TSANG YIK ON v. KAT CHING

Date of handing down judgment on quantum: 21 March 1997

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JUDGMENT  ON  LIABILITY

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Liability

1. This is a claim by the Plaintiff against the Defendant for damages he sustained as a result of an assault by the Defendant. The parties agreed to deal with the issue of liability first.

Plaintiff's evidence

2. The Plaintiff was a carpenter. On 31st August 1990, he was working at a worksite in the shopping mall at Pacific Place. He, together with another worker, Mr Chung Sze Kin ("Mr Chung"), were working on a cutting table and were about to cut a piece of wooden plank. The Defendant who was a co-worker suddenly came up to the Plaintiff and complained that the Plaintiff's plank of wood had bumped into him. The Plaintiff replied that his piece of wood had not been removed and asked how he could have hit the Defendant. Then followed further exchanges between the parties. The Defendant said to the Plaintiff, "That means you were saying I hit your plank". The Plaintiff's reply was that "There is no need for me to say it." The Plaintiff said that the Defendant was very fierce and he felt that the Defendant was very dissatisfied with him. The Defendant came up and punched him in his right temple. The Plaintiff wanted to protect himself and picked up the wooden plank. He was thinking of warding the Defendant off, however, he was not fast enough. The Defendant hit his head hard with his fist. The Plaintiff felt dizzy and he was struck off balance and fell to the concrete floor. He passed out. The Plaintiff was admitted to the hospital. He was in coma. He was found to have, among other things, haematoma and laceration over the left parietal region. The diagnosis was fractured base of skull, right subdural haematoma and diffuse cerebral injury.

3. The Plaintiff said that before the accident he found that the door frame made by the Defendant did not match the measurements of the plans and he informed Mr Hui, the employer, about this. Mr Hui was very angry and said how could a mistake be made of such a minor thing. The Defendant was working at the next room and it is the Plaintiff's evidence that the Defendant had heard this. When later the Plaintiff walked past the Defendant, the Defendant was staring at him in a hostile manner.

Cross-examination

4. In cross-examination, it was put to the Plaintiff that the Defendant was working at another cutting table nearby. The Plaintiff was at another table behind the Defendant. The Defendant felt that he was hit by a plank from behind. He turned around and told the Plaintiff to be careful with the plank. The Plaintiff denied that he had hit the Defendant. The Plaintiff then pushed the plank forward again although it did not hit the Defendant. The Plaintiff also said that the Defendant's back had hit the plank. The Defendant then switched off the saw on his table. While he was doing this, he was hit again at the back. Then he turned around and found that the plank was next to him. He used his hands to push off the plank and he saw the Plaintiff slipped, lost balance and fell down. These allegations were denied by the Plaintiff who maintained that he was hit by the Defendant.

Mr Chung's evidence

5. Mr Chung, the co-worker, said that when he and the Plaintiff were about to cut the wooden board, he saw the Defendant was squatting down nearby to pick up things. The Defendant then got up and said that the Plaintiff had hit somebody. The Plaintiff replied that the plank had not been moved and the Defendant dashed forward to hit the Plaintiff. The Plaintiff picked up the plank to ward off the Defendant, but his (Mr Chung's) vision was blocked by the plank. He then saw the Plaintiff fell down with his plank. The Plaintiff was bleeding and had clamps. The situation was very confusing. He tried to stop the Defendant from leaving but was unable to stop him.

Defendant did not give evidence

6. The Defendant who appeared in person, chose not to give or call evidence for his defence.

Finding

7. The issue is simply whether the Defendant had hit the Plaintiff, causing him to fall down and sustained the injuries. If the Defendant's allegations in the cross-examination of the Plaintiff were true, it was the Plaintiff who actually attacked the Defendant and when the Defendant warded off the attack, the Plaintiff lost his balance and fell.

8. Despite these allegations, the Defendant had chosen not to substantiate them by giving evidence. The burden of proof is, of course, on the Plaintiff to establish his case, but clearly the Defendant's allegation that the Plaintiff started the attack cannot be substantiated and should be ignored.

9. I am satisfied that the Plaintiff had given an accurate account of the events that took place that day. I am satisfied that the Defendant had hit the Plaintiff's head causing him to fall. Although it may appear odd that the Defendant should suddenly accuse the Plaintiff of hitting him with the plank, I am satisfied that the attack was the result of the earlier complaint by the Plaintiff to the employer of the Defendant's shoddy work. The Defendant was harbouring a grudge against the Plaintiff and had picked a fight. I find the Plaintiff was an honest witness. I accept his evidence that after his conversation with the employer, the Defendant was staring at him in a hostile manner. I find that the Defendant had overheard the conversation. The suggestion that the Plaintiff was wearing a slipper and that there might be rubbish on the floor causing him to slip and fall can be discounted. I accept the Plaintiff's evidence that he was punched forcefully with a fist. He became dizzy and fell down. The Plaintiff had been consistent that his head was hit by the Defendant with a punch, this was first recorded in a statement made to the police on 19th September 1990. In his earlier police statement dated 6th September 1990 he said he had a quarrel with a co-worker but thereafter he did not known why he was admitted to hospital. I accept when he was first interviewed by the police he was dizzy and sleepy under medication and he could not recall what had happened earlier. It is obvious that the Plaintiff had sustained serious head injuries. He said when he woke up in hospital he became hysterical and had to be restrained on the bed.

10. I have also considered carefully the evidence of Mr Chung before I came to the conclusion that the Plaintiff's evidence was to be accepted. Although Mr Chung said in his evidence that he saw the Defendant came up and hit the Plaintiff, he had, in his statement given to the police on 31st August 1990, stated that :

" Suddenly, another co-worker, Kat Ching passed by and accused Ah Tsang's wooden plank had hit him. As a result of this matter, Ah Ching and Ah Tsang started to quarrel.

Then, I saw Ah Ching walked towards Ah Tsang at quick pace. I did not know what he wanted to do. Thereafter, I and Ah Tsang picked up the wooden plank simultaneously, intending to use it to ward Ah Ching off. At that time, we used the wooden plank to push against each other. I was not sure whether it was Ah Tsang failed to keep balance, he fell onto the ground suddenly."

11. In my view, Mr Chung is basically an honest witness. I accept his evidence that when he gave the police statement he was confused. The accident took place at around 5:00 pm, he had taken the Plaintiff to the hospital in the ambulance, he had been in contact with the Plaintiff's relatives and he did not have his meal when he was interviewed. According to the record, the statement was taken at 9:57 pm. I accept his evidence that he did not take part in the struggle; I accept it was the Defendant who came up angrily to hit the Plaintiff. It was the Plaintiff who held up the plank to ward off the Defendant. Compared to the Plaintiff's sketch, the sketch drew by Mr Chung showed different positions of the parties. However, this, together with his police statement, is not something that would cast doubt on the accuracy of the Plaintiff's evidence.

12. I find that liability has been established and I now proceed to hear the evidence on quantum.

JUDGMENT  ON  QUANTUM

Pain, suffering and loss of amenities

The Plaintiff suffered the following injuries from the assault and his fall to the floor :

(1) head injuries;

(2) back injuries;

(3) disability to his hearing and eyesight.

13. When he was admitted to hospital on 31st August 1990, he was found to have slightly impaired consciousness with mild left face palsy. The Glasgow Coma Scale was 9 (15 being normal). There was eye opening to speech, localizing pain and no verbal response. There was haematoma with laceration over left parietal region (2.5 cm long). The diagnosis was fracture base of skull, right subdural haematoma and diffuse cerebral injury. He was hospitalized for 26 days. He could not walk without assistance for two to three months. He had headache, dizziness and double vision. His right leg was almost rigid. His right hand and leg trembled and they could not move voluntarily. He also had hearing impairment. He had follow up treatments in the neurological division in the Sai Ying Pun Clinic, the eye clinic and the ear clinic. He also underwent physiotherapy and occupational therapy treatment. His facial nerve has since recovered. But there was deterioration of his hearing on both sides between October 1990 and July 1991.

14. The Employees' Compensation (Ordinary Assessment) Board assessed the Plaintiff was suffering with head injuries with post-concussional syndrome, weakness of right hand and risk of epilepsy. Loss of earning capacity of 20% was assessed. The assessment was made on 1st July 1992.

15. On 22nd May 1995, x-ray photographs of his lumbo-sacral spine revealed mild lumbar spondylosis, with the T12 vertebral body slightly wedged anteriorly (which suggested previous compression fracture), and the disc space between L4-5 was slightly narrowed. There was mild degenerative changes with osteophyte formation.

16. In January 1996, he was admitted to the Duchess of Kent Hospital for an anterior spinal fusion for his prolapsed intervertebral disc of the L4-5 vertebrae because of the constant spasms and pain in the right leg.

17. The Plaintiff's conditions had not been relieved after the operation. There is continue weakness of his right hand grip and weakness of the right side of the body. He also continues to suffer headache, dizziness and vomitting. Dr Philip Mao assessed a 15% impairment of the whole person for the intracranial injury and another 5% impairment of the whole person for the compression fracture of his thoracic spine and for the operation on his L4-5 lumbar vertebra. His loss of earning capacity was assessed at 25%.

18. The double vision had since stopped but the Plaintiff's vision is blurred beyond a distance of 10 yards. Dr Patrick Ho found that the visual acuity of the right eye to be 20/50 (as compared to the normal left eye of 20/20). The visual disability, or the loss of central vision in the right eye is assessed at 25%. Dr Ho's view is that the 25% loss of central vision would cause a loss of stereopsis and depth perception. The blurred vision will be permanent and cannot be corrected by wearing spectacles.

19. Mrs Levy, Counsel for the Plaintiff, submitted that the injuries and disabilities of the Plaintiff fall within the top end of the serious injury category and a sum of $450,000 is claimed. I agree. The Plaintiff is suffering from disabilities which mar the general activities and enjoyment of life. He has reduced muscle strength, muscle spasm, headache and impairment of eyesight. He required hospitalization and extensive follow-up treatments. The sum of $450,000 is awarded. For a comparable case see Wong Suk Ha v. Li Tsun Wing PI No.770 of 1995 (Judgment 3rd April 1996 by Mrs Justice Le Pichon).

Loss of past earnings

20. The Plaintiff had been a carpenter for 20 years at the time of the injuries. He was unable to return to work after the accident because of his disabilities. As a carpenter he was required to use powered tools such as electric saw. He was required to work on heights. He was unable to assume these duties because of his disabilities. I accept the Plaintiff cannot return to his former occupation.

Wages

21. The Plaintiff was a casual worker. He was earning $380 per day at the time of the accident. Other employers would pay him $420 per day, but as he was familiar with Mr Hui, the employer who engaged him in the work in Pacific Place, he was prepared to charge less at $380. It was suggested that the union rate was $350 in August 1990. This sum was revised upwards in November 1990. I am satisfied that the union rate was only the minimum rate. The Plaintiff was entitled to charge a higher rate. I will use a median figure of $400 ($380 and $420) per day as the basis in calculating the Plaintiff's loss of past earnings. I am satisfied that he was able to work 26 days per month. There were suggestions that the construction industry was at a downturn in 1994 and the Defendant, who was also a carpenter, could only work 10 odd days per month in 1994. Further, the construction workers would not work after the Chinese New Year. It really depends on the individual whether he would take a longer holiday after the Chinese New Year. I am satisfied that the 26 day month and a 12 month year should be used in calculating the Plaintiff's loss.

22. The wage of a carpenter had been increased since 1990. In June 1996, carpenters earned $717.6 per day according to the Average Daily Wages of workers engaged in government building and construction projects issued by the Census and Statistics Department (Issue 28th June 1996). I will use a median figure of $559 per day in respect of the sums $400 and $717.

23. He was granted sick leave from 31st August 1990 to 22nd June 1991 and further from 19th December 1995 to 6th January 1997. Between 31st August 1990 to date of trial, i.e. 13 March 1997, he did not work apart from September 1993 to May 1995 when he worked for his younger brother earning $2,500 per month. The period from 31st August 1990 to 13th March 1997 is 78 months. The total loss of wages for this period is $559 x 26 x 78 = $1,133,652.

24. From this, his earnings from September 1993 to May 1995 with his younger brother at $50,000 i.e. $2,500 per month x 20 months should be deducted.

25. For about 25 months after his discharge from the hospital and before he resumed work with his younger brother, the Plaintiff did not work. I am satisfied that he had the capacity to work. A notional income of $60,000 being $2,500 per month x 40 months should further be deducted.

26. The net total pre-trial loss is $1,133,652 - $50,000 - $60,000 = $1,023,652.

Future loss of income

27. The Plaintiff was born on 24th July 1952. He is now 44 years of age. Although I accept that he would not be able to return to his former occupation as a carpenter, I am of the view that he has a residual earning capacity as a caretaker which is one of the jobs recommended by the occupational therapist. According to the Half-yearly Report of Wage Statistics issued by the Census and Statistics Department for September 1996, the average monthly salary of a caretaker is between $7,893 and $6,632. The median is $7,263. The difference between $18,642 (i.e. $717 x 26) and $7,263 = $11,379. A multiplier of 10 for a male aged 44 is appropriate.

The future loss is $11,379 x 12 x 10 = $1,365,480.

Loss of earning capacity

28. With the disabilities of the Plaintiff, there is a substantial risk that he might lose his employment in the future. To compensate him for his handicap in the labour market, a sum of $100,000 is awarded under this head.

Special damages

(1) Medical expenses - $3,300

This is in respect of hospital charges, out-patient and visiting charges. I will allow this sum.

(2) Travelling expenses - $1,200

Again, this is a reasonable and necessary amount. I will allow this sum.

(3) Tonic food

29. $17,000 odd was claimed but the Plaintiff is prepared to accept $5,000 for this amount. The Plaintiff purchased ginseng after his injury as tonic food. It was suggested that the Plaintiff had falsified receipts. There is no evidence that this took place. I am satisfied that considering the extent of his injuries, $5,000 is a reasonable amount and I will allow this sum.

Employees' Compensation

30. The Plaintiff recovered employees' compensation in the sum of $433,090 on 8th October 1993. Under the proviso of s.26(1) of the Employees' Compensation Ordinance, the award has to be deducted from the common law claim. Although s.26(1) refers to liabilities of the employer, the proviso does not confine to proceedings against employers. The rationale of the proviso is to avoid double recovery : Lai Tat Wah v. Franki Contractors Ltd. [1993] 1 HKLR 1. Hence the compensation should be deducted. Furthermore, the deduction should also be made on the basis that the Defendant may be liable under s.25 to the Plaintiff's employer in respect of compensation paid by him to the Plaintiff.

Summary

Judgment

31. There shall be judgment to the Plaintiff in the sum of $2,515,542.

Interest

32. There shall be interest at 2% on PSLA from date of the service of the writ to judgment and at 5.75% on special damages and loss of past earnings from 31st August 1990 to judgment. Interest at judgment rate on the judgment sum from judgment to payment.

Costs

33. The Plaintiff is entitled to cost nisi of the action.