LUK YEE LAM v. ORASA LIVASIRI

HCPI 394/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 394 OF 2002

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J U D G M E N T

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1. This is an assessment of damages arising out of a road traffic accident which occurred on 12 February 2001 when the plaintiff's taxi was struck from behind by the defendant's private car. Judgment in respect of liability was entered by consent on 5 August 2002.

2. The plaintiff was aged 40 years at the time of the accident and had been working for 10 days as a full time taxi driver in a hired taxi. Prior to that he had been employed as a bus maintenance mechanic, driving taxis part time. The collision caused his body to move suddenly forwards and then back, his chest hitting the steering wheel and his neck jerking backwards. He was treated at Queen Mary Hospital where no immediate abnormalities were found, and he was discharged with analgesics. Two days later he returned to the hospital complaining of neck pain and was referred to the orthopaedic clinic and physiotherapists. He was then noted to have tenderness over the cervical spine and was referred to the Pamela Youde Nethersole Eastern Hospital where an MRI showed disc herniation at C5/6 level. He was offered surgical treatment but declined. He was accordingly treated conservatively with physiotherapy.

3. The plaintiff still suffers from neck and back pain with numbness and weakness in the upper limbs and hands. He is unable to return to taxi driving and, indeed, has not worked since the accident. He was given sick leave by the government hospitals to 21 June 2002, and has since been consulting a private doctor who continues to give him sick leave certificates. Both parties' doctors agree that he has a 16% whole person impairment and is suitable only for employment involving light duties. Before looking at the plaintiff's loss in monetary terms in more detail, it is necessary to consider the main issue in this case, namely the plaintiff's refusal to undergo surgery, which the defendant claims is a failure to mitigate his loss.

FAILURE TO MITIGATE

4. As I have already observed, the plaintiff was offered surgical treatment at the Pamela Youde Nethersole Eastern Hospital, as their report says "repeatedly", but was declined. The plaintiff gave evidence that he was offered surgery twice, by different doctors. The first told him that it was an operation of the neck and spine which would take 3 1/2 to 4 hours. It was a large operation which involved removal of the disc and a bone graft taken from his hip, without specifying the likely degree of risk or success. The second doctor asked him if he had considered it, and was asked by the plaintiff about possible risks, and was told that there were risks in any operation, and he could still take medication if he opted not to have surgery, as, indeed, he said he had been told by the first doctor. He discussed the matter with his family, as well as with two other doctors. His family were against him taking any risk. Of the other doctors, Dr Au of St Paul's Hospital told him not to if the pain was bearable, and Dr Chiu, the private doctor he has been consulting, advised him not to because of the risks, including relating an account of a football player whose condition became worse afterwards, which advice he says he took seriously, although he was aware that Dr Chiu was a general practitioner not a specialist in this field. Another doctor, a Dr Winston Chan, apparently also told him that there was no need for the operation at that time, and he was not at the stage where the operation was necessary.

5. The operation offered was, of course, anterior spinal fusion, now not an uncommon procedure, for which some surgeons in Hong Kong have a very high reputation. However, no surgical operation comes with a guarantee of success, particularly a major operation such as this, and there is a balance to be considered between the likelihood of success against the degree of risk. The parties' two expert medical witnesses in their reports have given their views as to this. Dr Patrick Wong, for the plaintiff, said that there was a definite risk in cervical spinal surgery, and it does not guarantee full relief of the symptoms. In evidence he elaborated on the possible risks which he described as damage to the spinal cord and nerve root, the dislodging of the bone graft, unsuccessful union of the bone, damage to nerves and dura of the spinal cord, and leakage of spinal fluid, as well as the risks always attendant upon general anaethesia. He went on to give a number of internationally accepted statistics which clearly reflected a comparatively low percentage of serious consequences, but added that the degree of pain was a factor in a patient making such decisions, and whether it was bearable.

6. Dr Chun Siu Yeung, for the defendant, described the success rate of the operation reasonable with the risks and complications generally acceptable. He also said that in such cases of herniated disc with cord compression, there was a possibility of further deterioration and surgery was properly indicated. In evidence he agreed that there was some degree of risk, and although the likelihood of success was high, at about 90%, it would be relief only, not a complete recovery.

7. The plaintiff himself accepted that he had received enough information from the doctors to make a decision on the operation.

8. The whole question here is whether the plaintiff acted unreasonably in refusing the operation. As Lord Simon noted in Steele v Robert George & Co. (1937) Ltd, [1942] A.C. 497, at p. 499:

"This ground of relief to the employer is based on the view that, if the proximate cause of the continuing incapacity is the unreasonable refusal of a workman to avail himself of surgical or medical skill, it can no longer be said that the incapacity "results from the injury" ......."

But, in Richardson v Redpath, Brown & Co. Ltd, [1944] A.C. 62 he clarified this, saying:

"As I have already pointed out in this opinion, and as has been laid down in this House before, the question whether a workman is unreasonable in refusing to undergo a surgical operation is not to be determined by considering whether the best medical opinion would think such as operation advisable or safe, but by judging whether it is proved that the workman, having regard to all the circumstances (including medical advice offered to him against the operation) was unreasonable in so refusing..."

9. The test as to reasonableness was further considered by Brown J in Morgan v T. Wallis Ltd [1974] 1 Lloyd's Rep. 165, where he said:

"...But in deciding whether the defendants have proved that he has unreasonably refused to have the investigation and operation in question here, it seems to me clear from the authorities to which I have referred, that I must apply an objective test, in this sense would a reasonable man in all the circumstances, receiving the advice which the plaintiff did receive, have refused the operation?"

There are accordingly two matters which I must consider when deciding on whether the plaintiff acted reasonably: what the advice was that he actually received, and whether a reasonable man in those circumstances would have refused the operation.

10. As to the first, it is clear that none of the doctors unequivocally advised the plaintiff to have the operation. It was only ever offered as an option which was available. It is also clear that the plaintiff was concerned about the risks and listened to the advice he was given. It is far from certain that, when offered the surgery by the doctors at Pamela Youde Nethersole Eastern Hospital, the precise nature of the operation, including the likely degree of success, and risks attendant on it, were explained in detail, and the plaintiff's evidence is clear that others he consulted did explain the risks, and that advice as to the risks weighed heavily on him, and his family members to whom he recounted it.

11. The next question then is whether it was the action of a reasonable man to refuse the operation in the light of the advice he had received. With great respect to Brown J. in the case cited above, I do not consider it is as simple as merely placing an objective test on the matter. What, after all, is a reasonable man? It seems to me that I have to consider what is reasonable for a man with the plaintiff's background, education an experience, rather than the fictional man on the Clapham omnibus. To that extent the test must be, at least partly, subjective. Here we have a 40 year old man who was only educated up to Form 3 in China, who must have had some training as a mechanic, although I do not know the extent of the mechanical expertise required for his previous employment in bus repair and maintenance. He is not highly educated, and clearly relies heavily in matters outside his sphere of knowledge on others with specialist skills. Even then, where the information he receives from them is not wholly in favour, or wholly against, he has to weigh that information and advice himself, and in the light of his own knowledge, experience and education. Inevitably he will also rely on advice from others, family and friends, to whom he relates the information he receives, but who may be in no better position than himself to advise.

12. In such a case, and for such a man, it is inevitable that the risks of any surgical procedure offered are uppermost in his mind. And, unless it has been clearly impressed on him, by a doctor he trusts, that those risks are minimal, and the advantages outweigh them to a large degree, as may be clear to an educated man, I cannot say that it is unreasonable that he should decide not to take those risks. Here, the advice he was given was not that clear. There is no evidence that the risks and advantages were explained in detail at all by the government doctors, with whom his appointments were comparatively short, and subsequent doctors were certainly not unanimous in advising him to proceed with surgery. Indeed, it is only now, with reports prepared for this hearing, and the evidence given before me, that he has the risks and advantages set out in detail, and even of those, Dr Wong's is less than effusive as to the advantages of it.

13. In all the circumstances of this case, I am not prepared to find that the plaintiff was unreasonable in refusing surgery. It is unfortunate in my view that he did not, but that is not the test. Looking at the advice and information he received here, and the effect that this would have had on a reasonable man with the plaintiff's background and education, he was entitled to come to the decision he did.

PAIN SUFFERING AND LOSS OF AMENITIES

14. As I have observed above, the whiplash-type injury to the plaintiff's neck caused damage to the disc at the C5/6 level with residual pain in the neck and back, numbness in the right arm and left wrist, weakness in his hands, some numbness and pain in his right leg and his feet and reduced sexual desire caused by the pain. He is unable to participate in sports or go swimming, and is unable to drive a taxi again. Both doctors agree the impairment of the whole person is 16%.

15. There is no doubt that the plaintiff's enjoyment of life has been affected to a marked degree, and he will suffer similar symptoms and have to continue to receive treatment of some kind for the rest of his life. I have been referred by the parties to a number of authorities where the plaintiffs sustained similar injuries. It is, of course, rare to be able to make a direct comparison with any other case, as not only the injuries, but the effect on each person's enjoyment of life is different, depending on their lifestyle, age, occupation and possibly their level of skill and attainment in a particular sport which is affected.

16. Awards in past cases vary under these criteria from about $100,000.00 to $600,000.00. Doing the best I can in an inexact science, I consider that the plaintiff's injuries are close to the "serious injury" category, and I consider the figure suggested by Ms To to be a reasonable assessment. I accordingly award the sum of $400,000.00 under this head.

PRE-TRIAL LOSS OF EARNINGS

17. There is little dispute that, at the time of the accident, the plaintiff's average monthly earnings were $9,464.00, and I will adopt this figure in respect of loss of earnings. The defendant contends that the plaintiff should only be entitled to this amount of monthly loss until the end of the sick leave period he was granted by the Government hospitals, namely 21 June 2002. The plaintiff claims a total loss of income up to the date of trial, 28 October 2003, as he is still receiving sick leave certificates from his private doctor. However, I have not heard evidence from this doctor, nor seen any report from him. I find it odd that he seems to insist on the plaintiff visiting him weekly, when he is only receiving repeat prescriptions, at considerable expense to the plaintiff. I do not know the basis of the sick leave: whether it is in respect of his former job as a taxi driver, or whether the doctor considers that he is incapable of any work. The latter we now know not to be the case from the evidence of the two doctors who did give evidence, who both agreed that the plaintiff was fit for light employment at the time they examined him. In respect of Dr Patrick Wong, this was 23 July 2002.

18. In the circumstances, and on the evidence before me, I consider it likely that the plaintiff was able to return to some form of light work at the expiry of his sick leave granted by the Government hospitals, and, allowing him a little time to find employment, which he admits he has not tried to do, a reasonable period for total loss would be until 21 July 2002, or 17 months and 9 days. I understand that it is similarly not in dispute that the average monthly earnings the plaintiff could expect in light employment is $6,000.00, giving a loss of $3,464.00 a month thereafter.

19. The plaintiff's loss of earnings pre-trial is accordingly (17.9 months x $9464.00 = $169,405.60) + (15.23 months x $3,464.00 = $52,756.72) making a total of $222,162.32.

POST-TRIAL LOSS OF EARNINGS

20. There is no dispute that the multiplier for post-trial loss should be 10, although the defendant submits that this should commence from June 2002. I do not agree. Given the plaintiff's age, I consider a proper multiplier to be 10 from the date of trial and accordingly award $415,680.00, being $3,464.00 x 12 x 10.

SPECIAL DAMAGES

21. The sum of $39,978.00 claimed in the revised statement of damages is not disputed by the defendant. However, at trial the plaintiff sought to claim a further $15,352.00 incurred since then, being as to $11,440.00 for consultation with his private doctor, $114.00 fees to the Government hospital, and $3,798.00 for medicine and ointment. Of these, the defendant challenges the private doctor's fees, on the basis that this was not necessary and a suggestion that the fees were for sick leave certificates which were not justified, and $1,794.00 of the expenses for medicine and ointment on the basis that one was cosmetic rather than medical.

22. I have to say I have some sympathy with the defendant's argument regarding the private doctor. As I noted earlier, I have no report from that doctor and no details of treatment given, merely the sick leave certificates and the plaintiff's evidence. As I also noted, there was little or no explanation for the frequency of the visits. I am therefore far from satisfied that they were all necessary, and of the sum claimed I will allow just $5,000.00. I am not convinced that the ointment the defendant objects to was not at least to make the plaintiff feel better and will allow it.

23. The total awarded for special damages is accordingly $48,890.00 being $39,978.00 + $8,912.00.

SUMMARY

24. The total sum awarded is therefore:

Pain, suffering and loss of amenities	$400,000.00
Pre-trial loss of earnings	$222,162.32
Post-trial loss of earnings	$415,680.00
Special damages	$ 48,890.00
Total	$1,086,732.32
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25. There will be interest on the general damages at 2% from the date of writ, and on special damages and the pre-trial loss of earnings at half the judgment rate being 4% from the date of accident, both to the date hereof. There will also be an order nisi that the plaintiff have his costs to be taxed with a certificate for counsel with liberty to apply generally in respect of any perceived errors in the figures used in this judgment.