CHAN PUI KUEN v. LEE OI WAH

HCPI 661/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 661 OF 2000

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J U D G M E N T

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1. The plaintiff claims damages from the defendant for personal injuries sustained by her while inside the Kincheng Bank when as a result of the defendant pushing her, she fell backwards on the 27 May 1999.

The facts

2. On 27 May 1999, the defendant was standing inside the Kincheng Bank premises on the Ground Floor, Pak Shue House, Lai Muk Shue Estate, Kwai Chung. She was in front of 1 of 2 monitors placed inside the bank to enable customers of the bank to watch the stock market prices of their shares.

3. Shortly after 10:30 a.m., the plaintiff went up to the monitor where the defendant was standing and began to converse with a friend. The defendant became annoyed and said something as she walked away which the plaintiff considered abusive. The plaintiff responded and as a result of the quarrel the plaintiff fell backwards and sustained injuries.

4. As a result of that occurrence, the defendant was charged with the offence of "Assault occasioning actual bodily harm" for which she was bound over to be of good behaviour after she had admitted that she had "pushed the plaintiff's chest area causing the plaintiff to lose her balance and fall on the ground."

5. The above facts were not in dispute between the parties.

The defence

6. The defence as pleaded denies negligence and pleads that the plaintiff's fall was as a result of the plaintiff bumping into the defendant when she was attacking the defendant.

Liability

7. The defendant had admitted before a magistrate that she had pushed the plaintiff's chest area when she was prosecuted for the offence of assault occasioning actual bodily harm.

8. The onus is therefore shifted to the defendant to prove that she did not assault the plaintiff on a balance of probabilities.

9. The defendant's evidence was that at the material she was standing in front of the monitor, the plaintiff was standing behind her talking loudly to a friend and bumping into her occasionally. She became annoyed, and as she was walking away she said words to the effect that the plaintiff was troublesome. The defendant said she was walking towards the entrance to the bank when the plaintiff walked towards her waving her arms and pointing her finger at the defendant. There was a quarrel and the plaintiff was holding a keyholder in her hand and pointing it at the defendant's face, the defendant then used her arm to block the plaintiff's hand and the plaintiff stepped backwards and tripped on the bare of a queuing pole which was behind her and fell.

10. The plaintiff denies that she had chased after the defendant. She said the defendant pushed her on the chest and she fell backwards.

11. The defendant called one witness, Madam Lui, to testify that she saw the plaintiff walk up to the defendant, but she was not able to see how the plaintiff fell.

12. After listening to all the witnesses in this case, I am left in no doubt that both the plaintiff and defendant were quarrelling and in the heat of the moment the defendant had pushed the plaintiff causing her to fall backwards and injure herself.

13. I reject the defendant's evidence that the plaintiff caused her own injuries by stepping backwards. I also do not believe the defendant when she said she only admitted the offence of assault against the plaintiff because of threats for the police officer. I have no doubt in my mind that when she admitted the facts in the magistrate's court, it was the truth.

14. Counsel for the defence had pointed out various discrepancies in the evidence of the plaintiff which I do not consider materially affect the issue of liability in this case, as it was mainly to do with her new employment. As to the plaintiff's evidence whether the defendant pushed her with one fist or two, I consider that it was just a slip of the tongue and not of any great moment, as I rely on the defendant's own admission to the police and to the magistrate in coming to my decision.

15. In the circumstances, I find that the defendant was negligent in causing the plaintiff to fall and the resultant injuries to the plaintiff.

Injuries and treatment

16. I now turn to the question of quantum. After the fall of the plaintiff, she was admitted to the Yan Chai Hospital and was discharged on June 12 1999. She received various orthopaedic follow up treatments mainly for her back injury and she was readmitted to the Yan Chai Hospital on August 4 1999 for 2 days. She also had a plaster cart for her injured right elbow.

17. As a result, the plaintiff complains mainly of pain in her elbow which cannot be fully extended and lower back pain.

18. The plaintiff's doctor, Dr Lam concluded that the impairment of her upper extremity is 15% and 9% of impairment of whole person and the defence expert, Dr Lau put it at 2% and 1% of permanent disability of the whole person.

19. As to the plaintiff's back condition, both doctors agree that it contributes 5% of permanent impairment of whole person. But Dr Lam is of the opinion that the plaintiff's combined impairment is 14% of the whole person whilst Dr Lau's is opinion is only 7%. And Dr Lam's conclusion of the plaintiff's loss of earning capacity is 15% whilst Dr Lau's is 7%.

20. I was impressed with the evidence of Dr Lam. He explained clearly why his opinion differed from Dr Lau. Dr Lau said his opinion was can so I attach more weight to the amendment of Dr Lam of the plaintiff's condition and her impairment.

21. As to the psychological condition of the plaintiff, I will only allow nominal damages under this head as she is suffering from "depressive episode" and it is clear that this is mainly due to her worry about these court proceedings (see Dr Chau's report at Bundle C).

Pain suffering and loss of amenities

22. The plaintiff claims $500,000 under this head but the defence only agrees to $250,000.

23. I accept the plaintiff's submission that the injuries suffered by the plaintiff would fall under the "serious injury" category and thus following the guidelines in the case of Chan Pui-Ki v. Heung On and Another CA [1996] 2 HK C56J which gives an award of $400,000 to $540,000 of the impairment of the elbow was bared not only on the movement but also the presence of calcification at the injured site and weakness of the elbow, whereas Dr Lau only bared his opinion on movement alone.

24. Dr Lau was less detailed in his findings and offered his opinion that the spoudycolithesis of the plaintiff's back could have begun before the accident. This was unsupported by any evidence. I concluded from his evidence that he was trying to downplay the plaintiff's condition as much as he under this category.

25. The injuries of the plaintiff in this case is not as bad as that of the plaintiff in the case of Wong Suk-ha v. Li Tsun Wing [1996] 2 HKCR 259. In that case, the plaintiff was hospitalised for 141/2 months.

26. I therefore consider that a suitable amount to be awarded to the plaintiff under this head is $350,000.

Pre-trial loss of earnings of the plaintiff

27. Insofar as this head of damage is concerned, I agree in the plaintiff's submission that it should be up to the date of the last sick leave certificate granted and that is 14 September 2001.

28. I accept Madam Lee's evidence that she was going to employ the plaintiff as a domestic helper with a monthly wage of $3,200 from the 28 May 1999.

29. The loss of pre-trial earnings therefore comes to 27.19 months at $3,200 per month which gives $87,008.

Future loss of earnings

30. I accept the opinion of Dr Lam that the plaintiff would be capable of light manual work through her working efficiency and endurance would be diminished. The plaintiff was a part-time domestic helper earning $1,500 prior to the accident. She is aged 55, so in my view, a multiplier of 7 is reasonable. Using that as the multiplier, the loss of future earnings come to $142,800.

Loss of earnings capacity

31. The plaintiff claims $100,000 under this head relying on the case of Tsang Chung-wan v. Li Ming (alias Lee Ming) [1998] 28 HKLJ 199 where Suffiad J awarded $100,000 for an impairment of 8% - 9% whereas the defence plucks a figure out of thin air and offers $30,000.

32. I will follow the $100,000 award of Suffiad J in the case of Tsang Chung-wan v. Li Ming (alias Lee Ming) supra, and award the plaintiff $100,000 for loss of earning capacity.

Past and Future Pecuniary Expenses

33. The defence does not challenge the sum claimed for past and future medical expenses incurred to date, past and future travelling expenses, tonic food and medical equipment. I award the total sum claimed as $37,355.10.

Interests

34. The interest on past pecuniary losses and expenses calculated at half the current judgment rate (i.e. 5.34%) from the date of the accident to date of judgement and thereafter at full judgment rate.

35. Interests on general damages for pain suffering and loss of amenities will carry interests at 2% from the date of service of the writ to the date of judgment and thereafter at judgment rate.

36. I shall leave the actual calculation of the interests to the solicitors for the parties to work out.

Order

37. There will be judgment for the plaintiff in the sum of HK$717,163.10 together with interests to be calculated in the manner already stated above.

Costs

38. There will be a cost order nisi that the defendant do pay the costs of this action to the plaintiff, to be taxed if not agreed.