FU HOI LIN v. TSOI KAM CHING

DCPI2505/2016

[2019] HKDC 488

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO.2505 OF 2016

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ASSESSMENT OF DAMAGES

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1.  This assessment of damages (AOD) arises from defendant’s assault of plaintiff (the Assault) at a G/F shop in Kowloon City, Kowloon (the Shop) on 14 Jan 2016. On that day, plaintiff’s husband (the Husband) owned and carried at the Shop a marble retail & installation business (the Business) registered in plaintiff’s name. The plaintiff assisted the Husband at the Shop. The defendant was a marble cutting worker employed at the Shop.

2.  On the same day after the Assault, the plaintiff attended the Accident & Emergency Department (A&E Dept) of Queen Elizabeth Hospital (QEH). Her general condition was satisfactory on arrival. Examination revealed stable vital signs. She was fully alert and able to walk unaided with stable gait. No scalp wound or hematoma was seen. Neither was any face wound or swelling seen. CT brain was unremarkable. The diagnosis was concussion (collectively A&E Exam Results). She was admitted for observation and symptomatic relief overnight and discharged the next day on 15 Jan 2016.

3.  The defendant was convicted in Feb 2016 of the offence of common assault against the plaintiff (the Criminal Case). In Nov 2016, this action was brought by the plaintiff against him. He did not give any notice of intention to defend. Interlocutory judgment was entered against him in Jan 2017 for damages to be assessed.

4.  On 1 Feb 2019, this action was set down for AOD hearing in the running list, not to be warned before 12 Mar 2019. On 14 Feb 2019, plaintiff’s solicitors filed application to set down for AOD & notice of appointment of AOD. On 18 Mar 2019, the Registrar gave written notice of hearing to both parties that this action was warned for AOD hearing on 21 Mar 2019.

5.  The defendant is unrepresented. He did not turn up at AOD hearing. Indeed, he has never appeared in this action. But, having read 11^th and 12^th affidavits of Lee Pui Ling[1] and exhibits thereof, I am satisfied that he has been duly notified of, inter alia, the setting down of AOD and this AOD hearing. I therefore proceeded with this AOD hearing in the absence of the defendant as requested by Mr Kan of counsel appearing for the plaintiff (Mr Kan).

6.  In Revised Statement of Damages (RSOD) filed in June 2018, the plaintiff made 6 heads of claim against the defendant, totaling $470,000 odd. No Answer was filed by the defendant at all[2].

7.  The plaintiff was the only factual witness called by Mr Kan. With leave of this court, she was allowed to amplify on 2 questions in chief after adopting her witness statement and supplemental witness statement. Thereafter, this court enquired and sought clarifications from her on certain aspects of her evidence. Mr Kan did not see fit to re-examine afterwards.

8.  Various reports and records of the plaintiff from, inter alia, public hospital, public clinic, private orthopedic surgeon Dr Ko Chi Kuen (Dr Ko) and private psychiatrist Dr Ting Sik Chuen (Dr Ting) as to her treatment and care are, by order of court, admitted as evidence without calling the makers.

9.  Leave has been given to the plaintiff to adduce expert psychiatric evidence from psychiatrist Dr Chiu Siu Ning (Dr Chiu), whose expert report dated 30 Apr 2018 (the Expert Report) was admitted without oral evidence.

Plaintiff’s evidence

10.  The plaintiff gave evidence that she was born in the Mainland on 1 Jan 1969. In 1993, she was married with the Husband. They have 2 sons. In 2002, she emigrated to Hong Kong. From about 2003 to 2008, she worked in a restaurant.

11.  In about 2008, the plaintiff encountered an injury at work (the Previous Injury). For the Previous Injury, she had been hospitalized and diagnosed with post-traumatic stress disorder (PTSD) with anxiety and depressive features between 2008 and 2010. She stopped work for almost 3 years. By the time of the Assault, she said she had full remission with no residual symptoms.

12.  The Business was set up in 2014 as a sole proprietorship registered in plaintiff’s name. But it was in fact owned by the Husband. The couple went to work at the Shop every day.  The plaintiff assisted by answering calls, taking care of in-and-out of materials, and supervising its 2 workers including the defendant. She worked like a “clerk”[3] and was paid $10,000/month by way of “salary”[4].

13.  The plaintiff was dissatisfied with defendant’s working attitude, and they were not on very good terms, before the Assault. At 0930 hours on 14 Jan 2016, both of them were working at the Shop. She instructed him to do some work. He, however, did not comply and argued with her vigorously.  The Assault occurred afterwards.

14.  According to the plaintiff, the defendant suddenly dashed to cashier counter where she was working. He slapped her twice in the face, punched on her head several times, causing her nearly to fall onto the ground. He then forcefully grabbed her arms and dragged her out of the Shop. He hugged her from behind and swung her around, causing her head to bump onto the gate of an adjacent building.

15.  She afterwards ran away and reported to the police. She felt painful and soreness in head, neck and left leg (she produced photos of bruises on her left knee and left foot taken on 19 Jan 2016 said to be caused by the Assault). She also felt dizzy and scared of another attack. She was taken by ambulance to A&E Dept of QEH. On 15 Jan 2016, she was discharged after overnight observation.

16.  For symptoms of persistent headache, dizziness and neck pain, the plaintiff started consulting Dr Ko on 16 Jan 2016. Dr Ko treated her until Oct 2016. Treatments include medication and physiotherapy. Dr Ko also arranged her to have MRI brain taken on 29 Jan 2016. No brain abnormality was found.

17.  The plaintiff further experienced insomnia, nightmares about the Assault and felt depressed. She developed negative thoughts and emotions. She often burst into tears. When she saw or thought of the defendant, she found it difficult to breathe. She developed palpitation, hand and body tremor.

18.  The plaintiff said that, to her dismay, despite dismissal of the defendant, the defendant managed to work in a shop in the opposite street of the Shop after the Assault. He at times wandered around the Shop and made provocative gestures to her. She felt traumatized by such conduct and scared of further attack. It reminded her of her humiliation in the Assault. To avoid him, she said she went to, and got off, work earlier. And she dared not go to work alone.

19.  In Mar 2016, Dr Ko advised her to consult psychiatrist and, in Apr 2016, he referred her to Dr Ting. On 4 May 2016, she started consulting Dr Ting and receiving treatment from him, including medication. She has been consulting Dr Ting until today. She was diagnosed by Dr Ting as having PTSD with hypervigilance and recurrent recollection of traumatic experiences.

20.  The plaintiff had been given lengthy sick leave by her various treating doctors.

21.  The plaintiff says she continues to suffer from the following residual symptoms.

(1) She has on and off headache over right temporal area. It is associated with neck pain. The pain is relieved by painkiller.

(2) She also feels dizzy most of the time. It renders her unable to perform housework as she used to.

(3) She also complains of waist pain and limb weakness.

(4) She suffers from insomnia and recurrent nightmares.

(5) She feels depressed.

(6) She has difficulty of concentration.

(7) She also suffers from anxiety and irritability.

22.  As a result, she says she had to employ a part-time domestic helper to do cleansing at home.

23.  As a result, she had to shorten her working time at the Shop.

24.  As a result, she further sought assistance from one Madam Chan (Mdm Chan) in the Business. Mdm Chan took over from her such task of handling invoices, answering customers’ enquiries and deliveries, and opening the Shop in the morning. As a gratitude of her help, she herself gave Mdm Chan $6,000/month in cash by way of “tea money” from her own earnings.

25.  As a result, the plaintiff no longer enjoys her leisure and social life as she did before. For example, she attended church gatherings less frequently after the Assault. She has fear of emotional breakdown due to recollecting the Assault.

26.  As a result, her daily life is also affected. She has to consult doctors regularly. She found herself idling at home when she should work at the Shop before.

27.  Finally, as a result of the Assault, she has incurred medical expenses, travelling expenses, purchased Chinese medicine and tonic food, whose details and particulars are found in her witness statements and documents produced by her.

Opinion of Dr Chiu

28.  Dr Chiu interviewed the plaintiff on 20 Apr 2018.

29.  In the Expert Report, Dr Chiu opined that the plaintiff is suffering from PTSD as Dr Ting did. It is moderate in severity. It has significant impairment in her functioning as follows: -

(1) She cannot function as a housewife as before.

(2) She cannot work in the Shop as efficiently as before.

(3) Her social functioning is impaired as she loses interest in social activities.

30.  Regarding the Previous Injury, Dr Chiu opined that the plaintiff has, before the Assault, fully recovered from it.  The PTSD that the plaintiff is now suffering from is a direct and total effect of the Assault.

31.  The plaintiff, opined Dr Chiu, is mentally fit to resume pre-injury job. With assistance of the Husband, the time she spent at the Shop can be gradually increased.

32.  Dr Chiu considered that the medication treatment of plaintiff’s PTSD needs adjustment. She will benefit from medication that helps to control her mood. That could help her to eradicate residual symptoms. To complete a course, it takes at least 6-9 months. If plaintiff opts to seek them from Dr Ting, the estimated costs will be around $18,000 to $21,000.

33.  Dr Chiu further recommends the plaintiff seeing trained clinical psychologist and receiving psychological treatments. Such treatments are effective treatment of choice for PTSD. The costs of such treatment in private sector, according to his estimate, will be around $20,000.

34.  Dr Chiu thought that there is a high chance that the plaintiff will have to live with residual symptoms of PTSD. One major maintaining factors of PTSD, said Dr Chiu, is this on-going litigation. Ending the current litigation early, he opined, definitely helps to speed up plaintiff’s recovery.

35.  Finally, Dr Chiu assessed plaintiff’s permanent impairment of whole person at 10%.

Discussion

Assessment of evidence

The Assault

36.  Notwithstanding the A&E Exam Results[5], I accept plaintiff’s account of the Assault. In transcripts of the Criminal Case, the defendant had admitted slapping plaintiff’s face twice, punching her head thrice and dragging her out of the Shop in amended brief facts.

37.  On defendant’s alleged hugging of plaintiff from behind, I do take note that plaintiff made no reference to that in her police statement dated 18 Jan 2016 (neither did defendant so admit in amended brief facts of the Criminal Case). But, by failing to defend, the defendant is, I think, deemed to have admitted particulars of the Assault, including hugging from behind, pleaded in para 3 of statement of claim. Also, the same can be found in statement dated 1 Feb 2016 by PC11466, who had viewed CCTV footage of the Shop[6] capturing “swinging around”[7] of plaintiff by defendant “holding her from behind”[8].

38.  However, I find such hugging from behind was carried out at plaintiff’s waist[9] (and not on other sensitive or intimate parts of her body) and thus, in terms of criminal law, not an “indecent” assault as claimed in her supplemental witness statement. Had the Assault been an indecent assault, I think it likely that the defendant would have been so charged in the Criminal Case.

39.  I further find that, immediately before the Assault, the defendant had first sworn at plaintiff whereby she swore back by reference to defendant’s deceased father. The latter was plainly so admitted by plaintiff in her police statement[10] but, regrettably, she twice denied so saying (and claim defendant “framing” her) in the box. It was not until close of her oral evidence that she unknowingly disclosed the same on her own in the course of recalling the events prior to and in the Assault.

Physical injuries

40.  Again, notwithstanding the A&E Exam Results, I accept that the plaintiff suffered from bruises on left knee and left foot as a result of the Assault as borne out by the photos she produced. She could have been so injured, I think, by coming into contacts with objects in the course of the Assault. PC11466 in his statement referred to objects “bumped onto the ground being picked up” after the Assault.

41.  Considering that plaintiff was attacked, and injured, on her head in the Assault and the diagnosis of concussion made at A&E Dept of QEH, I further find that the plaintiff did suffer from headache, dizziness and neck pain for some time after the Assault.

42.  However, I am driven to conclude that she has by now fully or substantially recovered from her physical injuries in the Assault (and any residual symptoms she might still have today in the latter scenario can only, I think, be relatively minor). In particular, I do not accept her alleged current complaint at para 21(3) above.

43.  My reasons are that: -

(1) The plaintiff was attacked on her face and head in the Assault.

(2) CT brain and MRI brain taken of plaintiff are normal.

(3) She had only minor bruises on knee and foot caused by the Assault.

(4) Except for another attendance at A&E of QEH on 10 May 2016 for “dizziness”, she did not see fit to consult public hospital or clinic any other time after the Assault.

(5) According to all sick leave certificates issued by Dr Ko, she consulted Dr Ko for “head injury”. On another sick leave certificate, she consulted another private orthopedic surgeon, Dr Au Kin Ming (Dr Au), once on 15 Feb 2016 for “head injury”.

(6) The plaintiff stopped consulting Dr Ko as early as in Oct 2016.

(7) Dr Ko said in his report dated 2 Aug 2016 that “the plaintiff suffered from contusion of head, resulting into persistent headache, neck pain, insomnia and panic attack”, that “the prognosis of her physical injury was good” and that “no major permanent physical impairment was expected apart from some degree of residual pain”.

Psychiatric problem

44.  I consider, and accept on all evidence including the unopposed expert opinion of Dr Chiu, that the major disability that adversely affects the plaintiff in terms of her family life, social life and working today are her psychiatric symptoms.

45.  In this respect, I give full weight to Dr Chiu’s expert opinion in the Expert Report summarized above. I accept that the plaintiff has suffered from PTSD, and her current psychiatric symptoms, as a result of the Assault and not due to the Previous Injury at all, and it is one of moderate in severity.

46.  Such public psychiatric records and reports before me do support, I think, Dr Chiu’s opinion that the plaintiff has fully recovered from PTSD caused by the Previous Injury after she reached settlement of compensation in 2012. Given such history, settlement of compensation in the case before me will also definitely, I agree with Dr Chiu, speed up recovery of plaintiff’s current PTSD symptoms.

47.  Hence, I accept plaintiff’s evidence of her current psychiatric symptoms and their adverse effect on her family life and social life.

48.  I further accept that the plaintiff has worked less time at the Shop (and spent more time idling at home) after, and as a result of, the Assault. Nevertheless, I agree with Dr Chiu that she is mentally fit to resume work at the Shop after the Assault (she did, but worked less time) and with assistance of the Husband and further recovery of her PTSD after settlement of this litigation, the time she spends at the Shop would, I think, gradually increase over time.As said in the Expert Report, generally speaking, a significant proportion of PTSD patients would have the symptoms gradually subsided with time.

49.  I have not overlooked one stress factor against plaintiff’s recovery in past and future i.e. defendant’s continued presence in the vicinity of the Shop, and his provocative conducts towards plaintiff, after the Assault. The plaintiff has relayed the same to Dr Chiu and I am prepared to accept such evidence of her. As such, I also agree with Dr Chiu that it is likely that she will have to live with residual symptoms of PTSD.

Mdm Chan

50.  However, I find myself unable to accept plaintiff’s evidence regarding Mdm Chan. She clarified in the box that Mdm Chan has helped in the Shop “as from mid-2017” and that she was paid “$6,900/month” in cash in the beginning of each month “at the same time when other staff of the Shop were paid”. Mdm Chan, said plaintiff, acknowledged receipt of all such monthly sums “from the Business” by signing “company receipt”. But it was she who hired and paid Mdm Chan.

51.  The problems, I think, with plaintiff’s aforesaid and other evidence regarding Mdm Chan are that: -

(1) Not only was there no reference of help from (or payment to) Mdm Chan in plaintiff’s witness statement dated 22 Aug 2017, the same is also missing from the Expert Report.

(2) The plaintiff claimed to have so told Dr Chiu in their interview on 20 Apr 2018 but said Dr Chiu focused on events and her background prior to the Assault in writing the Expert Report. I find this inconceivable as, on the Expert Report, Dr Chiu plainly did not so focus as claimed and wrote about her daily activities, including her working at the Shop, after the Assault. I fail to see any reason for Dr Chiu not to write about Mdm Chan in the Expert Report had he been told as claimed. Dr Chiu also wrote about plaintiff employing a part-time domestic helper to do cleansing work at home after the Assault.

(3) All such alleged monthly receipts of $6,900 (whose figure is different from the sum of $6,000/month in RSOD or in plaintiff’s supplemental witness statement) allegedly signed by Mdm Chan have not been produced before this court.

52.  For the above reasons, I find such bare assertion of plaintiff self-contradictory, incredible and unreliable and cannot act on her evidence regarding Mdm Chan.

Findings of facts

53.  Subject to my assessment above, I accept plaintiff’s evidence to such extent and with such qualifications indicated above. And I accept Dr Chiu’s expert opinion as indicated above.

Plaintiff’s 6 heads of claim

1) Future medical expenses

54.  The plaintiff claims $40,000 under this head on the recommendation and estimates of Dr Chiu in para 32 & 33 above. I allow this sum in full on my findings of her PTSD and my acceptance of Dr Chiu’s opinion. I consider it reasonable for the plaintiff to seek such psychiatric treatment in the private sector so as to avoid delay she otherwise likely encounters in the public sector as she said. Such future treatment in private sector should likely, I agree with Dr Chiu, facilitate earlier and/or more recovery of her PTSD.

2) Pain, suffering & loss of amenities (PSLA)

55.  The plaintiff claims $150,000 under this head and Mr Kan referred this court to 3 PSLA comparable cases.

56.  I do not find the first case of Yeung Lok Sze v Hong Yip Service Co Ltd, unreported, HCPI 12/2007, 4 Jul 2008, cited by Mr Kan helpful to compare with plaintiff’s case. It is not an assault or PTSD case. The claimant there suffered from back injury in a fall from ladder and was diagnosed of adjustment disorder with depressive mood.

57.  The other 2 assault cases cited i.e. Chung Lai Ha v Ching Mei Yee, unreported, HCPI 2755/2012, 20 Jan 2014, and Wong Ka Wai Johnny v Lee Man Wai, unreported, DCPI 145/2010, 16 Jan 2012, are, I think, more useful for our purpose. Both victims suffered from PTSD as a result of assault. A PSLA award of $300,000 was given in the former and one of $100,000 given in the latter.

58.  Having compared, among others, plaintiff’s background, the circumstances of the Assault, its adverse effect on her family life, social life and work, and prognosis of PTSD she suffers against above 2 comparable, and also allowing for inflation over time, I agree with the sum of $150,000 submitted by Mr Kan and allow it.

3) Aggravated damages

59.  The plaintiff claims $30,000 under this head. Mr Kan principally relied on the case of Chung Lai Ha, supra, and the authorities cited therein.

60.  Two bases for such award are advanced in RSOD: (1) Defendant’s conduct in the Assault was said to be “malicious and wilful”, causing physical and mental injuries to plaintiff. The Assault took place at plaintiff’s “place of work”. She “felt unsafe and experienced stress and anxiety in her workplace thereafter”. (2) Such evidence of plaintiff in para 18 above is relied upon.

61.  First, I cannot discern any bad faith, malice, premediated design or revenge on defendant’s part in committing the Assault against the plaintiff. It was, I think, no more than a not uncommon quarrel at work escalated into violence by one party on another due to unfortunate use of foul languages by all concerned.

62.  Secondly, the Assault was, as I find, not an indecent assault hurting plaintiff’s dignity.

63.  Thirdly, there is no evidence that the Assault was witnessed   by others (e.g. passerby, neighbors or other workers of the Shop[11]) or adversely publicized in any way afterwards to hurt plaintiff’s pride or reputation. The defendant pleaded guilty in the Criminal Case and the plaintiff was spared giving evidence as a prosecution witness at trial.

64.  Fourthly, while the plaintiff felt unsafe and experienced stress and anxiety on seeing or thinking of the defendant due to PTSD she suffers, she has already been compensated for that by PSLA award given by this court and such evidence of plaintiff in para 18 above has already been taken into account by this court in assessing proper amount of PSLA award payable to her.

65.  Chung Lai Ha, supra, is accordingly, I think, distinguishable on the above grounds. All in all, I can find nothing that justifies aggravated damages in this case and I disallow this claim.

4) Pre-trial loss of earnings

66.  The plaintiff claims $48,000 under this head. In RSOD, it was pleaded that 522 days of sick leave was granted to the plaintiff and that Dr Chiu opined that it was reasonable to grant 8-month sick leave to her as from 14 Jan 2016.

67.  With respects, the grant or length of sick leave given to plaintiff is neither here nor there. The plaintiff was paid from the Business owned by the Husband. There is simply no evidence or suggestion before this court that she received less from the Business after, and as a result of, the Assault, and therefore suffered any loss of earnings accordingly.

68.  In so far the plaintiff seeks in RSOD to recover alleged monthly “expenses” of $6,000 allegedly paid out by herself to Mdm Chan for a period of 8 months after, and as a result of, the Assault, she also fails to make that out on the evidence as I explain above.

69.  This claim fails.

5) Loss of earning capacity

70.  The plaintiff claims $50,000 under this head. It was pleaded in RSOD that residual pain and psychological damage from injuries sustained in the Assault “undermine plaintiff’s ability to negotiate business deals with customers”.

71.  But plaintiff’s clarifications in the box are to opposite effect. It was the Husband alone who negotiates business deals with customers of the Business and makes such decisions.

72.  Mr Kan also referred this court to Moeliker v Reyrolle & Co Ltd [1977] 1 WLR 132, 142, where it was said that the consideration of this head of claim should be made in 2 stages.

73.  I regret to say plaintiff’s claim plainly fails at the 1^st stage. Despite her age and background, and such residual PTSD symptoms she has to live with, she has continued to work in the Business owned by the Husband (and was not paid less) after the Assault. I am not satisfied at all that there is any substantial or real risk that she will lose her job in the Business before the end of her working life. 

74.  This claim also fails.

6) Special damages

75.  The Plaintiff claims a total of $152,828 under this head for medical expenses, travel expenses, Chinese medicine and tonic food. Mr Kan has helpfully reminded this court the principles laid down in Yu Ki v Chin Kit-lam & Anor [1981] HKLR 419, 421-422, and Law Hing v. Leung Tin Kan and Another [1989] 1 HKC 572, 579E-F.

76.  For medical expenses, I allow the sums of $100 paid as ward maintenance fee at QEH, $41,050 paid to Dr Ko, $780 paid to Dr Au and $49,300 paid to Dr Ting as claimed in RSOD.

77.  Considering the routes, the modes of transport adopted by plaintiff in consulting Dr Ko and Dr Ting and their estimated costs as clarified by her in the box, I allow travel expenses of $680 for her attendances with Dr Ko i.e. ($10 + $7) x 40 times and $663 for those with Dr Ting i.e. ($18 + $21) x 17 times. I can find no good reason to require the defendant to pay for taxi fares for plaintiff’s trips to Dr Ko’s clinic in Mongkok and I allow for minibus fares instead.

78.  The total sum of $13,373 claimed by way of tonic food in RSOD is, I think, excessive and there is no medical advice before me to justify plaintiff’s consumption of them. I allow a reasonable sum of $2,000.

79.  For the total sum of $44,805 claimed by way of Chinese medicine expenses paid to one Shing Moon Medicine Co. (Shing Moon), I am satisfied on sales memo before me that some part thereof was indeed so paid out by plaintiff.

80.  Considering plaintiff’s clarifications in the box that she has consulted a registered Chinese medicine practitioner at Shing Moon and was prescribed with Chinese herbs to be purchased at Shing Moon to treat her PTSD symptoms like insomnia and dizziness, I allow a total sum of $9,705 for such documented expenses paid to Shing Moon supported by prescriptions given on the same day.

81.  I disallow the remaining sums paid to Shing Moon supported by sales memo but no prescription, as many of their descriptions are indicative of tonic food (for which I have already provided for a reasonable amount above) and as they are not taken by plaintiff on medical advice.

82.  I therefore allow only a total sum of $104,278 under this head.

Summary

83.  The awards I make in plaintiff’s favour are: (1) PSLA - $150,000; (2) Future medical expenses - $40,000; and (3) Special damages - $104,278, totaling $294,278.

Disposition

84.  I enter judgment in plaintiff’s favour against the defendant in the sum of $294,278, together with interest on PSLA award of $150,000 at 2% p.a. from the service of the writ to the date of judgment and interest on special damages of $104,278 at half judgment rate from 14 Jan 2016 to the date of judgment.

Costs

85.  Costs normally follow the event. I make an order nisi that the costs of AOD (including all reserved costs and the costs of this hearing) be paid by the defendant to the plaintiff, to be taxed if not agreed. I certify attendance of counsel for this hearing. For reasons already orally given at the hearing, I further direct taxing master to disallow on taxation such costs charged by plaintiff’s solicitors for attending this hearing between 0930 and 1200 hours on 21 Mar 2019. This order nisi shall become absolute if none applies in writing to vary within 14 days.

86.  If defendant so request, I direct that English/punti interpreter be made available once by prior appointment to translate this assessment of damages to him at District Court.

87.  Finally, it remains for me to thank Mr Kanfor his assistance.