TSE KWOK KEUNG v. SWEDISH MOTORS LTD. AND ANOTHER

CACV441/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.441 OF 2000

(ON APPEAL FROM HCPI 759 of 1999)

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court) :

1. This was an appeal from a judgment of Deputy Judge Wong in the High Court. He was hearing a claim for damages in respect of personal injuries sustained by the plaintiff in a traffic accident. On 20 June 1997, the motor cycle he was riding came into collision with a motor car owned by the 1st defendant and driven by the 2nd defendant.

2. Prior to the trial the parties had agreed that the accident had been occasioned by the negligent driving of the 2nd defendant and that the plaintiff had been guilty of contributory negligence to the extent of 5%.

3. What remained for the Judge was to quantify the amount of the damages which should be payable.

4. The main injuries suffered by the plaintiff who at the time was aged 27 were a compound fracture of the left clavicle and abrasions on the posterior part of his left shoulder, left elbow and the dorsal part of his left hand. He was initially admitted to the Fanling Hospital and thereafter transferred at his own request to the Hong Kong Baptist Hospital.

5. An operation was performed on him for the open reduction and internal fixation of the clavicle. He was discharged from the Hospital on 30 June 1997 and subsequently received physiotherapy and occupational therapy.

6. In April 1998 a further operation was performed upon the plaintiff for the removal of the clavicle plate and screws.

7. However the plaintiff claimed to be unable to resume his employment as a moulding technician. This work necessitated lifting heavy weights and the plaintiff gave evidence that he was unable to do this.

8. One of the main areas of controversy at the trial was the complaint which the plaintiff was making that he suffered from constant pain in his neck and left shoulder since the removal of the clavicle plates.

9. The issue which had to be resolved was whether this pain arose as a consequence of the injuries sustained by the plaintiff in the accident.

10. It will be appreciated that what was of critical importance in this connection was the credibility of the plaintiff as a witness and perhaps even more importantly the expert evidence of the doctors who examined or treated the plaintiff.

11. The Judge made three important findings of fact :

(1) that the neck pain was unrelated to the accident;

(2) that the plaintiff could have returned to his pre-accident employment; and

(3) that the plaintiff was not a truthful witness.

The consequence of this was that the total award of damages only amounted to $559,283.80.

12. In the first ground of appeal complaint is made that the Judge failed to heed procedural fairness in that he said at the commencement of the Defence case that he knew Dr David Cheng ("Dr Cheng"), who was the only witness for the Defence, well and that he had never doubted his ability. The Judge had not at the beginning of the trial informed the parties of his acquaintance with Dr Cheng and accordingly had not afforded the parties any opportunity of objecting to the Judge hearing the case.

13. Inquiries made by the plaintiff's representatives subsequent to the trial revealed that the Judge and Dr Cheng had been students together in the 1960s and had been fellow residents at University Hall at Hong Kong University.

14. Dr Cheng's evidence had been highly favourable to the defendants and very damaging to the plaintiff.

15. In his medical report dated 20 June 2000, he had said at pp.125 and 126 of the appeal bundle:

"Going through these bundles of records, it is clear that there was never any neck pain, or any symptoms of the neck from the time of injury up to November 1999. The first time Mr Tse complained of neck pain was the visit in November 1999.

This is a pattern of abnormal pain behaviour. During the visits prior to November 1999, Mr Tse complained of pain at the fracture site, weakness etc. Apparently, when he failed to impress the doctors with such complaints, a new set of complaints emerged.

Mr Tse sustained a fracture clavicle on 20.6.1997. There was no neck injury during the accident. Mr Tse had no neck complaints. The complaint of neck pain came 21/2 years after the accident. It is highly unlikely that the neck pain was a result of the accident. I think Mr Tse's neck pain may be simply minor aches and pain of daily life.

I think Mr Tse demonstrated exaggeration of illness behaviour. This is a common claimant behaviour. As any improvement in the claimant's health condition may result in denial of disability status in the future, the claimant is compelled to guard against getting well. Perhaps our legal system challenges the patient to repeatedly prove he or she is permanent ill, consciously or subconsciously, such patient may develop a heightened awareness to the normal, minor aches and pains of daily life to prove the existence of lingering injury. The injured person in these circumstances has a different approach to that of a sick person coming for treatment to heal his illness. The injured person aims to 'sell his disability', and make it as large as he can in order to claim as much compensation as possible. This approach is understandable and is to be expected.

Mr Tse suffered a relatively minor and common injury, a fractured collar-bone. He has been adequately and satisfactorily treated. There is no permanent disability. A 2% loss of earning capacity (3% by Dr Brian Chan) was assessed for the possible but unproven, weather-related pain.

Without any permanent physical disability, there is no medical reason why Mr Tse cannot return to work. It is more likely that Mr Tse thought he cannot work or carry out his other activities, and refuses to do so. There is certainly no medical ground that he cannot do so."

16. On the basis of the opinion expressed in this report, any misgivings which the plaintiff would have had would have been reinforced.

17. Mr Y.L. Cheung for the plaintiff submitted that justice must be seen to be done and that the correct test to adopt was the one referred to in R. v. Liverpool City Justices Ex Parte Topping [1983] 1 WLR 119, namely, what would be the impression of a fair minded person sitting in court and knowing all the relevant facts.

18. Adopting this test he argued that the judgment should not be permitted to stand.

19. Mr Ramanathan for the defendants submitted that the judgment should not be set aside. It had not been established by admissible evidence that the Judge was closely acquainted with Dr Cheng.

20. In a community like Hong Kong, it was inevitably the case that locally qualified judges may know experts who give expert evidence before the courts. It was impractical and unrealistic to expect judges to recuse themselves every time an expert witness appeared before them who was known to them. There is considerable merit in this contention.

21. There was a further factor. The Doctor had not been giving evidence which related to his credibility. He had been giving opinion evidence based upon his professional knowledge.

22. It is perhaps this aspect of the matter which occasions us the most concern. The observation made by the Judge immediately prior to the Doctor testifying and without any prompting that he "never doubted the ability of the Doctor" must raise grave doubts concerning the possibility of bias.

23. In the present context, it was particularly unfortunate. As indicated earlier in the judgment, the Doctor had given expert evidence which was particularly damaging to the plaintiff. This was at the centre of the dispute between the parties.

24. On hearing these remarks the plaintiff must have been very concerned whether his case would receive detached and reasoned consideration.

25. We accept that it is only in the most exceptional circumstances that it is appropriate for a Court of Appeal to interfere with findings of fact made by a judge hearing a case at first instance.

26. However in the present case, we are of the opinion that the interests of justice would be best served if the appeal was allowed and an order was made for the rehearing of this case before another judge.