CHOI CHUN TAI v. LAM SZE LING

DCPI 3716/2022

[2025] HKDC 944

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 3716 OF 2022

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ASSESSMENT OF DAMAGES

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1.  This is an assessment of the Plaintiff’s damages in a personal injury case.

2.  On 3 November 2022, the Plaintiff commenced the present proceedings against the Defendant for damages and loss for personal injuries suffered by him as a result of an assault and/or battery and/or trespass to person by the Defendant on 31 March 2021 near or outside G/F Village House No 9 (“House 9”), Siu To Yuen Village (“the Village”) Tseung Kwan O.

3.  The Defendant did not attend any previous hearings and the assessment hearing on 16 January 2025. 

4.  No defence was filed by the Defendant.  By an Order dated 2 February 2023, interlocutory judgment on liability was entered against the Defendant leaving damages to be assessed. 

5.  The Notice of Appointment for Assessment of Damages (“AOD”) was filed on 3 May 2024.

6.  On 30 May 2024, solicitors have once been appointed to represent the Defendant[1]. On 17 July 2024, Notice to Act in Person has been filed by the Defendant[2].

7.  The court is satisfied that due service of notice of hearing and relevant documents was effected.

8.  At the assessment hearing, the Plaintiff was represented by Counsel Mr Leung.  The Plaintiff was the only witness who testified at the assessment hearing.  He adopted as evidence-in-chief of his witness statement[3] filed on 13 July 2023.     

9.  Damages are claimed under the following heads and no answer was filed by the Defendant[4]:

(a)	Loss of housekeeping ability of the Plaintiff	$86,000
(b)	Medical expenses	waived
(c)	Travelling expenses	$2,000
(d)	Tonic food	$6,000
(e)	Costs of construction of a new path	$6,000
(f)	Pain, suffering & loss of amenities (“PSLA”)	$650,000
(g)	Loss of service to family	$75,000

BACKGROUND

10.  The Plaintiff and the Defendant have been neighbours at the Village for over 40 years. 

11.  The Plaintiff and his family have been residing in House 12A, while the Defendant and his family have been living in both House 9 and/or House 6A.

12.  The Plaintiff is a retired person and was 76 years old at the time of the incident.   

THE INCIDENT

13.  On the morning of 31 March 2021 at around 0730, the Plaintiff was on his way for groceries and as he walked past the Defendant’s House 9, the Defendant shouted at him “有一隻好肥好大的老鼠!” After this insulting statement, the parties began to quarrel.  The Defendant’s brother Mr Lam Chi Hung joined in the quarrel and used a wooden stick to hit the Plaintiff’s body.  The assault escalated with the Defendant using an iron rod to hit the Plaintiff’s head, nape, back and arms.  The assault lasted for few minutes until the Defendant and her brother were stopped by the Plaintiff’s wife.

Injuries and treatments

14.  As a result of the assault, the Plaintiff was feeling dizzy with wounds and bleeding all over his body. Shortly afterward, the Plaintiff attended the Accident & Emergency (“A&E”) of United Christian Hospital (“UCH”).

15.  It is stated on the A&E medical note dated 31 March 2021[5] that the diagnosis was “multiple injury” and the injuries were caused by “assault by 1 man & 1 woman”.  Referring to the medical report dated 28 January 2022 of Dr Lo Ka Kit of UCH A&E[6], the Plaintiff complained of dizziness upon his admission to the A&E after the assault.  Physical examination revealed that the Plaintiff was:

•  Conscious and alert;

•  No focal neurological deficit;

•  Could walk unaided with stead gait;

•  Abrasion wound and swelling on right head;

•  Abrasion wound over right wrist, left index finger, left knee and left shin;

•  Swelling over left wrist and left hand;

•  Redness over left forearm.

16.  X-ray of left hand and wrist found no fracture.  The Plaintiff was discharged with medications and was advised to self-observe on neurological condition. 

17.  Upon discharge, the Plaintiff continued to have dizziness and started to develop headache and nausea.  On the same evening, the Plaintiff attended the A&E of Tseung Kwan O Hospital (“TKOH”).  Referring to the medical note dated 14 June 2021 of Dr Lai Kwok Hung[7], physical examination revealed:

•  No focal neurological deficit;

•  CT scan of the brain revealed no fracture or haemorrhage.

The diagnosis was head injury.  The Plaintiff was treated and discharged on the same night. 

18.  The Plaintiff had persistent dizziness and was found to become dull and speaking nonsense.  On 10 April 2021, the Plaintiff attended TKOH Mona Fong General Outpatient Clinic (“GOPC”) for consultation.  Referring to the medical report dated 30 December 2021 of Dr Tse Chi Wai[8], physical examination revealed:

•  Could walk with a normal gait unaided;

•  Limb power was full;

•  Both pupils were equal & reactive to light;

•  Scalp showed no swelling, tenderness or external wound;

•  Speech was relevant & coherent, oriented in time, place & person;

The Plaintiff was referred to A&E for further investigation.

19.  It was on 28 April 2021 that the Plaintiff attended UCH A&E due to dizziness and confused speech that revealed abnormalities:

•  Left upper limb power grade was 2 out of 5 while other limb power was 4 out of 5;

•  CT brain scan was performed and revealed 2.5 cm thick acute chronic right subdural haemorrhage with 1.5 cm midline shift;

•  Diagnosis was right subdural haematoma. 

He was immediately transferred from UCH to the neurosurgical ward of Queen Elizabeth Hospital (“QEH”) for further management.

20.  Neurosurgical intervention was required on the same evening.  Referring to the medical report of Dr Ye Wen Zhe of QEH Department of Neurosurgery[9], emergency right side burr hole operation with drainage was performed.  Serous fluid of 100ml brownish blood was drained to relieve brain compression pressure.  Catheter was removed after 1 day.  The Plaintiff was discharged on 3 May 2021. 

21.  The Plaintiff was followed up on 4 June 2021.  CT scan revealed residual right side subdural haematoma.  Further follow-ups and serial monitoring with imaging were arranged.  Subsequent CT brain scans revealed right side subdural haematoma has reduced in thickness and density.

22.  The Plaintiff attended the A&E at UCH and TKOH on 14 May 2021 and 30 July 2021 respectively for headache and dizziness.  The Plaintiff had also attended TKOH GOPC for follow ups and physiotherapy treatment; and for post-neurosurgery follow ups at QEH.  Due to his complaint of eye pain, he was also referred to the TKOH Eye Clinic.

23.  It was in May 2022 that the latest CT scan revealed no more blood in his brain. 

Complaints of the Plaintiff

24.  The Plaintiff claims to be suffering from persistent headache and was prescribed with analgesics for relief on daily basis.  He would experience short span dizziness once every few days.  Other complaints include memory impairment, poor sleep, frequent nightmares and flash back of the assault.  He feels weakness with his legs and fears of falling, numbness of fingers and painful back of the injured spots.

EXPERT

25.  By an Order dated 19 April 2023, the Defendant was deemed to have elected not to adduce expert medical evidence.  Leave was granted for the Plaintiff to adduce expert medical evidence on quantum on solo basis[10].

26.  By an Order dated 8 April 2024, leave was granted for the Plaintiff to adduce the Single Neurosurgery Expert Report prepared by Dr Chan Tsz Tong (“Dr Chan”)[11], a neurosurgery expert appointed by the Plaintiff.  The Plaintiff agreed that the expert report be adduced without oral evidence at the AOD. 

Neurosurgery Expert Report

27.  On 15 September 2023, medical examination was conducted by Dr Chan.  A single neurosurgery expert report dated 22 September 2023 was prepared by Dr Chan[12].

28.  Referring to the expert report, the Plaintiff has hypertension and has been on regular medication for years. Blood pressure was well controlled.  He used to be socially active before the incident and enjoyed the hobbies of hiking and fishing.  Since the assault and injury, he withdrew himself socially and seldomly goes out. 

29.  Upon Dr Chan’s physical examination of the Plaintiff, it is stated in the report:

General Examination

•  No external wound or scar

•  Neck with full range of movement

•  Normal & full motor power

•  Normal gait with good balance

•  Full range of extraocular eye movements

•  Lower cranial nerve functions intact

•  Normal sensory functions

•  2 visible sunken skull defects in the right frontal and parietal region, sites of the previous burr holes

Mental State Examination

•  Well oriented, calm and at ease

•  Normal recall & language functions

•  Normal higher mental function

•  Anxiety and distress upon recalling the assault

30.  Dr Chan was provided with different sets of imaging for his expert opinion including x-rays and CT brain scans.  On the date of the assault, x-rays were performed for the skull, left hand & left wrist which revealed no fracture or dislocation; CT brain scan result revealed no fracture nor intracranial bleeding.

31.  Subsequent x-rays of left ankle and left foot on 28 April 2021 revealed no fracture or dislocation.  CT brain scan by UCH revealed a right side chronic subdural haematoma, extending from the frontal to occipital regions, causing midline shift to the left side.

32.  Post surgery CT brain scan was performed on 14 May 2021, revealed evidence of previous burr hole operation, with residual chronic subdural blood on the right side, causing mild midline shift.

33.  Dr Chan reached the following comments and conclusions[13]:

(1)  The Plaintiff’s chronic subdural haematoma (“CSDH”) was caused by the initial head injury on 31 March 2021.

(2)  Head injury post-assault was evidenced by swelling and abrasion wounds over his head.

(3)  Initial CT scans of the head showed no fracture or evidence of brain damage.  The condition was complicated by the development of CSDH 4 weeks later.

(4)  Development of CSDH several weeks to months after a head injury (“CSDH-de-novo”) has been well documented and is especially common in elderly patients.

(5)  The Plaintiff did not attempt to exaggerate his symptoms or disabilities.

(6)  The complaints of headache, dizziness and poor memory are consistent and compatible with the diagnosis of post-concussion syndrome.

(7)  Daily life have not been affected by the injury. 

(8)  Treatment received was appropriate given the CSDH developed 4 weeks post injury was promptly diagnosed by repeating CT brain scans.  Surgery was performed in time to prevent neurological deficit such as motor paralysis.

(9)  Guarded prognosis in relation to long term mental well-being.

34.  In gist, although there was no acute haemorrhage post-injury, serial imaging of the Plaintiff suggest that the Plaintiff’s condition was developed at a subsequent time post head trauma. 

35.  There is no question for the court to consider how much of the symptoms complained by the Plaintiff are caused by the incident and the question of apportionment.  Despite the long history of hypertension of the Plaintiff, Dr Chan opines that such pre-existing medical issue did not contribute to his residual disabilities.  It is the assessment of Dr Chan that the impairment of the whole person as 3%.   

QUANTUM

PSLA

36.  Mr Leung submits in his written and oral submissions that the award should be $350,000.  Mr Leung referred in his written submissions the follow cases:

(1)  Hung Shing Kun v Yeung Chi Ming & Another [2006] 2 HKLRD 698: PSLA awarded at $180,000;

(2)  Lee Moon Lam v Chong Chun Pong & Others, unrep, DCPI 1589/2006, 30 May 2007: PSLA awarded at $150,000;

(3)  Lee Ho Chuen v Lai Wai Kei unrep, DCPI 1453/2005, 1 September 2006: PSLA awarded at $220,000;

(4)  Wong Kai Fun v Sun On Logistics Ltd unrep, DCPI  196/2015, 26 May 2017: PSLA awarded at $480,000;

(5)  Lam Hon Keung v Hong Kong Aero Engine Services Ltd [2021] HKDC 212: PSLA awarded at $400,000;

(6)  Erwiana Sulistyaningsih v Law Wan Tung, unrep, DCPI 569/2015, 21 December 2017: PSLA awarded at $450,000;

(7)  Mohammad Latif v Emirates [2022] HKCFI 3803: PSLA awarded at claim amount of $600,000.

37.  I have considered the above authorities cited by Mr Leung in his opening and closing written submissions as well as the authorities in the assessment bundle.  It is the court’s finding that the cases of Hung Shing Kun, Lee Moon Lam, Lee Ho Chuen and Lam Hon Keung are more in line for comparisons with the present case. 

38.  In Hung Shing Kun, the plaintiff was a carpenter in his early fifties at the time of assault by the two defendants.  As a result of the accident, the plaintiff suffered facial laceration and left parietal scalp haematoma.  As residual symptoms, he suffered persistent headaches, dizziness, pain and weakness on one side of his body and various episodes of loss of consciousness and blackout.  In assessing PSLA quantum, the court considered the opinions of the medical experts of the plaintiff and the defendant whose opinion on whole person impairment differs at 5% and 1% respectively.  Opinion on pre-existing medical issue also differs. Upon consideration of the plaintiff’s hospital records post-assault, the court assessed an award of $180,000 with a reduction of $30,000 for possibility of pre-existing issue.

39.  In Lee Moon Lam, the plaintiff was a 36 years old male at the time of the assault by the three defendants.  It was ‘fist and foot’ beating with no weapon used outside MTR. Upon admission to A&E, clinical diagnosis was minimal head injury and chest contusion.  It was 1.5 months later that the plaintiff suffered from decreased mobility and urinary incontinence.  Upon admission to the hospital, diagnosis was chronic subdural haematoma.  Surgery was performed and he was discharged a week afterward.  Complaints include loss of balance, persistent headache, poor memory and bad eyesight.  The plaintiff had been on psychiatric treatment prior to the assault.  For this case, there was no expert medical report to assist the court.  The court awarded PSLA at $150,000.

40.  In Lee Ho Chuen, the plaintiff was a taxi driver in his early fifties at the time of the traffic accident.  After the accident, he was admitted to the A&E and diagnosis was haematoma at the right parietal scalp and abrasion on right knee.  The plaintiff was initially treated and discharged.  In the following two weeks post-accident, he attended the A&E for several times due to symptoms of persistent headache, nausea and vomiting.  It was by subsequent CT brain scan which revealed right side chronic subdural haematoma.  Burr hole drainage surgery was performed which lasted for 5 hours.  The plaintiff had post-concussion syndrome of persistent headache, insomnia, lower limb weaknesses, dizziness, eye discomfort and scar on his scalp.   The court awarded $220,000 for PSLA.

41.  In Wong Kai Fun, in the assessment of quantum, Siu Kin Keung Anthony v H&M Hennes & Mauritz Ltd HCPI 81/2011, 31 October 2012 was referred to.  In Siu Kin Keung, the plaintiff fell from 2.4 metres height and sustained a severe head injury. Convulsion developed and conscious level dropped upon admission to the A&E.  CT scan revealed skull fracture and a large epidural hematoma over right parietal and occipital region and small frontal brain contusion.  Emergency operation was performed for evacuation of hematoma and was discharged a week later.  Residual symptoms include recurrent vertigo, memory impairment and weight loss.  Specialist in neurology opined the plaintiff has mild post-concussion syndrome with his severe head injury complicated by hematoma. The plaintiff also suffered from psychological issues of height phobia, temper outbursts, reduced frustration tolerance, poor physical stamina, headaches, memory and concentration problems.  The court awarded $400,000 for PSLA.

42.  In Lam Hon Keung, the plaintiff was a 41 years old male at the time of accident, being employed by the defendant as an aero engine mechanic.  The work accident happened when the plaintiff completed the operation of a Waterjet Facility, where a 1.245 kg solid metal piece became detached from the door he was closing and fell from about 2.5 meters height and struck his head.  Upon admission to the A&E, laceration wound on forehead was treated with 6 stitches.  CT brain scan revealed no signs of intracranial bleeding or bone fracture.  He complained of nausea and wound pain, and was discharged on the same day upon being treated. With the ongoing headache and dizziness in the following week, he attended A&E and sick leave was granted.  He suffered from persistent headache, dizziness, anxiety and insomnia upon resumption of work.  Spine and brain MRI was carried out which revealed no abnormality.  He was referred to neurosurgeons and psychiatrists.  Examination 6 months post-accident did not show any focal neurological deficits.  Ophthalmologist examination also revealed no abnormality.  Diagnosis was post-concussion syndrome including headache, dizziness, memory impairment, irritability and insomnia.  Single joint medical expert in neurology opined the syndrome as permanent at the time of examination and assessed the permanent impairment at 3%.  The court awarded $400,000 for PSLA.

43.  I agree with Mr Leung that the injuries suffered by the Plaintiff in the present case are similar to Lee Ho Chuen.  PSLA claiming by the Plaintiff in the Revised Statement of Damages (“RSOD”) is $650,000.  Despite Mr Leung confirmed at the assessment hearing that the Plaintiff is to claim PSLA at $350,000, I have directed the Plaintiff to file with his closing submissions with more recent case authorities relevant to concussion-related injury.  In assessing damages for PSLA, I have considered the way the assault occurred and the Plaintiff’s post-assault experience and lingering condition.  Treatment involved urgent neurosurgery.  Although recovery was uneventful, prognosis was guarded.  I consider the PSLA amount $375,000 is a reasonable sum.

Loss of housekeeping ability of the Plaintiff

44.  Whilst it is pleaded in the RSOD, the Plaintiff confirmed in its opening submissions not to proceed with this head of claim.  Award: Nil.

Loss of service to the family

45.  The Plaintiff lives with his wife, his son and his grandson at House 12A.  Prior to the assault and the injury, he enjoyed a good health and lifestyle.  He was responsible for grocery shopping and cooking for the family on daily basis; and would perform some minor household maintenance.  In fact, the assault happened on the morning when he was on his way to do grocery shopping.  It is alleged by the Plaintiff that since the assault, he lost the housekeeping ability and could no longer provide such service for 43 months at $2,000 per month.  I have considered the expert opinion of Dr Chan, as at September 2023 the Plaintiff is able to carry out activities of daily living.  I agree with Mr Leung that the appropriate time interval for this head of claim shall be from the date of assault 31 March 2021 to September 2023, ie, 30 months.  The award would be $2,000 x 30 months = $60,000.

Special damages

46.  In the RSOD, the Plaintiff claims for:

(i)	travelling expenses	$2,000
(ii)	tonic food	$6,000
		______
	TOTAL:	$8,000

47.  Despite there was no receipt to support the above (i) and (ii), I have considered the Plaintiff’s age and the evidence he gave at the assessment hearing in relation to tonic food.  At the assessment hearing, the Plaintiff was able to particularise the traditional Chinese tonic food that his wife had been cooking to assist his recovery. Having considered the number of hospital visits and the nature of his burr holes surgery, I would accept his claim amount as reasonable and allow in full for the above.

Cost of constructing a new path outside the village house

48.  In relation to the construction of a new path at $6,000, I will not allow the Plaintiff’s claim under this head as there is insufficient evidence to show how it related to the injury and was necessary, bear in mind there is no psychiatric or psychological expert opinions for the present case.  

CONCLUSION

49.  The amount of damages to be awarded to the Plaintiff is as follows:

(a)	Loss of housekeeping ability of the Plaintiff	Nil
(b)	Medical expenses	Nil
(c)	Travelling expenses	$2,000
(d)	Tonic food	$6,000
(e)	Costs of construction of a new path	Nil
(f)	Pain, suffering & loss of amenities (“PSLA”)	$375,000
(g)	Loss of service to family	$60,000
		______
	TOTAL:	$443,000
		(plus interest)

Costs of the original AOD hearing date

50.  The Plaintiff contends that costs of the original AOD hearing date on 24 September 2024 shall be paid by the Defendant on indemnity basis.

Procedural background

51.   (1)  The Plaintiff issued the writ of summons on 3 November 2022.

(2)  The Plaintiff was granted legal aid as early as 13 May 2022.  Legal aid certificates have been issued to extend the coverage for the Plaintiff’s proceedings. 

(3)  Writ of summons was served on the Defendant on 20 December 2022.

(4)  Interlocutory judgment was entered against the Defendant on 2 February 2023, which was served to the Defendant on 6 February 2023.

(5)  Statement of damages and medical reports; and the Plaintiff’s List of Documents were served to the Defendant on 9 and 23 February 2023 respectively.

(6)  Witness statement of the Plaintiff were served to the Defendant on 14 July 2023.

(7)  RSOD was served to the Defendant on 25 October 2023.

(8)  Supplemental list of documents was served on 29 January 2024.

(9)  Copies of assessment bundle index was served on 27 February 2024.

(10)  Certificate of time estimate of AOD was served on 25 March 2024.

(11)  In relation to set down, by an Order dated 8 April 2024, the Plaintiff was to file and serve the notice of appointment for AOD on or before 6 May 2024.

52.  It was after all the above chronology of events that a Notice to Act has been filed by the Defendant on 30 May 2024[14]. The Defendant was then legally represented.   

53.  On 8 July 2024, a memorandum of notification of an application for legal aid has been filed to the court.  It is stated “Mr. Lam Chi Hung for Lam Sze Ling (Defendant) who wished to be joined as a party to the above proceedings, has made application for Legal Aid…”.

54.  As an initial observation, although it appears to be the first legal aid application on the Defendant’s side, Mr Lam Chi Hung is never a party of the proceedings.  Even Mr Lam Chi Hung is alleged by the Plaintiff to be another person other than the Defendant to have been involved in the assault on the material day, he is never named as a party.  According to the memorandum, the legal aid application was taken out by Mr Lam Chi Hung two months after the notice of appointment for AOD.  The application was refused by the Legal Aid Department on 29 July 2024. 

55.  What is even more alerting is, shortly after the legal aid memorandum, the Defendant on 17 July 2024 filed a Notice to Act In Person.

56.  Subsequently on 5 September 2024, another memorandum of notification of an application for legal aid has been filed to the court.  It is again stated “Mr. Lam Chi Hung for Lam Sze Ling who wished to be joined as a party to the above proceedings, has made application for Legal Aid…”.  In such circumstances, the proceedings was automatically stayed for 42 days pursuant to section 15 of the Legal Aid Ordinance (Cap 91).  The original AOD hearing date on 24 September 2024 was accordingly derailed.  This second legal aid application was refused by the Legal Aid Department on 31 December 2024.

57.  There was no affirmation and / or letter from the Defendant to explain to the court as to the two legal aid applications.  During the material period from 30 May to 17 July 2024 whilst the Defendant was legally represented, there was no report and/or indication by the Defendant’s solicitors as to the possibility of legal aid application. 

58.  It also transpires from the case documents that from the service of the writ of summons in December 2022 to the notice of appointment for AOD in May 2024, there was no previous application by any party to be joined in the proceedings.  Without sufficient materials for the court to consider, the court is unable to concur with the Plaintiff that such applications by Mr Lam Chi Hung were ‘tactical move with the intention to delaying’ the AOD hearing.

59.  I have bear in mind of the above situation and the ultimate impact on the milestone date.  However, I opine the Defendant shall not be punished for the adjournment due to the legal aid applications not taken out by her.  There is insufficient material to substantiate the allegation of abuse of court process by the Defendant.  The appropriate costs order for 24 September 2024 shall be no order as to costs.

Interest & Costs

60.  The usual interest will be awarded at 2% per annum for general damages from the date of writ to the date of judgment and thereafter at judgment rate until payment in full; for special damages at half judgement rate from the date of the incident to the date of judgment and thereafter at judgment rate until payment in full.

61.  I also make an order nisi for costs that the Defendant shall pay the Plaintiff’s costs of the AOD, including all costs previously reserved (if any), such costs to be taxed if not agreed, with Certificate for Counsel.  Plaintiff is legally aided, the Plaintiff’s own costs is to be taxed in accordance with the Legal Aid Regulations.  Unless any party applies to vary the costs order nisi within 14 days hereof, the costs order shall become an absolute order.

[1]  Notice to Act filed on 30 May 2024

[2]  Notice to Act In Person filed on 17 July 2024

[3]  Assessment Bundle 27-35

[4]  RSOD filed 25 Oct 2023

[5]  Assessment Bundle 234

[6]  Assessment Bundle 45

[7]  Assessment Bundle 36

[8]  Assessment Bundle 44

[9]  Assessment Bundle 42-43

[10]  Order dated 19 April 2023 by Master Dominic Pun.  Assessment bundle 7-15. 

[11]  Order dated 8 April 2024 by Master Anny Chak.

[12]  Assessment Bundle 46-58 with Appendix

[13]  Expert Report, heading “comments”

[14]  Filed on 30 May 2024 by Yip & Co as the solicitors for the Defendant