Wong Kin-keung v. Lee Woon (or Wan) Sun and Others

HCA000445A/1973

(ORIGINAL JURISDICTION)

ACTION NO. 445 OF 1973

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Coram: Leonard J. in Court.

Date of Judgment: 10th April, 1975.

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JUDGMENT

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1. At about 6.00 p.m, on the 25th April, 1970 the plaintiff was a passenger in a sports car driven by the first defendant along Kwai Chung Road towards Kowloon when it came into violent collision with a lorry driven by the second defendant as the servant or agent of the third defendant. As a result the plaintiff incurred serious injuries. Since the plaintiff was an innocent passenger the primary question was whether the collision was caused by the negligence of the first defendant, by the negligence of the second defendant of or by the negligence of both jointly.

2. It was a fine, clear evening and the view on the road was unrestricted. At the place in question Kwai Chung Road consists of four lanes; two running in each direction separated by a grass and concrete divide running down the centre of the road. Speed is unrestricted. It was common case that the nearside front of the sports car came into violent collision with the offside rear of the lorry so that the sports car overturned. Photographs of the scone show the sorts car after it had been righted turned almost at right angles to the central divide which it faces. The front nearside of the sports car was extensively damaged. No independent eye-witness of the accident was available. There was, however, produced in evidence under Rule 11 of the Hearsay Rules a statement made by a Mr. Sammoon to the police in the course of their enquiries into the accident. As Mr. Sammoon is out of the jurisdiction the application to admit this statement in evidence was not resisted by counsel on behalf of the first defendant and was supported by counsel on behalf of the second and third defendants. It reads as follows:

The only other evidence as to liability came from the first defendant and the second defendant respectively. I formed the view that the first defendant was an unsatisfactory witness and that he was not telling the truth. The second defendant appeared to me to be a straightforward and truthful witness. I arrived at the following conclusions as to the facts: Mr. Sammoon's car was travelling along the outer or fast lane close to the grass divide at about 50 miles per hour when it was passed by the first defendant's sports car on the inside. The first defendant then swerved into the fast lane and found himself confronted by the second defendant's lorry also travelling in that lane. He hooted at the second defendant's vehicle indicating a desire to pass it and as it pulled over from the fast lane to the nearside lane he attempted to do so. He misjudged his manoeuvre and collided with the offside rear of the lorry with such force as to dislodge the heavy wooden side of the lorry and punctured the offside rear wheel. The sports car thereupon overturned. The lorry continued a short distance on its way and came to a stop. I could find no satisfactory evidence of negligence on the part of the lorry's driver and accordingly concluded that the injuries to the plaintiff was caused solely by the negligence of the first defendant in attempting to overtake the lorry before he had room to do so.

3. The injuries sustained by the plaintiff were undoubtedly severe. He was admitted into Queen Elizabeth Hospital on the evening of the accident and found to be suffering from the following injuries: 1. superficial laceration 1 ½ long ever the left side of forehead; 2. a superficial laceration 2" long over the right side of forehead; 3. a laceration 1" long over the left ear and 4. a right subdural haemorrhage. The subdural haemorrhage called for operation and on the same day a subdural haematoma was drained from the right temporal region. The plaintiff remained unconscious for three weeks after the operation and thereafter showed gradual improvement. He was discharged on the 5th June 1970 but had to receive attention as an out-patient frequently thereafter because of a slight infection of the wounds of the scalp which he had suffered. He was examined again at the out-patient clinic of the Queen Elizabeth Hospital on the 23rd October 1971. On that occasion he appeared to the Neurosurgical Specialist to be well nourished and in good physical health showing fair memory and having no history suggestive of epilepsy. He was unemployed. He spoke slowly and had difficulty in finding the right words and phrases and tended to forget Chinese characters. Sense of smell was unimpaired and it was noted that there was "slight weakness of the facial muscle on the right side and the right arm was slightly weaker than the left". Further improvement was unexpected and the disability was then assessed as consisting of a moderate degree of impairment of speech; a slight degree of impairment of function of the right hand and a possibility of post-traumatic epilepsy as a result of the head injury.

4. On his discharge from hospital on the 5th June 1970 the plaintiff had complained of headaches and on the occasions of his visits to the hospital even as late as 1971 had complained of headaches and of weakness of the left (rather then the right) hand and arm. Apparently because of dissatisfaction with his condition after his discharge from the Queen Elizabeth Hospital the plaintiff consulted a Chinese bone-setter but he does not appear to have received any hospital treatment (apart from his visits to the out-patient clinic of which I had no records) until the 31st August 1973 when he was first seen by Dr. Hunter who is inter alia a neurological specialist at the Queen Mary Hospital. Under Dr. Hunter's care he was, in late March 1974, admitted to the Hong Kong Adventist Hospital from where he was transferred to St. Paul's Hospital on the 4th April 1974. He remained at St. Paul's Hospital until the 12th April 1974 for diagnostic investigation. He complained to Dr. Hunter of headache; dizziness; neck pain on movement and at rest; poor memory and difficulty in controlling mood and behaviour. During his entire stay he complained of his head and neck and his mood was variable ranging from normal to being quite depressed and inert. Dr. Hunter found him to have presented.

"a difficult diagnostic problem and problem is assessment. This is partly because he has apparently developed behavioural and memory changes since the accident, partly because there have been repeated occasions when his symptoms became exaggerated in the presence of medical personnel and partly because the findings on neurological and radiological examination have not clearly correlated, particularly in degree, with his complaints. In fact on some days it was observed that he could be almost free of complaints and could behave in a normal fashion while a few hours later he could behave as if in the greatest of physical and mental distress."

His complaints of memory loss, difficulty with speech, changes in mood and behaviour Dr. Hunter considered that there had been improvement in memory and speech and further improvement was to be expected and it was his opinion that when the legal problems pertaining to his accident were concluded and he found some form of work he would show considerable improvement. He formed the view that some sudden disturbances of behaviour and speech function were very probably the result of epileptic discharges and was satisfied that there was evidence that the plaintiff was having epileptic discharges which are quite common with this form of injury. From time to time the plaintiff had refused to co-operate with Dr. Hunter. These reactions Dr. Hunter considered to be appeared to be abnormal but consistent with the brain injuries he had received. Dr. Hunter had no doubt but that on the occasions he appeared to be distressed he was in fact distressed and that he was disturbed emotionally by a future with which he expected to be unable to cope and by his own inexplicable behaviour, he could, for example, remember attacking children for no particular reason. In the course of his diagnostic examination Dr. Hunter had performed a pneumoencephalogram a particularly painful test which he considered disclosed post-traumatic changes in the brain and an indication of some loss of brain substance. A weakness of the right hand was consistent with damage to the brain as was the character change and indifference to the consequences displayed by the plaintiff.

5. Dr. Wedderburn examined the plaintiff on behalf of the defendants. The history he received was that at times the plaintiff was quite rational and on other occasions he sat silent refused to answer and might lose his temper. His speech was slow. He did not look at the person questioning him and gave various demonstrations of abnormality. Dr. Wedderburn was quite sure he was "putting on an act" but formed the conclusion that he was suffering from manic depression. He recommended that he see a psychiatrist. While the case was continuing he did in fact go to see Dr. W. L. Pang the Senior Medical and Health Officer in charge of Yaumatei Psychiatric Centre I should say straightaway that I was greatly impressed by Dr. Pang's evidence and by the care with which he assessed the plaintiff. When in the course of his report Dr. Pang described the plaintiff as appearing "dull and retarded and looks flat in his expression ..." as "sluggish, hesitant and laconic in his speech", as "indecisive and poor in judgment and unable to grasp more abstract conversation or to solve more complicated solutions logically" as "unable to maintain his attention" and as "distractible" ... as "superficial in mood" and as having his "emotional responses blunted" and as being "prone to uninhibited emotional crisis" he was in his own words describing precisely the impression of the plaintiff which I received of him in the witness-box. Dr. Pang was quite clear and I accepted his evidence that the plaintiff was not suffering from manic depression. I also accepted his conclusion that the head injuries which he had received in the accident were a direct precipitating cause of his condition. Dr. Pang found that there was evidence indicating dysfunction of the various parts of the brain:

Dr. Pang considered the plaintiff was suffering from post-concussional syndrome with reactive depressive features. His mental dysfunction he considered very likely to be permanent in view of its chronicity. But the depressive features were only reactive.

6. Having carefully studied the plaintiff while he was giving evidence and making due allowances for the plaintiff's undoubted wish to exaggerate the nature of his disabilities (a wish almost impossible to separate from his depression) I am quite satisfied that the plaintiff suffers from the emotional changes, the restlessness, the drop in general intelligence, the memory impairment, the aggession and speech disorder. I am not however satisfied that he suffers from the recurrent headaches very severe in their nature of which he complains and I was quite satisfied from looking at his exaggerated gestures and grimaces that he was seeking sympathy in a childish way by a demonstration of almost wholly imaginary neck-ache. I would attribute to the same search for sympathy his pessimistic "ideas of social inadequacy, unworthiness to live and incapacity in work performance". This desire for sympathy however and his pessimistic ideas all appear to me to form part of the picture of a character change resulting from severe brain damage. That there was such severe brain damage is clear from the very fact that he was unconscious for a period of three weeks immediately following the accident. Despite my conclusion that there has been a very considerable character change as a result of the accident I have little doubt but that his condition will improve considerably when there is finality to these proceedings and that he can to a considerable extent control his behaviour. His drop in general intelligence, his memory impairment and his speech disorder I believe are almost wholly irreparable now. He is physically able to work and I have little doubt but that he will work again when the case is disposed of. It appears however to me to be very likely that there will be constant changes in the work which he will do and an inability to keep constant employment.

7. I was told that before the accident he was employed as an assistant in a piece goods business and that he also earned commission selling his employer's goods. The salary paid to him was $600 and in addition he earned, it was suggested, a commission averaging about $900 per month. In order to do so he had constantly to travel in the Colony. He himself told me that in addition to the $600 salary and the $900 commission he not infrequently engaged in deals in which he would purchase goods and resell them at times making a very large profit indeed. All of this evidence I discounted so that I formed the conclusion that at the time of the accident he was earning approximately $1,000 per month and that had it not been for the accident he should now be earning something in the region of $1,300 per month. The evidence is that since the accident he was employed for two periods only. Once as a labourer at $300 a month for a period of five months; once in his former employer's shop for a period of twelve months at $400 a month.

8. I would consider that after the case has been completed the would be more likely to live a tolerable life if he was self-employed in some small business. There is however no question but that he has suffered a substantial loss of earning capacity for the future. Allowing for voeational education I cannot assess this at less than $500 per month. I think a multiplier of 15 is the correct one to adopt having regard to his present age of 29. This gives us a total of $90,000 which I reduce for present payment and payment in a lump sum to $72,000.

9. As to pain and suffering and loss of amenities the plaintiff was at the time of the accident aged 25. He is single. His changed personality and speech impairment make it unlikely he will marry. He has suffered several years of severe depressions. The severe physical pain and suffering resulting from his detention in Queen Elizabeth Hospital for 41 days (including a period of three weeks unconsciousness) and the brain operation are rendered unimportant when one considers the mental effects of his injuries. I can find no reported cases either here or in England that are really comparable and I consider a figure of $90,000 to be appropriate to award under this head. This gives a total for general damages of $162,000.

10. I now turn to consider special damage. Firstly travelling expenses. 26 visits to Queen Elizabeth Hospital at $12 per visit were proved i.e. a sum of $312. As to the claim for travelling expenses to the Chinese bone-setter's clinic I disallow this for reasons which I allow a sum of $82 for charges for Queen Elizabeth Hospital. For damaged clothing and watch I allow a figure of $450. The treatment received from the Chinese bone-setter appears to have overlapped a period when the plaintiff was or could have been treated at Queen Elizabeth Hospital as an out-patient. I have had no evidence as to the efficacy of the treatment by the Chinese bone-setter in question nor as to whether this treatment was in any way necessary. I accordingly disallow the claim for travelling expenses to the bone-setter and the bone-setter's fees. There is a claim for extra nourishment - I have had no evidence that the extra nourishment was necessary or prescribed and I accordingly disallow it. As to the claim for loss of earnings prior to the hearing I have held that the plaintiff was earning approximately $1,000 per month prior to the accident. His loss of earnings therefore from the 1st of May 1970 to the 1st April 1975 come to $59,000. From this must be deducted sums of $4,800 and $1,500 for the periods during which he was employed. I appreciate that he was under a duty to mitigate his loss by working when he could but find his mental condition, a direct result of the accident, to have been such as to deprive him of the ability to work longer in posts which were secured for him by his relatives and one of which (that supplied by his former employer) was essentially charitable rather than commercial. Loss of earnings therefore total $52,700. The considerable disproportion between loss of future earnings (i.e. $72,000 with a multiplier of 15) and loss of past earnings at $52,700 over a period of five years is attributable in part to my belief that with finality in the action the mental condition and particularly the reactive depression will improve. There will be judgment for the sum of $215,544 with interest at 4% per annum from the date of the accident i.e. 25th April 1970 on the special damages (which total $53,544) and interest at a rate of 8% per annum on the general damages of $90,000 from the date of the issue of the writ namely the 20th February 1973 to to-day's date. The judgment shall be as against the first defendant only with costs. The plaintiff's claim against the second and third defendants is dismissed with costs to be paid by the first defendant.

Representation:

Denis Chang (Gunston & Chow) for plaintiff.

Michael Asome (Johnson, Stoke & Master) for 1st defendant.

Mills-Owens (Deacons) for second and third defendants.