until Dr Singer raised PCS that he conceded that the symptoms indicated that the plaintiff is and has been suffering from that.

71. Dr Chung found the plaintiff has all along been feigning his problems and in particular mental impairment. His conclusions rely on that premise and, presumably, the collusion of his family over the years. On this crucial issue I observe:-

(a) following the numerous examinations undertaken by doctors and specialists appointed by both parties the reports were consistent; they observed the same flat, dull approach and slow mental awareness;

(b) I have viewed and, at the invitation of defence counsel Mr Cheung, reviewed the surveillance tapes. I am not satisfied that, unobserved, the plaintiff displayed an alert attitude. It seems to me, by and large, that his demeanour was consistent with the intellectual impairment that those examining him reported on;

(c) significantly, that so many of the attempts to film him were unsuccessful when he failed to appear was consistent with the claim that he seldom went out. If that was a pretence the surveillance would have quickly found him out;

(d) Dr Singer analytically dealt with the prospect that the plaintiff has all along been malingering before concluding after a careful process of deduction that he has not; that at worst there may have been some exaggeration but not so as to disturb his diagnosis, and he explained why;

(e) the plaintiff was brought to court during the first days of the trial. Although he did not enter the witness box I was able to watch him over a period of time. He spent most of that nodding off. When he was awake he looked blankly and dully, seemingly unaware of what was happening and taking no interest in the trial. If he was faking, it was a clever and sustained performance;

(f) I conclude he is not and has not been a malingerer. His condition is and has for the period in question been as presented by himself and his family.

72. Both psychiatrists have agreed that there are unusual features of this case. Dr Chung says these weigh against Dr Singer's findings. But it seems to me that the correct approach is that they merit a cautious, analytical examination of the symptoms and all other clues before an opinion is arrived at.

73. And this, as I find, is precisely how Dr Singer dealt with the plaintiff's condition. He approached his task with care, weighing and considering all possible conclusions, not disregarding those symptoms which might break a pattern, testing his own preliminary observations and giving painstaking consideration to the contrary viewpoint of his counterpart. I have come to the conclusion that his diagnoses and prognoses are correct; where they differ I find that Dr Chung's are not.

74. It has been proved, on balance, that the plaintiff suffers from PCS and DD as a direct consequence of the accident.

75. I come now to the right elbow complaint. The plaintiff's case that the apparent trauma suffered some indefinite time prior to Dr Tsoi's examination was caused by the accident because there was no other reported incident does not sit happily alongside the absence of any complaint or record of such injury when the plaintiff was in UCH. The burden being on the plaintiff to prove causation he falls far short of achieving that. The existing injury to the right elbow was not caused by the accident.

76. These findings of fact answer the first three questions I have posed at page 9; there remains to be dealt with the fourth, which I come to next.

Quantum of Damages

PSLA

77. The plaintiff suffered a lasting injury to his right knee which accelerated the degenerative processes that were already underway at the time of his accident and which, in the natural order of things, would have required him to give up work of a heavy duty type about now. Much more serious is that he came to acquire mental disabilities from which he is unlikely to get well, although, with treatment, there may be a partial recovery.

78. Dr Singer said in his first report:-

"Prognosis

Post-Concussional Syndrome : This is permanent.

Depression : This has a bad prognosis because of the long period it has persisted, but it may improve with treatment.

Recommendation

Psychiatric treatment : He should receive psychiatric treatment in the form of medication and psychotherapy. Treatment in a private setting can be carried out in an office, would cost about HK$65,000 per year (HK$2,500 per session fortnightly), would last three years.

Employment (taking only psychiatric disabilities into account)

Type of work he can do now : None in the competitive job market.

Type of work he can do after psychiatric treatment and litigation : Possibly watchman, cleaner but with much distress and effort, need for leave and rest and absenteeism."

79. In the meantime his world has shrunk to eating and sleeping, mooching round the home, seldom going out and then only when accompanied. He needs some assistance although by no means full time. Mr Sakhrani, his counsel, referred me to cases of head injuries resulting in psychiatric disorders, some of them devastating. He submits, by comparison, that a proper award under this head would be $700,000.00. I think this is too high. Given the plaintiff's age, the extent of his disabilities and the need for some but not continuous care, the prognosis that after treatment he may be a candidate for further employment, albeit of a menial and sporadic nature, I believe his injuries fit mid range in the category of a serious injury, as laid down by the Court of Appeal in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657 and referred to in Chan Pui-ki v. Leung On [1996] 2 HKLR 401. Having then made comparisons with the awards in a number of cases cited to me by both counsel, and in particular:-

Joan Carol Bouvin v. Wong Ying Yau unreported HCPI 195/2000, (a 35 year old, whiplash injury, PCS & DD - $475,000.00);

Lai Tim Fai v. Lee Yuk Ping unreported HCPI 762/1996, (age not given, serious head injury, skull fracture, brain damage, neurological defects, risk of epileptic seizures - $700,000.00);

Chung Man Yau v. Si Hon, unreported HCPI 117/1995, (age not given, skull fracture, PCS & DD - $470,000.00).

80. I conclude a proper award, under this head, is $500,000.00.

Loss of Earnings

Pretrial earnings

81. It is agreed that the plaintiff was earning $13,000.00 per month at the time of the accident and by now, in the same occupation 10 years later, he would have been on $26,438.40 per month. I accept the plaintiff's own account that during the period to December 1994 he earned $25,000.00.

82. So, his loss of earnings to the date of trial can be calculated as follows:-

($26,348.40 + $13,000.00) ( 2 x 120 - $25,000.00 = $2,335,904.00.

Post-trial earnings

83. I pay heed to Dr Tsoi's comments in a report he presented dated 7 December 1998:-

"... Patellofemoral arthritis is very commonly seen in people who perform heavy manual lifting, staircase climbing and squatting work. It can also occur as a result of natural degeneration. But for the accident, symptoms of right knee pain is expected to occur by the age of around 55 to 60. I shall advise Mr. Chan not to continue any heavy duty work after the age of 55 even had the injury not occurred."

84. There is also the right elbow injury to take into account, not caused by the accident as I have found, but which would have accelerated the natural degenerative process and speeded the day of retirement. Taking a realistic position I believe the plaintiff would have had to give up by about now, at least on a regular and full-time basis, and thereafter be reduced to working intermittently for a limited period. I propose to deal with this by adopting a multiplier of 2 to the income he would have been earning at today's rates.

85. I calculate his future loss of earnings as follow:-

$26,348.40 x 12 x 2 = $632,362.00

Special Damages

86. Hospital fees of $600.00, doctor's fees of $400.00, travelling expenses of $500.00, a damaged watched $2,500.00, in all $4,000.00, are agreed.

87. What are not are claims the plaintiff has pleaded and now asks for being the cost of tonic food and trips to China for medical treatment there. For tonic food he pleaded an average of $3,250.00 per month making a total of $370,500.00. Now he is prepared to settle for $35,000. He claims to have made 20 trips to China for medical treatment, at a total costs of $12,000.00.

88. The defence disputes the validity of both these claims. Few receipts have been produced, and no evidence to establish that treatment out of Hong Kong and tonic food were necessary or were beneficial. I accept these arguments. The defence has offered $5,000.00 under each head; I believe this to be reasonable and will award accordingly.

Future Medical Care

89. As I have recorded, Dr Singer is of the view that three years worth of psychiatric care may benefit the plaintiff to the extent that, sporadically, he might be able to return to the job market. I think realistically, he is unlikely to be offered a job ahead of those mentally fully alert. But the prognosis is sufficiently encouraging to indicate a better quality of life and reduced dependency on others. I believe the figure of $195,000 is a worthy price to pay for this expectancy, and allow it accordingly.

Home Care

90. The plaintiff claims under this head $4,000.00 per month for life; a total of $480,000.00. I find this would be an acceptable sum to expend were the plaintiff to be so invalided as to need constant attention with no hope for improvement. The plaintiff is not, happily, helpless. Far from it. Most functions he can perform unaided, once reminded. And even if, after three years, he is not after all fit for the job market, it seems likely that he will have regained his independence.

91. I propose to award a notional $1,200.00 per month to run for three years. This comes to $43,200.00.

Interest

92. The traditional awards under this head are 2% p.a. on the PSLA from the date of writ to judgment, and half the judgment rate (say 6.25%) on pre-trial loss of wages, less any ECC award, plus special damages, from the date of the accident to judgment.

93. Mr Cheung argued for the defence that the proceedings had taken an inordinately long time to come to trial, close to ten years. This was the fault of the plaintiff, or at least was not the fault of the defence. He said that interest should not run from a date two years after the defence conceded liability, which it did in June 1996. Mr Sakhrani countered that if the defence wanted the period of accrued interest to be reduced in this way it was bound to plead that; see the White Book 1999 edition at page 321.

94. Mr Cheung was able to turn that argument on its head, for the plaintiff in his pleadings had claimed interest on the PSLA for only 4 years and on the special damages for 6 years. He says, adopting the same point, that he can now claim no more. I believe he is right. I calculate the interest as follows:-

2% x $500,000.00 x 4 = $40,000.00

6.25% x ($2,335,904.00 + $14,000.00 - $420,000.00) x 6 = $723,714.00

Conclusion

95. This all adds up as follows:-

PSLA		500,000
Loss of earnings -	pre-trial	2,335,904
	Post-trial	632,362
Special damages		14,000
Future medical expenses		195,000
Home care		43,200
Interest on PSLA		40,000
Interest on pre-trial losses		723,714
		4,484,180
Less ECC award		420,000
		4,064,180

96. There will be judgment for the plaintiff in the sum of $4,064,180.00 together with costs taxed if not agreed, with his own costs taxed under Legal Aid Regulations.

97. The orders for costs are nisi at first instance.

Representation:

Mr A Sakhrani, instructed by Messrs Jewkes Chan & Partners, for the Plaintiff

Mr A Cheung, instructed by Messrs Cheng, Yeung & Co, for the Defendants