Mak Kwong Woo v. Tang Tak Shing and Others

HCA001777/1981

BETWEEN

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Coram: Hon. Mantell J.

Dates of Hearing: 15 and 17 May 1984

Date of Delivery of Judgment: 17 May 1984

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JUDGMENT

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1. On 22nd October 1978, the plaintiff was riding pillion to the 2nd defendant along Castle Peak Road when the motor-cycle on which they both were came into collision with a goods van driven by the 1st defendant. In the collision, the plaintiff was knocked off the back of the motor-bike and lost consciousness for a time. He was taken to Princess Margaret Hospital in Lai Chi Kok. On arrival, he was found to have recovered consciousness and to be fully orientated. The visible injuries were simply a cut lip and a grazed cheek. He was kept in overnight and discharged the following day.

2. It is conceded that he was in no way responsible for his injury save in so far as he was not wearing a protective helmet at the time of the accident and it has been agreed that there should be a discount of 10% on any damages which he might recover. He hopes to recover those damages from the 1st and 2nd defendants who between them, are to blame for this accident on any view and the proportion in which they are to blame has been agreed.

3. Now, to be knocked off the back of a motor-cycle might be considered by most people to be a misfortune. But it appears to me from all the evidence I have heard that this plaintiff saw it as a golden opportunity. The evidence is not very clear as to the work which he did before the accident or the work he did from time to time. There is some evidence of his working for a period of five months, some years previously, as a casual labourer on a daily rate basis and evidence as to his being a driver of a piece of excavating machinery in a quarry at some period. Indirectly it appears from what he said to one of the doctors who saw him, Dr. Geraldine Mao now dead, that he had been a mechanic at one time and, if he is to be believed, even employed up to ten people.

4. Although he was discharged from hospital the day after the accident, he did not either return to work or find work until 12th February the following year, something over three months later. He now complains that as a result of his injury, he is no longer the man he used to be, and if he is to be taken at his word, then his injuries are very serious indeed and would attract very substantial damages. Unfortunately, I have found that he is not a man who can be taken at his word. He has, as I find, lied to each and every doctor who examined him and he has lied to me. In those circumstances, of course, he risks forfeiting the sympathy of the court but I must be careful to put aside considerations of that sort and see how far it is possible, notwithstanding the fact that he has told a number of deliberate untruths, to what extent he should be compensated for an injury arising out of an accident which, on any view, was not his fault.

5. Of course, anyone who is involved in a traffic accident particularly in an exposed position such as a pillion passenger on a motor-cycle is likely to suffer not only physical injury but also a great deal of shock. It is a very frightening experience. I recognise that it must take a little time to recover from all the effects of such an accident. And putting the most dismal complexion on this case from the point of view of the plaintiff, some damages must flow from the experience. Putting a more rosy complexion upon it, those damages might be moderate to substantial. Dr. Singer who gave evidence before me and whose two reports I have considered with care takes the view that the symptoms of which this plaintiff now complains may be genuine in part. He goes further than that. I think he says that they are genuine in part. What are those symptoms? Principally, he complains of loss of memory to such a degree that it is impossible to lead a normal life. He would not have been able to get to court for this hearing if someone had not brought him. He could not possibly remember his address. He does not know how old he is; he does not know what year it is. He could not tell you whether it is winter, summer, spring or autumn. He has forgotten how many legs there are on a dog or whether a dog has a tail or not. In fact, I think, as to dogs, he cannot remember whether he has ever seen one. He does know what a cat is but he thinks a cat has got six legs. That is the extent to which he says his memory and, perhaps, other functions of the brain had been affected by this accident. Dr. Singer is not so foolish as to believe any of that. It is nonsense. But he does say that here there was an injury of however limited degree which although it now bears no neurological signs and probably never did, and damage cannot be detected by any of the skills of the two neuro-surgeons who have examined him, nevertheless, it is possible and he accepted that in this case it was so that some brain injury did occur as a result of this accident as a result of which the plaintiff now suffers from the condition known as dementia. And I accept that Dr. Singer has taken the greatest possible care not only in examining the plaintiff but in preparing his reports and in giving his evidence. Of course, his task is made no easier by the fact that the plaintiff persists in seeking to exaggerate what he, Dr. Singer, finds to be some genuine symptoms which are general intellectual impairment, loss of memory, lack of attention or concentration, irritability and depression. All these, he says, are signs that there is a dementia present and this is a continuing condition.

6. Dr. Edmund Cheung, the distinguished neuro-surgeon now in private practice and called on behalf of the plaintiff, found no discernible signs of brain damage but did not discount the possibility. He used the most guarded language. He said in his report of December 1980:

"It is reasonable to accept that Mr. Mak has some degree of brain damage and mental impairment as a result of the head injury. The degree of impairment may be exaggerated. The medical examination result is considered inconclusive. Other supporting evidence of his alleged impaired mental capability will be necessary to establish his claim."

And in his later report, he said by way of conclusion:

"              Mr. Mak's poor performance and his inability to work is most likely due to a combination of minor brain damage and psychological upset believing that. he is unable to work.

I admit that the impression is based on summary of many subjective observations. I would like to see what other independent evidences are available to support Mr. Mak's poor memory and his inability to work.

I regret that my present assessment cannot be more conclusive, but I shall be pleased to answer any question that you may raise on the issue."

Well, Dr. Cheung told me that he came to that guarded conclusion or those guarded conclusions on the assumption that at the time of the accident, the plaintiff had been wearing some kind of protective helmet and, therefore, he discounted to some extent that which ought not to have been discounted namely the fact that there were no signs of superficial injury other than those which I have mentioned, that is the graze to the cheek and the cut to the lip. And although I do not remember his precise words, he gave me the impression in giving evidence that that piece of information was something that gave him cause to reflect upon his previous conclusions without, I may say, resiling from them altogether.

7. I have mentioned the report of Dr. Mao and it is right that I should refer to it in slightly more detail. Dr. Mao was a psychologist and I have heard from other witnesses in the case, a distinguished one in her time. She saw the plaintiff on three occasions in February 1981. She subjected him to a number of tests. She found that his intelligence in those tests was generally in the average range of intellectual ability. He was rather better at the test that had nothing to do with words than he was where words were involved. He was low average on the verbal scale, she reported. His general knowledge was poor but she thought that was a reflection of his educational background rather than anything else. He was average on a test of ability to notice details, particularly where looking and understanding were involved rather than processes of logic. He was not good on sequential logic. He did not have any gross difficulty in what she terms "perceptual-motor functioning" though there could be, she thought, minimal impairment, and his performance in copying geometric figures was reasonable although, and this is reflected in the test that Dr. Green asked him to do some time later, it was done slowly and with effort. He was not very good at reproducing from memory a complex figure which he had previously copied. She discovered rather more about his background than any other doctor was able to discover. Apparently he has had a difficult time in china in the past and since then, he told Dr. Mao he had not been well as a result of upsets and shocks experienced during the period he lived in China. That is at a time which predates this accident. He lived with relatives, he said. He said, his children were in Canton. She thought and she could well be right that his anxiety or any anxiety, nervousness and feelings of depression which she noticed stemmed from causes antedating the accident. But, she did say and this is relied upon by Mr. Hingorani, who conducted the case for the plaintiff, that the accident had probably exacerbated these conditions. She noted that he now felt that he was unable to work. She found, it is right to note, evidence of deficits in memory and learning for both visual and verbal material and she noted that he complained of general forgetfulness. It was her view that any impairment of memory functions or other intellectual shortcomings would not prevent him from holding down a job similar to his previous one although she said, and again this is relied upon, albeit at a lower level of responsibility and with less efficiency. Now, that last conclusion, it is also right I should point out, was supported in evidence by a Mrs. Jenny Chan who saw the plaintiff not very long before this hearing and who subjected him to certain tests. She came to the conclusion that he was able to hold doom a job but only of a simple manual kind which should probably bring in at most, on present rates, about $1,400 per month.

8. Against that and against Dr. Singer's conclusion, I have heard the evidence of Dr. Shroff, a neuro-surgeon and Dr. Green, a psychiatrist. Although it is not strictly speaking has field, Dr. Shroff says that his general impression was that this man was shamming and he really based that conclusion upon, what appears to me at any rate, a very sound premise. He says all the evidence and in particular that which appears from the memorandum of a Dr. Chan who was in casualty at Princess Margaret Hospital when the plaintiff was received that if the plaintiff was ever unconscious, which for the purposes of argument he accepts, it can only have been for a very short time. The reason, he says, is that by the time the plaintiff was admitted to hospital, he had recovered consciousness and was fully orientated and bearing in mind that the time between the plaintiff being collected from the place of the accident and being received at hospital is not likely to be more than an hour and a half, that must indicate he had been unconscious for something less than an hour. That coupled with the fact that there was no head injury other than the one shown to the face and the chin suggests to him that this must have been a very, very mild head injury indeed and not such which, in his experience, would be likely to produce any continuing disability. Dr. Green whose evidence I much appreciated for the down to earth manner in which it was given made no bones about it. He said that this man is a malingerer and a sham. To a degree, of course, no one takes issue over that. Dr. Singer who of anyone takes the most sympathetic view of this plaintiff, has to accept that there is at least an element of malingering, mingled, he says, with hysteria. Dr. Green whose report includes a passage from the interview which he had with this man, not dissimiliar from the experience we all had when he was giving evidence, in which, his answers were not those of a man who had suffered some diminution of the mental processes but of an imbecile. Dr. Green attributes all the symptoms experienced or said to be experienced by this plaintiff to a conscious attempt to deceive both the doctors and the court, and regretfully, I have to find not only on the strength of the reports and the evidence which I have heard but also upon the assessment which I have been able to make of the plaintiff in the witness box that I share that view.

9. So, what is this man entitled to recover by way of damages? I would have put it lower for the general trauma of the accident, the pain and suffering and the fright and the anxiety but for what I have been told by Mr. Pirie who appears for the defendants. In view of that, I cannot put the fiture at less than $5,000. I think I am being generous to the plaintiff, probably too generous, but I am prepared to allow him loss of wages as a result of the accident from the date of the accident up to the date that he did start work on 12th February 1979 disallowing, of course, any period when he would not have been able to work by reason of public holidays. It has been agreed I gather between the defendants, and it is a matter of no consequence to the plaintiff, that damages should be apportioned in the ratio of 40% to 60%, the higher proportion being borne by the 1st defendant.

10. Well, I indicated that the appropriate rate for loss of wages was to be based upon the rate at which he was employed in February 1979 and on that basis, I am told that the damages to which the plaintiff is entitled according to my judgment will be $7,875 and I give judgment in that amount to be divided between the defendants in the proportion of 40% to 60%, the 1st defendant to be responsible for the larger share.

Representation:

J. Hingorani instructed by Director of Legal Aid for plaintiff.

N. Pirie instructed by Hastings & Co. for 1st defendant.

N. Pirie instructed by Woo, Kwan, Lee & Lo for 2nd defendant.