Yim Fat Fong v. Wong Kim Hung and Another

HCPI001173/1996

1996, No. PI-1173

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION LIST NO. 1173 OF 1996

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Coram: The Hon. Mr. Justice Seagroatt in Court

Dates of Hearing: 29 - 31 March; 1 April; 13 - 14 April; 17 - 18 May 1999

Date of Handing Down of Judgment: 24 June 1999

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J U D G M E N T

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Liability.

1. The Plaintiff is now 54 years of age. A little over five years ago he met with an accident which effectively put an end to his self employed business as a poultry dealer supplying chickens, ducks and geese to, for the most part, restaurants and, to a lesser extent, cooked meat stalls.

2. He was riding his bicycle, with a pannier or basket attached, along the Waterloo Road having made some deliveries in Kowloon City. It was about midday on the 22nd March 1994. He was on his way back to his stall or premises on the ground floor of 88, Reclamation Street, in Yau Ma Tei where he rented a counter from the licence holder. The licence covered his own meat business. He approached the cross roads junction with Pui Ching Road. The Waterloo Road, a dual carriageway, is divided into three lanes at this section on the approach to the junction which is controlled by traffic lights.

3. The nearside lane is for traffic turning left into Pui Ching Road, the middle (or 2nd) lane and outer (or 3rd) lanes are for traffic continuing straight on. There appears to be no right turn. Appropriate arrow directions are marked on the surface of the lanes. There is a filter (left turn) traffic light sequence, permitting the nearside lane traffic to enter Pui Ching Road.

4. The Plaintiff said in evidence and this evidence is consistent in my view with the statement he made to a police officer in early June, over two months later, that he was in the middle lane intending to proceed straight across the junction in order to continue along Waterloo Road. The fact that his statement was made so long after the accident is not the Plaintiff's fault. Efficient police work would have ensured that it was obtained much earlier. I shall return to the matter of the quality and thoroughness of the police investigation into this accident in due course.

5. As he proceeded over the junction, which was hatched in yellow to indicate no vehicle should enter it unless it was clear beyond it, he was aware of traffic proceeding along the second and third lanes on his right. The traffic lights were showing green to allow this traffic to proceed.

6. For some reason which is difficult to fathom, he has been attacked as to his credibility on the basis that since he was himself in the middle lane, and probably in the middle of that lane, he must be unreliable as to his version of events generally because he describes other traffic in the middle and outer lanes as proceeding in the same direction. Shortly after that junction the carriageway is reduced in width to a little over two lanes until it widens out again into three lanes. The police plan shows this narrowing.

7. Any motorist encountering such a junction knows that the tendency of traffic moving faster than a cyclist (virtually all other traffic) is to get past it as soon as possible and gain the narrower section first. This is precisely what traffic travelling on the Plaintiff's offside would do, particularly in Hong Kong, where other motorists would be unlikely to hold back for a cyclist in the middle lane and would aim to get past him as soon as possible.

8. The other line of attack upon the Plaintiff's version of events is that he should have (and logically would have) moved over to the nearside lane as he crossed the junction if he had not already been in the nearside lane before crossing the junction. This argument is advanced to support the Defendant's argument that the Plaintiff wobbled out of the nearside lane after he had crossed the junction, or had cycled out of that line into the Defendant's path. Whereas the first argument does not proceed in my view from any realistic understanding of traffic movement, this second argument is advanced to fit in with the Defendant's account of what happened and calls for close examination of all the material.

9. The Plaintiff had used this junction many times over the years. It would not make good road-sense for him to take up a position in the inside lane. The markings and lights arrangement posed something of a hazard for cyclists who took up that position. Even had he done so, such were the traffic conditions likely to be encountered beyond the junction in the form of a bus "dropping and pick-up" zone that he would have been forced out to the middle into the path of faster moving traffic, negotiating a short "bottle-neck", which was hardly likely to have much if any regard for a cyclist on a dual carriageway. I am satisfied that the Plaintiff did in fact take the course he said he did and that that was the sensible and practical course to take. It may require some courage and determination on the part of a cyclist to hold his own in such traffic but the Plaintiff did just that.

10. His description of the collision between his bicycle and the Defendant's lorry is entirely credible. As "I rode past the yellow box my rear wheel was suddenly hit by something ..... I fell on the ground and fainted." He had no idea what vehicle hit him and how he was struck. That is precisely what one would expect in the circumstances described by the Plaintiff. I have no hesitation in accepting his version of events.

11. An examination of the contents of the Defendant driver's two statements to the police, and his evidence on oath and that of his passenger, confirms my view of the Plaintiff's veracity, and the commonsense view of the situation.

12. In his first statement the Defendant driver said that he passed the junction and suddenly saw a bicycle passing from the left front to right front of his vehicle. He braked but did not swerve. No collision took place. He said that there was no need for the police to make an investigation. That statement was made very shortly after the accident on the same day. It was clear that he was saying that he had not seen the cyclist until it attracted his attention as it moved across his path.

13. He made his second statement two weeks after the Plaintiff's statement (i.e. nearly three months after the accident). In it he describes seeing the Plaintiff on his bicycle in the first (nearside) lane and that the Plaintiff, after passing through the junction, then moved from the inner (nearside) lane across his path. The Plaintiff then fell to the ground in front of his vehicle. No collision took place. He said he did not know why he fell.

14. By the time the Defendant driver came to give evidence, his version of events had changed significantly. His proof of evidence dated the 9th October 1998 he mentions for the first time that the Plaintiff was not "cycling steadily" and that he, the Defendant, slowed down the lorry. In evidence he described the Plaintiff as wobbling on his bicycle for the whole of the time he saw him and that he slowed his vehicle to 10-15 k.p.h. to take account of this.

15. I regret to say that I just do not believe this Defendant. His statement prepared some 4 1/2 years after the event is clearly drafted to meet a case and put a benign gloss upon events as far as the Defendants are concerned. It is of negligible value in comparison with statements made more proximate to events. The preparation of such statements almost two years after the service of the defence, which ought to be based upon signed statements of defence witnesses, is a dubious practice. Furthermore his oral evidence is an embellishment of that dubious document.

16. I am satisfied that the Plaintiff's bicycle was struck as he described, by the Defendant's vehicle, and that his injuries were caused either by contact between his body and the lorry or between his body and the road surface, or by a combination of both factors. I am satisfied that the Defendant driver did not see the Plaintiff until the last minute, possibly because he was trying to get beyond the junction into the narrowed carriageway in advance of any other competing traffic, or because, quite simply, he paid no attention to traffic such as the Plaintiff. He may even have found traffic on his offside competing more successfully for the road space ahead and had to move or swerve to his nearside with the inevitable consequences. He is wholly to blame for the collision.

17. This accident was investigated by the police with a notable lack of thoroughness and objectivity. There was a passenger in the Defendant's lorry who decamped to inform the employers and noone informed the police of this fact. The police do not seem to have inquired diligently for other occupants of the Defendant's vehicle or witnesses. The sketch plan though bearing potentially significant marking is far from complete. The Plaintiff was not interviewed until the 6th June 1994. There was no excuse for this delay. It is no wonder that the Plaintiff felt that the police had been less than efficient and said so. The police officer who appeared before me appears to have taken offence at the Plaintiff's reaction but this officer appears to have been all too ready to accept the Defendants' version of events. Although served with a subpoena to produce all records and documents relating to the accident he attended producing none saying that he had forgotten to ask for them to be made available to him for his court attendance. Although he was eventually sent away to obtain them he returned the next day saying that they had been destroyed in view of the lapse of time. Whether or not they have been, and I am in no position to make a positive finding one way or the other, I have only this officer's word to go on. It is entirely unsatisfactory. Of one thing I am satisfied - that is that this officer, who seemed to have some memory, refreshed no doubt by some documents, was far too willing to accept the Defendant driver's version of events without an objective efficient assessment of all material. No photographs were taken, the bicycle was not put in position in relation to the cab of the lorry; the bicycle was not examined for damage. This so-called traffic accident investigation left a lot to be desired and the public is entitled to expect something better of its Road Traffic department.

Quantum - General Damages (Pain and Suffering)

18. As a result of being knocked to the ground, the Plaintiff suffered a fracture dislocation of the 6th and 7th cervical vertebrae which was treated with open reduction and metal wire fixation approximately one week after admission to hospital. This was a spinal fusion at this level. There was a head injury with no apparent brain damage or lesion - a scalp laceration needed suturing and he was recorded as having been unconscious for in excess of two hours in one report, though in fact the period may well have been as little as half-an-hour or less. There were other more minor injuries to the left shoulder, and left eyebrow.

19. He was discharged on or about 10th May 1994 but readmitted two weeks later for examination of possible nerve damage. A CT scan and myelogram were carried out. He was experiencing numbness over his fingers, especially those of his right hand, and he had a clumsy gait, being prone to fall. He complained also of mental slowness and poor memory. Dr. Edmund Cheung saw him in October 1995, about 19 months after the accident. The Plaintiff told him of epileptic attacks in childhood but for the last thirty years he had not been on any medication for epilepsy.

20. In his conclusions Dr. Cheung was not sure that there were true indications of impaired memory, muscle strength and vision from the tests he carried out. He did however find objective signs of some neurological deficit consequent upon the neck injury there being absent tendon reflexes in the left arms and upper abdominal reflexes. He also credited some mild weakness and numbness in the left hand and arm, with a degree of disability in the legs. This impaired his balance to some extent.

21. A CT scan, though showing some non-specific abnormal shadows in the basal ganglia, disclosed nothing to indicate epilepsy, past or present. Since the question of epilepsy and the psychiatric sequelae are of some significance and no little uncertainty, I will deal with these separately and confine myself for the moment to the orthopaedic problems and related neurological deficit.

22. After undergoing the spinal fusion for which bone grafts were taken from his iliac crest, he was transferred from the Queen Elizabeth Hospital to the Kowloon Hospital for rehabilitation with a halo-body jacket to immobilise his neck. This was about 10th May 1984. He was discharged from Kowloon Hospital wearing a neck collar, but readmitted to the Queen Elizabeth Hospital for, amongst other things a nerve conduction test, CT scan, and myelogram - the former on 27th May and the latter two investigations on the 21st June. The report on the Nerve Conduction Test showed some neurological problem which was more severe in relation to the left wrist than the right. On a number of occasions in 1994 there are entries in the records concerning numbness in the right thumb, index and middle fingers. It is clear that there were clinical findings and objective tests which confirmed some neurological deficit in the distal parts of both upper limbs.

23. In November 1994 a medical assessment found residual numbness over the finger tips and weakness and unsteadiness of all four limbs. A year later when Dr. Cheung saw him, it may well be that he was not performing tests as well as he could do, but there were 'objective' signs of some neurological damage. Accordingly Dr. Cheung concluded that he had some degree of disability in his arms and legs, as a result of the fracture dislocation. There was impairment of his balance.

24. When Professor Leung saw the Plaintiff in January 1996 he found slightly decreased strength of the upper limbs when tested against resistance. His left hand was weaker. In the lower limbs reflexes were sluggish with the left leg "obviously more clumsy and weaker than the right".

25. In October 1997 the Plaintiff saw Dr. Brian Choa for the first time and has remained under his care since with intermittent trips to the hospital which have disrupted the regimen established by Dr. Choa in relation to the epilepsy or epileptiform attacks.

26. During his initial examination he found well-preserved muscle power in the upper limbs, but sensory loss to the index and middle fingers bilaterally. There was no abnormal neurological sign in the lower limbs. This general picture was confirmed by Professor Leung on seeing the Plaintiff again in October 1998.

27. Dr. Choa's evidence was largely concerned with the epilepsy and its origin, treatment etc. but in relation to the neurology he confirmed that there had been no sign of serious cord compression, and apart from his gait being perhaps slow and tentative there was nothing obviously untoward.

28. Dr. Arthur Chiang, called on behalf of the Defendant, confirmed that the neurological deficits in the upper limbs, essentially distal, corresponded well to the site of the fracture at C6 and C7 level. The abnormal signs, post-operation, were located to the left hand side but he conceded that he could not exclude the weakness to the right upper limb as attributable to the cervical fractures. There were, of course, in the hospital records, consistent references to neurological deficit in the right upper limb. He did not rule out entirely the possibility of neurological deficit in the lower limbs arising from the neck injury though he thought it was of a low order. All consultants were agreed that this Plaintiff could not manage those aspects of his business which involved riding a bicycle and frequent lifting of heavy weights. Unless this Plaintiff were able to employ others to do those fundamental tasks, and maintain business goodwill by being on the scene at all material times, the business could not survive or be revived.

The Epilepsy

29. The first entry in relation to any such history appears in the Accident and Emergency Record of the Queen Elizabeth Hospital on his re-admission on the 24th March. The treatment sheet states: "Epilepsy on long term medication", with an order: "Resume private epileptic drug when resumes diet(?)". The Nursing Kardex for the same date says "Patient's relatives informed to bring back private drug". In the Intervention and Evaluation column is written. "Resume private epileptic drug when resume diet(?)."

30. There is no entry recording actual receipt of the drugs by the hospital or any evaluation of them. Later on the 24th March is an entry in the treatment sheet. "NPO (nil by month) except medication Luminal, Phenytoin and Mysolin (with dosage)". By that time of course the hospital was aware that the X rays taken privately showed joint dislocation at C6 and C7 levels and he was prepared for traction. The operation to fuse the vertebrae was carried out on the 30th March.

31. The Nursing Kardex entry for the evening of 24th March reads - "Dr. W. H. Li - Luminal 30 mgs. Phenytoin (dilantin) 100 mgs. Mysolin 250 mgs. N.P.O. (nil by mouth) except medication".

32. Dr. Choa's view of this mixture of epilepsy medication was that it was a 'cocktail' - a "strange combination" of drugs. It was a low dose of Luminal but a high dose of Phenytoin. In fact he described the result as "rapidly becoming toxic" which suggests that the Plaintiff had not been on that level of medication before the accident.

33. If that is correct and I accept his evidence as an expert in this field and the consultant who currently has the Plaintiff in his care, it suggests that the prescribing of these three drugs was a hit or miss affair designed to meet what was believed to be a long-term state, so that the necessary hospital treatment could begin against a controlled neurological state. Dr. Choa's evidence concerning the contact between the hospital and treating consultant is of some importance. Generally he said, the hospital does not contact any treating physician before or after the hospital itself has interposed treatment.

34. He was obliquely critical of the hospital treatment which increased his dose of Epilim on top of a large dose of Tegretol when writing in July 1998. In November 1998 Dr. Choa wrote again of the Hospital efforts compromising his own treatment. He was reducing the Tegretol which did not seem to control his attacks and may have been affecting him intellectually.

35. The later hospital notes dealing with the purported or understood history of epilepsy are a little more detailed than the initial ones. The entry for 2nd June 1994 reads

"Patient was diagnosed to have epilepsy 30 years ago and was on anti-epileptic drugs luminal and phenytoin. No attacks for long time (a number resembling 30 has been partly written over) in recent few years, this time was admitted for TA with dislocation of C6 to C7 level".

It goes on to record "Serum? Level showed Phenytoin 168 (( Luminal 276((" and then suggests he comes off Luminal and that the Phenytoin is reduced to 200 mgs. at night, with the Phenytoin level to be checked in 5 days time.

36. He was re-assessed generally on the 9th June (the record wrongly states July) and the note is as follows:

"He has had no fit for many years and no fit after decrement (reduction) of the dilantin dosage (phenytoin)."

37. There is also a clinical note (undated) but following reference by Orthopedic and Traumatology Department for the Plaintiff's hypertension.

"History of epilepsy before 11 - alleged that after giving anti-epileptic drug by doctor during last hospitalisation BP rose up."

38. A consultation note written by Dr. Ng in March 1997 in the Neurology Clinic includes the following:

"NSD (no significant disease) no significant childhood illness, no family history of epilepsy ... seizures at a few years of age, ceased after treatment in China at around age 10 ....

Recurrent CPS 3 months after surgery ... orofacial and pedal automatism loss of awareness of surroundings, no speech during attacks, cease activity during attacks, recover in 5-10 minutes may more than 10 attacks per month, now around 4 per month."

This later records are in marked contrast to the prima facie interpretation to be put upon the initial entry made when he was re-admitted as an emergency with X rays showing fracture dislocation of the cervical vertebrae.

39. In October 1995 the Plaintiff told Dr. Edmund Cheung that he had an epileptic attack during childhood but had not been on medication for epilepsy for the past 30 years. The CT scan carried out by Dr. Cheung showed some non-specific abnormal shadows in the left basal ganglia which were unlikely to be caused by a head injury in the previous two years. They were unlikely to be linked to his past epilepsy. Amongst his conclusions was that the accident or injury was unlikely to be caused by an epileptic attack. I am satisfied as indicated hitherto that the collision and his fall were not caused by any epileptic attack.

40. Dr. Chung See-Yuen saw the Plaintiff and his wife in July 1996. He was told that the Plaintiff had a history of fainting after working continuously for a few days. He had no convulsions. He received out-patient treatment for several months. The context tends to put this somewhere between 16 and 18 years of age. He denied any history of epilepsy and long-term medication. He was unsure whether he had childhood convulsions.

41. In July 1998, some two years later, the Plaintiff was examined by Dr. Karam Singer, and his wife was also interviewed. He denied to Dr. Singer that he had any epilepsy in his childhood or later. His wife denied that any of the post-accident epileptiform manifestations had been demonstrated before the accident. His mother had told her he had convulsions in his childhood but was not treated for them. Dr. Singer's views of his psychiatric state depend to a significant extent upon the question whether epilepsy medication predated or post-dated the accident.

42. In their evidence the Plaintiff and his wife categorically denied that he had been on epileptic medication before the accident and that he had had any epileptic attacks or manifestations before that event. I accept their evidence. I do not believe that both he and his wife were lying to me about this. Their evidence is consistent in broad terms with what they have told the various consultants since he was discharged from hospital. Dr. Singer understandably has some reservations about the Plaintiff's credibility but he has come late onto the scene - July 1988 some 41/4 years since the prime events. He also sets great store by the initial entry in the hospital notes. Dr. Choa, it is true, also found this entry suggestive of someone having produced drugs to the hospital. Having considered all the evidence and entries relevant to this aspect I am not of the same view as Dr. Choa. Mrs. Yim said in evidence that the nurse asked about his epilepsy and so she went home to ask her mother-in-law who told that before he was 12 years of age, in China he had suffered convulsions but people there said he did not consult a doctor or take medicine. This was the information which she gave to the nurse. The nurse, she said, asked her if he had taken any medicine and she replied that he had not. Unfortunately there was no evidence from the hospital relating to the notes and what they in fact meant. It may be of course that after this length of time no one has any clear memory. However I am not prepared to interpret the inadequate hospital note on the 24th March 1994 as being conclusive evidence that he was on that specific medication prior to the accident in preference to the evidence of the Plaintiff and his wife and what they have told to a number of consultants. The hospital note is not in my view informative enough to warrant that preference. How then should one interpret the hospital's note? I prefer to conclude from Dr. Choa's opinions that having, in the comparative emergency in which he presented himself, heard that he had a history of epilepsy without knowing what medication he was on (if any) they instituted for protective neurological purposes a regime which was a "strange combination" and which proved to be toxic and unsuitable. Had the family in fact brought those identified drugs to the hospital the doctors would have made clearer records of them. Proper careful clinical recording was essential and would have made this clear. I would have expected a careful hospital to have ascertained who prescribed such drugs or who had treated him, though I bear in mind Dr. Brian Choa's oblique criticism of hospitals to the effect that they were not distinguished for their communication with practitioners in the private sector who had care of the patients. I must bear in mind that Hong Kong does not have the benefit of the General Practitioner Scheme.

43. But regardless of whether he was on any medication for epilepsy before the accident, it is absolutely clear from the evidence that he was running a one-man business which required work for long hours each day and a degree of activity in preparation and delivery of the meat and maintenance of essential business contact. He could not do this successfully if he was vulnerable to random attacks of an epileptiform nature. And he had run this business for many years. Furthermore as a result of the injuries he became subject to epileptiform attacks which after much variation in type of drugs and dosage, came under a degree of control. That state with its varied manifestations, and his psychiatric state, prevented him from rescuing his business. To all intents and purposes this business had gone by the time he was finally discharged from hospital treatment for his injuries. The evidence is equally clear, and supported by Dr. Arthur Chiang, called on behalf of the Defendants, that the state of his neck would prevent him from doing the rounds on his bicycle and carrying out the sort of sustained manual work necessary for the business to survive. He would have had to employ people to do all the work he was accustomed to doing, and given the nature of the business concerned, it would not be a viable one in these circumstances. It depended on his physical contribution and close involvement. I accept that his customers declined to pay what they owed him despite his own attempts to collect the debts. There was no chance of resurrecting such a business.

The Psychiatric State

44. Dr. Chung See Yuen who saw the Plaintiff in July 1996 concluded that he was suffering from a Post-Concussional Disorder consistent with a closed head injury which had produced a significant degree of concussion. The fact that since March 1994 the Plaintiff had been on anti-epileptic medication, unknown to Dr. Chung at the time, and that the side effects of such medication could mimic such a disorder, does not invalidate his diagnosis. It is most uncommon for the drugs to produce all the symptoms noted by him.

45. The pre-existing epileptic state (assuming this had persisted since adolescence though quiescent or even if controlled by medication) and the epileptic medication since March 1994 did not affect his second diagnosis that of Disthymic Disorder. This Depressive Disorder (an alternative title) was related to the injury, the consequent inability to work, and loss of business. The fact that the Plaintiff had not suffered before the accident from any mental disorders (whether he was then on medication or not) lent support to his diagnosis and reasoning. He was mentally unfit to work. But in any event he was physically unable to work, the business had collapsed and there was no alternative work available.

46. Dr. Chung See-Yuen saw him again in November 1998. By that time Dr. Karam Singer had also seen him (July 1998) and Dr. Chung was able to consider Dr. Singer's first report and concluded on the basis of his own examination that the disorders diagnosed by him, two years earlier, persisted. He had not responded favourably to psychiatric treatment over the past year yet there were clear areas of improvement. He rejected any suggestion of exaggeration on the Plaintiff's part.

47. In his own report Dr. Singer concluded that the Plaintiff suffered from a Depressive Disorder of a mild degree, and Post-concussional Syndrome of a mild to minimal degree. He differs from Dr. Chung in this diagnosis only in the degree of the disorders. Dr. Singer made a surprising reference to the "absence of objective evidence of head injury". The loss of consciousness and head laceration which required suturing is well-documented. The only true reservation expressed was whether Post-Traumatic epilepsy should be considered an additional diagnosis in the light of the uncertainty as to whether he suffered from epilepsy prior to the accident. He formed the view that the Plaintiff exaggerated his condition to an extent. Even at that stage he took the view that "some of the manifestations of Depression can be accounted for by medication to control the epilepsy." It could also account for some persisting neurological problems. Dr. Singer set out what he regarded as inconsistencies to suggest exaggeration. Having examined those in the light of all the reports, the medical history of this man, the trauma endured, and the likely effect upon a man of this age of the loss of a long-standing business, together with the impression I formed of him when he gave evidence, I do not find them to be inconsistencies. This man is understandably variable in mood, recollection and physical well-being. Both Dr. Chung and Dr. Singer considered he should continue to have psychiatric treatment. They differ only in the duration of it.

48. In his report of October 1998, supported by his evidence at trial, Dr. Singer felt compelled to modify his views in the light of more information from the hospital records concerning the Plaintiff's epilepsy, and his interpretation of that material. There is something of a non-sequitur in his conclusion that the Plaintiff suffered from temporal lobe type epilepsy before the accident. For this he relied upon the hospital entry of 22 May 1996 (over 2 years after the accident) - "10+ epileptic attacks in last one week. Clinical feature of TLEs" and links it with what is known of the Plaintiff's pre-accident epilepsy, itself surrounded by a degree of uncertainty and controversy. "This temporal lobe epilepsy can also account for the ... psychiatric complaints" he adds. What he now has, Dr. Singer advanced in his modified view, are depressive symptoms which are mild. They are he says secondary to his epilepsy and the "long-term" medication. By "long-term" I have assumed he means to include pre-accident period.

49. However what is clear is that there is no evidence whatever to suggest that he was suffering from any psychiatric disorder or sequelae associated with epilepsy before the accident. All his present troubles date from the accident. He appears to have had at least three decades of trouble free employment and a significant number of years in a self-employed capacity running a fairly demanding one-man business without any incident or period of incapacity. If he was not on the pre-accident medication, as I find, then the trauma has triggered off the epileptiform attacks of childhood or adolescence which had not manifested themselves in the intervening thirty years or so, and set in train the psychiatric problems to a greater or lesser extent, depending on the assessments of Dr. Chung and Dr. Singer (initially). It is highly probable that the disorders vary in intensity and effect from time to time. It would not be surprising to find that on occasions his mood tended to magnify the symptoms in his own mind. Having seen him give evidence he appeared genuinely a listless, flat, uninterested individual whose base in life - his business - which gave him a quality of life, had been kicked away from him. The quality of life had gone. In the event I prefer the evidence of Dr. Chung in this case.

50. Even if I were to be mistaken as to the pre-accident situation with regard to medication, and that he had been on such medication, it is obvious that it controlled his state and had done so for over thirty years to the extent that he had no convulsions, no aberrant behaviour, and had run a business consistently and successfully. All the problems commenced post-accident. Substantial variations in medication, in physical and mental sequelae which seemed for a long time without proper control, give a picture of a man significantly disabled by the events of March 1994.

51. It is not necessary for me further to review the overall physical and mental state. There is additionally a substantial loss of amenity. Dr. Singer's suggestion that he can now conduct his former business is on the facts of this case, and even on the evidence of Dr. Arthur Chiang, not tenable.

52. General Damages for pain suffering and loss of amenity will be $750,000.

Loss of earnings

53. Examination of this proved somewhat complex and then confused in the light of what purported to be business records.

54. Madam Yim's evidence was that which gave rise to this problem. What was produced and relied upon by her as the Cash Book and Ledger as the basic books seemingly recording payments out (purchases, expenses) and receipts, turned out not to be such records. They had in fact been created some time in 1996 as a result of a request by the Legal Aid Department. Some form of account was prepared by Mr. Jerman Chu but I find this quite unreliable. His statement shows that information presented to him was accepted at face value. The basic figures have not been proved and are highly suspect. There are no primary documents in support. It is not clear who "created" the "Cash Book" and "Ledger" in question. "Books" for earlier trading periods suggested a pattern of trading which bore some resemblance to the picture put forward based upon Mr. Chu's "Financial Statements" and the constructed "books".

55. During the course of the trial some documents eventually emerged from the Inland Revenue. It was apparent that disclosure of documents and proper preparation of the claim for damages under this head, had been sadly deficient. Those Inland Revenue documents set out the profits for the financial years 1991/92 and 1992/93. The Plaintiff claimed that he had paid no tax since 1990.

56. The annual net profit returned for Inland Revenue requirements for 1991/92 was $40,923. In 1992/3 it was $35,136. This is in stark contrast to the claim for loss of profit on a monthly basis of between $12,000 (now) and $40,000 originally. It may well be that banking documents show substantial sums being paid in and withdrawn, which are far in excess of the figures disclosed to the Revenue. However the claim must be based on the proving material. It would be wholly wrong to go behind the figures disclosed to the Inland Revenue. The Plaintiff's income and/or net profit may have been significantly more than stated on forms requiring honesty and truth. I am not prepared to say that the Inland Revenue has not seen the full picture (whatever that is) but those declarations are my yardstick. I do not need to look beyond them. The annual pre-accident loss of profit is therefore, allowing for ups and downs, $40,000.

57. The pre-trial loss is $40,000 x 5.25=$210,000. I accept that there was a notable though unquantifiable loss for 1993/94 by reason of the inability to collect monies due for goods already delivered. In fairness to both parties this should not exceed $15,000. The pre-trial loss therefore totals $225,000.

58. He is now 54. He would probably have continued this business beyond 65 years. I do not accept that by reason of his pre-existing history of epilepsy, whether requiring control by medication or not, that there was, had the accident not occurred, a risk of a relapse which would justify a decrease in the appropriate multiplier. I do not accept that he has a residual earning capacity. That is unrealistic. There are however the usual risks to take into account such as downturns in the economy. Accepting these - and the unusual incident of "birdflu" as contended for by Mr. Sakhrani, the proper multiplier is 7. The future loss is therefore $40,000 x 7=280,000

Agreed items of special damage. These total $35,373.

Tonic food

59. This is claimed at $150,000, it is unarguably grossly excessive. Accepting that it is in addition to, rather than in substitution for normal intake of food, I will allow $20,000.

Future medical expenses

60. Some psychiatric treatment may help. I am not entirely satisfied as to its likely benefit but with this protracted litigation out of the way, he may be more motivated and I will allow for one session a month for one year. Any benefit to be achieved from it will be realised within that period. The sum allowed is $25,000.

61. Interest is to be calculated and agreed by the parties.

62. There will be judgment for the Plaintiff for $1,335,373 with interest at the appropriate rate on the relevant items. The Defendants will pay the Plaintiffs costs on a party and party basis to be taxed if not agreed. The Plaintiff will not have his costs for two days of this trial wasted through consideration of the loss of profits claimed and no costs will be allowed in respect of Mr. Jerman Chu in any respect.

Representation:

Miss Selina Lau instructed by the Director of Legal Aid for the Plaintiff

Mr. Ashok Sakhrani instructed by Deacons, Graham James for the Defendants