Wong Tak v. Lau Yue Hung

HCA007526/1981

BETWEEN

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Coram: Hon. Liu J.

Date of Hearing: 7, 8, 9, 12, 13 & 14 December 1983

Date of Delivery of Judgment: 14 December 1983

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JUDGMENT

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1. This is a claim for damages in one of the usual run-of-the-mill running down cases. The plaintiff's claim against the defendant arose as a result of a traffic accident on the 8th November 1978, quite early in the morning at 7:55. Whilst crossing the Cheung Sha Wan Road along a stud crossing just next to its junction with Shek Kip Mei Street, the plaintiff was knocked down by a private car, registration No. BV3639 driven by its owner, the defendant.

2. As a result of the accident, the plaintiff was taken by ambulance to Kwong Wah Hospital in which he was x-rayed and treated. The examination unfolded no more than a haematoma in the sense of collection of blood outside the skill on the left post parietal region of his scalp. There was no puncture of the skin, hence no blood, and the plaintiff was found to have sustained an abrasion on his left shoulder. The plaintiff was hit at his left leg, but there was no fracture; nor was any abnormality detected in his brain and chest. After confinement for two days, at the request of the plaintiff, the doctor discharged him.

3. After the plaintiff's discharge from Kwong Wah Hospital, he returned with an alleged swollen head the next day. He was further x-rayed and told to attend the Outpatient Clinis as scheduled. He went to China but returned to Hong long within the ten days' sick leave given him for further attendance at the Kwong Wah Hospital Outpatient Clinic. The plaintiff received treatments in China. He consulted hearbalists. The plaintiff has been examined by no less than three doctors, one of whom was a psychiatrist, for the purposes of this action. I will return to the evidence of these doctors later.

4. What is of primary importance is the question of liability, as in all cases of personal injuries resulting from traffic accidents. I prefer to take the evidence of the defendant first He told the court that just before the function of Shek Kip Pet Street and the Cheung Sha Wan Road, he was travelling in his own private car in the lane nearest to the pavement, which is described as the slow lane. As much as he could remember, so he testified, he was virtually travelling close to but parallel with a tourist coach, except slightly behind. The two vehicles were about 2 feet apart. He was then travelling at about 20 odd miles an our in a clear day with road surface dry. As he was approaching the junction with Shek Kip Met Street, realizing possible exit therefrom of other vehicles, he slowed down his private car to about 10 odd miles per hour, having changed his gear from third to second. His car had four gear shifts. This position was maintained throughout up to the accident. After passing the junction with She Kip Mei Street, he was about one front wheel behind the tourist coach, the distance being estimated to be about 4½ feet. At the junction with Shek Kip Mei Street, the defendant noticed that a group of 2/3 pedestrians had reached and got onto the eastern pavement.

5. He told the court that a man subsequently mown to be the plaintiff emerged from in front of the tourist coach, quite unexpectedly, running across the path of his private car at a distance of about 3/4 feet. He immediately applied emergency braking, but his manoeuvre failed to avert the traffic accident in which the left side of the front of his vehicle collided with the plaintiff. At the point of impact, the plaintiff was nearer to the kerb on the eastern side. The defendant managed to stop his vehicle quite close to the plaintiff. Thereupon he alighted and upon seeing the plaintiff with a swollen head, he attempted to and did arrange the head of the plaintiff in such a position that he regarded as more comfortable before he went off and into a restaurant to summon the police by dailing 999.

6. On his return to the scene of the accident, so he told the court, the plaintiff was eventually found to be sitting outside a shop, apparently having been taken there by some passers by. The defendant retrieved the scattered personal belongings of the plaintiff somewhere next to or near the pavement. The defendant, in a mild way, admonished the plaintiff for having crossed the road in such a haphazard manner. In response, the plaintiff apologized to the defendant by saying "sorry".

7. I have bean informed by counsel that 10 miles per hour is 14.7 feet per second which can be verified at page 112 of Bingham's Motor Claims Cases, the 8th edition.

8. Next I turn to the evidence of the plaintiff. He told the court that when he was on the western pavement of Cheung Sha Wan Road, he saw a route 112 bus pulling into a stop in a bay diagonally opposite. Having made certain that there was no on-coming traffic, he proceeded to follow a crowd crossing Cheung Sha Wan Road. He was the last. When he was in the middle of the thoroughfare, he saw a bus on his left travelling from north to south in the position marked on the sketch "P1" with a square. Judging the approaching bus as being still at a safe distance, he continued to cross the remaining half of the Cheung Sha Wan Road. Whilst he reached the position of "X" marked on "P1", about half way across the other half of the road, the bus was approximately in the position indicated by a triangle on the sketch. He told the court that. he was not aware what he was hit by after having crossed the path of the bus, and he lost consciousness. At one stage of his cross examination, he even conceded that he was concentrating crossing the 3rd slow lane and did not notice the traffic. On being shown his statements, he agreed that after he had passed the on-coming bus and emerged from it, he saw the defendant's private car for the first time. lie claimed Chat there was a sufficient space for him to halt between the two cars. He denied he had gastric pain which, he claimed, was invented in the hope of persuading the United Christian Hospital to take him back for treatment. That is not quite as important when compared with his own description of the situation. The plaintiff was unable to give the approximate distance of the private car, but immediately following his assertion that there was a gap to pause, he claimed to be left with no alternative except to cross the 3rd slow lane for the kerb. Initially, the plaintiff agreed with his own recorded statements giving an estimate of the private car as being 10 feet away, but subsequently he retracted with a qualification that he did not in fact know the exact distance. He testified that he was knocked doom at the position marked by a circle on the sketch.

9. He told the court that he was given assistance by the driver, and he said "sorry" to him meaning in fact, "thank you", but then on re-examination, he endeavoured to substitute such a concession by the statement that he, in fact, no longer remembered what he said to the driver precisely.

10. In either version, the defendant was obviously confronted with an emergency. The bus and the private car driven by the defendant were both travelling already at such a reduced speed as would reasonably be expected of any vehicle approaching a stud crossing. The plaintiff did not see the private car until the very last moment. He should have waited for the bus to pass. If there had, been a sufficient gap to pause after the bus, he should have done so, but the defendant maintained that his private car was only 2 feet from the side of the bus. As for the defendant, he was entitled, in the circumstances, to assume that all the pedestrians had walked onto tile eastern pavement as the crowd had all left the stud crossing when he was some distance away. He was already travelling at 10 odd miles per hour, and there was nothing to warrant any further reduction in speed. He was also entitled to assume that no pedestrian would dash across and emerge from the front of the bus travelling next to him. He managed to bring his car to a stand still close to the plaintiff. Reasonable duty of care as demanded by the circumstances was, in my view, displayed by the defendant. The defendant's speed was such that if the bus had stopped for a pedestrian, he would have been able to stop as well. more could not be expected of him.

11. It is common ground that the defendant did not sound and give any audible signal. Naturally, one should sound the horn only when necessary. The presence of the bus approaching the stud crossing was good enough warning to all pedestrian to take heed of the traffic. The sounding of the horn was, in my view, uncalled for. Use of the horn at the last moment would have given rise to possible adverse effects and would only have startled the plaintiff likely to cause him to react in panic either running back into the path of the bus or disrupt the plaintiff's continued forward dash for the opposite pavement bringing about a head-on collision.

12. The defendant was travelling at 10 odd miles per hour. Even at just 10 miles per hour, it would meat about 14.7 feet per second. Taking into consideration the speed not being just 10 miles per hour but 10 odd miles per hour, when the plaintiff emerged from the front of the bus the defendant was left with about quarter of a second. Even ignoring thinking distance and stopping distance, time was grossly insufficient for the defendant to take any other precaution than, as he did, by slamming on his brazes. The subsequent stationary position of the defendant's vehicle as testifies to by the defendant in court together with the absence of any fracture on the left sec of the plaintiff corroborated the evidence of the defendant that he was travelling at a low speed and that he did manage to stop the car virtually right in front of the plaintiff causing him to fall with injuries, described by one doctor as no more serious than a sportsman's week-end injury.

13. There is, in fact, little difference between. the evidence of the plaintiff and the defendant, but insofar as they differ, I prefer the version of the defendant's. It really matters not if the plaintiff had run or just walked in hurried paces across the path of the private car. The plaintiff himself created the emergency. I also accept the defendant's evidence that the plaintiff apologised to him. In all the circumstances, I have come to the firm conclusion that the plaintiff was wholly to blame for the accident and responsible for his injuries flowing from that traffic mishap.

14. I am obligated to evaluate the evidence of the doctors. Dr. Wedderburn opined that there was a minimal chancre in the spinal vertebrae of the plaintiff, spreading from C4 to C7 but most marked over C4 and C5. This, the doctor described as cervical spondylosis.Dr. Wedderburn explained that there could be two causes leading to such minimal change: One of which was age, with a man of the plaintiff's s age at 45. The other was accident injury. But the doctor was not prepared to say more than merely that the minimal change was probably due to an accident. Dr. Cheung supported the two possible causes given by Dr. Wedderburn though he was unable to pin-point the actual cause. Dr. Cheung diagonsed that such spondylosis had led to sensory deficit which could improve slightly but most of which would remain unchanged for many years to come. In addition to these possible causes, Dr. Green advanced the probabilities that the accident might have exploited a previously existing condition of spinal spondylosis or that this was part of the post-concussional syndromes, if present. Dr. Green seemed to favour the probability of an existing condition accelerated by the accident. The sensory blunting suggested strongly, he said, that it resulted from traffic accident but perhaps in combination with a previously existing spondylosis of the cervical spine. In view of the wide area of consensus amongst the doctors, if I had to assess damages, I would find that the accident brought about almost all the sensory loss, particularly in the absence of any evidence of any previous experience of like sensory deficit.

15. However, Dr. Wedderburn told the court that the detection of this sensory loss is through very fine manoeuvres not ordinarily faced in daily life, by the stroking of the skin with cotton wool or the pricking of the skin by a pin. An ordinary human being would normally go through his daily routine without this kind of experience. Hence, such sensory loss should cause little discomfort or inconvenience to the plaintiff. Dr. Cheung told the court that the blunting of sensation or sensory loss would not affect the working capacity of the plaintiff unless it was also found in the joints. Dr. Cheung conducted no examination on the plaintiff for sensory loss in his joints. Dr. Green did carry out these tests, and he told the court that there was no loss of sensation in the joints and that the movements of the joints were normal. Therefore, the sensory loss would cause the plaintiff no pecuniary loss except for very slight irritation rarely felt.

16. I passed then onto a more serious subject matter viz. complaints without any apparent organic basis. The plaintiff complained to Dr. Wedderburn of pain and discomfort in his right ear and giddiness. Dr. Wedderburn discarded his complaint of dizziness all day and everyday. The plaintiff also complained to Dr. Wedderburn that he had pain over his left shoulder spreading to the ring fingers in both hands, worse on the left. This last complaint has some organic origin, after all he suffered an abrasion ever his left shoulder, but the two other complaints had no organic basis at all. The plaintiff admitted not having also complained to Dr. Wedderburn of poor memory, photophobia and weakness all over his body. The plaintiff's explanation which I do not accept was that he thought the doctor must have beer, supplied with reports from Kwong Wah Hospital, and he himself handed over X-rays from a hospital in Chung Shan. The plaintiff conceded that his medical history was, as it were, taken afresh by the doctor, and there was no reason for the plaintiff neglecting to mention these other alleged symptoms. Dr. Cheung was given the similar complaints brought to Dr. Wedderburn's notice. In addition, the plaintiff revealed further discomfort in his right ear and defect in his right eye. There was also no mention of photophobia, poor memory or weakness of the entire body. To Dr. Green, an extensive list of complaints was advanced, which appears at page 75 of the Agreed Bundle, 1 to 8: (1) Weakness of his entire body. (2) Extra weakness of his left arm and leg. (3) Right-side tinnitus i.e. ringing in the ear which had a worsening effect whilst travelling in a car. (4) Pain in his right ear which would also become worse when travelling in a car or a lift. (5)Pain over the left shoulder, spreading to his fingers. (6) Occasional giddiness unrelated to any specific stimulus. (7) Poor memory. Lastly, (8) Photophobia. Dr. Wedderburn made reference to a statement of the plaintiff dated the 21st October 1979 given to him after the report, which he said "contains a host of symptoms". The court was not assisted on the precise contents of that statement. Dr. Wedderburn and Dr. Green were of the opinion, with Dr. Cheung not dissenting, that the introduction of additional symptoms of complaint could be a sign of malingering. Dr. Cheung explained that having had the advantage of all the medical information, particularly the report from. Dr. Green, he formed the opinion that marry of the plaintiff's abnormal reactions seemed to be subconscious but not contrived in a deliberate effort to exaggerate. He explained in particular that whilst conducting the sensory test, precaution was taken to ensure that the examiner would get a genuine result. He spoke of no similar precaution in respect to the examination of the plaintiff's other complaints. He was convinced in his conclusion, but he seemed to offer some qualification: He said "realizing that the field of post -concussional syndrome including compensation neurosis or sometimes described as psychosis" was Dr. Green's as a psychiatrist, that he was not making any psychiatric diagonsis. He was impressed by the fact chat it was unusual for any man to put himself through so many uncomfortable tests and hospital examinations merely for the sake of hoping to obtain a better compensation. Put it was pointed out by Dr. Green that the plaintiff might have been, without any warning, put through the air-study in May 1979, a pneumoencephalogram, with air pumped through his spine to his brain for a scan of its functions and possible organic deficit. The plaintiff himself agreed that he was not told in advance the nature of his examination before the air study was conducted; nor was he briefed on the experience lie was to endure. Dr. Green reminded us that malingerers had been known to tolerate more.

17. Dr. Cheung suggested that the plaintiff's residual disability was 15% which, he intimated, was given with most reluctance at the request of legal advisers. He acknowledged the tendency on the part of the plaintiff to exaggerate. He agreed that the plaintiff reacted excessively to mild discomfort resulting, nevertheless, in his inability to work as well as before. He confirmed these complaints of the plaintiff as being without organic basis. Although he gave the floor to Dr. Green in abnormal brain functions and non-organic deseases, he gallantly defended his conclusion that these of the plaintiff's complaints arising from a genuine post-concussional syndrome were genuine, though "very mild".

18. Dr. Green, a psychiatrist and the only psychiatrist called in this case, summarised for this court his examinations of the plaintiff, in particular what he described as furtive observations of the plaintiff both before his examination and in the course of the plaintiff's departure. Dr. Cheung made reference to the hearsay that he was told by psychiatrist friends that the difference between post-concussional syndrome and a genuine claim could be difficult to detect in some cases. These psychiatrist friends were not specified or called. Dr. Wedderburn told us that there was a fine or thin dividing line between genuine cases of post-traumatric neurosis and cases of malingering or exaggeration. Dr. Wedderburn made it plain that he was not qualified to make any firm diagnosis on these aspects. Dr. Green, the only psychiatrist called in this case, did not agree. Hearing in mind that these medical gentlemen sought to highlight matters in their individual field, there may not be any real disagreement among the experts. Dr. Green opined that there was a wealth of difference between genuinely ill patient and a person consistently seeking to deceive his medical examiners. One must not lose sight of the fact that Dr. Green's observation was or must have been directed primarily at the plaintiff. At the trial, the plaintiff lay claim to be aiso suffering from insomnia which was not disclosed to any of the doctors. None of the doctors seemed to attach much significance to this belated complaint. At least, as far as the plaintiff is concerned, if not generally, I have no hesitation to accept the opinion of Dr . Green, having myself had the opportunity of observing the demeanour of the plaintiff in the course of his testimony. I find that the other complaints without any organic basis are not genuine. They were feigned symptoms given to court in the deliberate exaggeration of the plaintiff. Taking this case as a whole, I share the feelings of Dr. Green that the plaintiff consistently sought to deceive not only his medical examiners but all concerned in his claim on these complaints.

19. The doctors were not too far apart in allowing the rest or sick leave period to the plaintiff. Dr. Wedderburn would have given him two weeks if the plaintiff had been confined to a mere haematoma as described and laceration over his left shoulder. Dr. Wedderburn recognized the need for a more lengthy period in case of nerve damage. Dr. Cheung also accepted two weeks if the plaintiff had been confined to mere haematoma and laceration. Dr. Cheung maintained that the plaintiff should be given six months as lie did, in fact, allow him with all the attending consequences of blunting of sensation arising from nerve damage. Dr. Green gave him eight weeks to two months.

20. On a realistic approach to the medical evidence, I would be prepared to allow two months for the plaintiff's loss of earning if he had established liability.

21. As for general damages, counsel appeared to be ad idem. Both invited me to embrace the figure of $10,000 for compensating pain and suffering and sensory loss. I would be prepared to adopt the figure of $10,000. Loss of earning for two months is to be calculated as follows: I am reminded by both counsel that the plaintiff earned $2,000 per month. But he received, in fact, 15 months' pay, two extra months by way of double-pay and an additional month by way of bonus. 15 months at $2,000 would yield a sum of $30,000 if my calculation is correct. $30,000 divided by 12 would give $2,500 per month. Two months at $2,500 per month would give a simple sum of $5,000. Extra food has not been an item seriously pressed for. I do not find any necessity for the plaintiff having extra food, particularly in view of my finding against him on other aspects. As for medical expenses and travelling expenses including those in China, evidence has been, to say the least, vague. But during his stay in China, it was justified for the plaintiff to consult doctors both on the herbalist side and the western medicine side, if only for a confirmation. To do the best I could, confining to all expenses in respect to blunting of sensation, I would allow him an overall sum of $5,000. The rest of the alleged medical expenses have not been based on satisfactory evidence and in any case, they were attributable to medical attention and expenses for the other feigned complaints. On those findings, I would award in favour of the plaintiff a total of $20,000, if I were to find in his favour against the defendant in this action. Interest on such a small sum would have to be at only 6% per annum from the date of injury to the date of judgment, and general damages by way of non-economic loss should attract only 2% per annum from the service of the writ to judgment. But in the circumstances, for all the reasons I have given, the claim against the defendant by the plaintiff must be dismissed with costs, and the formal order I need make is as follows:

Representation:

Mr. John Lee instructed by Messrs. Liang, Ng & Lie assigned my D.L.A. for the Plaintiff.

Mr. Bharwaney instructed by Messrs. H.A. Hoosenally for the Defendant.