Wong Hok-chung v. Chow Wai-kam and Others

HCA001350/1972

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO. 1350 OF 1972

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Coram: Morley-John, J.

Date of Judgment: 5th December, 1974.

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JUDGMENT

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1. This case concerns an action for damages sustained by the plaintiff as a result of a collision between a public light bus owned and driven by the plaintiff and a goods vehicle owned by the 1st defendant and driven by the 2nd defendant as the servant or agent of the 1st defendant.

2. The defendants join as 3rd parties, the driver and owner of another public light bus, the said bus being owned by the second 3rd party and driven by the first 3rd party as servant or agent of the second 3rd party. The defendants claimed that the collision was caused by the negligent driving of the first 3rd party. However, during the trial, by consent the 3rd parties agreed to pay to the defendants the sum of $7,500 in full and final settlement of the defendants' claim against the 3rd parties without any admission of liability by the 3rd parties and that no order for costs should be made as between the defendants and the 3rd parties. At this stage the 3rd parties withdrew from the trial.

3. At the close of the evidence counsel informed me that the special damages as claimed in the statement of claim had been agreed in the sum of $18,309.75 together with interest on this sum at the rate of 4% from the date of the injury to the date of judgment. This left the issue as to the claim for general damages only to be decided by me.

4. Under the head of general damages the plaintiff claimed that the damage caused to his motor vehicle was extensive and serious, and that even after the vehicle had been repaired (the cost of such repairs having been agreed as part of the special damages) by reason of the original damage the said vehicle has required frequent maintenance, which but for the damage sustained in the collision would not have been the case as the said vehicle was only about two months old at the time of the collision, and by reason of this the plaintiff has been put to additional expenses of about $100 per month. No evidence has been adduced to support this claim and that claim is therefore dismissed.

5. Also under the head of general damages the plaintiff claims that by reason of the personal injuries he sustained he is now forced to take frequent rests in the course of a day's driving whereby he is yet and will be put to a loss of about $20 a day. As a result of the accident the plaintiff suffered a concussion of the right side of the forehead with a laceration which needed ten stitches. He lost consciousness for several minutes. He suffered compound fractures of the right tibia and fibula and a fracture of the right ankle. He was hospitalised on the same day, 24th March, 1971, and was finally discharged from hospital on 29th April, 1971, a period of 36 days. His leg was treated with a plaster cast which was kept on for nearly five months. The plaintiff states that he suffers from residual symptoms of post concussional syndrone with dizziness, periodic headaches and partial impairment of memory.

6. From the evidence adduced I am satisfied that the fractures of the leg and ankle have healed completely and satisfactorily, and that the plaintiff's headaches and dizziness have been much less frequent, and his memory has improved, and I am satisfied that within a comparatively short period these symptoms should disappear completely. However, in addition to the injuries that I have just described the plaintiff sustained fractures and dislocation of his right foot, and very unfortunately those injuries were not diagnosed upon his admission to the Queen Elizabeth Hospital. In fact they were never discovered by any of the hospital staff nor by the Medical Board which purported to examine the plaintiff on 15th January, 1972. In fact such injuries were not discovered until the plaintiff was examined by an orthopaedic surgeon in connection with this case in March, 1972. Because of this failure to diagnose these injuries no attempt was made to reduce the fractures or dislocation of the foot, and as a result the plaintiff's foot is badly deformed and this is the injury that he now complains of which forces him to take frequent rests in the course of a day's driving with the resultant loss of earnings. Neither the orthopaedic specialist called by the plaintiff nor the orthopaedic specialist called by the defendant could imagine how these injuries to the foot were never noticed. It was agreed that the injury could have passed unnoticed when the plaintiff was admitted into hospital in the first instance, but the resulting swelling of the foot should have been noticed at a later date, for example, when the plaster on the plaintiff's leg was changed. Both specialists agreed that by the time the injury to the foot was discovered it was too late for remedial treatment. The specialist called by the plaintiff stated that if the plaintiff's foot had been properly treated it would now be near perfect and the specialist called by the defendant said that if properly treated there would be no deformity of the foot but a certain disability would have resulted in the region of about 2%. He also agreed that the lack of treatment by the hospital did not aggravate that injury.

7. The defence alleges that the plaintiff's present disability is the result not of the original injury caused by the accident but by the negligence of the hospital authority in not diagnosing and properly treating the injured foot, and that this negligence constitutes a novus actus interveniens and therefore the defendant is not liable with regard to the loss of earnings so claimed.

8. In support of this contention counsel for the defendants relies upon the case of Rothwell v. Caverswall Stone Co. Ltd.⁽¹⁾. In that case in the course of his employment a workman met with an accident resulting in personal injuries. Owing to the negligence of the doctor at the hospital which the workman attended it was not discovered at the time that the workman was suffering from a fractured dislocation of the right shoulder. When later the dislocation was discovered it was too late for treatment to be successful. On an application by the workman for compensation under the Workmen's Compensation Act 1925 the county court judge held that the workman's incapacity was due not to the original injury but to the negligence of the hospital which consitituted a novus actus interveniens. The judge therefore dismissed the application. It was held, with Scott L.J. dissenting, that having found that the workman's incapacity was due to the negligence of the doctor and not to the original injury the county court judge was right in holding that such negligence consitituted a novus actus interveniens and that the workman was therefore not entitled to compensation.

9. This decision has been criticised by the learned authors, Hart and Honore in their publication entitled Causation in the Law where at p.28 they say:

"The negligence was negative for it consisted in not treating the injured man and we should have thought it clear that mere failure to act could not be said to cause an incapacity."

This decision was also criticised in [1945] Law Quarterly Review p.6. In which the following comments were made:

"One of the most important cases under the Workmen's Compensation Act 1925 decided in recent years is Rothwell v. Caverswall Stone Co. for it is concerned with a number of difficult problems. As leave to appeal to the House of Lords has been granted the conclusions reached by the majority of the Court of Appeal (Luxmoore and du Parcq L.JJ., Scott L.J. dissenting) are not necessarily final and it would not be surprising if their lordships took a different view of the law involved. ........ The question will be when their lordships consider the problem does the surgeon's negligence constitute a novus actus interveniens so that it can be said that the incapacity is the 'result', as the county court judge put it, of ineffective treatment? It is necessary in the first place to realise that negligent treatment may be either positive or negative. In the present case the negligence was negative for it consisted in not treating the injured man. If du Parcq L.J. had not expressed a contrary view we should have thought it clear that mere failure to act could not be said to cause the incapacity. The learned Lord Justice said at p.365:

With all respect this is using the words 'cause' and 'result' in a strained sense. The injury has caused the incapacity: the purpose of the treatment is to counteract this cause: the failure to treat the injured person is termed negligent just because it has allowed the original cause to continue. Similarly it cannot be said that the incapacity is the result of the doctor's omission: it is the direct result of the injury and the doctor's negligence consist not in causing that result but in failing to prevent it. A more difficult problem arises when the surgeon's negligence is positive, e.g. when the injured person's wound is infected by unsterilized instruments. In such a case it is submitted the surgeon's positive negligence is not a novus actus interveniens but is a concurring cause and the concurrence of another cause itself producing incapacity does not prevent the original cause from being affected (Harwood v. Wyken Colliery Co. [1930] 2 K.B. 158). If a germ enters a cut and poisons the injured person the germ and the cut are concurrent causes of the incapacity. If the incapacity is held to be the result of the doctor's negligence then we get the remarkable conclusion in Scott L.J.'s words (p.354) that

The learned author concludes his criticism with the following words:

"There is therefore no reason why when the appeal is heard their lordships should not reach a different and, we believe, a more satisfactory conclusion."

10. In fact no appeal was made to the House of Lords but the judgment of du Parcq L.J. was approved by the House of Lords in a later Workmen's Compensation case of Hogan v. Bentinck West Hartley Collieries (Owners) Ltd.⁽²⁾. This was a majority decision, two of the five learned Law Lords delivered dissenting judgments.

11. The Workmen's Compensation Act 1925 was repealed by the National Insurance (Industrial Injuries) Act 1946. Careful reading of the Rothwell case will show that the case was concerned with the narrow interpretation of section 9 of the Workmen's Compensation Act which provides:

"The compensation under this act where total or partial incapacity for work results from the injury shall be ..."

Section 1 of that Act also provides

"If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman his employer shall subject as hereinafter mentioned be liable to pay compensation in accordance with the provisions hereinafter contained."

12. I can find no reports of cases involving personal damages where the cause of injury occurred after the date of the repeal of the Workmen's Compensation Act where it has been held that the negligent treatment analogous to that alleged in Rothwell's case constitutes a novus actus interveniens. In fact the cases quoted in the Rothwell case also dealt only with workmen's compensation cases. This strengthens my opinion that the law as laid down in Rothwell's case is limited to the narrow interpretation of section 9 of the Workmen's Compensation Act. In his dissenting judgment Scott L.J. said:

"It seems to me that on the interpretation of the Act we must treat the obvious contingency of medical failure to affect a cure, whether of the curable or the incurable injury, as having been present to the mind of Parliament when it omitted to make any express provision in the legislation for the effects of medical treatment upon the incapacity of the workman or its corresponding compensation. To have enacted that the amount of compensation should be generally dependent upon the degree of skill or want of skill of the doctors would have been irrational or even ridiculous."

13. It is interesting to note that in the House of Lords' case of Steel v. Robert George & Co. Ltd.⁽³⁾ it was held that a workman who refused to undergo an operation for a fractured ankle was entitled to compensation even though his refusal was the cause of his incapacity because the arbitrator found that his refusal was not unreasonable. Thus comparing this case with Rothwell's case it would appear that before the repeal of the Workmen's Compensation Act if a man reasonably refused to undergo an operation for treatment of a fractured ankle he was entitled to compensation, whereas if he underwent an operation and because of the negligence of the surgeon his ankle was not properly treated he was not entitled to compensation.

14. Also in the case of Hogan v. Bentinck West Hartley Collieries (Owners) Ltd.⁽²⁾ Lord Normand in his judgment said:

"I start from the proposition which seems to me to be axiomatic that if a surgeon by lack of skill or failure in reasonable care causes additional injury or aggravate an existing injury and so renders himself liable in damages, the reasonable conclusion must be that his intervention is a new cause and that the additional injury or the aggravation of the existing injury should be attributed to it and not to the original accident. On the other hand an operation prudently advised and skilfully and carefully carried out should not be treated as a new cause whatever its consequences may be."

So again it would appear to me from this that if the surgeon was not negligent but carried out an operation with skill but nevertheless as a result of that operation the workman's condition was worsened this would not prevent his successful claim for compensation. Thus it would appear that the negligence must be such as to render the medical authorities liable in damages.

15. The case before me is not dependent on the interpretations of the provisions of the Workmen's Compensation Act, nor for that matter the Workmen's Compensation Ordinance which contains a similar provision. In this present case the injuries suffered by the plaintiff were caused by no fault of his own, but by the actions of the 2nd defendant, who was driving his vehicle on the wrong side of the road, and who collided headon with the plaintiff's vehicle. There has been no allegation that the plaintiff was in any way negligent in this case. In all such cases it is the duty of the plaintiff to minimise his damage. The plaintiff was immediately taken to a Government hospital where he submitted to treatment by qualified medical practitioners, what more could he do. Because of the failure of professional skill no remedy of his disability has been affected.

16. Both specialists called by the plaintiff and the defendants have agreed that on admission to hospital it would have been very difficult to have discovered the full extent of the injuries to the plaintiff's foot, and in fact such injuries could have been missed altogether. In fact the specialist called by the defendants did not notice the full extent of the injury to the plaintiff's foot when he examined the plaintiff at a later date. The specialist called by the plaintiff also agreed that once the plaintiff's foot and leg were encased in plaster the dislocation of the foot could not be discovered. The specialist called by the defendant also stated that the lack of treatment on the part of the hospital did not in any way aggravate the injury to the plaintiff's foot. By this I presume that he meant that the lack of treatment in no way changed the condition of the original injury. However the original injury has not been cured.

17. A report made by the consultant orthopaedic surgeon to the Queen Elizabeth Hospital dated 26th July 1973 was produced by the defendants (Ex. D2) in which the surgeon said, inter alia:

"His (the plaintiff's) right leg was enclosed in a plaster cast for almost six months. By the time the plaster cast was removed in the fracture follow-up clinic the fractures in the foot were well healed and there was no obvious deformity in the foot. In the subsequent visit to the follow-up clinic the patient had never raised any complaint to the foot. It is obvious enough that the resident doctor in the follow-up clinic would not request any radiological examination of the foot. If there was fracture involving the right foot as claimed, the present treatment (immobilization in the plaster cast) was adequate enough. The well moulded plaster cast could reduce any obvious deformity of the foot. This is the general opinion held by all the experienced orthopaedic surgeons. I do not think that any operation or manipulation could improve further the present condition. So I find no negligence in this case. We have given adequate treatment to the injury of the foot. There would be no further improvement if we had recognised any fractures in the foot on admission. The final disability would be the same."

This opinion is contrary to the opinions of the two orthopaedic surgeons who gave evidence before me. Under all the circumstances in this case I do not consider that the treatment or lack of treatment given by the hospital constitutes a novus actus interveniens and I shall now deal with the question of loss of earnings and other heads of general damages.

18. The plaintiff gave evidence that he started driving his minibus again towards the end of November, 1971, but because of the pain in his foot he could at first only drive for a period of about six to seven hours a day, and from then onwards he drove for about nine hours a day, but had to take more frequent rests than before. Prior to the accident the plaintiff stated that he used to drive ten hours a day for thirty days in a month. He said that due to his foot injury there has been a decrease in his net earnings. He agreed that in about June, 1972 he raised his fares from $1.50 to $2.00 a trip, but that in proportion to this increase his overheads had also increased. The plaintiff seemed rather confused as to the exact loss of his earnings. He appeared an honest witness, and from the figures he supplied and the evidence as to the hours he worked I feel that the figure of "about $20 a day" loss of earnings is a very conservative estimate. My difficulty, as in all cases of this type, is to decide for how long the plaintiff is going to continue to lose earnings, and if his injury is going to improve or deteriorate. Both specialists agreed that there is a possibility of osteoarthritis developing but there is no evidence of this at present. Under the head of loss of earnings, pain and suffering and loss of amenities I award the sum of 49,200.

19. Bearing in mind the agreed special damage of $18,309.75 together with interest of 4% from the date of the injury to the date of judgment I give judgment to the plaintiff in the total sum of $67,509.75 with interest at the rate of 4% from the 24th March, 1971 to the date of this judgment upon the sum of $18,309.75 together with costs. Under all the circumstances I do not make any award of interest in relation to the sum of $49,200.

Dated 5th December, 1974.

Representation:

Miss J. Leong, instructed by (Helen A. Lo & Co.) for the plaintiff.

Mr. J.D.M. Donnelly, instructed by (Deacons) for the 1st and 2nd defendants.

Mr. K.H. Woo, instructed by (H.A. Hoosenally & Co.) for the 3rd parties.

(1) [1944] 2 All E.R. 350

(2) [1949] 1 All E.R. 588

(3) [1942] A.C. 497