Chiok Wah Ming v. Kowloon Motor Bus Co (1933) Ltd and Another

Case No.HCA 5109/1979

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA005109/1979

IN THE HIGH COURT

	1979, No. 5109

BETWEEN
	CHIOK WAH MING	Plaintiff
	and
	KOWLOON MOTOR BUS CO. (1933) LTD.	1st Defendant
	NG TO CHUEN	2nd Defendant

Coram: Barker, J.

Date of Judgment: 1st December, 1980.

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JUDGMENT

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1. In this action the Plaintiff claims damages for personal injuries sustained by him as a result of being struck by a bus on the 18th June, 1978. There is no issue as to liability, it having been agreed between the parties that the Plaintiff should receive one third of the total value of the claim. But the assessment of damages is indeed difficult.

2. The Plaintiff is now 30 years old. Prior to his accident he was, I am satisfied, a man whose intelligence fell within the lower range of normal. He was, at the time of the accident working on a piece work basis as a brick maker, but this job had been of short duration - a matter of only a few weeks. He had for some ten years before that worked in restaurants, for most of the time as a waiter, though between the 1st May 1977 and the 30th April 1978 he was a dim sam maker. I find that his normal work was that of a waiter and, on the evidence, that prior to the accident he was a competent waiter, changing jobs only in order to earn more money and not because he was compelled to. Since the accident he has tried hard to get jobs-and has obtained many, the number of which is shown by the list P2. He has not however managed to keep them.

3. His immediate post accident medical situation and his subsequent treatment appear from the medical reports of Dr. Chung of the Neurosurgical Unit of Queen Elizabeth Hospital-P3. It is clear from those reports, and I find, that the Plaintiff sustained a fracture of the left parietal bone, and that as late as the 5th July 1978 he appeared to suffer from retrograde amnesia, that is amnesia for events before the accident.

4. It is the Plaintiff's case that as a result of these injuries, (a) he sustained brain damage in the left occipito-parietal region, which is permanent and which has led to the development of a rare symptom known as prosopagnosia-an inability to recognise faces, (b) that he suffers from a post traumatic syndrome characterised by memory impairment, frequent giddiness, headaches and poor concentration - conditions which will persist, (c) that he suffers from post traumatic depression which is treatable only in the long term and (d) that as a result he is at the moment virtually unemployable and even after treatment will be capable of holding down only a simple repetitive job. The Defendants' case is that the Plaintiff did indeed sustain some brain lesion in the left occupito-parietal region, but that it was only minimal though it did lead to prosopagnosia, but that after an indeterminate time the organic effects of the lesion ceased, that what the Plaintiff now suffers from is post-traumatic neurosis, one of the ingredients of which is depression, which of itself causes amnesia and that within a short period after the conclusion of this litigation and the receipt of his damages, this neurosis will disappear and there will be no further after effects of the accident.

5. The Plaintiff's evidence was to the effect that he cannot work as a brick maker or as a dim sam worker, because he is too weak, and that because of his poor memory and concentration and inability to recognise faces he cannot hold a job as a waiter. It is not suggested by the Defendants that he is malingering - nor is he, and I find that, with the exception of the jobs listed in P2, as to the duration of each of which there is doubt, he has been and still is disabled by virtue of the effects of his injuries from obtaining work. The question is, what is the cause of this disability, and for how long will it obtain.

6. The Plaintiff called Dr. Wedderburn, the distinguished orthopaedic surgeon who ruled out any question of any injury of an orthopaedic nature but expressed the view that as a result of the head injuries the Plaintiff's impairment was 20% and his permanent disability will be 25% after two years of careful psychiatric treatment. However, as Dr. Wedderburn was the first to admit, he was giving evidence about matters which were largely outside his specialty i. e. about neurological and psychiatric matters.

7. In the main, the Plaintiff's case must rest on the evidence of Dr. Pang of the Baptist Hospital, a consultant psychiatrist, with considerable neurological training and experience gained in some part in England, and in particular training in the taking and interpreting of electroencephalograms to which I shall refer hereafter as EEG's. In his first report, he assessed the degree of impairment at 5% of the whole man, an assessment which he drastically revised in his second report to 20%. He explains his conclusions and reasons for this later assessment on pages 3, 4 and 5 of his second report and I quote:

	" In conclusion, i) firstly the nature of the localized abnormality found in the present EEG is compatible with that of a chronic residual electroencephographic change resulting from a previous brain contusion. The location of this abnormality coincides well with the hypothetical site of lesion, i.e. left parieto-occipital area in a right-handed person, that would give rise to a visual agnosis as in his case. Both the EEG finding and the Psychological testings support the neurological diagnosis of Prosopagnosis beside the typical clinical manifestation of inability to recognise familiar faces, though clearly seen. ii) Secondly he is still showing features of a Post-concussional syndrome characterized by a mind degree of general memory impairment, frequent giddiness, on and off headache and poor concentration. In other words when comparing to his previous mental state examined about one year ago, there has not been any improvement regarding his Prosopagnosis and Post-concussional syndrome. iii) Thirdly he is now in a full-blown picture of a Post-traumatic Depression resulting from the head injury concerned. He has lost his courage and confidence to strive and struggle regarding his job performance and he has also lost his self-esteem to maintain his inner sense of well being in general social or even daily life. With the abovementioned three specific handicaps, it is very difficult (if not impossible) for him to resume his previous job as a restaurant worker which demands much concentration, physical as well as mental endurance, and cooperation amongst co-workers (in his case, obviously he is constantly being rejected by his colleagues and employers).
	Regarding the prognosis Prosopagnosis implies a dysfunction of many intrigue neurological pathways inside the brain; no specific neurological intervention will correct the deficit satisfactorily and thus this handicap will most likely remain permanent. ii) Secondly regarding the more vague post-concussional syndrome there will probably only a slight improvement in general within a period of years. iii) Thirdly, his post-traumatic Depression will require fairly long term psychiatric treatment in terms of medications (antidepressant and other symptomatic chemotherapy) and supportive psychotherapy say for about two years and at the end of which fairly satisfactory improvement of his mental condition might be expected to the degree that he might he able to take up some simple repetitive manual work. To resume his previous jobs by then as a full time restaurant worker and to hold it for a steady period will be too remote a possibility depending a lot on the environmental factors e.g. a tolerant employer with close supervision, considerate co-workers with good co-operation, more favourable working time etc. Conclusively, I assess him to be of a 20% Impairment.
	I would like to comment on my previous assessment and in fact when I first examined him, he was in a much better mental state. His depressive features had probably been masked and disguised at that time when he was still quite persistent and hopeful in his job-search. Another factor is that before he came to me, he had been assessed by Government Psychiatrists and psychologists and was offered more or less similar type of testings. In close period of time he might be able to acquire some knowledge or cues in solving the questions or problems put to him. I must admit when I first examined him I had over-looked this important factor and so there is a discrepancy between my first and present assessment. I therefore have modified somewhat the testings in the present assessment so to minimize as far as possible the possibility of him getting familiar with the test and a lapse of one whole year will very likely leave him no trace of his previous knowledge or cues about these testing."

8. The localised abnormality found in the EEG to which he adverted referred to the presence of theta waves only and he admitted that theta waves cause the most diagnostic confusion in the interpretation of EEG's. It is furthermore to be noted that the EEG's taken for the purpose of enabling Dr. Pang to make his first report disclosed no abnormality. Dr. Pang is firmly of the view that the largest part of the Plaintiff's symptoms are organically caused, that the effects of the brain damage still persist and are permanent and that it is only his post-traumatic depression that is susceptible to treatment - and that long term - up to two years. He bases this view, first on the EEG's, secondly on the results of the Wechsler tests which he performed on the Plaintiff and in particular the diagrams (P6) drawn by the Plaintiff which in Dr. Pang's view show deficiencies on the right side thereby indicating left sided brain damage and also on the degree of retrograde amnesia. When he made his reports, however, Dr. Pang did not have one piece of information, namely that on the 18th July 1978 the Plaintiff had given and admittedly signed a statement to the Police which contained a detailed account of the events immediately prior to and at the very moment of the accident. This shows, in my judgment, that the retrograde amnesia, if there was any, was of momentary duration. The explanation for the retrograde amnesia mentioned in the reports P3 is, as I find, that given by Dr. Green the psychiatrist called by the Defendants, namely that there was an initial period of confusion during which time the Plaintiff could not remember events prior to the accident but that after a while this confusion cleared, so that he was able to recall events and give such a statement to the Police. Such a short period of retrograde amnesia clearly militates against the proposition that there was severe brain damage.

9. Dr. Green is a consultant psychiatrist also with considerable training in and experience of neurology and in particular of the interpretation of EEG's. He accepts that there was a fracture of the parietal bone, and that there was a brain lesion, albeit very small 1 - 2 mm's across, but is of the view that this has healed with some scarring and that by a process known as facilitation, the adjoining brain cells have taken over the functions of the damaged part, so that there are now no organic sequelae. In Dr. Green's view what is left now is a post-traumatic neurosis which is exhibiting the classic symptom of headaches, dizziness, weakness, and misery or depression, and that it is the depression which is causing the memory impairment (and incidentally amnesia for the circumstances of the accident) from which the Plaintiff undoubtedly still suffers. In Dr. Green's opinion had there been brain damage the effects of which persisted. there would have been delta waves on the EEG's and, admittedly, there were none. Moreover, he says, and he was supported by text book excerpts which were quoted to me, that EEG's are of little or no value if the first is taken as long as twelve months after the accident, as was the case here. Furthermore, abnormalities occur in the EEG's of 5% of the population and in 25% of neurotic people. Dr. Green considers that the Plaintiff's performance in the making of the drawings P6 was normal and that he is suffering from no constructional apraxia or geographical confusion. Furthermore he is of the view that the prosopagnosia is now not significant, since the plaintiff was able to recognise not only him, but also his nurse, and able to find and recognise the solicitor's clerk who had taken him to Dr. Green's consulting room. In his opinion the Plaintiff will recover from all his symptoms probably after about three months from the receipt of his damages. It was urged on Dr. Green by Counsel for the Plaintiff that the Plaintiff's undoubted zeal in trying to get jobs is inconsistent with post-traumatic neurosis. But Dr. Green, though agreeing that this was somewhat unusual in cases of neurosis, still held to his views.

10. Having given the matter most careful consideration, I unhesitatingly prefer the views of Dr. Green in so far as they conflict with those of Dr. Pang and Dr. Wedderburn save that I think that Dr. Green is being over optimistic as to the time of full recovery. I put this at six months from the receipt of the damages.

11. But for two and a half years the Plaintiff has had a miserable time-and will continue to do so though decreasingly for at least another six months. In these circumstances I assess the general damages for pain, suffering and loss of amenity at $30,000. There is in my judgment no loss of future earning capacity.

12. Special Damage presents a difficult problem. It is agreed that between May 1977 and April 1978 the Plaintiff earned $1,500 per month. The Plaintiff said thereafter he earned $80 - 100 per day as a brick maker and in this he was supported by his employer Mr. Cheung Man but I was far from satisfied that Mr. Cheung's evidence was reliable. According to Mr. Chiok Wah Yuk, a permanent waiter in a restaurant would now earn $2,100 per month including tips and an experienced dim sam maker $2,300 to $2,400 per month. It is clear that between June 1978 and November 1980 wages have risen-but as to precisely when there is no evidence. In the circumstances the fairest way to approach the loss of wages is to take an average figure for the whole period, which I assess in the region of $1,750 per month, and I assess the total loss of wages to date at $50,000, with one proviso. That is that the Plaintiff must give credit for what he has actually earned. On the figures set out in P2, he has earned $6,524, but the Plaintiff admitted that these figures might not be accurate, and I find that he did earn rather more than this. Doing the best I can, I assess the credit to be given at $7,500, so that the net special damage for loss of wages is $42,500.

13. There is one further item of special damage, pleaded, with leave, by amendment, and that is the cost of psychiatric treatment which the Plaintiff will have to undergo. The cost of such treatment will, I find, be $200 a visit. I accept Dr. Green's evidence as to the frequency, but not as to the duration of such visits. I hold they will be twice a week for the first month, and then once a week for a further five months, and I assess the damages under this head at $5,600.

14. I turn finally to consider the future loss of earnings. I think this will continue for a period of six months from the receipt of the award, and making a discount as I must for the fact that the Plaintiff will receive these damages under this head as a lump sum, I assess the future loss of earnings at $10,000.

15. On the basis of full liability the Plaintiff would thus have recovered $88,100. Since he is entitled to only one third, I give judgment for $29366.67 with costs to be taxed in accordance with the Legal Aid Regulations.

16. Interest on the general damages at 14% from the date of the service of the writ and on the special damage for loss of wages at 7% from the date of the accident.

17. There is one final matter which is not part of the judgment but which I was asked to comment on and that is the question of pleading future financial loss in running down cases. It is essential if a plaintiff is going to claim future financial loss that such matters should be pleaded in order that the defendants may know what the plaintiff's case is and be in a position to meet it. I give an example - it may be the plaintiff's case that had it not been for the injuries he would have been so many thousands dollars per month. Matters of that kind it is absolutely essential should be pleaded and in the present case what was not pleaded except by amendment was the cost of future psychiatric treatment; that too should have been pleaded. And therefore, if Registrars need any guidance from me, which I am sure they do not, where there is a request for further and better particulars, so that such matters can be pleaded, such a request should be granted.

Representation:

E.C. Mumford (Rowdget W. Young & Co.) for Plaintiff

N. Pirie (Munro & Co.) for 1st and 2nd Defendants