X v. Y

DCPI 229/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 229 OF 2002

____________________

___________________

_______________________________________

JUDGMENT FOR ASSESSMENT OF DAMAGES

_______________________________________

1. This is a tragic case, but perhaps it brings out a problem which is faced by many of the families in Hong Kong.

2. The Plaintiff used to be a citizen living in the Mainland. She met the Defendant's son in 1990 and they got married in the Mainland 2 years later. In 1995, the Plaintiff moved to live in Hong Kong together with her husband and the Defendant. Unfortunately, the relationship between the Plaintiff and the Defendant was not always good. During a dispute in the early hours on 25 April 1997, the Defendant threw corrosive acid on the Plaintiff and attacked her with a knife, causing the latter to suffer various injuries. As a result, the Defendant was charged with and convicted of 2 offences, namely throwing corrosive fluid with intent and wounding with intent, and the Defendant was sentenced to 18 months' imprisonment.

3. In this action, the Plaintiff claims against the Defendant for damages arising from the said incident. Although a defence based on the provisions of the Limitation Ordinance, Cap. 347 might be available to the Defendant, interlocutory judgment was entered by Muttrie DJ on 22 November 2002, and this is the assessment of the Plaintiff's damages.

4. As a result of the attack, the Plaintiff sustained minor chemical burn on the face and stab wound of about 3 cm. long in the right tight. The latter wound healed properly with a small residual scar. In respect of the facial injury, there are still a few small scars left on the face. These facial scars are not ugly and are only noticeable at short distance.

5. The Plaintiff's main complaint relates to her mental condition after the attack. In fact, she made a suicidal attempt just before the hearing of assessment of damages in March 2003, and this is one of the main reasons why I have made an anonymity order in the present case.

6. The mental condition of the Plaintiff can be summarized in paragraphs 23, 24 and 29 of the medical report by the Plaintiff's expert, Dr. Chung See-yuen, which read as follows:

"23. I believe [the Plaintiff] is suffering from the following mental problems:

23.1 She is suffering from posttraumatic stress disorder. The mental disorder arises after a person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others, and the person's response involved intense fear, helplessness, or horror. The symptoms that she is having include distressful re-experience of the traumatic event, avoidance of stimuli associated with the trauma, lack of confidence, insecurity, displeased with the scar of her face and tight, depressed mood, and sleep problems. The disorder is caused by the trauma of the incident on 25 April 1997 and the resultant scars over her face and tight, and is consistent with the injury. The mental problems are consistent with the injury. The disorder has shown improvement with time. She is suffering from mild residual problems of the disorder currently.

23.2 She is displaying symptoms of depression. The depression is caused by the problems with her husband and child care, and the aftermath of the incident. I believe the majority of the depression is caused by the family problems rather than the incident on 25 April 1997. The symptoms that she is having consist of depressed mood, lack of interest in activities, lack of confidence, and sleep problems. Some of the symptoms overlap with those of posttraumatic stress order. The depression is mild.

23.3 The suicidal attempt on 7 March 2003 was caused by stresses related to the incident on 25 April 1997. She was anxious about the Court hearing on 27 March 2003. She was anxious when she was reminded of the incident. She was worried that the case would be publicized in the media again. Her mental condition has shown improvement after treatment as a psychiatric clinic of Pamela Youde Nethersole Eastern Hospital. She does not have suicidal idea currently.

24. The mental problems are mild. Her social functioning is affected by her lack of confidence in dealing with people and decreased interest in activities.

.........

29. I estimate the degree of permanent impairment to the whole person, due to posttraumatic stress disorder and depression caused by the incident on 25 April 1997, at 3%."

7. It is clear that the Plaintiff's present mental condition is caused by two factors, namely the attack itself and the deteriorating martial relationship with her husband. The Defendant should be responsible for the loss arising from the first cause but not the second one. In his oral testimony, Dr. Chung confirmed that the Plaintiff's posttraumatic stress disorder was caused by the attack, but the depression was probably caused by the martial relationship which was unrelated to the incident. In the light of such observation, the court should not take into account the depression symptoms, though they are somehow related to those of posttraumatic stress disorder, in assessing the Plaintiff's damages.

Pain, suffering and loss of amenities ("PSLA")

8. The scars left on the Plaintiff's face are small and are only noticeable at short distance. However, being a young woman born in the year 1966, the Plaintiff must be embarrassed for having the scars, as she said. In such circumstances, the court should take into account her feeling in assessing the damages for PSLA.

9. In Wong Siu-shan v. Tsang Hin-sum, unreported, DCPI 181/2002 (decision of Lok DJ on 18 December 2002), I myself dealt with a case involving a plaintiff who suffered from post-concussional syndromes including headaches, dizziness, fatigue, irritability, difficulty in concentrating and performing mental tasks, impairment of memory, insomnia and reduced tolerance to stress and emotional excitement. After referring to the cases of Cheng Lai-kwan v. Nan Fung Textile Limited [1998] 2 HKLRD 729 and Hau Kwok-fong v. The Kowloon Motor Bus Company (1933) Limited & ors., unreported, HCPI 101 of 97 (decision of Pang J on 4 March 1999), I awarded $180,000 as damages for PSLA to the plaintiff in that case.

10. Obviously, the Plaintiff's injuries fall below the "serious injury" category according to the Lee Ting-lam scale. The Plaintiff's symptoms are described as mild, and they are slightly less serious than those suffered by the plaintiff in the Wong Siu-shan case. However, taking into account the embarrassment caused to the Plaintiff by the facial scars, I am of the view that a similar award should be made in the present case. I therefore award $180,000 under this head of damages.

Loss of earnings

11. In the opinion of Dr. Chung, the Plaintiff should be entitled to 13 months of sick leave as a result of the attack. As the Plaintiff did not work for more than 2 years after the incident, she claims as damages the earnings that she could have earned during the sick leave period.

12. According to the Plaintiff, she did take up employment from time to time after she came to Hong Kong. From 15 December 1996 to 31 March 1997, she worked for one Winon Telecom Limited ("Winon") as an administrator earning about $9,000 a month. As her employer planned to relocate the business to the Mainland, the Plaintiff left the said employment and attended training courses organized by an insurance company with a view to work as an insurance agent.

13. However, this might be different from what she told the police on 27 April 1997. According to the contents of her witness statement to the police, the Plaintiff mentioned that she had not taken up any employment ever since she came to Hong Kong. In the trial, the Plaintiff explained that she was confused when the police officer took the statement from her in hospital 2 days after the attack. She misunderstood the question as referring to her employment status at the time of the attack. As she had yet started to work as an insurance agent by that time, she gave the said answer to the police. After listening to her evidence, I believe that she was telling the truth. In fact, a written confirmation issued by Winon confirms that the Plaintiff worked for the said company prior to the incident.

14. It is the Plaintiff's case, of which I accept, that she could have worked as an insurance agent but for the attack. One of her friends, Madam Yuen Ching-man, attended the training courses together with the Plaintiff prior to the incident. She started to work as an insurance agent after completing the courses, earning an annual income of $333,174 in the year 1997-1998 and much higher income in the subsequent years. The Plaintiff, quite sensibly, is not relying on the income of Madam Yuen in quantifying her claim, as it is not possible to say that the Plaintiff could have earned as much as Madam Yuen as an insurance agent. However, I accept the submission of the Plaintiff's solicitor, Mr. Lucas, that her income, but for the attack, should not have been less than that of her employment prior to the incident. Hence, I adopt the income of the Plaintiff's former employment with Winon in assessing the Plaintiff's claim for loss of earnings during the sick leave period, which can be calculated as follows:

$9,000 x 13 months = $117,000

15. There is no claim for loss of future earnings or loss of earning capacity.

Other damages

16. The sum of $408 claimed as hospital fees is reasonable and I allow the claim.

17. The Plaintiff also claims a sum of $4,000 as the expenses for her medical treatment in the Mainland. However, in the absence of any documentary proof relating to such loss and the qualification of the medical practitioner concerned, I disallow the claim for such item.

18. In the opinion of Dr. Chung, it is necessary for the Plaintiff to undergo further psychiatric treatment for the posttraumatic stress disorder. Further, as the Plaintiff's condition has not improved very much after her treatment in the public sector, Dr. Chung recommends the Plaintiff to receive such treatment in the private sector, the cost of which is in the region of $20,000. I accept Dr. Chung's evidence in this regard and I therefore allow the Plaintiff's claim for future medical expenses in the sum of $20,000.

19. The Plaintiff claims a sum of $6,200 for her traveling expenses in attending various medical appointments. In view of the Plaintiff's evidence, the amount claimed is reasonable and I allow the claim.

20. Finally, the Plaintiff claims that, in order to avoid further attack by the Defendant, she had to move out of her matrimonial home and to live in hotels in Hong Kong and in Shenzhen for a few days after the discharge from hospital, and such expenses amount to $13,379 as stated in the Revised Statement of Damages. In my judgment, such expenses are reasonable loss arising from the attack, and I therefore allow the claim. However, the Defendant and her then husband had a flat in Shenzhen. Although the flat had been left vacant for quite some time, the Plaintiff should have moved to live in her own flat to mitigate her loss, and so I disallow her claim for the hotel charges in Shenzhen. In respect of the hotel charges in Hong Kong, the Plaintiff had to stay in Hong Kong during the period concerned in order to receive various medical treatments, and so the Plaintiff should be allowed to recover those expenses. However, the hotel bills include some non-recoverable items such as room service charges and telephone charges. Deducting these items from the bills, the Plaintiff's claim for such loss is assessed to be in the sum of $9,774.5.

21. Based on the aforesaid, I assess the quantum of the Plaintiff's claim as follows:

(i)	PSLA	: $ 180,000
(ii)	Loss of pre-trial earnings	: $ 117,000
(iii)	Hospital fees	: $ 408
(iv)	Future medical expenses	: $ 20,000
(v)	Traveling expenses	: $ 6,200
(vi)	Hotel expenses	: $ 9,774.5
	Total	: $333,382.5

22. The Plaintiff is also entitled to interest:

(i) on the damages of PSLA at the rate of 2% per annum from 18 July 2002 to the date hereof and thereafter at judgment rate; and

(ii) on the damages under items (ii), (iii), (v) and (vi) in the last paragraph at the rate of 4% per annum from 25 April 1997 to the date hereof and thereafter at judgment rate.

23. Obviously, the Defendant is very aggrieved about the present proceedings, as she thinks that the Plaintiff is partly responsible for the deteriorating relationship. In this regard, I do have sympathy with her. However, it was wrong for her to resolve to violence to settle her dispute with her then daughter-in-law, and for this she has to pay the price for her foolish act. I understand that the Government and various voluntary organizations have done a lot to solve such kind of family problem, and I can only hope that this sort of the cases do not come before the court very often in the future.