Fong Lun Fat v. Wong Kuen and Another

HCA000820/1976

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr. Registrar Cameron in Chambers.

Date of Judgment: 1st September 1977.

Mr. A.W. Sedgewick, Counsel, instructed by Messrs. Lau, Wong and Chan, Solicitors, for the Plaintiff.

Mr. R. Mills-Owens, Counsel, instructed by Messrs. Deacons, Solicitors, for the Defendants.

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DECISION

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1. On 18th October, 1974 the Plaintiff was a passenger on board a Route No. 51 bus registration number AD7096 which was owned by the 2nd Defendant and driven by the 1st Defendant. As the vehicle was being driven along Kam Tin Main Road near to the Shek Kong Vegetable Collecting Centre it came into collision with an army lorry registration number 21 EP 08 and as a result the Plaintiff sustained injuries.

2. Interlocutory judgment for the Plaintiff was entered by consent against the Defendants on 9th July 1976 for damages to be assessed.

3. The Plaintiff was first taken to the Casualty Department of the Lady Trench Polyclinic, Tsuen Wan. He was conscious on arrival and on examination was found to have a laceration on the bridge of his nose with epistaxis. Emergency treatment was given and he was referred to Queen Elizabeth Hospital where he was admitted. Examination there showed the general condition of the patient was good. Other findings included:-

4. Treatment given included:-

5. The Plaintiff was discharged on 28th October 1974 and was seen on 6th November 1974 at Robert Black Clinic. Examination showed the nose was clear with no external deformity. Permanent disability was considered unlikely.

6. The Plaintiff now, however, claims that he has sustained much more serious injuries than is indicated in the report from Queen Elizabeth Hospital (CK-1). He avers that he is now suffering from permanent gross visual difficulty with both eyes, loss of smell and partial loss of hearing with the result that he is unable to work in his previous employment as a Carpenter.

7. After being seen on 6th November 1974 at Robert Black Clinic the Plaintiff did not see another Doctor until he was examined some 15 months later by Dr. Hunter to whom he had been referred by his Solicitors in connection with his claim for damages. The examination by Dr. Hunter was carried out on 5th January 1976. Dr. Hunter's report (JMH-1) of his examination of the Plaintiff on 5.1.76 reads:-

Eurasia Lab. # 10564-6 16/1/76.

Skull P.A. & R. Lateral.

The skull is average in the size, shape and thickness of the vault. The suture and vascular markings are average. The pituitary fossa is normal in all respects. The petrous bones are of equal density. Both mastoid bones show aeration of the mastoid cells. The frontal sinuses are asymmetrical but aerated; the sphenoidal and ethmoidal sinuses are aerated. The maxillary sinuses on both sides show some opacity inferiorly. The nasal passages are wide. There is an old fracture of the nasal bones anteriorly.

Impression: Average normal skull showing old fracture of the nasal bones anteriorly and possibly diminished aeration in both maxillary sinuses.

Clinical Correlation: The radiological findings of fractures in the nasal bones correlate with the history, the previous radiological reports and the present clinical findings. The present films of the paranasal sinuses disclose some density in the lower third of each maxillary sinus: This could well be related to the nasal injury since the sinuses connect directly with the nasal passages. The condition even if now asymptomatic, may in the future give rise to symptoms which require treatment eg. medication and perhaps antral puncture and washing.

Facial Bones (Water's Projection).

Nasal bones (Supero-inferior and lateral view)

There are old fractures seen in lower anterior parts of both nasal bones. The distal fragment of right nasal bone is slightly displaced downwards. Callus has formed between the fragments. The distal fragment of the left nasal bone is slightly displaced medially. Callus has formed between the fragments of the left nasal bone.

The lower parts of both maxillary sinuses are slightly opaque.

The frontal, ethmoidal and sphenoidal sinuses are clear.

8. The Plaintiff was re-examined by Dr. Hunter on 30.4.77 and his report (JMH-2) reads:-

Fong Lun Fat was last seen and examined on 5.1.76. Being unable to work in his previous occupation as a carpenter, Fong Lun Fat has worked as a supervisor at low pay for a friend since October 1976. Because he was unable to do the work efficiently, his services were terminated but he persuaded his employer to allow him to work as a cleaner. When not thus working he remains at home and takes care of his children.

For the past year (and now two and a half years since the accident) Fong Lun Fat has shown no improvement in his disabilities:

Specifically these are as follows:-

There have been no intercurrent illnesses since last examined.

Examination:

Present with obvious visual distress; both eyes are partially closed (to avoid strong light) and there is corrugation of the skin of the forehead.

The appearance of the facial scar is unchanged. The cranial nerves were retested in detail. Smell sensation was found to be entirely absent (1st ...(illegible) ramal nerve). Some discomfort in the nose and eyes was experienced on smelling ammonia fumes. Both pupils were fully dilated and unreactive to light and accommodation (patient had just terminated an ophthalmological examination). Photo-phobia and lacrymation was evident in both eyes. Both fundi showed an average appearance of the retina and retinal vessels. Both optic discs were well demarcated and pale. The left was slightly more pale than the right. The right macula was visualised and had an average appearance.

The remainder of the cranial nerve findings, tendon reflex findings and examinations of motor, sensory and coordination functions were essentially as recorded on 5.1.76.

Comment:

Fong Lun Fat has shown no appreciable improvement or change in his symptomatology or findings on examination in the past twelve months. His chief difficulty is with vision (light sensitivity and acuity). Detailed information on this aspect will be submitted by Dr. W. Heffernan, Ophthalmologist.

The present appearance of both optic discs i.e. some overall pallor, is suggestive of optic atrophy and is a change from the appearance 16 months ago.

The loss of smell sensation (anosmia), now stable for two and a half years, may be assumed to be permanent.

Recommendations:

Opinion of Ear, Nose and Throat specialist in relation to general nasal condition, recurrent epistaxis and opinion on the radiological changes which suggest some paranasal sinus involvement.

Sd. DR. JOHN HUNTER"

An electroencephalogram report (JMH 2a) of 30.4.77 reads:-

SUMMARY OF HISTORY:

18/10/74 sustained head injury while seated in a bus which collided with another vehicle. Minimal disturbance of consciousness. Fracture and displacement of nasal bones. Subsequently developed loss of smell and bilateral visual deterioration.

INTERPRETATION OF TRACING:

The basic record is fairly-organized with a dominant activity of 8-9 cps at 5-10 microvolts particularly evident in the parieto-occipital areas, (p.453) i.e. a low voltage 'flat' recording.

Low voltage (10-20 microvolts) 4-7 cps theta waves are seen bilaterally, sometimes occurring at random. (p.437)

Eye opening and closing modified the recording to the extent that with eyes open there was almost complete suppression of activity. On eye closure low-voltage activity returned.

Hyperventilation and photic stimulation did not add further information to the record.

RECORDING TECHNICIAN: Sd. MARIETTA C. PUYOT

CLINICAL CORRELATION:

Although this head injury sustained three years ago did not produce severe generalized immediate effects on the brain, the localized severe impact to a vulnerable anatomical location produced severe neurological defects (1st and 2nd cranial nerves; smell and vision, respectively).

The present findings of a low voltage recording could be consistent with de-afferentation (due to lessening of the visual and smell inputs bilaterally) or it may perhaps be a reflection of some disturbance of brain stem mechanisms. The bilateral low voltage slow disturbance may have its origin either in a generalized disturbance of cortical function (i.e. injury) as a result of a blow to the cerebrum (although the absence of effects of the injury on consciousness and the long time interval would tend to be against this) or perhaps in a disturbance of brain rhythm regulating mechanisms. In this latter instance, a partial deafferentation may be a factor.

9. The Plaintiff was referred to Dr. W.J. Heffernan, Ophthalmologist. He was examined on several occasions by Dr. Heffernan. The first examination took place in July 1976 and the report (WH-1) reads:-

10. He was next examined in November 1976 and the report (WH-2) reads:-

11. He was examined for the 3rd time in April 1977 and the report (WH-3) reads:-

12. The Plaintiff was also examined by Dr. Ian Nicholson to whom he was referred by his Solicitors. Dr. Nicholson's Report of 4th June 1976 (IHN-1) reads:-

13. Mr. Wedderburn at the request of Messrs. Deacons, Solicitors for the Defendants examined the Plaintiff. Mr. Wedderburn's report of 23rd June 1976 (RW-1) reads:-

14. A covering letter (RW-3) which he sent with his report reads:-

15. Mr. Wedderburn wrote further on 23rd July, 1976 to Messrs. Deacons and his letter (RW-2) reads:-

16. With this letter he enclosed a copy of a report from Dr. C.T. T'ang (TT-1) which reads:-

In order to prevent malingering, we did three audiogram, one at 9.30 a.m., another at 12 Noon on 19th June, and a third one on 21st June, 76. They were more or less alike, and therefore his deafness was genuine.

17. On 14th December 1976 Mr. Wedderburn again wrote to the Defendants' Solicitors. His letter (RW-4) reads:-

18. Mr. Wedderburn also produced a letter he had received from Dr. So dated 18.6.76. This latter (RW-5) reads:-

19. Dr. Hunter, who was called as a witness for the Plaintiff, produced the reports set out above. Counsel for the Plaintiff did not ask him to explain in detail his examinations of the Plaintiff. In cross-examination he stated inter alia that he had asked the Plaintiff first what his complaints were. He agreed that on the two occasions he examined the Plaintiff, the Plaintiff had made no mention of a hearing defect. In fact in his report JMH-1 at page 2 the hearing tests he carried out showed normal responses. Dr. Hunter also agreed that the tests for vision were subjective and that it was difficult to know how valid they were as they depended on what the Plaintiff said he could see. He further agreed that the hospital report CK-1 made no mention of visual status.

20. Dr. Heffernan, who was called as a witness for the Plaintiff, produced his reports of the examinations he carried out on the Plaintiff. In evidence he stated inter alia that the visual defect suffered by the Plaintiff was consistent with a blunt injury to the bridge of the nose. In his opinion the Plaintiff had genuine bilateral visual loss though he though the Plaintiff did exaggerate it. In cross-examination Dr. Heffernan stated he was very surprised that the Plaintiff had not sought treatment. He agreed that he had not asked the Plaintiff if he was continuing to work. In re-examination when asked "If he (the Plaintiff) had been working this would cast doubt on your findings", he replied "Yes".

21. Dr. Nicolson, who was called as a witness for the Plaintiff, produced his report on the Plaintiff's cosmetic complaints. He considered that the cosmetic disability from the accident was relatively minor. It is interesting to note that there is no mention of a hearing defect in Dr. Nicolson's Report.

22. Dr. Tang, who was called as a witness for the Plaintiff, produced a report on his examination of the Plaintiff. He stated in evidence that the Plaintiff's hearing defect was genuine. In cross-examination he said that it would surprise him that the Plaintiff had no difficulty in giving answers in this "noisy room" (my Chambers which are not sound-proof against the Mass Transit operations). He agreed that if the Plaintiff did answer questions, there would appear to be a dramatic recovery.

23. Mr. Wedderburn, who was called as a witness for the Defendants, produced his reports on the Plaintiff. He considers that the Plaintiff is grossly exaggerating his complaints. He was of the opinion that the Plaintiff does have a visual loss. He could not say how much but less than in the reports. He was also of the opinion that the Plaintiff had a mild hearing loss and some loss of sense of smell. Despite the expert findings of the Opthalmic Specialists and the Ear, Nose and Throat Specialists, he still had considerable doubt that the Plaintiff was affected as severely as their findings would indicate.

24. The Plaintiff when giving evidence stated that at the time of the accident he was employed as a Carpenter earning $45 per day. Prior to the accident he had no trouble with his eyesight, hearing or sense of smell. He had not gone to see a Doctor about his eyes because of poor financial conditions. After the accident he had worked but had been dismissed when it was noticed he was having trouble with his eyesight. He had eventually obtained a job with George Zee & Co. but in March 1977 had been regraded as casual worker (a letter from the Company informing him of this was produced FLF-1). He also stated that he had from time to time since the accident received public assistance.

25. In cross-examination, the Plaintiff stated he did not have a schedule or list of actual earnings since his accident or documentary evidence of earnings prior to his accident. The Plaintiff was shown an agreement (FLF-3) between himself and Shanghai Craft Furniture Factory dated 23rd August 1974. I was asked by Mr. Mills-Owens to note that the Plaintiff was able to identify his signature and the chop appearing on this document. Mr. Sedgewick for the Plaintiff asked me to note that this document was signed before the accident and that the Plaintiff would still remember it. The Plaintiff's evidence in cross-examination concerning employment after the accident was vague and confusing. He was shown another document FLF-5 (a Certificate from Man Cheung Ho Wooden Furniture Manufacturing Factory). When asked whose signature appeared on this document, he replied "Son of the Proprietor- So Keung". Mr. Sedgewick asked me to note that the Plaintiff was not looking at this document when he gave this reply. I, however, informed Mr. Sedgewick that I had seen the Plaintiff looking at it.

26. When the Plaintiff was asked if he had told both Dr. Hunter and Dr. Heffernan that he had not worked since the accident, he said he could not remember. When pressed further, he became evasive. He admitted that he had been working as a Carpenter for George Zee & Co. since October 1976 but that since 15th March 1977 his pay was reduced to $12-$13 per day. He was asked if there was any connection between this and the fact that certain enquiries were made by the Defendants on that day. He replied that he was not aware enquiries were being made.

27. When asked if he read the newspaper in the morning, the Plaintiff replied that he could not see. When pressed further he said he could only see large characters. He read the headlines and looked at the pictures.

28. In re-examination Mr. Sedgewick tried to establish that the Plaintiff merely recognised the documents he had been shown and that he could not in fact read them. The Plaintiff, however, when asked by me to read FLF-4, was able to read the larger characters of the chop.

29. Fong Mi Ching, Welfare Assistant, Social Welfare Department, gave evidence for the Plaintiff regarding payments of Public Assistance made to the Plaintiff. The Plaintiff had made several declarations and it was on these declarations that payment had been made. As the Plaintiff had said he was a casual worker and had difficulty in finding his "boss" no checks were made by the Social Welfare Department to confirm that what was stated in the declarations was correct. The Plaintiff, on being recalled, denied making these declarations.

30. Wong Kam, Personnel Supervisor with George Zee & Co. gave evidence for the Plaintiff. He stated that the Plaintiff had been employed as a Carpenter by the Company since October 1976 at a daily rate of $50 per day. He produced details of wages paid (WK-1) with the last payment shown as having been paid about the middle of March 1977. He agreed that the Plaintiff was still working with the Company but he did not know how much was paid to the Plaintiff for the months of April, May and June 1977. When Mr. Wong was asked about a person making enquiries about the Plaintiff's employment, he was evasive. He said it was just coincidence that the Plaintiff was demoted at the time enquiries were being made.

31. Mr. Tam Shung Yau, an Investigator with William Howells, Assessors, gave evidence for the Defendants. He stated that he was asked to investigate this case. Having obtained the Plaintiff's address, he went there on 10th February 1977. He was able to see into the flat as the door was open. He saw inside furniture which was clean and appeared new. He also saw a refrigerator, a T.V. set and a telephone. He returned the following day about 8 a.m. and kept watch on the flat. He saw the Plaintiff standing at the doorway of his home talking to a woman. They appeared to be talking normally. He saw them pointing at something outside the flat but he had no idea what they were pointing at. He stated that the Plaintiff was looking in the direction in which the pointing was done. On 7th and 9th March 1977, he again went to the vicinity of the Plaintiff's home at about 8 a.m. but on these occasions he did not see the Plaintiff. On 10th March 1977 he went back at about 6.30 a.m. This time he saw the Plaintiff leaving his home with a woman and a child. He followed them. He saw the Plaintiff go to a newspaper stall where he bought newspapers. He then saw him enter a Restaurant. He also went in and took a seat where he could watch the Plaintiff. He saw the Plaintiff reading the newspapers he had purchased. He did not see anything unusual or abnormal about the way the Plaintiff read the papers. He also saw him eating. He used chopsticks and had no difficulty picking up the food. When the Plaintiff left the Restaurant he again followed him. He saw the Plaintiff part company with the woman and child. He saw the Plaintiff cross Kwun Tong Road on a stud crossing on his own. He saw him enter the premises of George Zee & Co. He then returned to his office. From there he phoned George Zee & Co. and spoke to a man who identified himself as Mr. Wong. He was told that the Plaintiff worked there, that he had worked there for 3 months and that he was paid $50 per day. On 15th March he went to George Zee & Co. to get a certificate of employment. He was informed that he had no right to ask for such a Certificate and was told that the Plaintiff was no longer working there. However, as he was leaving the premises he saw the Plaintiff in the workshop planing a wooden plank.

32. In cross-examination, it was put to him that he had held himself out to be the agent of the Plaintiff's Solicitors. He denied this.

33. This is an extraordinary case and in view of what I have heard in the way of evidence, it is extremely difficult to determine what damages should be awarded. Having observed the Plaintiff and having heard his evidence I, like Mr. Wedderburn, have considerable doubt that he is affected as seriously as is indicated in the reports of, in particular, Dr. Hunter, Dr. Heffernan and Dr. Tang. Both Dr. Hunter and Dr. Heffernan were informed by the Plaintiff that he had not worked since the accident as a Carpenter which in fact was untrue. Dr. Heffernan did state that if the Plaintiff had worked as a Carpenter since the accident, this would cast doubt on his findings. The Plaintiff did not complain of loss of hearing when he saw Dr. Hunter or Dr. Heffernan. Indeed Dr. Hunter in his report (JMH-1) indicates normal responses to the hearing tests. Throughout the hearing of this assessment the Plaintiff did not appear to suffer from the gross visual defects or serious loss of hearing which have been reported. I am satisfied from my own observation of him that he was able to read the documents shown him and that he had no difficulty in hearing the questions put to him.

34. As regards General Damages, I will deal with these under the following heads:-

1. Pain and Suffering and Loss of Amenities

35. The Plaintiff was in hospital from 18th October to 28th October and doubtless as a result of the blow to the bridge of his nose causing a fracture of the nasal bones with displacement, considerable pain was suffered initially. I accept that there is some visual difficulty but not to the extent claimed. I also accept that there might be slight loss of hearing but I do not consider that it is such that he will experience any real difficulty. I accept that the Plaintiff has lost the sense of smell but as this has not affected his enjoyment of food, it has not seriously affected his daily living. I agree with Dr. Nicholson that when considering the Plaintiff's natural coarse facial features and previously acquired scars the cosmetic disability from the accident is relatively minor.

36. I assess damages under this head at $15,000.

2. Loss of Future Earnings

37. On the evidence adduced, I do not accept that the Plaintiff is now unable to continue in employment as a Carpenter. He had in fact been so employed since the accident at a higher daily rate. The Plaintiff did claim that as from 15th March 1977 he was demoted from a regular to a casual worker earning only $12 - $13 per day and produced a letter from his employers to that effect (FLF-1). I do not believe that this was done because the Plaintiff was unable to maintain the standard set by his employers. It is too much of a coincidence that the demotion took place at a time when enquiries were being made by the Defendants.

38. I make no award under this head.

39. The total General Damages are therefore $15,000.

40. As regards Special Damages I will deal with those in the order shown in the amended Statement of Claim:-

(a) Loss of earnings

41. In the amended Statement of Claim there is a claim in respect of five periods between 18th October 1974 and 6th May 1977. The evidence on this matter was most unsatisfoctory. The Plaintiff must prove his loss strictly. He has failed to do so. I am prepared to accept he was unable to return to work immediately after his discharge from hospital and accordingly I will award $1,500 for this item.

42. As regards items:-

(b) Damage to clothing

(c) Travelling expenses incurred by wife of Plaintiff

(d) Travelling expenses for follow up treatment

(e) Travelling expenses incurred on day of discharge

these were not contested and the total of $79 claimed is allowed.

43. The total Special Damages are therefore $1,579.

44. There will be no interest on the Damages.

45. There will be no order as to costs on this assessment.

46. Whilst it appears from the evidence that the Plaintiff has grossly exaggerated his complaints and has not made full disclosure to his Solicitors of the work he did and the earnings he received therefor since the accident, I do consider that if his Solicitors had exercised more diligence in the preparation of this case, it would have been possible to assess the damages more accurately than I have been able to do.

47. Dated this 1st day of September, 1977.

Representation:

Mr. A.W. Sedgewick, Counsel, instructed by Messrs. Lau, Wong and Chan, Solicitors, for the Plaintiff.

Mr. R. Mills-Owens, Counsel, instructed by Messrs. Deacons, Solicitors, for the Defendants.