YAN XIAOJUAN v. YUNG FUNG YEE

DCPI 2293/2023

[2025] HKDC 1602

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2293 OF 2023

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JUDGMENT

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

2.  On 18 July 2023, the Plaintiff commenced the present proceedings against the Defendant for damages and loss sustained by her for an accident inflicted and committed by the Defendant on 20 November 2021. 

3.  Writ of summons was personally served on to the Defendant on 7 September 2023.  Acknowledgment of service was filed by the Defendant on 20 September 2023 to contest the proceedings.  No defence was filed by the Defendant.  By an Order dated 12 January 2024, interlocutory judgment on liability was entered against the Defendant leaving damages to be assessed. 

4.  The Defendant attended the 1^st checklist review hearing on 31 January 2024.  Since then, he did not attend any further hearings and the assessment hearing on 28 August 2025.  Nor did the Defendant comply with any of the court orders which were issued in Chinese.  

5.  The Notice of Appointment of Assessment of Damages (“AOD”) was filed on 10 April 2025.  Affirmation of service have been filed by the Plaintiff[1]. The court is satisfied that due service of notice of hearing and relevant documents was effected and the Defendant was duly informed of the hearing dates. 

6.  At the assessment hearing, the Plaintiff was represented by Counsel Mr Leung.  The Plaintiff was the only witness who testified at the assessment hearing.  She adopted as evidence-in-chief of her witness statement[2] filed on 10 April 2024.  

7.  Damages are claimed under the following heads and no answer was filed by the Defendant[3]:

(a)    Loss of housekeeping ability	$15,000
(b)    Medical expenses	Waived
(c)    Travelling expenses	$2,000
(d)    Tonic food	$6,000
(e)    Pain, suffering and loss of amenities
(“PSLA”)	$150,000
	$173,000
	Plus Interest

8.  At the AOD, Mr Leung confirmed with the court of the heads of claim and amount stated hereinabove. 

BACKGROUND

9.  The Plaintiff was aged 41 at the time of the accident.  She is now 45 years old.  

10.  The Plaintiff is married and has 3 children.  At the material time, the Plaintiff was not in any employment.  She was a housewife taking care of her family, in particular to her 2 young children.  Her daughter was 9 years old whilst the youngest son was 8 months old at the time of accident. 

11.  The Plaintiff has been suffering from pain symptoms and stiffness at various part of her body since March 2020. She was referred to the Defendant by her friend and started the first acupuncture treatment in mid-March 2020 at the clinic located in a temple in Pat Heung (“the Clinic”).  Since then, she received two further treatments administered by the Defendant.

The accident

12.  At around 11:45 am on 20 November 2021, the Plaintiff attended the Clinic for the fourth time for acupuncture treatment in an attempt to sooth the pain on her neck, shoulders and back. 

13.  During the treatment, the Defendant initially applied the needles at the various pain spots on the Plaintiff’s neck, shoulders and upper back (“the 1^st treatment”). It was at the point when needles were applied to the Plaintiff’s right middle back adjacent to her armpit (“the Spot”) that the Plaintiff immediately felt an intense sharp pain, coupled with chest pain and breathing difficulties.  The Plaintiff was also feeling sweaty, dizzy and nauseous.  

14.  The Plaintiff informed the Defendant of the discomfort and the Defendant disapplied the needles.  Upon resting for 20 minutes, the Defendant resumed the treatment and reapplied the needles (the 2^nd treatment”).  More needles were applied to the Spot during the 2^nd treatment.  The 2^nd treatment lasted for about 5 to 6 minutes during which the Plaintiff was still feeling the intense pain and the associated feelings as stated above.  

15.  After the 2^nd treatment, the pain at the Spot and the surrounding area remained.  As the Plaintiff was leaving the Clinic, she had difficulty to walk.  On top of the shortness of breath, the pain escalated to her right chest. 

16.  In the two days post-treatment, the pain did not subside.  The needle spots were swollen.  The discomfort and pain on her right chest aggravated and extended to her back.  She experienced chest pain, shortness of breath and coughing.

17.  It was on 22 November 2021 at 9 pm that the Plaintiff attended the Accident & Emergency Department of Kwong Wah Hospital (“A&E KWH”) for assistance.  

Injuries and treatments

18.  The Plaintiff sustained pneumothorax as a result of the accident.  According to the A&E Initial Findings dated 22 November 2021[4], complaints and clinical findings include:

-   Non-exertional right sided chest discomfort radiated to the back;

-   Shortness of breath;

-   Reduced air entry over right chest;

-   X-ray was carried out and revealed a 3cm right sided pneumothorax.

   Diagnosis was right sided pneumothorax.  Chest drain was performed under local anesthesia.

19.  The Plaintiff was subsequently admitted to the Medicine & Geriatrics Department for management.  Imaging initially indicated resolution of pneumothorax.  Chest drain was removed on 24 November 2021. 

20.  However, the Plaintiff’s condition was complicated by recurred pneumothorax and reinsertion of chest drain was performed on 24 November 2021.  Chest drain was removed on 26 November 2021. It was after this second chest drain that serial imaging indicated good lung re-expansion. 

21.  During the Plaintiff’s 7 days hospitalization, she was prescribed with morphine for wound pain control.  The Plaintiff was discharged on 28 November 2021. 

22.  The same findings are evidenced in the following medical reports[5]:

•   Medical report of Dr T N Chan of A&E KWH dated 15 January 2022;

•   Medical report of Dr Wong Wan Hei Charmaine of the Department of Medicine & Geriatrics dated 17 February 2022;

•   Medical report of Dr Kun Wai Man of A&E KWH dated 6 March 2022.  

23.  No sick leave was requested nor given.  Referring to the ward follow-up consultation summary dated 30 November 2021[6], the Plaintiff was followed up with X-ray which confirmed pneumothorax being resolved.  According to the discharge note, only one follow-up appointment had been scheduled on 14 March 2022 at KWH[7] which the Plaintiff did not attend.

Complaints of the Plaintiff

24.  Due to the injury, the Plaintiff claims to have persistent breathing difficulty for 3 months post-injury; while chest discomfort and pain persisted for 6 months post-injury after which became intermittent; and she also suffers from mild pain at the back of her chest which align with right arm and shoulder movement. 

25.  In the Plaintiff’s Chinese witness statement dated 10 April 2024, it is said that after the accident, she always suffers from symptoms of dyspnea.  She could no longer walk in fast pace.  She would experience chest pain when sneezing and coughing.  She would also suffer from difficult breathing when taking the staircases.  Walking tolerance has been reduced and limited to 15 minutes and she could no longer enjoy her sport activities.

EXPERT EVIDENCE

26.  By an order dated 17 May 2024, direction was given to the Plaintiff and Defendant to jointly report to the court of the parties’ stance to adduce expert medical evidence.  The defaulting Defendant was deemed to have elected not to adduce any expert medical evidence at the AOD in this action.  Leave was granted for the Plaintiff to adduce expert medical evidence on quantum on solo basis. 

27.  By an Order dated 28 March 2025, leave was granted for the Plaintiff to adduce the Single Respiratory Expert Report prepared by Dr Joseph Pang Che Kong (“Dr Pang”), the solo expert in respiratory medicine appointed by the Plaintiff.  The Plaintiff agreed that the expert report be adduced without oral evidence at the AOD. 

Respiratory Expert Report

28.  On 8 August 2024, medical examination was conducted by Dr Pang.  A single expert report dated 26 September 2024 was prepared by Dr Pang[8].

29.  Referring to the expert report, the general health of the Plaintiff prior to the accident was good.  She has no history of serious medical illness and lung disease except a Covid infection in January 2022 which caused some aching and coughing for a brief three days. 

30.  The Plaintiff was a smoker from age 27-37 and smoked 3-4 cigarettes a day.  She quitted smoking since then. Her husband is a non-smoker. 

31.  Prior to the accident, she worked as a restaurant receptionist from 2015 to 2018.  She resumed employment again in 2020 for several months before her resignation in order to take care of her young children.

32.  At the time of Dr Pang’s examination, the Plaintiff’s daily activities are house chores and child caring of her two young children. 

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

Physical Examination

-   Apex beat and heart sounds were normal;

-   Chest shape was normal;

-   Expansion was equal and symmetrical on both sides;

-   Trachea was central;

-   Percussion note and breath sounds were normal;

-   2 stitches-scar over the 2 tube insertion sites.

34.  Dr Pang opined that the clinical physical examination of the Plaintiff’s cardiovascular and respiratory systems was normal.

35.  Dr Pang was provided with different series of X-ray imaging from KWH for his expert opinion.  To assist the examination, Dr Pang referred the Plaintiff to undergo a further X-ray on 24 July 2024[9]. In gist, no pneumothorax was seen.

36.  Upon investigations, the readings revealed:

-   The Plaintiff’s oxygen saturation at rest was within normal limits;

-   Values of the lung function test in August 2022 were normal.

37.  Dr Pang reached the following comments and conclusions[10]:

1)  The traumatic right sided pneumothorax was a direct result of the acupuncture on 20 November 2021;

2)  Pain accrued immediately upon the insertion of the first needle.  The removal and the re-insertion of the needles likely aggravated and increased the pain and trauma to her lung;

3)  The Plaintiff has reached maximum medical recovery;

4)  The Plaintiff continues to suffer mild chest pain affecting movement of her right arm and shoulder and reduced exercise tolerance. 

38.  There is no question for the court to consider how much of the symptoms complained by the Plaintiff are caused by the accident and the question of apportionment due to the absence of pre-existing lung condition.  It is the estimation of Dr Pang with a 0.5-1% of disability.  

THE PLAINTIFF’S CREDIBILITY

39.  I have considered the general principles set out in the often cited passage for assessing the credibility of a witness in Hui Cheung Fai and Anor v Daiwa Development Limited & Others (2014), unreported, HCA 1734/2009 (DHCJ Eugene Fung, SC; 8 April 2014) at:

“77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce) …

78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).

79. In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36-37 (Bokhary PJ)), or from the assessment of the witnesses’ character (Esquire (Electronics) Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA)).

81. The practical approach to assessing credibility of witnesses in a case such as the present may have best been summarised by the words of Robert Goff LJ, as he then was, in The Ocean Frost [1985] 1 Lloyd’s Rep 1 at 57:

“Speaking from my experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities.  It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.”

82. Whilst these words were spoken in the context of a fraud case, I believe they are applicable to any case where a witness’ credibility features prominently in the court’s determination. They are particularly apposite in a case like the present where very serious allegations (akin to allegations of fraud) have been made by the Son against the defendants.

83. In approaching the evidence in this case, I have also borne in mind that the allegations made by the Son are very serious, and that the more serious the allegation sought to be proved is, the more cogent the evidence relied upon to support it must be: see Re H (Minors) [1996] AC 563 at 586D-587F (Lord Nicholls) and ADS v Brothers (2000) 3 HKCFAR 70 at 77J-78G (Lord Hoffmann NPJ).”

PLAINTIFF’S EVIDENCE

40.  The Plaintiff testified in a straightforward manner and her testimony was not subject to any challenge as the Defendant was absent at the assessment hearing.

41.  In relation to the Plaintiff’s conditions from the time of her witness statement till the present, it is her evidence in court that her daily activities have been slightly affected.  In relation to house chores, grocery shopping is an example.  She testified that she cannot hold a bag of 5kg rice with her right arm. 

42.  Breathing condition has improved. Despite the aforesaid improvement, it is testified by her that the chest pain would get worse when she sneezes and she described the tingling pain in the form of “sharp-needle-stabbing” (“一下針拮刺痛”).  

43.  In relation to the loss of life enjoyment, it is testified by the Plaintiff that, prior to the accident, she used to play badminton with her daughter once a week and would strengthen her physical fitness through running.  However, she stopped exercising after the injury and did not resume the same. 

44.  Overall, I find the Plaintiff’s evidence credible. 

QUANTUM

PSLA

45.  Mr Leung submits in his written and oral submissions that the award should be $150,000.  Mr Leung referred in his written submissions the follow cases:

(1)  莊鴻偉 v 林群 DCPI 2558/2013, 19 Oct 2019: PSLA awarded at $250,000;

(2)  Lee Lung Wah v Lau Kam Shun, HCPI 1534/2000, 7 February 2003: PSLA awarded at $300,000;

(3)  Ho Ying Wai v Keliston Marine (Far East) Ltd [2003] 1 HKLRD 343: PSLA awarded at $300,000;

(4)  Wong Ka Wai Johnny v Lee Man Wai, DCPI 145/2010, 16 January 2012: PSLA awarded at $100,000.

46.  I have considered the above authorities cited by Mr Leung in his opening and closing written submissions. I opine the cases of 莊鴻偉 and Lee Lung Wah are more in line for comparisons with the present case.

47.  In 莊鴻偉, the plaintiff was a male demolition worker at the time of accident and sustained a fell from height accident.  As the plaintiff was handling construction waste, he fell from 6 feet height from an environmental roadside skip to the ground.  Other than the orthopaedic injuries on his limbs, he also suffered from right sided chest and rib fracture leading to pneumothorax.  Due to the seriousness of his injuries, he was being rescued at the ICU for a day prior to admission to the general ward and was hospitalized for 6 days.  In relation to pneumothorax, the residual symptoms include chest and lung pain, persistent coughing with blood, shortness and difficulty of breathing etc.  Upon consideration of the expert opinion and relevant case authorities, the court assessed an award of $250,000 as reasonable.  

48.  In Lee Lung Wah, it is a case of traffic accident involving 5 plaintiffs.  It is the quantum case of 5^th plaintiff (“P5”) that is of relevance.  P5 sustained injuries of bilateral pneumothorax, mild right haemothorax and right middle lobe lung contusion.  He was hospitalized for 10 days and had undergone chest drain insertion.  P5 complained of relevant residual impairments including but not limited to constant difficulty in breathing and serious chest pain; inability to lift heavy objects and to use force; deformed rib cage resulting from the fractures etc.  Orthopaedic expert opined P5 has reached maximal medical improvement.  For this case, the court found P5 a tendency to exaggerate his overall complaints.  The court awarded PSLA at $300,000.

49.  I agree with Mr Leung that the injuries suffered by the Plaintiff in the present case are less serious than the injuries cited in the authorities. 

50.  In assessing damages for PSLA, other than the authorities cited by Mr Leung in his opening and closing written submissions as well as the authorities in the assessment bundle, I have also considered Wu Wai Lam Bebi v Bat Chan (D2) DCPI 3978/2022, 21 August 2025.  In Wu Wai Lam Bebi, the plaintiff was a student of D2, who was a fitness instructor.  The plaintiff was attending a private stretching class at the time of the accident.  It was pleaded by the plaintiff that due to the accident she was suffering from fracture anterior axillary of the right 5^th rib; dorsal scoliosis convex to right; right chest wall pain, impulse pain with coughing; right shoulder pain; and muscle pain and tenderness etc. 

51.  Although the injury is not identical to pneumothorax, I have considered the plaintiff’s residual symptoms of chest pain with tightness and pulling sensation, which is comparable to the Plaintiff’s description in the present case as “胸口扯住痛”; coughing with impulse pain, which is comparable to the Plaintiff’s description in the present case as “一下針拮刺痛”; and the associated shoulder pain.  The plaintiff’s expert opined that the displaced fracture of the right 5^th has healed with satisfactory alignment and a satisfactory degree of recovery has been reached.  The expert opined the plaintiff suffered 1% whole person impairment.  PSLA was awarded at $200,000.

52.  I have further considered the way the accident occurred.  From the Plaintiff’s pleaded case and her evidence, it is alleged that the Defendant claimed himself to be a tough acupuncturist. 

53.  The Plaintiff in the present case had undergone two chest drain surgeries.  She has to endure with the 2 tube-hole scars on the right side of her body under her right armpit, each hole with 3 stitches.  I consider the PSLA amount $150,000 is a reasonable sum and would allow in full.

Loss of housekeeping ability 

54.  It is pleaded in the RSOD for 3 months at $5,000 per month.  I have considered the Plaintiff’s background as a full-time housewife at the time of the accident.  Her daily house chores would require her to take care a family with 3 children.  What is more alarming is that at the time of the accident, her youngest son was only 8 months old.  I accept that taking care of an infant of such a young age would require constant lifting and holding.   Not only she had been hospitalized for 7 days, the residual symptoms of pain and difficulty in breathing lasted for half a year. I consider the Plaintiff’s claimed amount of $15,000 is a reasonable sum and would allow in full. 

Special damages

55.  In the closing submissions, the Plaintiff claims for:

(i)    Tonic food	$6,000
(ii)    travelling expenses	$2,000
	___________
TOTAL:	$8,000

56.  There was no receipt to support the above (i) and (ii).  I have considered the Plaintiff’s evidence she gave at the assessment hearing in relation to tonic food.  At the assessment hearing, it is said by the Plaintiff that she purchased the traditional Chinese tonic food fish maw and dangshen for soup to replenish her respiratory system.  Having considered the two chest drain surgeries, I would accept her claim amount as reasonable and would allow in full for (i).  For (ii), while the Plaintiff had only attended one follow-up at KWH on 30 November 2021, I have considered the impact to her physical condition and the transportation expenses resulted from the injury, I allow a reasonable sum of $1,000 for travelling expenses. 

CONCLUSION

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

i.      Loss of housekeeping ability	$15,000
ii.     Medical expenses	Waived
iii.    Travelling expenses	$1,000
iv.    Tonic food	$6,000
v.     Pain, suffering and loss of amenities
(“PSLA”)	$150,000
TOTAL:	$172,000
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	plus interest

Interest & Costs

58.  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 date of the accident to the date of judgment and thereafter at judgment rate until payment in full.

59.  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.

60.  As indicated to Mr Leung at the AOD, this court can arrange an interpreter to explain the contents of this Judgment to the parties in the Chinese language if require.  Lastly, I thank Mr Leung for his assistance.