KEI YIU FUK v. WONG CHING NAM

HCPI 355/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 355 OF 2002

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ASSESSMENT OF DAMAGES

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1. This is an assessment of damages under RHC Order 37. Following a hearing on the Checklist Review on 13th December, 2002, interlocutory judgment was entered for the Plaintiff, with damages to be assessed. Solicitors for both the Plaintiff and the Defendant attended that hearing. A Notice of Appointment of Assessment of Damages was issued, and was heard before me on 22nd July, 2003.

2. The Plaintiff was represented at the hearing by Ms. Judy Ng of the Plaintiff's solicitors. The Defendant appeared in person. At the hearing, Ms. Ng presented a revised statement of damages. This was in English, and the Defendant had not seen it, nor had an opportunity to review it. Nevertheless, during the course of the hearing, both in evidence and submissions, this document was reviewed in some detail. The document brings up-to-date calculations of items of damages already claimed and submitted, or otherwise in a number of respects reduces the amount of damages claimed. In the circumstances, I am prepared to admit this revised statement. I am grateful to the Plaintiff's solicitor, apparently new to this matter, for putting this in much better order.

3. The Defendant participated in the hearing, through the Court interpreter, and also gave evidence himself. He indicated that he was hampered in his defence of the assessment of damages by the documents being in English. During the hearing, the evidence in relation to damages was reviewed thoroughly, and the Plaintiff gave evidence in chief orally on these issues. The Defendant indicated that he did not have much to say in relation to the items of damage, and the evidence he gave himself at the hearing related only to liability, an issue already resolved.

4. The Defendant had also had solicitors acting for him during the course of the proceedings, up to March, 2003, when he became a litigant in person. The Defendant will therefore have had advice and assistance from solicitors in relation to the documents before the Court in relation to the claim for damages. The opening and closing submission of solicitor for the Plaintiff, and the revised statement of damages, were new at the hearing, but these documents were reviewed during the hearing, and covered material already in evidence. The Defendant had submitted a brief witness statement, prepared whilst he was receiving legal advice. This contains denials of liability, and does not put forward any positive case in relation to damages.

5. In the defence served by the Defendant, no positive case in relation to damages was asserted, the defence instead concentrating on allegations relating to liability. The Defendant did allege that the Plaintiff was the author of his own injuries, since the Defendant was acting in self-defence, and the Plaintiff injured himself when he fell to the ground. The Defendant's liability to the Plaintiff for assault has now been established. No case of failure to mitigate was made by the Defendant in his defence or at the hearing.

Background

6. This matter arises following an assault by the Defendant on the Plaintiff which occurred at about 8:15 p.m. on 29th May, 1999, in an open space outside the Plaintiff's place of work, a dog training centre, on Lantau Island. The Plaintiff suffered injuries during that assault, and was taken to hospital that evening. He was in hospital for several days, and suffered injuries to his left eye. The Plaintiff had subsequent periods of hospitalisation, and two eye operations. He still complains of impairment of his left eye and inability to resume his previous employment as a dog trainer. He still complains of pain in his left eye, and some double vision.

7. The Defendant was convicted at Tsuen Wan Magistracy of assault occasioning actual bodily harm on 7th September, 1999, following a plea of guilty. The Defendant alleges that he was mis-advised by his solicitor, but that is not the matter which concerns this assessment.

The Plaintiff's Injuries

8. The Plaintiff suffered a serious injury to his left eye. He was hospitalised for 4 days from the incident, and diagnosed with left peri-orbital swelling and bruising, mild diplopia, fractured ethmoid plate, oedema of the left eye muscle, and fracture of the medial wall and floor of the left orbit. Straight after discharge on 2nd June, 1999, he complained of dizziness and was re-admitted until 4th June.

9. He was hospitalised again from 21st June to 2nd July, 1999, to undergo an operation to his left eye at the Caritas Medical Centre. The Plaintiff continued to complain of double vision. He has an obvious enopthalmos of the left eye still, which was apparent in Court. He underwent a second eye operation on 17th April, 2000 at Caritas. This is supported by the medical evidence. He was given 267 days sick leave.

10. He now maintains complaints of diplopia, numbness of left cheek, sunken left eye, nose area pain, insomnia, and difficulty with crossing roads and sports and general living. Plainly the Plaintiff has suffered a material injury, was hospitalised at the time and had to undergo two operations. He has not fully recovered and I accept is unlikely to do so. When asked in Court about his injuries, he maintained the general discomfort, some double vision, and loss of eye movement, but did not complain here of other matters such as insomnia. Loss of eye movement is variously mentioned or omitted in the written evidence. It is not referred to in the Revised Statement of Damages. The medical reports refer to inability to drive as a result of his injuries, but has no driving licence, and expressed no intent of seeking one. The Plaintiff complained in his witness statement about loss of relationship with his wife, but this was not pursued.

11. I also take note that medical advice is that special glasses may well help with the diplopia. That seems to me the most serious lingering problem from the injuries, and I note with some suspicion that the Plaintiff has declined to try this, despite its relatively small cost (HK$3-5,000), and its entirely non-invasive nature. The Plaintiff told me he did not intend to try this. He said he had been told it would not make much difference. He has not tried it. Nevertheless, he still maintained in the revised claim put forward at trial a claim for future medical expenses and future travel expenses relating to this treatment he did not intend to take. There is some conflict in the medical evidence, and I find the report of Dr Ho more persuasive in the issues which it covers than the later report of Dr Cheung.

12. Solicitor for the Plaintiff suggested an award in the region of HK$300-450,000 for pain suffering and loss of amenity. In view of the matters raised above, I award HK$300,000.

Loss of pre-trial income and loss of future earnings

13. Up to the time of the assault, the Plaintiff had worked as a dog trainer. He gave evidence of his love of dogs, and how he had met his partner/employer at a dog show, and together they had set up the dog training centre: the Plaintiff had thus been employed before the centre opened. The employer and he were friends, and indeed the employer had intervened at the time of the assault, and appeared to have struck the Defendant.

14. The Plaintiff's written case was that he had been dismissed by the employer the day after the accident. However, he gave evidence that he had been visited by no-one on that day other than medical staff at the hospital. He said that he had been told by the hospital that his prognosis and condition were uncertain, and specialist tests were needed. These were not carried out until 1st June when he was moved to the Caritas Medical Centre. When pressed on how his dismissal had been communicated, he said then that his employer had in fact visited him in hospital the day after the assault (30th May), and had dismissed him there and then. This was despite the good relationship between them, and despite the Plaintiff's condition and likely recovery being uncertain - at that time is was possible that he may have been able to resume his duties in a day or so. In evidence the Plaintiff described the reason for his dismissal as that the Plaintiff was responsible for feeding the dogs, and the employer was unable to do this himself, and so needed to get a new employee. I note that the reason given was not related to training the dogs and that the employer himself was also present at the centre for at least some of the time. I find the suggestion that the employer could not himself feed the dogs implausible. No other explanation was given. The Plaintiff now claims loss of earnings from the day after the assault. A letter from the employer was submitted which suggests the employer was on 30th May told that a long period of rest would be needed. This account contradicts the Plaintiff's evidence in Court. The account of the dismissal is confused.

15. The Plaintiff claims that he is now unable to work as a dog trainer. He says dogs are trained by being taken along the left side of the trainer, and the left eye injury means he cannot easily observe the dog in detail on the left side. This he says makes the job impossible. Dr. Cheung supports this. However, the Plaintiff admitted that he had not applied for any dog training job, or anything else working with dogs, since the accident. He admitted that he has not even tried walking or training a dog since the accident to see if he really is unable to observe the dog sufficiently to do his job. Although he complained in Court of restricted eye movement, he can still look to the left by turning his head. He appeared to cope well with the Court interpreter sitting to his left in Court. He has not tried the special glasses suggested by Dr. Ho. In the circumstances, I am not satisfied that the Plaintiff has met the burden of proof that he can no longer work in his chosen career. This was raised generally with the Plaintiff's solicitor in closing, and no further submission or explanation was offered.

16. I am prepared to accept nevertheless that the Plaintiff, even if he had in fact returned to his pre-accident job, may have suffered a reduced earning capacity as a result of some residual injury. This is difficult to quantify, and the usual arithmetical exercise with multipliers does not easily fit the case. However, an allowance of HK$2,000 per month seems to me reasonable. The pre trial figure from 30th May, 1999 to July 2003 will therefore be 267 sick days at HK$15,000 per month, with the balance at HK$2,000 per month, namely approximately HK$211,000. I am prepared to accept the multiplier claimed at 15, and so future loss of earnings will be approximately HK$360,000. To this may be added 5% for loss of MPF. I also make a small allowance for possible additional difficulties which the Plaintiff may suffer in the labour market should changing jobs be necessary in the future. I therefore award a lump sum of HK$605,000 to cover loss of income, future loss of earnings, MPF and loss of earning capacity.

The Plaintiff's expenses

17. Medical expenses are claimed at HK$2,904. This I accept. The claim to future medical expenses was dropped, and replaced at the hearing with a claim for new glasses the Plaintiff had had to buy at HK$900. This I accept. I accept the claim to travel expenses of HK$5,280. The claim to future travel expenses was dropped. I accept the claim to tonic food at HK$5,000. Total expenses HK$14,084.

18. I also accept the claims to interest at 2% on the pain and suffering award upto assessment, and at half the judgment rate on special damages upto assessment.

19. Accordingly I assess the Plaintiff's damages at:

HK$300,000

HK$605,000

HK$ 14,084

Total, before interest: HK$919,084