Wong Kam-to v. The Lowloon Motor Bus Co (1933) Ltd and Another

HCA001228/1978

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Garcia, J.

Date of Judgment: 25 April 1979

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JUDGMENT

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1. The plaintiff was a passenger on board a bus driven by the second defendant on 14th March 1977 travelling from Lei Muk Shu to Kowloon. At about 12.40 p.m., the bus stopped at a bus stop near the junction of Shanghai Street and Argyle Street in order to allow certain passengers to alight, amongst whom was the plaintiff. Whilst the plaintiff was in the process of alighting from the bus, the exit doors of the bus suddenly closed. The plaintiff's arm was there upon trapped by the doors and the bus started off. The bus had gone off for about 10 feet when the driver's attention was drawn to this and the exit doors were then reopened, as a result of which the plaintiff was suddenly released causing him to fall onto the ground. After having fallen, the plaintiff lay in such a position that his left foot came under the rear nearside wheel of the bus and he suffered serious injury to his foot. The defendants have rightly in my view conceded liability for this accident but dispute mainly the plaintiff's claim for loss of income of $27,240.00.

2. As a result of the injury sustained by the plaintiff, he was detained in the Kwong Wah Hospital for a period of two weeks from the date of the accident and the medical report which was compiled from the hospital records indicate that on admission to hospital he was found to have one lacerated wound 9" x 2" skin deep on the medial aspect of the left foot and another lacerated wound 1 1/2" x 1/2" skin deep on the sole of the left foot. An X-ray examination revealed a crack fracture of the cuboid bone of the left foot. The immediate treatment given to the plaintiff was suturing and repair. Following his admission into that hospital, he was discharged on 30th March 1977, with an appointment made for him to attend for follow-up treatment at the same hospital's out-patient's department on 7th April 1977 at 8 a.m.

3. According to the records kept by the said department, the plaintiff failed to turn up at the appointed time and date. It is apparent from the appointment card he was furnished with by the hospital, and from evidence adduced at the trial, that the palintiff was late for his appointment, for how long only the plaintiff's evidence is available - he says that he was late by an hour. He was not treated that day but was given another appointment for 12th April 1977 at 8 a.m. but again he did not turn up at the appointed time and his explanation is the same, that is, he was late by an hour. One would have expected that with the knowledge that if he arrived late, he would not be treated, he would have made some effort to attend at the out-patient's department earlier for treatment to keep the appointments made for him. Never-theless, he says that because he lived a distance away from the hospital, and being in crutches, he could not get to the department in time to keep his appointment. Another appointment was made for him for 24th May 1977 at 8 a.m. He kept this latter appointment but principally for the purpose of having his medical enquiry form filled up for submission to the Social Welfare Department. At the same time he was examined and his left foot was found to be "grossly infected with drug application". According to Dr. Robert Chen, the plaintiff's attending orthopaedic surgeon at the Kwong Wan Hospital, he had asked the plaintiff why the wound was in such a state and why he had not come for follow-up treatment and the reply he had received from the plaintiff was that he had applied drugs or medicines to the wound himself. There has been much criticism by Counsel for' the plaintiff of the way the latter had been treated by the out-patient's department of the hospital, that is, he had the door slammed in his face because he was late for his appointments and was not therefore treated. The plaintiff himself says that he had found it difficult and inconvenient to go to the hospital for follow-up treatment, but this complaint does not seem to have been addressed either to the Doctor or to the hospital authorities. I think even if this criticism were justified, the blame cannot fall entirely on one side, since appointments for that type of treatment are made to be kept and such appointments could have been kept by the plaintiff, as was demonstrated later, and he was not so inarticulate about his position as not to be able to make the request for a transfer to another clinic nearer his home if he were minded to do so. He did however make the request in July or August 1977.

4. The plaintiff however as much as implied that Dr. Chen was lying when he said that the plaintiff had told him that he had applied medicine to the wound himself, saying that that statement was not true, adding: "At that time I did not apply medicine myself, I only bought medicine and applied it when hospital said I was cured and need not return for treatment". Following this statement, he admitted that he had applied mercurochrome to the wound because he had felt pain after having used up all the medicines given him on 12th April 1977, for follow-up treatment, and it was not until 17th April 1977, when he was supposed to return to the hospital for further treatment. He had of course according to the hospital's records not turned up for treatment on 12th April 1977. He says that he had in the meantime obtained the advice of a neighbour, bought the mercurochrome and applied that to his wound. This he says had a cooling effect and he had felt better. In fact what he said in reply to a question in cross-examination was different from his evidence in examination-in-chief on this particular matter: "When I was in pain I bought medicine from a drugstore and I applied the medicine on my foot but still it is not very effective". No mention was made by him to Dr. Wedderburn of this self-treatment when the Doctor examined him on 24th February 1978 and he had denied that he had himself applied any drugs to the wound when taxed by Dr. P.J. Dickinson, who saw him on 12th February 1979.

5. On 24th May 1977, the plaintiff also had his foot X-rayed, for what purpose is unknown since this had already been done when he was admitted to hospital after the accident, but the fact that another X-ray was carried out on 24th May 1977, does not appear in the records of the out-patient's department. They however show that he was given on prescription some anti- biotics and recommended daily dressings for his wound. He was also given another appointment for 7th June 1977. He kept this latter appointment and he was given mother one for l4th June 1977. It appears from the said records that he did not turn up that day and it could be assumed that although he was at the hospital he was late and not given treatment as he was given another appointment for 23rd June 1977. He attended on that date and the notation in the records indicate that the wound was still infected, he was recommended daily dressings and what appears to be antibiotics. He was to attend on 30th June 1977, and there is an indication in the records that he did so, the notation therein being "wound healing". At the next appointment, 7th July 1977, which the plaintiff kept, the following statement appears in the said records: "Medical enquiry filled. Wound healed."

6. As early as 25th June 1977 Dr. Robert Chen made a report of the plaintiff's condition to the Medical Superintendent of the Kwong Wah Hospital of which the relevant parts of that report read: "The patient was discharged on 30th March 1977 and advised to follow up at the out-patient's department on 7th April 1977. But the patient did not attend on that day for follow-up. Patient came to out-patient's department on 24th May 1977 request for filled up medical enquiry form of Social Welfare Department and the wound found to be grossly infected with drug application by himself. Again the patient did not come for follow-up on 14th June 1977. No sick leave was given. There would be chronic infection of leg leading to osteomyelitis later if the patient does not treat properly." On 23rd September 1978, Dr. Chen wrote another report, the relevant parts of which are: "At that time, his wound was grossly infected and after a strict warning he was seen regularly till 30th June 1977. Again he was not to be seen until 23rd December 1977, when he again appeared with the medical enquiry form, which was furnished and after a lapse of four months, he was seen again on 13th April 1978 for the sole purpose of obtaining an exemption under medical ground to stay away from his work. He was advised to have his wounds dressed daily at any of the Government clinics nearby his house and antibiotics were prescribed on each visit. On 13th April 1978 his wounds was found to be healed and his ankle was normal. He was discharged from our clinic advising him that he can restore his normal duties." When Dr. Chen was asked about the discrepancy between his previous report and that of 23rd September 1978, he stated that he had seen the plaintiff only on 23rd June 1977 and had not seen him for 15 months before making the later report and that such report was based on records kept in the out-patient's department of the hospital, compiled partly by him and by other medical officers attending the plaintiff. He further states that the last time he saw the plaintiff that is on 13th April 1978 the wound had already healed well and that he had tested the plaintiff's left ankle for flexion and found there was a full range of movement.

7. When Dr. Chen examined the plaintiff on 13th April 1978 the latter had earlier been examined by Dr. Wedderburn on 24th February 1978 and in his report of even date, it was noted that the plaintiff was still wearing a dressing on the foot and the "wound has never completely healed." Part of that report reads as follows: "On examination a scar runs down for 3" on the medial side of the left leg to the ankle where it crosses to form a brow. 3" scar on the front of the ankle extending to mid-foot and the scar then branches with one branch running to within 1" of the great toe and the second to within 1" of the fifth toe. On the front of the foot the scar has formed two mild contractures and in the centre of the scar there is a small area of 1/2" x 1/4" where there is a gap in the skin cover but only the superficial layer of the skin is missing and I consider this area appears as though it would completely heal in one or two weeks but he says that it has been in this condition now for the last two to three months and appears to resist a final state of healing. I think that the skin will however in the near future completely regenerate and the wound does not have the appearance of a sinus, i.e. a track to the surface from a deep seated infection. If he had con-tinued to attend the Kwong Wah Hospital he would have had clean dressings and been given antibiotics and, under these conditions, the wound should have healed by June or July 1977, and if healing was then imperfect it would have been treated by the application of a skin graft and the graft would have been a small graft and a relatively simple procedure."

8. It seems that by the time Dr. Chen saw the plaintiff on 13th April 1978 the plaintiff's wound had already healed well, in accordance with the prognosis made by Dr. Wedderburn, yet in a later report of a further examination he made of the plaintiff's foot, he states: "He did not report back to the Kwong Wah Hospital but he did attend a clinic at Tsuen Wan receiving dressings and attention for the wound on his foot which healed up on late August, 1978, and he returned to work about the 1st of September. I do not consider that he did neglect his condition and, secondly, he could not have returned to full work until the wound was healed." Why not? The prognosis made by Dr. Wedderburn was that the wound even in that state would have healed in one or two weeks from 24th February 1978, which would be about 10th March 1978, and confirmation of this prognosis was made by Dr. Chen when he examined the plaintiff on 13th April 1978. Yet Dr. Wedderburn would say without offering any explanation other than that "some people's wounds take longer than others to heal" that the plaintiff had not neglected his condition. I cannot accept this statement in the light of what the plaintiff himself says in evidence, i.e., that after he was told by the Lady Trench Polyclinic staff in Tsuen Wan that he was cured and was no longer required to attend there for treatment, he consulted two to three bone setters from whom he obtained prescriptions for some herbal medicine which he bought, boiled, and applied them in a hot state to his foot himself without the supervision of a herbalist. Dr. Dickinson doubts the efficacy of this type of herbal remedy for sprains, fractures and wounds, and in his opinion and experience, they do more harm than good. The method which the plaintiff described for the application of such remedies to his foot would according to Dr. Dickinson cause blisters which might form the foci of infection. In furtherance of self-medication, the plaintiff also says that he consulted some dispensaries and bought medicines in those establishments on eight to ten occasions. These medicines do not appear, from the context of his evidence on this matter, to be on the recommendation of herbalists he had consulted and although he has said that he applied mercurochrome to his wound prior to his treatment at the Lady Trench Polyclinic, it appears that he had made further applications of medicine to the wound himself after that period.

9. I have set out, I think, in some chronological order the treatment, whether from qualified or unqualified persons, which the plaintiff had been subjected to, and the picture emerges from his evidence, and that of the Doctors who made the reports on his condition from time to time that there were indications that his wound should have healed well enough for him to return to his normal work, at least at the very latest by August 1977, if no outside intervention had been made to the normal healing process. It has been submitted with emphasis that the defendants must take the plaintiff talum qualem but the question here is whether the plaintiff's prolonged incapacity was due to the unqualified treatment he received or was the result of the accident. The following propositions stated by Du Parcq, L.J. in Rothwell v. Caverswall Stone Co., (1944) 2 All E.R. 350, would in my view apply here: "..... the following propositions may be formulated upon the authorities as they stand: first, an existing incapacity "results from" the original injury if it follows, and is caused by, that injury, and may properly be held so to result even if some supervening cause has aggravated the effects of the original injury and prolonged the period of incapacity. If, however, the existing incapacity ought fairly to be attributed to a new cause which has intervened and ought no longer to be attributed to the original injury, it may properly be held to result from the new cause and not from the original injury, even though, but for the original injury, there would have been no incapacity. Secondly, negligent or inefficient treatment by a doctor or other person may amount to a new cause and the circumstances may justify a finding of fact that the existing incapacity results from the new cause, and does not result from the original injury." I think it is quite clear from the evidence of Dr. Dickinson, and I accept it, that the prolongation of the condition which the plaintiff himself contributed to was due to outside intervention and was not as a result of an "extraordinary" resistance to treatment given by the Kwong Wah Hospital or the Lady Trench Polyclinic. He should, therefore, but for such outside intervention have resumed his business by September 1977, by the very latest, that is approxi-mately six months after the accident.

10. The plaintiff carries on business as a distributor of frozen sea food to retailers and restaurants. He has been the sole proprietor of the business, which is carried on under the name of Lien Kee, since 1973. In 1976, he applied for personal assessment of his income under section 41 of the Inland Revenue Ordinance, and in support of his application, he submitted the full accounts of his business prepared by a friend of his, who is an accountant. The accounts are for the year 1st April 1975 to 31st March 1976. The profit and loss statement so submitted shows a gross profit for the year of $38,510.50 but after deducting administrative expenses for the same period, the net profit was computed at $11,413.50. In the table of administrative expenses which was annexed to the accounts, there is an item for salaries amounting to $15,600.00 for that year. The plaintiff states in evidence that of this latter amount, part was for hiring casual labour and part was for the payment of his own salary. He had forgotten exactly how much it was but estimates it as being between $600 and $800 per month. If he had paid himself a fixed salary all the years before the accident as he says, then I find it surprising that he was unable to remember the amount he received from the firm. He says that the figures quoted by him ought to be added to his total net profit as declared for the purposes of his claim for damages against the defendants. If in fact he had the benefit of that salary, then the assessable profits which he had declared to the Commissioner of Inland Revenue as $11,413.50 for the above-mentioned year of assessment are untrue, and the latter figure should be declared at between $18,613.50 and $21.013.50 It has been submitted on his behalf that his present claim is not estopped by that declaration and that his total income for the present purposes should include the salaries which he paid himself out of the gross profit. I find that difficult to accept in view of what is stated in the balance sheet for the same period and which account forms part of the application he submitted to the Commissioner. While there is no item "Proprietor's Drawings" shown in the accounts there is a "Proprietor's current a/c" shown in the balance sheet with the amount of $7,800 debited against that account. Against this item are two relevant items on the liabilities side of the balance sheet: "Profit and Loss Account $14,678.40" and "Profit for this year $11,413.50" which indicate in my view that of the profits earned by the plaintiff in his business, only $7,800 had been drawn out by him for that year, and this view finds support from the evidence of Mr. Ng Kwok Ching, a Chartered Accountant called by the plaintiff himself, when he was asked about the inclusion of a sole proprietor's salary in the item "Salary" in a profit and loss account. His opinion is that the assessable profits of the plaintiff for the year 1975/76 would only be that of $11.413.50 in the profit and loss account and that the item "Salary" in the Table of Administrative Expenses would only be referrable to staff salaries. The drawings made by the plaintiff as shown in the item "Proprietor's current a/c ... $7,800" would in my opinion account for the evidence given by the plaintiff that he was paid a salary of between $600 and $800 per month as $7,800 a year works out at $650 per month. I find therefore that the plaintiff's total income for the year 1975/76 to be $11.413.50 and no more, as indicated in the accounts presented by him to the Commissioner of Inland Revenue.

11. On 19th March 1979 the firm of Tony Kwok Tung Ng & Co., Chartered Accountants, of whom Mr. Ng Kwok Ching is a member, prepared for the plaintiff from various records supplied by the latter, three statements showing the receipts and disbursements of Lien Kee for three periods - one period from 1st April 1976 to l4th March 1977, another from 15th March 1977 to 31st March 1978 and the last from 1st April 1978 to 24th October 1978. The first statement is compiled from receipts based on copies of sales invoices, and disbursements based on information recorded on cheque stubs, whilst the third statement is compiled from receipts based on copies of sales invoices and disbursements based on the higher of the two figures set out in the first and second statements. The conclusion which the accountants arrived at after compiling the said statements is this "Since no proper books of accounts were kept by Mr. Wong, it was rather difficult to ascertain how much of net receipts for the aforesaid periods were. However, the pre-numbered sales invoices were kept in numerical sequence and seemed to be quite well kept. It appeared that the total sales figures derived for this respect should give quite a realistic indication of the sales made by Mr. Wong during the aforesaid periods. Therefore, irrespective of what the actual expenses for the periods were, it appears that in terms of sales volume, Mr. Wong did not do as well after the accident." There is such a wide discrepancy between the net receipt figures for the first period in the 1st and 2nd statements (Appendix A and Appendix B) that the defendants submit the statements ought to be rejected outright. The net receipts shown for the first statement (Appendix A) for the first period, i.e. 1st April 1976 to 14th March 1977, amount to $146,668.48, whilst Appendix B shows the corresponding item as $34,675.58. There is no doubt that the information and documents supplied to the accountants were meagre and incomplete for satisfactory accounts to be drawn up, but they nevertheless show a trend as indicated by the accountants. The comments made by the accountants in their report are in my view fair and which are consistent with the evidence given by the plaintiff that he had lost, irretrievably, some of his customers after the accident with the result that his business, which depends to a large extent on his personally delivering goods both by bicycle and public transport, has suffered much by way of loss of profits. Other factors have of course affected his profits, such as the rise in the wholesale prices of the products he deals in, and there is also evidence from the statements prepared by the accountants that the item "rent" showed an increase in the third period. The trend which can be ascertained from the statements for the third period shows that although there has been a reduction in the sales made by the firm the net receipts or profits were almost up to the 1975/76 levels. All these figures have of course to be qualified by the fact that they are derived from incomplete records and are therefore only approximations and possibly totally incorrect. In cases such as these where no proper accounts or records are kept, it is difficult to arrive at even an approximate figure to base an award of compensation for loss of profit, and the best in my view that can be done is to take an average of the two net receipt figures for the years 1975/76 and 1976/77 as a base for calculating the profit the plaintiff had lost as a result of the accident. I have not taken into account the figure "$14,678.40" for "Profit and Loss Account" in the balance sheet for the year 1st April 1975 to 31st March 1976, as the profit for the previous year, that is, 1974/75, since not sufficient information has been furnished for that amount. The result of taking the average as stated above is that the plaintiff earned approximately $1,920 per month for the two years just before he met with his accident.

12. Counsel for both parties have sufficiently indicated the general damages which were awarded for pain and suffering in cases of a similar nature and taking into account the fall in the value of money since the cases cited were decided, I award the sum of $10,000 for pain and suffering. I have already indicated that the longest period which the plaintiff should have been out of action was six months and I there fore assess the loss of earnings as $11,520 or 6 x $1,920. The total sum awarded under general damages is therefore $21,520.

13. As far as special damages are concerned, there is no evidence to indicate how much in the aggregate was spent for Chinese medicine, nor is there any indication as to what that medicine was. I therefore make no award in respect of this item. There is included in the claim for Chinese medicine a claim for travelling expenses. Again there is no evidence as to what amount has been spent in respect of this item but there is no doubt that the plaintiff did spend some money travelling to and from the hospital for follow-up treatment, on the occasions that he did keep his appointments, and on going to the Lady Trench Polyclinic for further treatment. I would assess these expenses at $100 and award this amount accordingly.

14. The total award is therefore $21,620, with interest on the amount of $11,520 at the rate of 4% per annum from the date of the accident until today, and costs to be taxed.