Tsang Kay Ping Alias Tsang Ting and Others v. Lo Wai Yu and Another

Case No.HCA 2132/1980

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA002132/1980

1980, No. 2132

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

	TSANG KAY PING alias TSANG TING	1st Plaintiff
	TSANG FAT YAM (an infant) by TSANG KAY PING alias TSANG TING his father and next friend	2nd Plaintiff
	and
	LO WAI YU	1st Defendant
	YEUNG SHAT LING	2nd Defendant

_____________

Coram: Hon. Hunter, J. in Court

Dates of Hearing: 14th, 17th & 18th of February, 1986

Date of Delivery of Judgment: 12th March, 1986

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JUDGMENT

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1. In many respects this is a most unfortunate action. It arises out of a motor accident which took place as long ago as 6th June 1977. Early that morning the two named plaintiffs, who are father (whom I shall hereafter call the plaintiff) and son (whom I shall refer to as the son since he has abandoned his claim) boarded a PLB driven by the 1st defendant andowned by the 2nd defendant. They were the only passengers. The plaintiff sat in a single seat on the near side of the vehicle behind the door. The son sat on the right of the back seat. The vehicle travelled along Castle Peak Road in the direction of Yuen Long. It was very windy and very wet. A dog suddenly started across the road. The 1st defendant tried to brake to avoid it. Unhappily he under-estimated the lack of adhesion between his wheels and the road surface in the prevailing very wet conditions. The PLB went out of control. It performed a complete circle to the left. The middle of its off-side struck a tree on the edge of the road. It then fell back on to the road on to its near side. The dog was killed.

2. The 1st defendant gave his evidence with candour and I think accuracy. I accept it in preference to both the plaintiff and the son. He acted instinctively and out of humanity. But to escape the obvious inference of negligence arising from his vehicle's manoeuvre, he has to show that this happened without negligence on his part. This he cannot do. His inability to perform an emergency stop without losing all control, demonstrates, I fear, that he was driving too fast in the prevailing conditions. This case is quite different from that of Parkinson v. Liverpool Corporation (1950) 1ALL ER 367 to which counsel for the plaintiff very properly referred me. It is the 1st defendant's misfortune to have his humane act dubbed as negligence. It' is the 2nd defendant's misfortune to be held vicariously liable as she has not sought to rebut the inference of agency arising from ownership.

3. The defendant's second major misfortune is that they insured the vehicle with the failed Singapore Insurance Co. This has materially affected this action. It was started in 1980 and then not taken beyond pleadings. Nothing happened until August 1985, when a notice of intention to proceed was given following the grant of legal aid to the plaintiffs. This revival was no doubt the result of statements then emanating from the Motor Insurers Bureau which suggested that successful plaintiffs and unsuccessful defendants in the position of these parties had a reasonable expectation of help from that quarter. I hope this is true. It is what the parties deserve. But if it is, an important defect in the system is revealed. In a case like this no one, it seems, is under any obligation to notify or warn the MIB. It therefore took no steps to arrange representation. The defendants were refused legal aid years ago, on I hope and must assume, financial grounds. The Court was thus left without any legal or medical assistance from the defendants, in a case raising very serious and difficult questions on quantum both as to the injuries in fact suffered and as to their effect upon the plaintiff's life and working capacity.

4. The problem arises in this way. After the accident the plaintiff was taken to Princess Margaret Hospital. He was admitted to Surgical Ward A. After 6 days he was transferred to the Orthopaedic Ward, and one day later was discharged. In his report dated 14th November 1977 Dr. Wong of the Orthopaedic Department described the plaintiff's condition in the following terms:

"There were-multiple lacerations over the head, right shoulder and right side of the back. Abrasions were found over the right elbow, right leg, right shoulder and right side of the back. X-ray revealed fracture of the right scapula bone.

Surgical toilet and suturing were done for the lacerations".

5. Dr. Wong may well have had no personal knowledge of the plaintiff's condition on admission, and in all probability took the quoted information from the records made available to him on transfer. He was not called to give evidence, and no attempt was made to produce the hospital records (if indeed they still exist). It must be noted that this report makes no reference to any injury to the head: to loss of consciousness: amnesia: possible brain damage: or fractured ribs.

6. In December 1977 and January 1978 the plaintiff was seen by Dr. Wedderburn and Dr. Cheung. In their reports dated 14th December 1977 and 30th January 1978, Dr. Wedderburn, and 24th January 1978, Dr. Cheung, they concluded:

	(1)	X-rays showed the fracture of the right scapula to have affected the shoulder joint, but it had united in a good position and the x-ray alone suggested that the plaintiff should then have had a good range of movement. This, in fact, was far from being the case. There was a serious loss of abduction in the right arm, because when it was raised to any extent the arm and the shoulder joint moved as one. Dr. Cheung likened the position to an "almost complete ankylosis (i.e. fusion) of the scapula to the humerus". In evidence' he said that the plaintiff "fixed his shoulder so that I could not move it". Dr. Wedderburn assessed' this impairment, which he then took to be permanent, at 22% or 13% of the whole man. Heavy manual labour such as the plaintiff had been performing before the accident as a caisson worker was therefore excluded.,
	(2)	X-rays were produced to Dr. Wedderburn, said to have been taken privately of the plaintiff, which revealed fractures of the 1st, 4th and 5th ribs. These had then healed satisfactorily.
	(3)	Upon the basis of the post-accident history then given to him, which suggested both concussion and post-traumatic amnesia, Dr. Wedderburn feared some brain damage. Dr. Cheung's examination followed at his suggestion. Dr. Cheung conducted an EEG and concluded that he could find no brain damage but that the plaintiff had a "quite marked anxiety neurosis" which he hoped would respond to drug or rehabilitation treatment. Dr. Wedderburn agreed with this suggestion of treatment, and put this impairment at 10% but likely to be amenable to treatment.
	(4)	Both doctors referred to exaggeration in their reports, deliberate in the case of Dr. Cheung. In evidence the doctor said that he thought the plaintiff was deliberately falsifying the number of fingers he claimed he could see with his arm extended to give a false impression of defective eye sight.

7. The injuries set out in these reports were all pleaded in the Statement of Claim served in 1980: This also asserted a continuing inability to perform any work since the accident. For 5 years thereafter the action lay dormant. During this time the plaintiff received no such treatment as the doctor suggested, and likewise did almost no work. In 1985 the action was revived in the manner I have related. Also, and the two events may be related, some time in that year the plaintiff started to do some part-time dish-washing as a stand-in for his friends and relatives.

8. In preparation for the hearing the plaintiff was again examined by the same doctors: Their conclusions on this occasion in reports dated 24th October, Dr. Cheung, and 19th November 1985, Dr. Wedderburn, were very different.

	(1)	They found the plaintiff to have a full range of movement in his right arm and that the muscles in each arm were normal and equal. There was no sign of any wasting. Dr. Wedderburn said that his previously assessed permanent impairment had been "entirely eliminated".
	(2)	The reports are largely silent about neurosis, and in his evidence Dr. Cheung said it had "almost subsided".
	(3)	The plaintiff's complaints of dizziness, numbness on the right side of the body and dulled intellect and memory were attributed to brain damage. A newly performed brain scan revealed what was called a lesion "in the mid-parietal lobe on the left side". This is not the part of the brain normally associated with changes of personality. This lesion was revealed because that part absorbed less x-ray than the apparently normal surrounding brain cells. Such x-rays could reveal this difference, but not the cause. There were several possible causes including natural illness. One such possibility was trauma. If trauma was the cause, then this area could represent scar tissue. The doctors were disposed to infer the fact of some head injury from the plaintiff's admission to Surgical Ward A, from a loss of consciousness or post-traumatic amnesia: and from the plaintiff's description of his own symptoms.
	(4)	They concluded that this brain damage had caused what Dr. Wedderburn described as "mental deficit". He repeated his 10% impairment assessment for this element. This conclusion seems to have been based upon the impression the doctors then formed of the plaintiff, as compared with an inference/assumption of his pre-accident condition based solely upon his capacity to work as a caisson worker.
	(5)	Both doctors recognized the difficulty arising from the subjective nature of the plaintiff's complaints and the lack of objective assessment or proof. Dr. Webberburn in particular was concerned to report the marked difference between the dull apathetic man he saw in his consulting room, and the apparently animated, lively talkative man he later saw leaving the hospital.
	(6)	The doctors disagreed about the plaintiff's working capacity and when he had been fit to return to some work. Dr. Cheung's final view of a reasonable period of unemployment was one year. Dr. Wedderburn's 2 to 2½years. In evidence Dr. Cheung's view was that his working capacity "turns more on his willingness to work than what he is capable of doing". He thought the plaintiff had a physical capacity for heavy work except that he might have pain in the right shoulder if it was over used. Dr. Wedderburn had, I think, great difficulty in reeonciling three contradictory views on this aspect in his three different reports.

9. Copies of these reports were sent to the two defendants. Their understanding was probably slight and they did not try to obtain medical assistance. No application was then made to amend the Statement of Claim specifically to raise this allegation of brain damage. Such application was in fact made at the close of the plaintiff's case. Conscious of the defendants' complete inability to deal with or understand the position I deferred my ruling.

10. In relation to actual work the evidence was that before the accident the plaintiff worked as a sub-contractor in caisson work, digging mud and breaking rock. Although the loss of earnings claimed in the documents was continuous until 1985, the plaintiff gave evidence of two attempts to return to work between 1977 and 1985. In about 1979 (the son said 1978) he tried caisson work again. But after one day's work he had to take ten days off. He had insufficient strength in his right arm and suffered pain in the shoulder and ribs. After two further days' attempts, followed by days off, he gave up. At some later date he tried to work for two days digging road works trenches. But this also, he said, was too much. Apart from this he did nothing for nearly 8 years. He is illiterate. He said he did not know what other work he could do, and did not try to find any, or get help to find any.

11. 1985 brought the revival of the action and the commencement of parttime relief dish washing. He told Dr. Wedderburn he was earning sums ranging between $400 and $600 for 7/10 days' work in a month. He told me the range was $300/$400. He was very sensibly referred by the Director of Legal Aid to the Selective Placement Service (SPS) of the Labour Department. Their report was put'before me. In January last they offered him a job as a dish-washer at $2,000 a month. He declined for a number of reasons. He was convinced the job was too much for him. He could not travel there alone. This was a permanent job, and it would not be easy for him to find a relief when he wanted to take leave. He needed to look after his house when his wife was at.work. He declined further help from SPS, and in evidence said he was unable to suggest any work which might be within his capacity. These answers, I think, can be taken to represent the plaintiff's attitude to work substantially since the accident.

12. In these circumstances the first major question is how far can I accept the plaintiff as a credible, reliable witness. I regret to say that. my answer, for a number of reasons, is scarcely at all.

13. First, an unusual but significant issue arose as to the plaintiff's age. The hospital report gave his age as 50, and this figure must have emanated from him. He criticised it to Dr. Wedderburn, asserting that his true age was 43 which was. said to be the age in his ID Card. Dr. Cheung was.the first witness called. When attempting to formulate a question in cross-examination of Dr. Cheung, the 1st defendant said: "I am sure the plaintiff is 59". When I asked him why he put the question in this way his answer was "because I asked him a moment ago". He told me later in evidence that he has spoken to the plaintiff outside the Court before the trial started on the first day, had asked him his age, and had been given this answer. The plaintiff agreed that they spoke but denied the answer. I accept the 1st defendant's evidence. Further I think that in advancing this lower figure the plaintiff must have been aware of its implications in relation to his claim for loss of earnings.

14. Secondly, the doctors in considering this question of brain damage, relied heavily upon an alleged history of concussion and posttraumatic amnesia. I received a rather different account from that recorded by Dr. Wedderburn. Again I prefer the evidence of the 1st defendant. He said. that the plaintiff was lying, possibly unconscious, when he left to call the police after the accident. But on his return he saw the plaintiff getting to his hands and knees trying to climb out of the vehicle. This is consistent'with the hospital report: and inconsistent with the son's evidence that he was unconscious when last seen by him at the hospital, and with father's evidence that he recovered consciousness first just before he left the hospital some six days later. In the absence of any evidence from the hospital, or sight of the hospital records, it seems to me unsafe to draw any inference from his admission to a surgical ward, or from his wife and son's description of him at visiting hours. These events are nine years old. I have no idea whether, and if so what sedatives, or other drugs the plaintiff may then have been receiving.

15. Thirdly, the doctors were unanimous about the plaintiff's recovery in relation to the right shoulder and the rib fractures. But in the witness box the plaintiff claimed a loss of abduction of the right arm only a little less than that recorded by Dr. Wedderburn in 1977. He claimed to be suffering great pain if he attempted to raise his arm higher and an inability to do so. Likewise he complained of great pain over the right ribs and armpit much of the time he was in the box. I cannot accept this as true: The same, I think, must be said of the air of helplessness, suffering and dejection he presented in Court.

16. In these very difficult circumstances my findings upon the plaintiff's injuries are as follows:-

	(1)	I am not satisfied that he suffered any brain damage in this accident. There is no sufficient connection on the evidence between this lesion and trauma, let alone this particular trauma. I am not satisfied of any head injury beyond lacerations, of anything more than possible momentary concussion, or of any amnesia. The question of amending the Statement of Claim is therefore academic. But if I had taken a different view I have great difficulty in seeing how I could properly have allowed such a substantial amendment so very late.
	(2)	He suffered a fractured scapula which healed in good position. I believe that when Dr. Wedderburn wrote on 14th December 1977 that "he should now have good movement of the. shoulder joint" that is substantially what in fact he .then enjoyed. But he then successfully practiced upon the doctors the same deception that he attempted in the witness box, by, in Dr. Cheung's words, "fixing" his shoulder. This, I think, is the most likely explanation of the subsequent recovery which Dr. Wedderburn called "surprising".
	(3)	He suffered three broken ribs which unhappily seem to have escaped notice in hospital.
	(4)	He suffered the multiple lacerations and abrasions described in the hospital report.
	(5)	He, no doubt, suffered the shock (I use the word in a non-medical sense) of the accident, as well as the inevitable pain and suffering caused by his physical injuries.
	(6)	There was no evidence of any real personality change: nothing beyond flashes of bad-temper and irritation at his disability: nothing to show that what the doctors tried to record differed materially from his preaccident condition. But I am prepared to accept that all these gave rise to something like an anxiety neurosis. Some part of this may properly be attributable to the accident. The balance is perhaps more attributable to a desire to obtain favourable medical reports in support of his claim. One of the tragedies of this case may well be that having once set out on that course, it had to be maintained as long as there was any flicker of realistic life in this claim. This may have contributed materially to the plaintiff's present condition.

17. I must now attempt to convert these findings into money:

(1)	Loss of earnings and earning capacity. Several different figures were given to me and to the doctors for the plaintiff's pre-accident earnings. Not a single document was produced. There was nothing to show whether his basic rate was $80, as was said originally, or the $110 reached in the witness box: nothing to show how many days on average were worked and how many were lost to weather or other circumstances: nothing to show how many hours were worked an an average working day. The best I can do is to take $80 as the rate: allow about 26 working days: and adopt a monthly figure of $2,100. On my findings, by the end of 1977 the lesser injuries had healed. There had been a substantial recovery of movement in the right arm, but anxiety had crept in. His sick leave certificates take him nearly to that time. So by the start of 1978 he was fit for some work, e.g. the lighter work I was told was available to a man working at the top of the caisson. It may be that he was not then fully able to return to his old work below. But had he been differently motivated he would have tried and might have succeeded. Equally it may be that he had reached an age when this type of work was becoming too much for him, and the accident only accelerated his transition to lighter work. I can only try to estimate the consequences of what might have happened had the plaintiff been minded to try. My best attempt is to allow under this head:-
	(i)	Total loss of wages in 1977 for 7 months at $2,100 a month ....................................... $14,700
	(ii)	Plus an additional allowance of ................................... $15,000
(2)	Pain, suffering and loss of amenity. There should have been substantial recovery by 1978 subject to some residual pain in the shoulder. But the attributable part of this anxiety neurosis intervened. I think a reasonable figure to award under this head is $20,000.
(3)	Payments to herbalists and bonesetters. I fully accept the principles of Yu Ki v. Chin Kit-lam (1981) HKLR 419, but have the greatest difficulty here in ascertaining the truth. In December 1977 Dr. Wedderburn records the plaintiff as saying that he had attended a bonesetter "daily for 4 months costing $100 a day making a total of over $10,000". The number and periods of attendances claimed before me were very much less. The plaintiff's wife said that they only obtained 1 receipt at the time, because they did not then realise their significance. This is very credible. But 4 receipts, purporting to be contemporaneous, were in fact produced from herbalists. Three, totalling $2,697 are reasonably modest. The fourth, from a man describing himself as an "amateur herbalist" purports to charge $470 for each dose, and then produces a total of $9,400 for ten doses. Neither the plaintiff nor his wife can read, and therefore could not relate any receipt to any given event. In all the circumstances of this case I am not satisfied that more than $3,000 was expended upon such treatment, which is the figure I am prepared to allow as reasonable. I am prepared to make no allowance for the protracted purchase of tin ma over some 9 years which was first raised at the trial.

18. In these circumstances my conclusion is that the plaintiff is entitled to judgment against both defendants in the sum of $52,700. I will hear counsel, but my present inclination is that in the peculiar circumstances of this case it would not be right to award any interest.

( D.S. Hunter )

Judge of the High Court

Representation:

Mrs. Barnes instructed by D.L.A. for 1st Plaintiff.

Defendants in person.

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