ABBAS TAHIR v. LAM KWOK WO

HCPI 287/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 287 OF 2012

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ASSESSMENT OF DAMAGES

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1.  The plaintiff, Mr Tahir, was a security guard and he claimed that Mr Lam assaulted him on 11 May 2009 whilst stealing copper pipes in a construction site.

2.  With regard to this incident, Mr Lam was convicted of “assault occasioning actual bodily harm” and “theft” on 2 December 2009 in the District Court, and was sentenced to imprisonment for 2 years and 3 months.

BACKGROUND OF THE CLAIM

3.  Mr Tahir’s then legally aided lawyers initiated action in the current case on 20 April 2012.  Another action (HCPI 288 of 2012) was taken out on the same day based on the same incident against Mr. Tahir’s then employer and the alleged occupiers / proprietors of the construction site.

4.  Interlocutory judgment on the current case was entered on 27 February 2013.  However, the issue of liability remained in dispute in HCPI 288 of 2012.

5.  On 30 September 2014, Master Roy Yu also ordered “…if so advised, the Plaintiff may use the trial bundle or part thereof in HCPI 288 of 2012 as assessment bundle (on HCPI 287 of 2012)….”  Later, on 29 June 2015, Master Roy Yu ordered both the current case and HCPI 288 of 2012 to be heard by the same judge (on the issue of quantum).

6.  Legal Aid discharged its certificate in the current case on 11 November 2014.  

7.  On 10 September 2015, HCPI 288 of 2012 was settled on the basis of without admission of liability for HK$600,689.52 (with credit be given to the sum of HK$300,689.52 already received by Mr Tahir as employees’ compensation under DCEC No. 419 of 2010).

8.  Mr Tahir has continued the current action acting in person. Mr Lam is also acting in person.

9.  In view of the Order of Master Yu, the court has the Trial Bundle prepared by Mr Tahir’s lawyers in HCPI 288 of 2012.  The court also has an “Agreed Trial Bundle” prepared by Mr Tahir himself for the current case which consisted of lists of various “tonic food” and “medical treatment” expenses.

10.  During the hearing, Mr Tahir was able to submit to the Court various invoices, medical appointment slips and payment slips, photographs of claimed “tonic food” etc.  The Court has also invited Mr Lam to examine these documents and to cross-examine Mr. Tahir regarding the same if needed.

PSLA

11.  Mr. Lam assaulted Mr Tahir by hitting his head with a hard object once which resulted in a loss of consciousness for several minutes. He attended the A&E at Prince of Wales Hospital and examination showed a 1 cm laceration on the top of the head.  CT brain was normal and he was discharged after a few hours of observation.

12.  Mr Tahir attended A&E departments of various hospitals over the next few months with various complaints of headaches, dizziness and neck pain.  CT scan was again normal and no focal neurological deficit was found.  A diagnosis of “post‑concussional syndrome” was made. 

13.  In the joint neurology expert report, both experts agreed that Mr Tahir sustained a mild head injury with no radiological evidence of any skull fracture or parenchymal brain damage.  He has various complaints like headache, dizziness, pains, weakness, memory loss etc.  However, discrepancies and inconsistencies raised “strong suspicion that his deficits were feigned for the purpose of the examination.  They cast serious doubt on the genuineness of his complaints.”  One neurological expert raised a psychiatric disorder of “Dysthymic Disorder”.  Nevertheless, such a diagnosis was not supported by the psychiatric experts, who agreed that Mr Tahir has postconcussional syndrome. One psychiatric expert also diagnosed adjustment disorder in addition but both agreed that “the impairment due to the mental problem is mild.”

14.  Mr Tahir is claiming HK$400,000 under this head of claim in the Revised Statement of Damages.

15.  I have considered various cases including Chow Ka Kat v. Yiu Hsing Development Limited HCPI 495 of 2010 and Yan Kwok Yue v. Dong Shu Kei Beau HCPI 923 of 2000, which may represent the opposing ends of the spectrum concerning such “head injury” cases.

16.  On analysis of the experts’ evidence, I am of the view that the injury suffered by Mr Tahir was closer to the “Chow” end of the spectrum so I would award HK$275,000 under this head of claim.

PRE‑TRIAL LOSS OF EARNINGS (INCLUDING LOSS OF MPF)

17.  Mr Tahir claimed that he was earning HK$6,000 on average as a security guard at the time of the accident.

18.  No objection was raised by Mr Lam.

19.  I note that all the experts agree that Mr Tahir can resume his pre‑accident job.  The neurology experts agreed that the appropriate sick leave (from a neurological recovery point of view) should be 6 months. The psychiatric experts agreed that a 12 months sick leave was reasonable for the mental problem.

20.  I shall take a more generous approach and allow 12 months of sick leave.  Thus, Mr Tahir’s pre‑trial loss of earnings should be HK$6,000 x 12 = HK$72,000.

PRE‑TRIAL LOSS OF MPF

21.  There would be a 5% contribution to Mr Tahir from his employer under the MPF scheme, so I would allow HK$72,000 x 5% = HK$3,600.

LOSS OF FUTURE EARNINGS

22.  As all the experts agree that Mr Tahir can resume his work, there would be no award under this head of claim.

FUTURE MEDICAL EXPENSES

23.  I note that both psychiatric experts advised further psychiatric / psychological treatment for a few months.  There is some disagreement as to the costs of these but I will allow HK$2,000.

SPECIAL DAMAGES

24.  Both neurology experts have “serious doubt on the genuineness of his complaints” which may raise a question as to whether many of Mr Tahir’s medical consultations were for “genuine” complaints. Nevertheless, I would be generous and allow HK$7,000 as past medical expenses and HK$5,000 as travel expenses.

25.  Mr Tahir has produced various photographers and bills for the claim for “tonic food” but I note that most of these appeared to be everyday grocery items (eg mutton, chicken, flour, teabags, herbs, oil etc).  As such, I would only allow HK$5,000 for the claim for tonic food.

26.  Total claim under special damages should therefore be HK$17,000.

OTHER CLAIMS

27.  Although this was not stated in the Revised Statement of Damages, Mr Tahir claimed that the injury has caused his hair to turn grey prematurely which made him look old and that this was the reason why his offer of marriage was turned down.

28.  There is no medical evidence to suggest that the mild head injury has caused Mr Tahir’s hair to turn grey: the fact that he suffered a mild head injury and that his hair started to turn grey a few months later does not mean that the two events are casually linked. 

29.  Any alleged casual link, in any case, is far too remote and Mr Tahir did not show how this should translate to a loss in specific monetary terms.

30.  Therefore, no award is given under this allegation.

SUMMARY

		HK$
	PSLA	275,000
	Pre-trial loss of earnings	72,000
	Pre-trial loss of MPF	3,600
	Future loss of earnings	0
	Future medical expenses	2,000
	Special damages	17,000
	Interests	24,308
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	Total	393,908
	Less:
	Net settlement sum in HCPI 288/2012	(300,000)
	Employees’ Compensation	(300,689.52)
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		0

31.  The damages in this action is less than all the sums already received by Mr Tahir so I would order that no damages should be awarded.

32.  As for costs, I would give an order nisi for no order as to costs.