William Tse Wing Sum and Another v. Kowloon Motor Bus Co Ltd and Another

HCA000898/1978

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr. Registrar Cruden in Chambers.

Date of Judgment: 22nd December, 1980.

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JUDGMENT

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1. The plaintiffs are husband and wife. On the 28th day of March 1976 the 1st plaintiff was driving his Porsche motor car Registration Number No. 220 out of the Cross Harbour Tunnel. His wife was a passenger in the car. On leaving the tunnel exit on Hong Kong Island the car was involved in a head on collision with public omnibus Registration No. BH3531 owned by the 1st defendant and driven in the course of his employment by the 2nd defendant.

2. Neither defendant filed a defence and interlocutory judgment was entered on the 1st day of August 1978. I am now asked to assess damages.

1st plaintiff

3. The evidence showed that this was a serious collision. The photographs produced as Exhibit P.20 highlighted the extent of the damage to both vehicles. Fortunately the injuries to the 1st plaintiff were relatively minor. I find that he suffered abrasions over the forehead and knee; bruising over the left periorbital region and upper chest; tenderness over his right lower chest; and suffered loss of teeth.

4. I accept that the pain and suffering caused to the 1st plaintiff were a little greater than in Luk Bik-yu & Anor. v. Fong Wing-fook & Anor. (1979) 9 H.K.L.J. 93 as the injuries were not limited to his teeth. Under this head I allow $4,000 general damages. I am also satisfied that he is entitled to special damages for $200 being damage to clothing and $5,400 being dentist fees as evidenced by Dr. K. C. Leung's account.

5. The 1st plaintiff also claimed that he lost the services and consortium of his wife. He claimed that since the accident part-time amahs have been employed at a cost of $250 per month to do the household work previously done by his wife. The 1st plaintiff stated that before the accident he employed no servants and that his wife, assisted by her mother, did all the household work. Because of the physical and mental changes to his wife caused by the accident he states that he is now obliged to employ a part-time amah to do the same work as was hitherto done by his wife. On the other hand the wife gave evidence that before the accident they occasionally employed a part-time amah but since the accident they employ a part-time amah permanently at an hourly rate which totals $700 to $800 per month. I am satisfied on the balance of probabilities that before the accident a part-time amah was not regularly employed but that since the accident such an amah has been employed. I am further satisfied that the need to employ a part-time amah has arisen because of the injuries suffered by the 2nd plaintiff. Only $250 per month is claimed under this head and it may be that in calculating that sum allowance has been made for the amount paid to the occasional part-time amahs employed before the accident. On the evidence that is a matter for speculation. However, I am satisfied that at least $250 per month is now paid by the 1st plaintiff for such services as a direct consequence of the accident. At the date of the accident 1st plaintiff's wife was 44 years old. Adopting a multiplier of 10 I allow $30,000 under this head ($250X12X10).

6. In the result the damages awarded to the 1st plaintiff are therefore:

1st plaintiff:

2nd plaintiff

7. The 2nd plaintiff was seated in the front passenger's seat at the time of the accident. Her injuries were much more serious. The first six injuries pleaded were not disputed, namely:

8. All these injuries were observed on admission to Queen Mary Hospital on the 28th day of March 1976 after her transfer from Tang Shiu Kin Hospital to which she was first taken immediately after the accident.

9. However on the 29th day of April 1976, just over a month after admission to Queen Mary Hospital, she suffered an attack which caused paralysis to her right side. The doctors who gave evidence agreed that this attack has resulted in what they describe as "a right-sided hemiparesis".

10. The crucial issue to determine is whether the right-sided hemiparesis was caused by the traffic accident or whether it occurred for reasons wholly independent of the traffic accident. This issue is much easier to state than to determine and I remind myself that the onus is ever on the plaintiffs to establish beyond reasonable doubt that it was caused by the traffic accident.

11. After the paralysis was noticed the 2nd plaintiff was moved to the Hong Kong Sanitorium and on 1st May 1976 Dr. Stanley Cheung, a neurosurgeon, carried out certain neurological investigations. These included a carotid angiography followed by a craniotomy. Dr. Cheung was the only medical witness called who operated on the 2nd plaintiff's brain. I accept that he is an experienced neurosurgeon and an expert in this field. On the basis of his observation of the 2nd plaintiff, the findings he made as a result of the operation to her brain and the other medical data available to him, he was of the opinion that the right-sided hemiparesis was the result of a cerebral haemorrhage which developed because of damage suffered to the brain during the accident. Dr. Cheung considered the defence view that the hemiparesis was the result of a thrombosis more commonly called a "stroke". In evidence-in-chief he considered the reports of Dr. Shroff who was later called by the defence. Dr. Shroff was of the view that the hemiparesis was the result of a thrombosis and not of a cerebral haemorrhage. Dr. Cheung came to his contrary conclusion for a number of cogent reasons. From his examination of the brain during the operation he observed the swelling and bruising to the brain which indicated that it was caused by the trauma of the accident. The straw coloured fluid which had collected could be due to injury, infection or tumour and here there was neither infection or tumour. The brain scan was consistent with his finding. Unfortunately the brain scanning machine was not available in Hong Kong until 1978 and I realise that its results are subject to the attacks the defence made that no brain scan is available at or near the time of the paralysis. However, the findings of the angiography were also consistent with the accident. The angiogram was ordered by Dr. Cheung but unfortunately it was not available for consideration by the subsequent medical witnesses called. It showed there was no blood clotting, which could be expected to be present in the case of a thrombosis. The subdural effusion found was also consistent with Dr. Cheung's finding. As to the 5 weeks delay between the traffic accident and the hemiparesis, Dr. Cheung was emphatic that 5 weeks was the normal period that could be expected to elapse before the damaged brain softened sufficiently to cause the haemorrhage which, in turn, led to the hemiparesis.

12. In cross-examination Dr. Cheung was polite and co-operative. He obviously endeavoured to be helpful to whichever Counsel was questioning him. In this respect he consistently exhibited the expected neutrality and objectivity of an expert witness. This approach of Dr. Cheung must be fully taken into account when assessing his evidence compared with the evidence of some other witnesses which I will consider shortly. While he recognised that a number of the symptons were also consistent with a stroke, he remained emphatic that in his view the hemiparesis was the result of the traffic accident. Without the scanning he was of that view; the scanning reinforced that view; he observed that where the initial brain damage was minimal the pupils of the eyes could still be reactive; there could be straw coloured fluid from a subdural effusion in the case of a stroke but not as much as the 5 c.c. found by him on operation in this case. Dr. Cheung by consent produced the pathologist's report of Dr. Hou and stated that the fresh blood found was also more consistent with a haemorrhage than a stroke. In cross-examination the blood pressure figures were put to Dr. Cheung and also the possibility that the patient had suffered from hypertension. Dr. Cheung carefully considered these matters and then gave detailed replies negativing the suggestion that they indicated a thrombosis. These detailed replies are fully set out in the record and I will not repeat them here.

13. The 19th day of January 1979 was the second day of this hearing and Dr. Cheung was the sixth and final witness who gave evidence on that day. On the previous day, long sought records from Queen Mary Hospital had become available to the parties. When the hearing resumed on the 17th day of December 1979 the plaintiff proposed calling Dr. Hunter who was to produce a series of reports. These had only been exchanged with the defence that morning. The defence sought and were granted an adjournment to a date after the 20th day of February 1980 to enable the reports to be considered. When the hearing resumed on the 6th day of October 1980 it took on a much changed form. For the remainder of the hearing Dr. Hunter, a very experienced and highly qualified neurosurgeon, was present throughout seated with counsel for the plaintiff and Dr. Shroff, another experienced neurosurgeon, was also present to be later called by the defence. So the hearing continued for another 6 days. When these two doctors respectively gave evidence they were therefore able to comment very fully on the other medical adduced. They each heard their own reports criticised by the other; they each in turn criticised the other's reports. They also discharged the supplementary task of advising the respective counsel for the parties for whom they were called on technical questions to put in cross-examination. This close relationship with the parties counsel makes it much more difficult for an expert witness to maintain a neutral stance. There was some truth in the criticism that each counsel made of the approach of these two experts. Counsel for the defence criticised Dr. Hunter for making sweeping general statements without rationalising them from contemporary data; for advancing a number of different theories which merely confused the issue as most did not occur. Whereas, it was submitted that Dr. Shroff demonstrated consistency throughout. Even before the Queen Mary Hospital records were available he expressed the opinion that the hemiparesis was caused by a thrombosis and he never wavered from that view. Counsel for the plaintiffs on the other hand attacked Dr. Shroff for jumping to an initial conclusion and thereafter not considering other possibilities being content to ignore or reject evidence which suggested that the 2nd plaintiff had suffered a cerebral haemorrhage and not a thrombosis. While Dr. Hunter, it was submitted, had first fully considered all the various possible causes before objectively reaching the conclusion that in this case a haemorrhage and not a thrombosis had occurred.

14. Much of the remaining evidence therefore was in reality a vigorous technical contest between two expert neurosurgeons which at times assumed titanic proportions. There were produced in evidence more than 20 medical textbooks or extracts therefrom; there were involved arguments covering the clearly changing medical views over the past 20 years of the efficacy of the electroencephalogram. There were similar arguments as to the proper interpretation of computerised tomography scans. There were admissions by both that it would have been helpful if they could have considered the angiogram findings which were only available to the operating neurosurgeon Dr. Cheung. There were disputes as to the leading textbooks on neurosurgery.

15. There were long discussions on the differences between various editions of the leading medical textbook 'Diseases of the Nervous System' by Lord Brain. Dr. Shroff cited long extracts from the 8th Edition published in 1977. An extract cited by Dr. Hunter was taken from the 4th edition which was the last edition edited by Lord Brain and had been personally autographed by the author for Dr. Hunter. I recognised the validity of the defence criticism on this point. I reminded myself that while many a common lawyer might fondly turn the pages of the 6th Edition on 'Salmond on Torts' most would prefer to turn to the 17th Edition for enlightenment on whether Murphy v. Culhane (1977) Q.B. 94 has affected the relevance of provocation in a current civil action for assault.

16. However, this quibble did not impeach the whole of Dr. Hunter's evidence Indeed, after an adjournment Dr. Hunter returned to the witness box armed with a long list of recently published textbooks some of which Dr. Shroff was content to dismiss with the aside that he never reads slim textbooks. In any event Dr. Hunter had, at a much earlier stage of his evidence, cited a 1979 paper from the Department of Neurological Surgery, Nihon University, Japan entitled 'Classification of Traumatic Intracerebral Hematona by Repeated CT-Scan and Clinical Course'. According to Dr. Hunter this study shows that a patient who suffers a brain injury in an accident may not develop an intracerebral hermorrhage as a result of that accident until some weeks after the date of the accident. Curiously Dr. Hunter was not directly cross-examined on this paper nor was it commented upon by Dr. Shroff.

17. Dr. Cheung first saw the 2nd plaintiff on 1.5.1977 and operated on her brain on that day. Dr. Hunter and Dr. Shroff suffered from the handicap that they never operated on her and only saw her very much later.

18. Dr. Hunter saw the 2nd plaintiff on 2.8.1977, 19.8.1977 and 31.8.1977. Dr. Shroff only saw the 2nd plaintiff once on 21.7.1978. Neither doctor had the advantage of having operated on the 2nd plaintiff or of having observed her shortly after she suffered the hemiparesis. However, they did have available the Queen Mary Hospital records which had only some available on the 18th day of January 1979 or shortly before that date. From that data and the reports of the several other doctors who were called they constructed their competing theories. I am satisfied that both doctors were in an inferior position to Dr. Cheung - whose neurological qualifications were not inferior to Dr. Hunter and Dr. Shroff-in giving opinions as to the cause of the paralysis.

19. It may be helpful if I were to comment how the evidence of Dr. Hunter and Dr. Shroff dominated the hearing as far as the quantity of their evidence was concerned. First they were present throughout the hearing. Secondly, they themselves occupied the witness box far longer than any other witness. The hearing was estimated by the parties to last 2 days. It lasted for 9 days.

20. The first 6 witnesses for the plaintiff, including 4 doctors, one of whom was Dr. Cheung, gave their evidence during the first two days of the hearing. Dr. Wedderburn's report for the defence was also produced during this early period. Ten months later Dr. Hunter and Dr. Shroff gave evidence. The delayed Queen Mary Hospital reports were available to them during this early period. When the hearing resumed they occupied the witness box for nearly the whole of the next 5 days. Thirdly, the lapse of time and the detail in which they gave their evidence were among the factors which clearly, with respect, led to both counsel being very much more conversant with the medical issues and terminology during the last 7 days of the hearing than during the first 2 days.

21. I accept all the various statements Dr. Hunter and Dr. Shroff made of general principles many of which were elaborately supported by the production as exhibits of medical textbooks. However, when it came to this particular patient they were clearly at a disadvantage to Dr. Cheung. Not only had they not operated on the patient or observed her at the material time but they were at least inhibited by not having available the findings of the angiogram. However, after making allowance for all these factors their evidence was not unimpressive and the thought, care and research which culminated in their very technical but clear evidence was helpful. In short, Dr. Hunter's opinion supported Dr. Cheung. Dr. Shroff, on the other hand, disagreed with Dr. Cheung and could not be moved from his consistently maintained conclusion that the paralysis was caused by a thrombosis or stroke unconnected with the traffic accident.

22. While Dr. Hunter was at times a little over enthusiastic and at times made mistakes of fact Dr. Shroff in his theory also faced difficulties. At times he relied heavily on the hospital records. At other times he was obliged to discount them as being prepared by nurses lacking in medical training or suffering from laziness. Dr. Hunter when faced with difficulties observed that the failure to record any neurological deficit on admission is explainable on at least two grounds. First, that the symptons took some time to assert themselves and secondly that there was no neurosurgeon at the hospital; the initial medical findings were of relatively young general practitioners.

23. Many of the medical questions which were hotly disputed between Dr. Hunter and Dr. Shroff were not put to Dr. Cheung. I have already mentioned some of the reasons why this occurred which were largely beyond the control of counsel. As to whether the 2nd plaintiff suffered from hypertension before the accident the evidence was vague. Neither plaintiff mentioned this in evidence-in-chief nor were they cross-examined on this subject. Dr. Shroff states that he was told this by the 2nd plaintiff on 21.7.1978 but he does not include this fact in his report. He did not take her blood pressure himself. At first he was unable to explain this omission then went on to say later that as she was being treated for hypertension, her blood pressure was a negative matter which would not have effected his findings on examination. The question of hypertension first arose from the Queen Mary Hospital records. Dr. Chan of the Government Medical Unit wrote a memorandum to Professor Yau on 29.4.1976 in which he recorded that the 2nd plaintiff had a "history of hypertension" and that the signs were compatible with thrombosis and suggested further tests. On 1.5.1980 another doctor, on behalf of Professor Yau asked a Dr. Kwan to see the patient in respect of this diagnosis on the grounds that "as she had a history of concussion would you please kindly see and advise on the possibility of her present attack of cerebral vascular accident being due to the previous head trauma?" On 1.5.1976 she was transferred to the Hong Kong Sanitorium so no final diagnosis was ever made by Queen Mary Hospital on the issue I have to determine. It was still at an exploratory stage. However, there is a clear reference to hypertension. Dr. Shroff heavily relied on that record. Dr. Chan was called by the defence. When he gave evidence he could not recollect this particular case in detail and understandably had to rely on his notes. He agreed that the post-accident daily hospital records could amount to a "history" of hypertension but thought that his reference was more likely to refer to a pre-accident condition. However, while he had no clear recollection of this stated that he must have obtained the information from the patient. He agreed he was not a neurosurgeon but a cardiologist.

24. The possibility that a pre-accident condition of hypertension was a factor causing a thrombosis quite unrelated to the traffic accident was very fully put to Dr. Cheung in cross-examination. He took time to consider this possibility and rejected it while he was in the witness box.

25. When reviewing the whole of the evidence I accept Dr. Cheung's evidence on the cause of the hemiparesis. On the balance of probabilities I am satisfied that even if the 2nd plaintiff suffered from pre-accident hypertension this did not give rise to any thrombosis. On the balance of probabilities I am well satisfied that the 2nd plaintiff suffered an intracerebral haemorrhage as a result of the traffic accident. This is well established by Dr. Cheung's evidence. The evidence of Dr. Hunter and Dr. Shroff is conflicting and at times confused. However, Dr. Shroff's theory was adequately put to Dr. Cheung and rejected by Dr. Cheung on grounds I accept. As to Dr. Hunter's evidence it reinforces the expert findings of Dr. Cheung and only adds weight to his findings as the operating surgeon.

Damages

Pain, suffering and loss of amenities:

26. The 2nd plaintiff was at the time of the accident aged 44 and in apparent good health. She was married to a wealthy husband and lived a full social life going out to dinners, playing mah-jong and being an active member of her own family which includes a number of growing and intelligent children some of whom have started at university.

27. She underwent serious brain surgery and a lumbar puncture. Complications arose in respect of the fracture of her left leg which later required retraction and bone grafting. The brain injuries have changed her personality; she has laughing fits' at other times becomes depressed. She now rarely goes out socially nor plays mah-jong. At this sate stage there is a minimal risk of epilepsy but it does exist.

28. After a consideration of her injuries under this head and in the light of the authorities cited to me I am satisfied that the proper award is $100,000.

Future loss of earnings:

29. Before the accident she received fees as a director of her husband's company but this income was not related to any work done by her for the company. I am satisfied that there was no future economic loss as a result of the accident and there will be no award under this head.

Special damages:

30. An attack was made on Dr. Y.Y. Kwok's account but he answered that it was less than certain scale charges he could have charged. I consider that its reasonableness has been proven. The main attack on the special damages was the substantial disallowance and reduction which would have followed if I had found that the 2nd plaintiff had suffered a thrombosis unrelated to the traffic accident. As I have not so found I do not have to further consider those submissions. The only remaining item that requires comment is the nursing fees of $40,740. It was argued that this was an unreasonable claim as private nursing was a luxury after 7 days and at most 1 month should be allowed.

31. Whether such nursing is a luxury must take into account not merely the medical but also the financial position of the patient. Here the patient is the injured wife of a wealthy man. In evidence when these matters were put to Dr. Cheung he finally agreed that in the case of this particular patient she needed longer nursing for apart from the brain operation there were the complications with her leg fracture which themselves resulted in the largest medical outgoing being the orthopaedic surgeon's fees. I am satisfied that a claim for the period equal to $25,000 of the nursing fees itemised in Exhibit P.7 is reasonable and that is allowed.

32. The total damages assessed in respect of the 2nd plaintiff are $202.123.50 made up as follows:-

2nd plaintiff:

33. The parties wished to be heard on the question of costs and interest. Leave to apply for those purposes and any other consequential matters is accordingly reserved.

34. DATED this 22nd day of December, 1980.

Representation:

Mr. K.H. Woo instructed by Tsang, Chau & Shuen for the plaintiffs.

Mr. R. Mills-Owen, Q.C. instructed by Deacons for the defendants