CHAN KIN FU v. LEE KAM HUNG AND ANOTHER

Head Note

General Damages - Personal Injury - Loss of Spleen - New medical opinion as to lose of amenity - Damage to the body's immune system and risk of fatal pneumococcal septicaemia. Award of $50,000 to include usual pain discomfort and effects of surgery.

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 6844 OF 1984

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BETWEEN

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JUDGMENT

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1. This is a claim for General and Special Damages sustained by the Plaintiff in a collision on the Castle Peak Road, Kowloon on the 16th may 1983 at 10.45 p.m. Once again it is satisfactory to be able to remark favourably on the despatch with which this claim has been brought to the point of hearing, and to commend Mr. Whitley for the Plaintiff and Mr. R. Lau, appearing for the 2nd Defendant, for presenting as much common ground as possible, thus leaving only the question of General Damages and one or two of the major items of Special Damage to be proved and tested in cross-examination.

2. At the outset Mr. Lau indicated that liability would not be in issue so far as his client (the 2nd Defendant) was concerned, and the 1st Defendant, appearing in person, and who had filed no defence, also conceded that he would not contest liability and left cross-examination of the Plaintiff to Mr. Lau.

3. The Plaintiff was riding his motor cycle at the material time, when it collided with a Public Light Bus owned by the 2nd Defendant, but driven by the 1st Defendant, and there was no dispute that the 1st Defendant was at the material time the servant or agent of the 2nd Defendant.

4. With the minor issues involved in those certain items of Speciall Damage not being agreed, I will leave them until I have dealt with the problem of the General Damages which were not capable of agreement, and understandably so, when I say that the physician preparing his report on the Plaintiff had thrown what I think is new light on a perennial problem for those engaged in personal injury claims. That problem has been that of attempting to assess the loss of amenity involved in the loss of the spleen. I take notice of the fact that, in layman's terms, for so long as I can recall the loss of the spleen has not immediately indicated any loss of bodily function; it has been regarded in some ways like the appendix, that is to say unnoticed until infected or injured and then excised without apparent result.

5. This young Plaintiff who is now 25 and riding his motor cycle, collided with the Defendant's Public Light Bus, and after losing consciousness he awoke in the Caritas Medical Centre with acute abdominal paints to find himself being prepared for surgery. A short agreed report from Dr. Poon Kam Hon dated 11th July, 1983 shows that the Plaintiff was found to have a ruptured spleen and so an emergency (Laparotomy) operation together with a splenectomy was carried out that night. He recovered well, the surgical scar healed and he left hospital after a week; he attempted to return to work on the 16th June but found he was tired and needed another month off work. There is no direct medical evidence to support his decision to take this extra time off work; he said an evidence that he had consulted a doctor near his home, but that doctor was not called nor has any report been the subject of agreement. The Report of Dr. P.A.L. Horsfall dated 5th May, 1984 was read without objection, after the Plaintiff had served notice on the Defendants of his intention so to do, and Dr. Horsfall says, and under a sub-heading, as follows :-

"Temporary total incapacity. Five to six weeks off work after any major abdominal operation is the minimum required to recuperate. In the event this is the time Mr. Chan had sick leave. "

According to Mr. Chan's evidence, and his statement of claim, he was away from work in all for 51 days including the second period of 20 days after he attempted to return but felt unable to carry on. I do not think that was unreasonable in the light of Dr. Horsfall's observations and so I will regard the Plaintiff as totally incapacitated for that period.

6. He now complains of "pulling" pains in the scar area, and of being unable to carry on his recreational activities of swimming, hiking or motor cycling. I think he is perhaps unduly anxious and there is no medical evidence to support such apparent loss of amenity. I shall make an award, included in that of General Damages, to allow for a period of 6 months after the accident before the Plaintiff was able to follow his old pursuits.

7. Whilse I thus treat him as fully recovered to all outward intents and purposes after 6 months, I have nevertheless to consider the effect of the splenectomy and what General Damages for loss of amenity it should attract.

8. Mr. Whitley has cited various authorities to me which support my own, rather bland, and layman's, impression that the effect of the loss of the spleen is, even amongst medical men, a nebulous quantity, and has hitherto attracted awards for damages, based, less on the loss of the spleen itself, than on the surgery involved in removing it, and the inevitable pain and attendant scarring. I will first set out the summaries of those cases put before me for consideration : -

                "Cases reported in Hong Kong

Cases reported in England

9. I have felt it necessary to recite all the awards to which I was referred however old and apparently obsolete (in financial terms) they might be, because the common factor as I see it which can be extracted is that where a spleen is ruptured and removed, the damages flow, not from the loss of a body's organ, but from the need for major surgery and the discomfort and after - effects from that surgery.

10. If I am right then the layman's vague ideas of the usefulness of the spleen have been shared by medical practitioners until recently, and certainly in sophisticated urban environments. Again any thinking layman must wonder, if the spleen is of no purpose, why is it part of the body's organs? and I think I can take judicial notice of the fact that while a High Court Judge in Kenya I heard many homicide cases where, from an apparently isolated blow the victims-spleen ruptured and death resulted rapidly and on one occasion I heard evidence from a Senior Government Surgeon, as a result of my own questions as to the reasons for that, that in Tropical climates the spleen frequently becomes enlarged as a result of contiunally fighting infection from malarial bearing mosquitoes, and is particularly susceptible to rupture in this enlarged state, even though not diseased, and even from a relatively minor blow. The relevance to this case of that evidence being that the spleen was held by one doctor to be, a vital part of the body's immune system, against at least malaria and which is a disease not unknown in Hong Kong.

11. It is with this background cognizance of these facts therefore that I have read and accepted the report of Dr. Horsfall, tendered by the Plaintiff under a hearsay notice not objected to by the Defendant.

12. The report is dated 5th May, 1984 and is obviously prepared with great care and after laboratory tests had been taken. I need not recite these because, in short, the blood count including the red and white cells and platelets were all normal, but significantly perhaps the doctor detected antibodies above the normal range.

He then said :

 

"Effects of Splenectomy

Orthodox opinion up until recently has been that the loss of the spleen carries no penalties health-wise, the function of the spleen being taken over by the liver, bone marrow and other lymphatic tissues. In general this is true, as few patients come to any harm. However, the spleen does have important immune functions and after removal some antibodies in the blood may be diminished. Some patients without a spleen are very susceptible to infections with a particular bacteria, the preumococcus and this may spread into the blood stream causing septicaemia which in some cases is rapidly fatal, the mortality being about 70%. Infections of this type usually occur in young children in the first 2 post operative years but may occur in adults even after 25 years have elapsed.

 

The subject has been reviewed by Gopal and Bisno in Archives of Internal Medicine, 137, 1562 (November, 1977). These authors sum up their views by stating that "splenectomy per se is associated with an increased risk of overwhelming preumococcaemia. Although the magnitude of the risk is low, the mortality associated with these infections is high". It has been estimated that pneumococcal infection occurs in only 1 in 500 patient years in otherwise normal people who have had a splenectomy. Furthermore, it is not possible to predict in an individual the likelihood of his acquiring preumococcal septicaemia and therefore the likely diminution in life expectancy for that particular person.

 

Functional impairment :

 

The chance of this patient developing serious life-threatening pneumococcal septicaemia over the next 25 years are about one in twenty. I am not sure how one translates this prediction into an estimate of functional impairment in percentage terms. It appears from a study of the literature that except for the preumococcal infection referred to above, asplentic persons are not unduly liable to infections.

 

Mr. Chant's complaints of pulling abdominal pain, easy tiring and requent "colds" are minor problems not causing any real impairment of function.

 

Addendum

Mr. Chan would be wise to wear a bracelet for a small plaque round his neck stating "Asplenio - treat all infections with Penicillin". By early treatment the death rate of pneumococcal infections which is of the order of 70% may be reduced."

A medical practitioner is of course entitled to consult authoritive works and publications by other medical practitioners in forming his own opinion and, in answer to a query from the Plaintiff's solicitors, he explained his opinion in rather different terms as follows : -

    "       Thank you for your letter of 18th May, 1984.

        As you correctly stated, I am of the opinion that Mr. Chan does not have a permanent disability at the present time. However, there is an outside chance that he may at some time in the future develop pneumococcal septicaemia as his defence system is impaired. If he does develop this condition he has a 30% chance of surviving. The chances of Mr. Chan getting this serious infection are about one in 20 over the next 25 years i.e. of 20 young people with splenectomy only one will get pneumccoccal infection over the next 25 years. There is no way of knowing which one of the 20 will get the infection. Thus we are unable to predict whether this man will live to a ripe old age or whether he will die suddenly in the next few years. Statistically the chances are that he will survive. If he lives the "disability" is nil if he dies it is 100%!

        I have difficulty in knowing how one calculates permanent disability in a case like this is a claim for personal injuries. This is what I was trying to say in my report.

        If this or any other points require clarification please do not hesitate to contact me again. "

It is perhaps unfortunate that in a case where I am invited on the medical evidence to approach the problem of the appropriate award for loss of the spleen in a dramatically different way from that hitherto prevailing I do so without having the benefit of Dr. Horsfall's oral testimony, but I justify myself in following his opinion from the fact that he is not so much directly challenging an established body of medical opinion, as offering positive thinking on a matter which if I may say so has not been a matter of great moment or anxiety amongst western medical practitioners hitherto.

13. I approach the question of damages on the basis of a slight risk of pneumococcal septicaemic, which after another six months (i.e. after the higher risk in the first two post-operative years) may occur within the following 25 years but which can be reduced with the precaution of treating all infections with anti-Biotic Drugs. This is not quite the same as the cases of post-traumatic epilepsy, where the risk of an attack is reduced by constant medication, but rather the case that, accepting Dr. Hersfall's opinion, one can now say what is involved in the loss of a healthy spleen. In CHOW Keung-kwong's case the loss of the kidney was the factor which prompted the Judge to regard him as a potentially handicapped construction worker, who might be thrown onto the labour market because of his impairment.

14. In the present case there is no such evidence. The plaintiff is now a printing worker and has no disability of any substance and so, whilst I have said that one cannot equate the case of the risk of epilepsy with the risks attendant on the loss of the spleen, I think my approach to the problem can be helped greatly by following the reasoning in the guidelines given by the English Court of Appeal in Jones v. Griffith (1969 1 W.L.R. 795 C.A.) I respectfully agree with the comments of Sachs L.J. (at p. 798) that my task is one of guess work, and with Widgery L.J. where he said (at p.801): -

"In these cases the trial Judge has to fix what is a fair and proper figure to cover two conflicting eventualities - one that the complication may arise and the other that they may not, it seems to me that there is only one practical method of approaching this kind of problem and that is to asses the kind of figure which would be appropriate in the extreme or serious case..... it then becomes possible to discount that figure according to the degree of optimism which is possible in the light of the medical reports. The discounting is not just a matter of simple arithmetic a and it does not follow, if the doctors say the risk of a recurring attacks is 50/50, that one simply divided the figure by two ...."

The learned Judge then went on to describe the other factors to be taken into account including the uncertainly hanging over a patient.

15. In the present case the risk of fatal infection can be reduced by carrying a permanent warning but that only reduces the risk of fatality and paradoxically that must increase the degree of apprehension suffered by the wearer, with his constant reminder of his reduced natural defences to infection, and this would appear to be rather more serious than the loss of the kidney evaluated in CHOW Keung-kwong's cases - and so, bearing those guidelines in mind and doing the best I can, I consider an award of $50,000 would not be unreasonable to give effect to the fresh medical thinking on the subject and to my assessment of the attendant risks, which are not infinitesimal or insignificant, on a suggested ratio of 1 : 20 patients suffering from pneumococcal infection, and with the high fatality rate attendant thereon. This figure in my view embraces also the pain and suffering of the surgery and the 6 months dimished amenity thereafter.

16. For General Damages therefore I award the sum of $50,000.

17. Turning to Special Damages : the amount claimed namely $8526.70 only 3 were disputed : -

So far as tonic and nourishing food is concerned there was no medical evidence to support this but I can take cognizance of the fact that a convalescent young man is bound to need some variation in his diet inevitably at greater expense for month or so. I award $500 in that respect. The repairs and loss on the sale of the motor cycle were established and proved by the Plaintiff's own evidence, and his loss of wages were proved at the rate claimed and for the period which Dr. Horsfall felt him entitled to be away from work.

18. The only deduction of the amount claimed for special damage therefore will be $1,500 from the claim for nourishing food and the total award for specials will be $7,026.70.

19. The interest claimed will follow the usual order that is to say on General Damages at the rate of 2% per annum from the date of the writ to Judgment date end for special damages at 6.5% per annum from the date of accident to judgment and then the Judgment will carry interest at 13% from the date of Judgment until payment.

20. Delivered in open Court this day of 1984.