CHAN CHIN SHUN v. YAU SIN CHUNG

HCPI 90/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 90 OF 2005

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J U D G M E N T

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1. The plaintiff, now aged 54, brings this action against the defendant for damages in respect of a serious head injury inflicted upon him by the defendant on 24 December 2002 when he was aged 51.

2. The plaintiff's claim is based upon an allegation of assault and battery (i.e. trespass to the person) by the defendant or alternatively upon the defendant's negligence.

3. The defendant was personally served with the notice of the date of trial but did not attend the trial nor was he represented.  The evidence adduced by the plaintiff was therefore unchallenged.

4. At the time of the incident the plaintiff was engaged in installing guardrails beside the road under a flyover in Lung Mun Road, Tuen Mun.  One of the plaintiffs' fellow workers was engaged in directing passing traffic.  A dispute arose between the fellow worker and the defendant whose private car had failed to respond to his directions.  The defendant had alighted from his vehicle and was scolding the fellow worker when the plaintiff approached in an attempt to calm matters down.  The defendant picked up a spade from the ground and struck the right side of the plaintiff's face causing him to fall to the ground.  Fortunately, the plaintiff was wearing a safety helmet, otherwise, even more serious injuries would have resulted.

5. As a result of the blow, the plaintiff became unconscious or at least semi-conscious.  The defendant must at least be given the credit for driving the plaintiff to Tuen Mun Hospital after he had realized the gravity of what he had done.

6. The defendant was subsequently charged and pleaded guilty to the offence of unlawfully and maliciously inflicting grievous body harm on the plaintiff, contrary to section 19 of the Offence Against the Person Ordinance, Cap.212 and was sentenced to three months' imprisonment.

7. On the evidence before me, I find that the plaintiff had established his case of trespass to the person by the defendant.  There is nothing to suggest any provocation or other fault on the part of the plaintiff.

8. A number of medical reports were placed before the court pursuant to the order of Master Betty Kwan of 20 October 2005.

9. On arrival at Tuen Mun Hospital the plaintiff was totally confused (receptive dysphasia) and talked incoherently.  He was bleeding from his right ear.  Behind his right ear in the right occipital region, there was a scalp haematoma.  A CT brain scan showed mild bifrontal contusion and a non-displaced fracture in the right mastoid bone.  There was a small patch of hyperdense opacity over the left frontal area of the brain which was compatible with brain contusion.  Two small lacerations were found over his left lip and face.  One knee had suffered abrasions.  He was admitted to hospital where he remained for the following two weeks.

10. He was treated conservatively.  He was assessed by the hospital's ear, nose and throat (“ENT”) surgeons to have sustained severe hearing impairment in the right ear.  Four days after the incident he was found to be suffering from right facial weakness which responded to a short course of cortico steroids.  He was found to have completely lost his sense of smell and taste.  He suffered from post-traumatic amnesia for several days.

11. As a result of the head injury he still suffers from persistent headaches and dizziness, a complete loss of smell and taste (anosmia); irritability which affects his relationship with his family and impaired concentration and memory.  He has significant loss of hearing in the right ear.  The plaintiff's evidence was that his headaches and dizziness occur daily.  Although analgesic medications provided relief for a short while the symptoms return after an hour or so.

12. Dr Au Siu Foon commented that the plaintiff had sustained :

“… a blunt injury to his head with fracture right temporal bone and contusion frontal region of his brain as shown by CT scan.

The facial nerve controlling muscles of the face and the chorda tympani which forms a segment of the neural pathway for tastes both run in the temporal bone.  The organs for hearing and balance, cochlea and vestibule respectively are also situated in the temporal bone.  Therefore fracture of the temporal bone can result in facial paralysis, loss of taste, hearing loss, tinnitus and vertigo.

Injury to the frontal area of the brain could cause loss of smell because the delicate organ of the smell lies in this region. …

There is no effective treatment for his hearing loss, tinnitus, vertigo, loss of taste and smell because the pathology lies in the respective neural pathways.  The damage to nerves is difficult to recover and therefore Mr Chan's present conditions are expected to be permanent.”

13. The plaintiff himself says that he has become a totally different person since the incident.  In addition to the symptoms to which I have referred, he says that he finds it difficult to tolerate noise.  He also finds it very difficult to concentrate and that attempts to concentrate cause him physical pain in the head.  Attempts to read a newspaper or magazine, for instance, lead to headaches and dizziness.  He also has a very limited short-term memory.  He finds it harder to tolerate heat and cold.

DAMAGES FOR PAIN, SUFFERING AND LOSS OF AMENITIES (“PSLA”)

14. A number of authorities have been cited to me.  Naturally, the circumstances of each case are different and other cases can only provide general reference points for the court's consideration.  I am satisfied that the injuries suffered by the plaintiff put him into the serious injury category as defined in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657, and that the appropriate award under this head in respect of the physical injuries suffering by the plaintiff is $500,000.

15. The plaintiff claims a sum of $200,000 by way of aggravated damages as a result of injury to his feelings occasioned by the defendant's action.  Mr Pedruco referred me to the case of Chan Kwok Wai v. Secretary for Justice, HCPI 134/1999 in which a sum of $100,000 was awarded under this head.  He argued that the injuries to the plaintiff's feelings would have been greater in the present case because of the presence of colleagues at the time of the incident and the fact that the plaintiff's permanent injuries are likely to provide a long-term reminder of the injury to his feelings.  While I find that the plaintiff has and is likely to suffer additional stress over and above stress resulting solely from his physical injuries by reason of the knowledge that the injuries were maliciously inflicted, I consider it important that aggravated damages for injury to a plaintiff's feelings do not become disproportionate to those awarded in respect of his physical injuries.

16. Bearing this in mind, I consider that an overall figure of $600,000 for pain, suffering and loss of amenities to include the injuries to the plaintiff's feelings would be appropriate in this case.

17. At the time of the incident, the plaintiff was earning $400 per day and working about 20 days per month on average (i.e. about $8,000 per month).  He was granted sick leave from 24 December 2002 until 26 March 2004, a period of 15 months and 3 days, during which time he did not work.  His loss of earnings during this period is therefore $8,000 x 15.1 = $120,800.

18. The medical evidence is that thereafter the plaintiff was fit to return to work.  The report of Dr Fung and Dr Edmund Woo stated that while the plaintiff was fit to resume his pre-accident job as a labourer on construction sites, he should avoid working at heights.  That view is shared by Dr Au who said that the plaintiff should also avoid working on narrow platforms.  Dr Fung and Dr Woo agreed that the plaintiff's neurological disabilities may limit his performance of work and compel periodic rests during the day.  The accords with the evidence of the plaintiff who described how subsequent employers have complained about his inefficiency because he needs to sit down from time to time when he feels dizzy and has a headache.  Dr Au suggested that the plaintiff was suitable for jobs such as a caretaker, shopkeeper or petrol station attendant.  In fact, after the end of his sick leave, the plaintiff found great difficulty in obtaining employment and only first did so about six months after the end of his sick leave.  During these six months, therefore, his loss was $8,000 x 6 months = $48,000.

19. Since that time he has obtained jobs as a decoration worker painting houses and sometimes clearing debris.  At most he has been able to obtain work for 10 days per month with daily pay ranging from $200 to a maximum of $400.  Despite this, for the purpose of these proceedings, it has been conceded that he has been capable of earning $4,000 per month.  His pre-trial loss of earnings for the period from the end of September 2004 until trial (a period of 18 months) has therefore been 18 months x $4,000 per month = $72,000.

20. His pre-trial loss of earnings amount to $120,800 + $48,000 + $72,000 = $240,800.

21. His pre-trial loss of mandatory provident fund therefore is ($120,800 + $48,000 + $72,000) x 5% = $12,040.

Future loss of earnings

22. Bearing in mind the plaintiff's permanent disabilities, I consider that the plaintiff's current and future earning capacity is realistically around $4,000 per month.  Bearing in mind his age, 54, and he would be likely to continue to work until he was around 65 years of age although with a diminishing earning capacity, I consider a multiple of six years would be appropriate.  His loss of future earnings will therefore be ($8,000 – $4,000) x 12 x 6 = $288,000.

23. Taking into account his loss of mandatory provident fund contributions, his total loss of future earnings would be $288,000 x 1.05 = $302,400.

Loss of earning capacity

24. The plaintiff claims $100,000 under this head.  I consider this is a realistic figure.  He has already experienced considerable difficulty in obtaining employment.  For manual work, employers are bound to favour workers with no disability.  This is bound to handicap him in the labour market.  Increasing age places a premium on workers retaining their physical fitness.  They are likely to be many months when he is unable to find work by reason of his disabilities.  I award him $100,000 under this head.

Special damages

Medical expenses

25. The plaintiff has given evidence supported by receipts that he has incurred expenses of $100 in respect of the charges of the Accident Emergency Department in Tuen Mun Hospital and $952 as public ward maintenance fee.  He has produced six receipts from Yan Chai Hospital showing that on six occasions he incurred expenses of $44 (i.e. a total of $264) in respect of his visits to the Physiotherapy Department.

26. A letter from Tuen Mun Hospital dated 3 June 2004 confirms that he attended the Outpatient Department of the ENT Department on 10 occasions and the Outpatient Department of the Neurosurgery Department on another 10 occasions.  Whilst there are receipts indicating that the fee charged by the Neurosurgery Department of $44 per visit, I have received no evidence of any charges in respect of the ENT Department.  I accept therefore the incurred charges of $440 (i.e. 10 visits x $44 per visit) in respect of his visits to the Neurosurgery Department.

27. I also accept the incurred additional $30 (which is supported by a receipt) in respect of the supply of drugs from Tuen Mun Hospital.  These past medical expenses are therefore total $100 + $952 + $264 + $440 + $30 = $1,786.

Travelling expenses

28. The receipts therefore indicate the plaintiff made 20 visits to the Outpatient Department at Tuen Mun Hospital and six visits at Yan Chai Hospital.  The plaintiff said that he incurred $15 for his return bus fare on each trip.  I accept that he may recover $390 in respect of this expenditure.

Nourishing food

29. While the plaintiff says that he spent $500 per month on royal jerry as a food supplement, he did not say for how many months he incurred this expenditure.  I award $500 under this head.

Future medical expenses

30. I accept Dr Fung's and Dr Woo's statements that the plaintiff is likely to visit his family physician five times a year over two years at an estimated costs of $300 per visit in respect of treatment for his headaches and dizziness, i.e. a total cost of 3,000.

31. I summarize the heads of damages for which the plaintiff is entitled to recover in this case as follows :

(1) PSLA	$600,000
(2) Pre-trial loss of earnings (including MPF)	$252,840
(3) Loss of future earnings (including MPF)	$302,400
(4) Loss of earning capacity	$100,000
(5) Future medical expenses	$3,000
(6) Special damages (medical, traveling expenses and nourishing food)	$2,676
Sub-total :	$1,260,916
Less : Employee's compensation already received	$226,762
Total :	$1,034,154

32. I give judgment to the plaintiff in the sum of $1,034,154.  The plaintiff is also awarded interest on damages for pain, suffering and loss of amenity at 2% from the date of service of the writ until today and thereafter at judgment rate until payment, and interest on special damages and pre-trial loss of earnings at 5.044% from the date of accident until today and thereafter at judgment rate until payment.  The plaintiff's costs to be taxed if not agreed, and paid by the defendant.

33. I order costs to be on the High Court scale.