MAK HUNG YIN v. TSANG KOON CHUNG AND OTHERS

HCPI 1038/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1038 OF 1997

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J U D G M E N T

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1. This is a strange case. The Plaintiff, Mak Hung Yin, is now 59 (he was born in 1940); he is unemployed; he is a heroin addict; he is a regular and heavy drinker of alcoholic liquor, so much so that medically he is classed as an alcoholic. He is in receipt of public assistance, both now and in January 1996 when the cause of action is said to have arisen.

2. The 1st Defendant, Tsang Koon-chung, is a clerk in the Social Welfare Department's offices and the 3rd Defendant, Leung Chi-shing, is a social welfare assistant, in January 1996 he was the Plaintiff's case officer.

3. The action against the 2nd Defendant has been discontinued.

4. As pleaded, the Plaintiff's case is this: on 31 January 1996, at around 12:30 p.m. he went, by appointment, with his wife, Madam Kwok Mo-ching, to the Social Welfare Department offices at 7th Floor, Kwai Hing Government Offices to collect a death grant in respect of his late mother's burial. There, inside an interview room, the 1st and 3rd Defendants assaulted and beat him. They pushed him forward violently causing him to fall and strike his head on either a table or a chair or some other hard object in the interview room. In the interview room they had repeatedly punched him on the right and left sides of his head and kicked him on his chest, abdomen and buttocks. Prior to this assault, the 1st Defendant had punched him in the stomach in the reception area of the Social Welfare office.

5. The Plaintiff admits that he was abusive to the counter staff, and the 1st Defendant in particular; at the Social Welfare Department's offices that day and that had been drinking before going to the office. He conceded that the 3rd Defendant had treated him courteously on his earlier visits to the office.

6. The police charged the 1st Defendant with common assault on the Plaintiff. The case (TW No. 2484) was heard at Tsuen Wan Magistracy on 18 October 1996. The 1st Defendant agreed the brief facts of the case and was bound over to keep the peace in the sum of $500 for 12 months. No criminal proceedings were brought against the 3rd Defendant.

7. The Plaintiff was admitted to Princess Margaret Hospital on 31 January 1996. He was found to be suffering from an epidural haematoma. An emergency craniotomy was carried out and a blood clot was removed from the surface of his brain on 1 February 1996. The Plaintiff remained in hospital until 11 February 1996. He suffered no significant brain damage.

8. The Plaintiff says that the epidural haematoma was caused by the injuries he suffered at the Defendants' hands and he claims general damages for pain and suffering, and special damages against them.

Liability

9. The medical reports of the Plaintiff and the 1st and 3rd Defendants, as well as the former 2nd Defendant, are all agreed.

10. Dr Fung Ching-fai, for the former D2, gave the most comprehensive report. His conclusions are summarised as follows: The Plaintiff suffered an epidural haematoma following a head injury. Dr Fung estimated the injury to have occurred within several hours before the Plaintiff's admission to hospital. The injury was most likely caused by an impact at the frontal parietal region causing abrasion at the impact site.

11. There are two common mechanisms of injury that lead to epidural haematoma.

12. Firstly, a focal injury causes bleeding from the fracture edge or epidural arteries resulting in epidural haematoma. This type of injury is usually caused by impact of a hard object with local damage, but without vibration or shaking to the brain. The patient is usually conscious after the injury and deteriorates in consciousness over the next few hours. Linear skull fracture is usually present in 90% of patients, but the other parts of brain are usually normal. Recovery after the early removal of the haematoma is good and neurological deficit is uncommon. Scalp bruising or laceration is always present on the site of an epidural haematoma.

13. Secondly, an epidural haematoma can also be caused by a vibration or shaking injury. The hard covering of the brain (the dura) is transiently separated from the skull bone during a change of velocity at the moment of impact. An epidural haematoma is produced by continuous bleeding between the bone and the dura from the damaged vessels during the separation. Additional brain damage is usually present, especially cerebral contusion, subdural haematoma, and diffuse axonal injury. The Patient is usually unconscious immediately after the injury and recovery is complicated, with permanent neurological deficit.

14. The Plaintiff made a complete recovery after the removal of the haematoma. He was fully conscious during and after the injury. There is abrasion and swelling of his scalp over the site of the epidural haematoma. Dr Fung is of the view that these medical evidences strongly suggest that the Plaintiff suffered the first type of injury: the hitting of his head on a hard object. The presence of a linear fracture with depression at the site of epidural haematoma, goes to support the conclusion that the injury was produced by the Plaintiff's head colliding with a hard object with a hard and acute edge, such as the edge of a door or the corner of a wall.

15. Dr Fung is of the opinion that if the Plaintiff had only been attacked by fists hitting on both sides of his head, then the most likely damage produced would be a cerebral contusion, concussion and diffuse axonal injury as the result of the severe shaking effect during the impact. It is extremely unlikely that injuries caused by fists would have produced the Plaintiff's injury.

16. To my mind the Plaintiff's account of the incident is best summarised in his own words. This is what he said in examination in chief, I take it from the abstract set out in the Plaintiff's counsel's skeleton argument, it accords with my notes:

"A. I was assaulted at the Social Welfare office .... at the left of Mr Lai's office. At the Social Welfare office I was pushed at the outside area, but pushed into the 3rd room on the left.

Q. How many pushed you into the room?

A. Two.

Q. What happened in the room?

A. I was pushed into the room and I don't know what I bumped into, then the two persons pressed me down and kept beating my head.

Q. To the best of your recollection, for how long?

A. 2-3 minutes.

Q. How did they hit you?

A. After I fell on the floor, someone said 'It would be surprising if you not die after such beating. You are so cheeky'.

Q. How did they hit your head?

A. Pressed on my neck and punched me with fist.

Q. Did anyone help?

A. No. After I was assaulted the door opened and someone gone out (sic)."

17. In cross-examination by D1's counsel, he said:

"Q. At that moment Mr Leung called out.

A. Yes.

Q. 'There is no need to be that loud, let's go back into a room to discuss things.'

A. Yes.

Q. He took you through the corridor to the interview room?

A. Yes.

Q. Did Mr Leung have his hand on your shoulder?

A. Yes.

Q. Were you aware whether or not Mr Tsang followed you?

A. Yes, he was behind me.

Q. (Put) it was the 2nd interview room.

A. The 3rd one.

Q. What makes you so sure?

A. I remember it was the final one.

Q. I will relate to you what happened in that room. As he escorted you into the room, you were hit by the waist by Mr Leung.

A. No.

Q. Whereupon you fell into the chair standing at the end of the room.

A. No.

Q. Having fallen onto the floor, you were again fisted twice by Mr Leung.

A. Yes.

Q. Mr Leung squatted by your side and he pinned you down by the shoulder.

A. Yes.

Q. Mr Leung said 'you'd better watch-out'.

A. At that time I was a bit dizzy, I was not clear about this point.

Q. At no time were you assaulted by Mr Tsang.

A. I disagree.

Q. The only person who assaulted you is Mr Leung.

A. Both of them did that."

18. Implicit in this cross-examination is an allegation by the 1st Defendant that the 3rd Defendant assaulted the Plaintiff in the room.

19. In Re-examination, the Plaintiff explained that he had answered 'No' to the allegation that he was hit at the waist by the 3rd Defendant, because he was pushed into the room. He had denied the earlier suggestion that he fell on the ground because, as he said in Re-examination:

"They pushed me into the chair and I fell on floor."

20. The statement of another client of the Social Welfare Department, Chow Kwok-fu, was read into the record by agreement of all counsel. This is what he said he observed:

"... he (the Plaintiff) went over to the reception desk, stretching out his right arm, seeming to hit the staff member (the 1st Defendant). The staff member backed away. The woman (the Plaintiff's wife Kwok Mo-ching) caught his hand and told him not to stir up a trouble. However, the man pushed her off and told her to sit down. Then the staff member came out and told the man, 'Now I register for you. Who do you want to call at? I'll help you.' However, the man said suddenly, 'Fuck your mum. Fuck your sister.' In response the staff member punched him on the stomach. He did it with his left hand. The man wanted to fight back, when a social worker wearing glasses (the 3rd Defendant) (I don't know his name but he was standing aside when the man was cursing the staff member with foul language) held back the man instantly. He pushed the man into the room across the reception (the last room). Then the receptionist followed them into the room and closed the door. I dared not follow to see what would go on. I sat waiting for the social worker. After a lapse of 5 or 6 minutes, the three people went out from the room. When they were in the room, I could not hear any sound of quarrel. Nor did anyone yell for help. Meanwhile, there were several people in the lobby, some staff, some public in general. They all appeared there after they had heard the sound of the quarrel. When the three people went out of the room, the man told the receptionist, 'You hit me. When I get my money, I'll report to the police and go for a body check.' When the man was being pushed into the room earlier, the woman just sat beside me on the bench without a word."

21. The 1st Defendant chose not to give evidence. It was said on his behalf that, although there was body contact with the Plaintiff at the reception area, it was accidental. In view of Chow Kwok-fu's account that cannot be correct.

22. The 3rd Defendant gave evidence. In summary, he said, that upon the Plaintiff entering into the interview room, he fell and sprawled onto the floor. He (the 3rd Defendant) used his hand to hold the door to prevent it from automatically swinging back. He did not know how the Plaintiff came to fall onto the floor. He only knew at one point (shortly after the Plaintiff fell and when he turned around) that the 1st Defendant was inside the room. He did not know when he left. The Plaintiff's evidence was that they both went out after the assault was over. Apart from asking the Plaintiff once what he was doing, he (the 3rd Defendant) did nothing at all to help the Plaintiff. His impression was that the Plaintiff did not hit anything when he fall. He found the Plaintiff to be still conscious when lying on the floor. About one odd minute later, he left the room when, or shortly after, Mr Lai - another social worker - came in to see what happened. He left the room, leaving the Plaintiff still lying on the floor.

23. In answer to the my question, the 3rd Defendant said it had not crossed his mind that the Plaintiff might have suffered a heart attack or a stroke, though he had no idea why he fell down. He also told me that a client collapsing in an interview room had never happened to him before.

24. Madam Kwok Mo-ching, the Plaintiff's wife, said that the Plaintiff had been drinking before they went to the Social Welfare Department office. He was not unsteady, but she could smell drink on his breath. There was no staff member at the counter and the Plaintiff had to wait. When a staff member came the Plaintiff swore at him. The staff member came out and punched the Plaintiff twice on his belly. The staff member was the 1st Defendant. Then the 3rd Defendant came out. The two Defendants pressed the Plaintiff on his shoulders and his arms and pushed him into the 3rd interview room. She remained seated on a bench near the reception counter. Three minutes later she heard the Plaintiff shout 'Help!' She did not go to the interview room and see what was happening. About three minutes later both Defendants left the room. The 1st Defendant '...had red eyes'. The 3rd Defendant said as he walked '...I've wanted to beat you up for a long time every time since you've expressed dissatisfaction.' One minute later the Plaintiff came out. He walked out. He came and sat next to her. He said, '...I've been assaulted.' He said he had a pain in the right side of his head. He covered the right side of his head with his hand. She saw swellings on the Plaintiff's body and a bruise on his head. The Plaintiff wanted to make a police report. Mr Lai a social worker came out. The Plaintiff and she went into his office. Mr Lai said nothing when the Plaintiff told him what had happened. Mr Lai would not let them use a 'phone in the office, they had to use the 'phone on the ground floor. She took the death grant; the Plaintiff refused to take it. They took the lift to the ground floor. The Plaintiff walked ahead of her to the lift, he did not need support. But, in the lift she had to support him. There he covered his head with his hands and said he was in great pain. He had to lean on the lift wall for support. At the ground floor, they took a taxi to the police station.

25. Mr Lai, the social worker, was not called to give evidence.

26. Ms Lai Suk Man and Ms Wong Mei Fong, two clerical workers then employed at the Social Welfare Department's office, spoke of what they saw of the Plaintiff's behaviour on the way from the office and on entering the lift going to the ground floor, as well as his behavior inside the lift. Their evidence was not vigorously challenged.

27. They said that as they were walking along the corridor to the lift lobby they heard a sound. They turned and saw the Plaintiff. They knew that he was a Social Welfare Department client. He was walking unsteadily. It seemed as if he had collided with the wall. At the lobby he was still unsteady and he bumped into one of the two young women. They all entered the lift. It went up to the 10th floor and then it went down. The Plaintiff and the woman stood apart from each other at opposite sides of the lift. The two young women were scared by the Plaintiff's behaviour and they too stood apart from him. He banged his head against the lift wall several times. It seemed that he did this deliberately. He did it so hard that the lift car shook. The lift stopped at the 4th floor. The Plaintiff appeared confused, he made as if to get out of the lift. He stood at the open lift doors, leaning forward. The doors closed on both sides of his head and reopened three or four times before he stepped back into the lift. At the ground floor he used foul language and said he was going to make a police report. He appeared to be drunk. The woman did not support him in the lift, neither did she help him. She was '...giggling' at what he was doing.

28. It was said in final submission that there are significant inconsistencies in the Plaintiff's case. In particular:

- Of the journey down the corridor from the reception area to the interview room: the Plaintiff said that the 3rd Defendant lead the way, he was in the middle, followed by the 1st Defendant. His wife (Madam Kwok) said that the Defendants pressed the Plaintiff's shoulders and arms to his side and pushed him into room.

- The Plaintiff said that he was assaulted immediately upon entry into the room. Madam Kwok said that she heard cries for help only after 3 minutes had elapsed from the entry of the three men into the room. Chow Kwok-fu said he heard no cries.

- The Plaintiff said that after the assault he had crawled out of room and asked his wife, Madam Kwok, to help him stand up. She said that one minute after the two Defendants had left the room, he walked out and came and sat down beside her.

- The Plaintiff and the doctor who examined him on admission to hospital said there were no visible external wounds or swellings to his head. Madam Kwok said she saw swelling and bruising to the Plaintiff's head.

- Madam Kwok said that the 3rd Defendant came out from the internal office of the Social Welfare Department to look at the Plaintiff for a second time following the assault. The Plaintiff made no mention of that.

- The Plaintiff said that as he left the Social Welfare Department's offices his wife supported him and that he was leaning against her in the lift. Ms Lai Suk Man and Ms Wong Mei Fong said that the Plaintiff and Madam Kwok stood at opposite corners of the lift car.

29. In deciding on liability, I am drawn to the fact that, according to Dr Fung, the Plaintiff's injuries occurred only hours before his admission to hospital and that they were caused by him hitting his head on a hard object.

30. I have considered whether or not the Plaintiff's injuries may have been caused by his behaviour inside the lift. Although I accept Ms Lai Suk Man and Ms Wong Mei Fong's evidence as truthful, I find that the probability of the Plaintiff suffering a blood clot on just one side of his head - an injury, which on medical evidence could only have been caused by a hard object - by sandwiching his head between the closing lift doors, or banging his head on the lift car's wall, is very remote. It is much more probable that his head hit the hard corner of an item of furniture inside the interview room.

31. Chow Kwok-fu spoke of the counter staff member, who on the evidence must be the 1st Defendant, punching the man, who must on the evidence be the Plaintiff, on the stomach in the waiting area of Social Welfare Department Offices. And of a social worker, who must on the evidence be the 3rd Defendant, and the counter staff member taking the man to the last room in the reception area. That much accords with Plaintiff's version of events.

32. I am aware of the discrepancies in the Plaintiff's account of the events and I have given them full consideration. I have also given full consideration to the 3rd Defendant's evidence. However, I am drawn to the conclusion from the evidence and on the balance of probabilities, that the 1st and 3rd Defendants assaulted the Plaintiff in the interview room and that in the course of the assault he fell, striking his head either on the edge of piece of hard furniture in that room or on the floor.

33. The assaults upon the Plaintiff were deliberate acts and the Defendants must bear the consequences of them. On liability, I find for the Plaintiff. I cannot apportion blame between the 1st and 3rd Defendants, I find both to be as equally liable.

Damages

34. I turn now to the claim for damages.

General damages

35. As to general damages for alleged physical impairment, the Plaintiff complains that as a result of the assault and the surgical operation he suffers from frequent headaches, insomnia, loss of memory, and left leg cramps. It is not disputed that he is a heavy drinker (medically he is deemed to be an alcoholic) and dependent on heroin. He told me that even before the incident, he suffered from headaches, insomnia and weakness of limbs, but that these became more serious after the incident. Madam Kwok also said that he suffered from such symptoms. I bear in mind that his alcoholism and heroin addiction are likely to contribute to and heighten the occurrence of his complaints and that they cannot be solely attributed to the assault.

36. Dr Brian Chao, the Plaintiff's medical expert is of the opinion that, as a result of his injury, the Plaintiff is left with mild spasticity in his left limbs and mild absent-mindedness resulting in a 7% impairment of the whole person. Dr Edmund Woo, the 1st Defendant's medical expert, is of the opinion that the Plaintiff has mild residual impairment of memory and concentration and that this cognitive dysfunction accounts for a 5% impairment of the whole person. Given the Plaintiff's drug addiction and alcoholism, I accept this as the more accurate figure.

37. Serious though it was, the Plaintiff's injury does not fall within the 'serious injury' category identified by the Court of Appeal in Lee Ting-lam v. Leung Kam-ming [1980] HKLR 657; a definition that has been followed in Hong Kong ever since that decision was delivered in 1980. He made a good and speedy recovery from surgery. As I have said it is difficult to quantify what part of his current infirmities are attributable to the injury and what part are attributable to his continuing heroin addiction and alcoholism. I note that at the trial of this action he was serving a prison sentence for possession of dangerous drugs. In the words of the Court in Lee Ting-lam, he appears to be still able to enjoy 'the general activities' - including the consumption of dangerous drugs and alcohol - that he enjoyed before the injury. To put it crudely, his lifestyle - if it can be called that - has not been unduly affected by it.

38. The Plaintiff may have been a difficulty and unpleasant person to deal with - as he certainly was - but that does, and never can, justify him being deliberately beaten by these two civil servants, who should have known and behaved better. I have considered whether or not there should be any aggravation of his damages to take account of the insult that arose from that deliberate interference with his person.

39. In the course of argument, my attention was drawn to W v. Meah [1986] 1 All ER 935, a case that concerned the claims of two women who had been the victims of serious sexual assaults. There Woolf J (as he then was) considered that the awards given on account of aggravation should be moderate, as compensation for the personal injuries suffered remained the primary purpose of damages.

40. At page 942, line b-c, he said:

"... it is important that the court bears in mind that the award in this case must bear a proper relationship to the awards which the court makes in more conventional personal injury cases. Although these ladies underwent terrible experiences, sadly as a result of a traffic accident, others undergo experiences which are every bit as cataclysmic, so far as they are concerned, as those undergone by the Plaintiffs and, unfortunately, very often the physical injuries that the victims of traffic accidents sustain are much more serious than the physical injuries that these two ladies suffered."

41. And at the same page, line d-e, he said:

"... so far as aggravated damages are concerned, the award must be moderate, and the primary purpose of the damages must still remain to compensate the person concerned for the injuries they have suffered, although of course the circumstances in which the injuries are suffered does affect the amount of injury they are entitled to be compensated for."

42. I am struck by his conclusion that the effects to the victim of a conventionally caused injury, for example a traffic accident, essentially are no different from those of an injury caused by a criminal act; indeed, the effects of a conventionally caused injury may be more serious. Taking these observations into account, I have decided that I should not increase the general damages awarded to the Plaintiff.

43. As to the amount of general damage, in Tong Lin Keung v. Wong Chi Leung HCPI No. 789 of 1996, heard 20 October 1999 (unreported), Master Lung awarded general damages of $90,000 to a Plaintiff who had suffered a 5% impairment after a head injury brought about by post concussional syndrome, and who had suffered some memory and mood changes as a result. Doing the best that I can on the very particular facts of this case, I believe that the same amount, $90,000, should be awarded to the Plaintiff by way of general damages. I appreciate that it is far below the claimed sum of $350,000 contained in the Revised Statement of Damages; I find that amount to be grossly over estimated.

Special Damages

44. The earlier claim for loss of earnings has been abandoned before trial.

45. Travelling expenses are recoverable and are agreed at $800.

46. Hospital charges are recoverable and are agreed at $800.

47. The claim of $2,000 for tonic food is not recoverable. The Plaintiff has already received payments, totalling $7,340.66, from the Social Welfare Office as an extra diet supplement for the period 3 May 1996 to 10 March 1997.

Award

48. The total award is made against D1 and D3 jointly and severally; there is no apportionment between them. It is made up of $90,000 general damages for pain, suffering and loss of amenities, plus $1,600 special damages, a total of $91,600. Interest is awarded on the general damages for pain, suffering and loss of amenities at the rate of 2% from the date of the writ to the date of assessment, today's date, 9 August 2000. Interest is awarded on the special damages at half the judgment rate of 11.98%, that is 5.99%, from the date of the assault on the Plaintiff, that is 31 January 1996 to the date of assessment, today's date, 9 August 2000. Thereafter both awards will carry interest at the judgment rate until full payment.

49. The two Defendants will pay the Plaintiff's costs of this action. They are to be taxed on the party and party basis if not agreed. The Plaintiff's own costs are to be taxed according to the Legal Aid Regulations.

(Note: the Court ordered the Plaintiff's costs to be taxed on the High Court Scale)