The Kowloon Motor Bus Co (1933) Ltd and Another v. William Tse Wing Sum and Another
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CACV000015/1981
Coram: Sir Alan Huggins, V.-P., Zimmern J.A. and Power, J. Date of Judgment: 3rd October, 1981. ----------------- JUDGMENT ----------------- Sir Alan Huggins, V.-P. : 1. The Appellant seeks to reverse a finding of fact made by the Registrar upon an assessment of damages. In the words of the Registrar :
It is common ground that the hemiparesis occurred 32 days after the accident in which the 2nd Plaintiff suffered head and other injuries. The 2nd Plaintiff maintains that the paralysis was caused by a delayed intracerebral haemorrhage due to the injuries, whilst the Appellant says it is more probable that it resulted from a thrombosis entirely unconnected with the accident. No suggestion that there might have been an embolism resulting from the injuries was canvassed at the trial. 2. The substance of the Appellant's case is that the Registrar attached insufficient weight to evidence of the 2nd Plaintiff's prior history of hypertension and that, in the light of all the evidence, it was wrong to find that the hemiparesis was not more likely to have flowed from natural causes. The view which commended itself to the Registrar was that the head injuries led to gradual softening of brain tissue and that a haemorrhage occurred when the blood vessels no longer had adequate support. 3. The Registrar was faced with a mass of expert evidence upon a subject of the utmost complexity and the Appellant assumed a heavy burden in attempting to challenge his conclusion. This is the more so because the Registrar was able to emphasize the great advantage of one of the 2nd Plaintiff's experts in that he was the neurosurgeon who operated upon her immediately after the hemiparesis set in and the only witness who actually saw the brain damage. Counsel for the Appellant, of course, submits that the surgeon misconstrued what he saw. I say at once that I do not accept the argument that the Registrar in effect said that, because Dr. Cheung operated, the evidence of the other witnesses could be ignored : the argument does great injustice to the care with which the Registrar reviewed the evidence. 4. One foundation on which the Appellant builds his case is the history of hypertension. The Registrar made no definite finding on this point and was content to say that if there was pre-accident hypertension it did not give rise to any thrombosis. There is certainly no evidence that it did, but the burden of proof in the case was on the 2nd Plaintiff. On the other hand, if the Defendant wished to rely upon a previous history of hypertension, I think the burden was upon it to adduce some satisfactory evidence. The Registrar recognised that the subsequent cerebro-vascular accident could have resulted from an unconnected vascular problem. If there was a thrombosis unconnected with the motor accident it was a coincidence - albeit one not to be over emphasized - that it occurred on the same side as the head injuries. The alleged evidence of previous hypertension is contained in a letter written by Dr. Kwok after he had examined the 2nd Plaintiff two months after the motor accident and a memorandum from Professor Yau written one month after the motor accident. Asked where he obtained his information, Dr. Kwok asserted "she must have told me". There was undisputed evidence that after the accident she did have high blood pressure and Mr. Mills-Owens said that there was no reason to assume it did not exist before the accident. A presumption of continuance in these circumstances appears to me to be unjustified and it is not clear when "the history" of hypertension referred to by both doctors began. 5. It is then contended that the head injuries were not sufficiently serious to cause a severe haemorrhage so long after the event. It is rarely helpful to use adjectives to describe degrees of severity and then to deduce results from them. Dr. Shroff said the head injuries were "mild to moderate" and that it would take a "massive" haemorrhage to cause hemiparesis. Again, in this connection there was much discussion of the degree of loss of consciousness suffered by the 2nd Plaintiff immediately after the motor accident, the argument being that the head injuries could not have been severe unless she became unconscious. It was said that there was no evidence of loss of consciousness on 29th April, at the time of the cerebro-vascular accident, and that that was more consistent with a thrombosis than with a haemorrhage. There was no direct evidence that the 2nd Plaintiff did not lose consciousness but merely that her husband had spoken with her upon his arrival at the hospital. Mr. Mills-Owen submitted that the Registrar did not indicate that he had appreciated the importance of these matters. There is nothing in the judgment which shows that he did not: they were widely canvassed before him and it is unlikely that he overlooked them. 6. A specific ground of complaint is that the Registrar did not give sufficient weight to the evidence that a delayed haemorrhage rarely occurs more than ten days after an injury. This statement appears repeatedly in the textbooks, but it does not rule out the possibility that cases of longer delay may occur. Dr. Cheung gave careful consideration to it and was nevertheless of opinion that his patient, who was forty-four years of age, was suffering from delayed haemorrhage rather than from a thrombosis. With that Dr. Hunter agreed. I do not think we would be justified in saying that the Registrar was not entitled to accept their opinion. The doctors gave reasons for that opinion, although Dr. Cheung agreed that the symptoms upon which it was based did not entirely rule out the possibility of a stroke. Those to which he appears to have attached most importance were the presence of a subdural effusion of about 5 cubic centimeters of straw coloured fluid and the finding of 8 cubic centimeters of fluid admixed with necrotic brain tissue and some blood at a depth of about 2 centimeters. The latter fluid was in a cavity which he thought to have resulted from necrosis caused by the injury. 7. One seemingly significant piece of evidence was that upon a lumbar puncture no blood was found in the cerebro-spinal fluid. It was common ground that that pointed to an absence of haemorrhage, but, as I understand the somewhat obscure note of the evidence at p.57 of the record, Dr. Cheung was saying that a stroke would also produce blood in the cerebro-spinal fluid, although relatively less than upon a haemorrhage. At best this evidence is therefore inconclusive. On the other hand, it was common ground that, in an answer at p.98 of the record which was not complete, Dr. Shroff said that haemorrhage might occur in a part of the brain which was unconnected to the central canal of the spinal cord and would therefore not produce blood in the cerebro-spinal fluid. 8. It was submitted that if Dr. Cheung had been right in his diagnosis there would have been warning signs during the period the 2nd Plaintiff was in the Queen Mary Hospital: instead of that she was apparently making good progress. This is to beg the question, because the essential nature of a delayed haemorrhage is that the patient's condition is asymptomatic. 9. There was one reason given by Dr. Cheung for his conclusion which was not mentioned in the judgment, namely that he had found several arteries blocked at the same time. He thought it unlikely that a person in the 2nd Plaintiff's age group would have several arteries blocked by thrombosis at the same time. 10. Perhaps the strongest point made by Mr. Mills-Owens was that in cross-examination Dr. Cheung did say:
But that I think he meant that a computerised tomography scan, which was not then possible in Hong Kong, might have put the issue beyond doubt, that he was of opinion that the cerebro-vascular accident was due to the motor accident but that he did not rule out entirely the possibility that it was due to a stroke. The use of the word "equally" was unfortunate, but, on a reading of the witness's evidence as a whole, it is clear that he did not think the possibilities were equal. 11. In my view the learned Registrar dealt adequately with the evidence on this extremely difficult question and I do not think it is open to us to reverse his finding. Accordingly I would dismiss the appeal. Zimmern, J.A. : 12. I agree. Power, J. : 13. I agree and have nothing to add. 3rd October, 1981. Representation: |