Liu Ying-muk v. Choi Lun-kui and Another

HCA004004/1973

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO. 4004 OF 1973

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Coram: Cons J.

Date of Judgment: 13 December 1974

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JUDGMENT

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1. This action arises from a traffic accident in Yuen Long some two years ago. Judgment has already been given with respect to liability. Only the question of damages remains.

2. The plaintiff was very seriously injured. He had a fracture of the first lumbar vertebrae. The damage to the spinal cord has left him paralysed from the waist downwards. It is not complete paralysis but it might just as well be so. He cannot stand up without support either from other persons or from suitable furniture and then only for a short while. Sensation diminishes from the thighs downwards and disappears completely once the knees are passed. External stimulation is necessary before the bladder and bowels will function, although on occasion they will be contrarily incontinent. Altogether he was detained in one hospital or another for about three months following the accident. One year later he underwent an operation in the hope of effecting some improvement in his appalling condition. Unfortunately it was of no avail. There is no chance now of any further recovery. Injuries of this nature tend to attract urinary and kidney infection. It is not expected that the plaintiff will live beyond the age of 60. He is now 50. Before the accident he was an active outdoor man given to hunting, shooting and fishing. A proper figure for damages for pain and suffering and loss of amenities would be $60,000.

3. It is now impossible for the plaintiff to be employed except by way of light work brought to his own home and the chance of obtaining such employment must be small. He had been a driver employed by the Urban Services Department. In 1972 his salary was $860 per month. There may have been increases since that time but no evidence was adduced to this effect. He says that he still had prospects for promotion to either a vehicle repairer or to foreman. but again no evidence was called to show what was the real likelihood of such promotion or what financial rewards it would have brought if it had come. The normal retiring age in the Urban Services Department is 55, but it would be reasonable to assume that he would have sought and found other employment for some time after that, say to the age of 60 or 10 years from now. Making the usual allowances, a proper figure for future loss of wages would be $82,500. No other claim is made in this respect.

4. It is suggested that damages should be reduced because the plaintiff is to a large extent the author of his own misfortune, by rejecting proper medical treatment: Lo Tung v. Chay Wing Shan⁽¹⁾. The question arises in this way. Immediately after the accident the plaintiff was admitted to Queen Mary Hospital. He was treated conservatively, that is to say that apart from the administration of pain killing drugs and placing him in a special bed designed to ensure that there was no movement of the broken spine no active steps were taken to bring about his recovery. This is an accepted modern way of dealing with cases of this nature. It is based on the knowledge that if the spinal cord is only bruised it will recover on its own accord if given ample time whereas if the cord has been structurally damaged recovery is in any event impossible. Exploratory surgery to relieve possible pressure on the cord is generally thought to carry more risk than advantage. Such treatment offers cold comfort to the patient. All he can do is to lie still and try to hope, meanwhile suffering all the pain and discomfort that go with the failure of the internal bodily functions. His depression will be even greater if, as the plaintiff suggests was his case, the situation is not fully explained to him. He will feel neglected as well. Thus did the plaintiff feel, so much so that six days after his admission he discharged himself and went home. There he might have stayed had he not contracted inflamation of the bladder, probably through his own fault.

5. The dangers of the plaintiff's conduct are obvious. Any improper movement of the spine may cause the broken bone to impinge on the spinal cord and destroy or bruise fibres perhaps previously unaffected. That is why it is necessary to handle spinal cases with such care and the doctors insist on complete immobility in hospital. Yet the plaintiff with no skilled or medical assistance got himself from the hospital in Kowloon all the way out to Yuen Long, up a steep and irregular road and finally up a flight of steps to his own home. He stayed there for the next 10 days, until he was forced to admit himself to another hospital. It is impossible now to say precisely what effect all this had. Dr. Yuen of the Orthopaedic Unit of Queen Elizabeth Hospital, who dealt with the plaintiff immediately after the accident says that it could on its own have caused structural damage and must at least have aggravated the original injuries. Dr. Do who treated the plaintiff on his later admission to St. Theresa's Hospital agreed that fresh structural damage was a possibility. Dr. Wedderburn, who was called for the defence also accepted this possibility, putting the chances at 9 : 1. However he had formed the opinion that such damage had in any event already occurred and that the only possible effect of the plaintiff's action would have been to deprive other non-structural damage of its chance of recovery. He was not cross-examined as to the grounds upon which he formed this opinion and I note that he did not see the plaintiff until very recently, that is more than two years after the accident. I think it probable that the plaintiff's discharging himself from hospital and the subsequent travel and 10 days in his own home had some adverse effect upon his condition and recovery and accordingly reduce the general damages, which would otherwise have been awarded in his favour, by 10%.

6. It was suggested that his own discharge against medical advice should not be held against him, that persons in his class are apt to take this course because they do not understand what is going on. That may be so. But it does not make their conduct reasonable. In the earlier case to which I have already referred Mills-Owens J. spoke of a man with a broken arm discharging himself. He said: "undoubtedly in doing this he took a serious risk and an unwise step". Even more unwise is a man with a broken back. Absolute wisdom is not demanded of a reasonable man. But commonsense is. And commonsense dictates that after only six days in hospital with a broken back he should continue to heed the advice of his doctors.

7. Special damages have been claimed under two heads. The first is for "medical expenses, including food provisions, medicament, nourishment and tonics" in the sum of $12,328.30. To support this claim I was first presented with a large bundle of receipts from various herbalists and medicine and other merchants. The bundle would have been more easy to deal with if it had been correctly sorted according to each source of supply and with the documents in each division placed in chronological order. A schedule or resume of the contents would have simplified matters even more. If those responsible for preparing this case on behalf of the plaintiff had taken the trouble to do this they would have observed before the trial, as I did afterwards, that the receipts fall far short of the figure claimed.

8. In addition to the bundle there was the evidence of the plaintiff himself that he spent about $200 in fees to the Queen Elizabeth Hospital and the evidence of one herbalist, who identified his receipts in the bundle, and added that each receipt also represented one visit to the plaintiff at his home for which he would have charged a fee of $30 and which was not shown on the receipt. This herbalist attended the plaintiff during March and April 1973. I am aware that this is some considerable time after the plaintiff had been discharged from Queen Mary Hospital but I do not think it unreasonable that the plaintiff should at that stage, when conventional western medicine had tried for three months but failed to affect any improvement, turn to another form of treatment. The total fees for this herbalist are $2,234.30 and I am prepared to allow this together with the $200 for the Queen Elizabeth Hospital. The remainder I reject. I do so for two reasons. Firstly, there is no evidence that whatever was purchased was beneficial to the plaintiff in his condition. I am not disposed to place any weight upon the plaintiff's simple statement that "usually the doctors recommend", whatever exactly that ...(illegible) . I should perhaps comment on the 8 monthly purchases of snakes which came to a total of $1,995. The herbalist told me that snake bladder would be of assistance in curing rheumatism, which was in some way attributable to the plaintiff's accident. (He was speaking generally. He did not prescribe it himself.) However the receipts for these purchases were for whole snakes, only sometimes. but by no means always, specifically said to include the bladder. The second reason is that the bulk of the other purchases were made when the plaintiff was already receiving treatment elsewhere. And while in some instances it may be that fees for simultaneous treatment can be recovered (See Mui Ling Kwan v. Wong Yin Wah⁽²⁾) the expert evidence there referred to as "highly advisable" was not placed before me.

9. Finally there remain travelling expenses, put at $1,500. The only evidence in support was a bald statement by the plaintiff that his total travelling expenses since the accident were $1,000 odd, and that this did not include visits made by his family when he was in hospital. I am at a loss as to how either figure was reached. All that is recoverable seems to me to be the cost of travel to his home from Queen Elizabeth Hospital, where he would presumably have remained all the time had he not discharged himself, some return visits as an out-patient, and something for his family to visit him from time to time while he was still in. I think this would be amply met by an award of $500.

10. For these reasons judgment is entered for the plaintiff in the sum of $128,250 general damages and special damages of $2,734.30. He is entitled to have his costs.

Representation:

Kenneth Kwok (W.I. Cheung & Co.) for plaintiff.

John H.C. Chau (David Burgin & Co.) for defendants.

(1) [1964] H.K.L.R. 444

(2) [1973] H.K.L.R. 465 AT 478

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO.4004 OF 1973

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Coram: D. Cons in Chambers.

Date of Judgment: 13th December, 1974.

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JUDGMENT

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It is hereby ordered under the Slip Rule that the figure for special damages mentioned in the last paragraph of the judgment herein delivered this morning is amended to $2,934.30.

Representation: