WONG HOK CHUEN v. TAI KAM KIU AND ANOTHER

1985, No. A5331

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. On the evening of 28th October 1983, the plaintiff Wong Hok-chuen was walking along a pavement in Aberdeen Reservoir Road where he was knocked down by a motor car driven by the 1st defendant and owned by the 2nd defendant. Liability for such an accident would have been exceedingly difficult to avoid and was eventually admitted on the 1st day of the hearing.

2. As a result of that collision, the plaintiff suffered a number of physical injuries about which there is no dispute. First he was concussed probably for a matter of hours only. Secondly he suffered a laceration of the scalp and of the scrotum. Both of these lacerations have been described as well-healed, and that of the scalp as being hardly visible. Thirdly he suffered a wedge fracture of the front of the body of the second lumbar vertebra. This, I think, was regarded by Dr. Wedderburn as the most serious of the physical injuries.  He said it amounted to a 1% impairment to the whole man. Fourthly, there were some damage to the 5th lumbar nerve; and fifthly damage to the right shoulder joint.

3. As a result of these injuries, he was detained in hospital for three days and no doubt he suffered a good deal of pain and discomfort for a period of time in consequence. But they have had no permanent effects at all. They healed completely some time ago, and if the matter ended there, they would have produced a modest award for pain, suffering and loss of amenity. I doubt if I would be arguing with the defendants' suggested figure of $20,000. But they do not, and the whole issue really in this case, arises over what can best be described as the mental element; what Dr. Lau called the emotional disturbance. Here the basic facts are not in dispute.

4. First, very shortly after the accident, the plaintiff was making a number of complaints about his condition, which were exhaustively examined by a series of doctors and consultants. They could find no organic cause. The complaints of which he was making, and many of which he still makes, are of such things as persistent headaches, dizziness, loss of balance, loss of memory, loss of confidence, loss of powers of concentration; the sort of symptoms which the layman associates with clinical depression or anxiety neurosis. In particular he developed what might be described as a phobia about work: a complete inability to return to work. The third fact is that he has not in fact return to any form of work since the accident.

5. A number of serious questions arise on these matters. The first is, are they genuine. Is the plaintiff genuinely suffering from these matters, or are they made-up, invented or grossly exaggerated?  Secondly are they attributable at all to the accident? Is it the accident which has triggered off or aggravated the symptoms in an otherwise fragile personality?  Thirdly, have these matters really prevented him from returning to work or is this a case of invention or malingering? Fourthly what is the future, what is the best prognosis that one can now make as to his future condition?  Lastly, do these matters rank for compensation, and if so, what?

6. These are difficult questions in themselves and the plaintiff is in some respects his own worst enemy. He has made life very difficult for himself, his advisers and the court in some of the things that he had said. To an extent the problem is that he may be said to live in a world of fantasy, because the symptoms which he describes, and from which he claimed to suffer, are real to him but false to everybody else. How far does this world of fantasy extend? How should the court treat a man like this? Should I be treating him as an ordinary witness, applying to him what I can describe as the ordinary tests of credibility, my own best assessments of credibility; or should I try to make some allowance and adopt a more sympathetic approach, recognising that some of his troubles may stem from his disease and simply be the symptoms of that disease.

7. There are two aspects of his evidence which produced acute problems in this respect. The first relates to his past experiences in China before he came to Hong Kong which seemed to me to have played as important part in Dr. Lau's diagnosis. Dr. Lau is an experienced psychiatrist, who saw the plaintiff for the first time on two occasions in April of this year for the purposes of diagnosis, and then for two further occasions for the purposes of treatment. I have a report dated 26th April before me. In addition he gave invaluable oral evidence. I am quite satisfied that in the course of his interviews with Dr. Lau, the plaintiff was describing that he had suffered considerably in China during tile Cultural Revolution.  Something akin to ten years' persecution which the doctor felt had had a marked effect upon him. But when he came to describe these matters in the witness box, the account turned through 180^o. He said he had no trouble during the Cultural Revolution at all. Yes, some people did, but he was a timid man and he avoided all problems. One cannot have a sharper conflict than that.

8. Doctor Lau heard both versions having sat in court whilst this evidence was being given. He gave an interesting explanation. His view was that part of it came from this plaintiff's determination to attribute all his ills to this accident. In the course of that, he was supressing the past, certainly in the witness box. The doctor himself was convinced that something serious had happened, which had had a marked effect upon this man, in Mainland China before he came to Hong Kong. In the light of the conflict between what he said in the box and what he had said to the doctor in the consulting room, he was not prepared to offer a firm view as to what that currence was. But I felt him saying almost to me in parenthesis : "Give me another hour or two in my consulting room, and I am sure I shall get to the bottom of it."

9. The doctor's view, I think, really was, that this confirmed rather than shook his diagnosis. He was simply saying that this was an illustration of the effect of this accident has had upon this man; the accident that he felt had destroyed his life; the accident with which he has much less sympathy because it stemed from personal fault and not the fault of the system, which was the trouble in China. It has perhaps given rise to feelings almost of resentment; a desire for justice a desire for retribution in the man's mind. That is an explanation I find compelling and which I am prepared to accept. At least it resolves the apparently intransigent problem of the first part of this man's evidence.

10. The second difficulty arising out of his evidence is the description he gives of his pre-accident employment and his pre-accident earnings. The history there simply emerges on the face of the documents. In the year following the accident, 1984, he was seen by a number of doctors, all of whom were trying to put their finger on his condition, and particularly looking for some organic cause. In May of that year, he was seen by Dr. Wedderburn who in Hong Kong was uniquely experienced in this type of examination. He was one who recorded what his patients told him with considerable care. He recorded the plaintiff as having told him that when he first came to Hong Kong he was a hawker and then he became a door to door salesman: Not a word about any medical qualifications or if any experience or practice as an acupuncturist. In June of the same year, he was seen by Dr. Cheung.  His report says that he peddled clothing as a street hawker, and again is wholly silent about any other form of work.  In December of that year, this action was started in the Kowloon District Court and the claim there was for damages based upon loss of earnings of $2,220 a month from hawking and nothing more. So that throughout 1984, nothing was said about pre-accident employment except hawking.

11. The change first came in July 1985 when by an amendment, a further claim was introduced for loss of earnings from practise as an acupuncturist and a member of the Association of Chinese Doctors. That earning was said to be $4,000 - $5,000 a month. The last change came in December of 1985 when a request for particulars was directed, inviting him to say whether he had a hawker's licence which produced the answer 'No'. That caused a great problem in this jurisdiction where there is a line of authorities which say that you cannot recover your loss of earnings as an unlicensed hawker and perhaps somewhat surprisingly that such a hawkers' earnings cannot be relied upon in any way as a guide to earning capacity. No doubt in the light of those decisions, the claim for loss of earnings of hawkers was promptly abandoned by deletion in January 1986.

12. Despite that, the plaintiff in evidence said that in the month preceding the accident, he was no longer engaged in broking, as he first called it, and then it transpired that that was another name for hawking, in relation to clothes, and that he was spending his whole time practicing Chinese medicine. There was not a scrap of paper of any sort, diary, anything one can think of, which might be generated by doctors who see all their patients at home, have to visit their homes, know their addresses, know what they paid, know what they are owing, nothing at all. All of this he said he kept in his head. I had, by agreement, three statements put in, two women and one man, who between 1981 and 1983, were treated by him, obviously with some success. They say they were paying him something like $50 per visit.

13. In those circumstances, it seems to be quite impossible for a court to find that this man was doing more than occasional work as a doctor and acupuncturist. It is quite impossible to accept, quite unsupported, his present estimates now of what he was then earning. Whether he was also working as a hawker, I simply do not know. I do not think it is possible to attribute to him any more than the nominal sum of $500 a month which the defendants suggest as his earnings or earning capacity as an acupuncturist. That is the only way that I can see of dealing with his evidence in relation to his pre-accident earning.

14. I now have to come back to the basic question I posed earlier, and how I should be viewing the plaintiff, how I should be treating him as a witness?  Here I am particularly grateful to Dr. Lau. He gave his evidence carefully, fairly, clearly and I thought with balance and without exaggeration. He has seen a great deal more of the plaintiff than I have. He is a great deal more experienced than I am in this problem. I frankly think that in this sort of situation, the European judge should think very hard before rejecting the view of the Chinese psychiatrist on a Chinese patient. I am not, I hope, unwise enough to do so. I totally accept what he tells me, and I totally accept his disgnosis of this man's condition. Therefore I return upon that basis to the questions I originally posed.

15. First, are these conditions genuine?  I think they are. I think that he is genuinely experiencing these problems. As Dr. Lau pointed out, the symptoms of this type of disease tend to look to the healthy as bizarre as exaggerated, as invented, and this is one of problems which people have in assessing this sort of situation. Secondly, it is caused by this accident? Again I accept Dr. Lau's view that the plaintiff was, before this accident a vulnerable person, perhaps a fragile personality as a result of something which we do not know and cannot specify which happened to him in China. This accident had a triggering effect upon his behaviour. The fact that he was vulnerable is now more relevant to the future than to the past. Thirdly, did these symptoms prevent him from working?  What Dr. Lau said in his report about that is this. Describing the impact of the accident "..... He became despaired. He felt sad and hopeless. He considers himself worthless and useless. His outlook of life had changed for pessimism. He lost confidence in himself and dared not return to work. As he could not work for the time being, his sense of insecurity began to grow." So you had a loss of confidence, a loss of facility, a fear feeding upon itself. It seems to me that this was producing, as it were, a deepening neurosis or a deepening depression. But other elements started to come into it: Compensation-it is if you like it, resentment retribution. Again the doctor recognised this and said that it is only human. It did not detract from the existence of the condition and the causation which he had already described.

16. What then about the future?  Here it seems to me, again accepting Dr. Lau, the prognosis is good. First he was able to bring about a considerable alleviation of this condition this April by the use of anti-depressant drugs. But the treatment was not sustained because the money was not available to do it. Secondly the cure in Dr. Lau's eye really arises when the man is able to return to work. I would have thought there are very real prospects of his being able to do that within a matter of months. I think it is quite impossible to specify the period, but I have in mind something like six months as a maximum. Thirdly the points about compensation and retributim which Dr. Lau emphasised will one hopes, come to an end after the judgment of this court. My expectation is that this will help to quieten the plaintiff's condition in a way which it so often has said to have done in other cases in the past. Therefore it seems to me that this is certainly not a case where this man is going to suffer permanently from this condition, or for more than a matter of a few months in the future from it. That seems to me the view of Dr. Lau, and that seems to me to be well supported on the basis of what he said.

17. I then return to the final question as to quantum. There are two small items of special damage, clothing and tonic which were agreed at a figure of $350. Then there is the loss of earnings from the time of the accident to now. As I have already indicated, I am not prepared to take any higher figure there than this nominal attribution of $500 a month. Allowing there some 2 years and 9 months in round figures, because this is very much a matter of estimation, not calculation, I am prepared to allow $17,000.

18. Then for the general damages, pain, suffering, loss of amenity and such loss of future earnings or diminution in earning capacity as may be incurred in the coming month, I have got to allow there for three elements. First of all is the element which I have stated, the impact of the physical injuries themselves. Secondly there is the diminished loss of earnings or earning capacity in the next few months. Thirdly, there is the impact of these problems upon this man over the last nearly three years and for some limited period in the future. He must have had a far from happy life, and suffered a good deal of real unhappiness. Descriptions like broken man come to mind, and are supported by what the three patients said about him by comparison with what they knew in the past. This is one of those exercises which the court has to do. It is a few degrees removed only from the impossible: the problem of measuring the wholly immeasurable. Doing the best I can and recognising that all of these cases are really peculiar to themselves and one can get very little help from any others, I have arrived at a global figure for those three elements of $50,000, which I hope will be fair and adequate in the circumstances. That means that I think the judgment should be entered for the p1aintiff in this case for a total sum of $67,350. Before parting with the case may I say that I am most grateful to counsel on both sides for the help that they were to me in a case which I have found very far from easy.