CHAN CHUNG LOP v. CHAN YUN SUN

HCPI1327/96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 1327 OF 1996

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J U D G M E N T

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1. In its Re-Amended Statement of Claim, dated 10th September 1998, the plaintiff claimed damages against the defendant on the basis that the defendant had unlawfully assaulted him by striking and hitting him on the face and body with fists and an object. As a result, the plaintiff suffered pain and injury, more particularly, a fracture of the left ulna which required surgery. Mr Anderson Chow, Counsel, represented the plaintiff. The defendant was not legally represented and conducted his own defence. There was no application from the defendant for adjournment to get legal representation.

2. Before the commencement of the trial, the Court had made enquiry with the defendant concerning the defence filed by his former solicitor Messrs Chu, Chan & Tsu and the state of the agreed documents. The defendant maintained the defence raised and confirmed the agreement regarding the documents. As most of the documents are in English, I had adjourned shortly for the Court interpreter to explain to the defendant the contents of the agreed bundle. When the case resumed, the defendant informed the Court that he understood the contents of the documents and that he could conduct his defence although the documents are in English. Before the commencement of the trial, I had taken time to explain to the defendant the trial procedure.

3. Chan Chung Lop, the plaintiff, was the only witness called to support the claim on liability and damages.

4. He said that in the evening of 11th December 1990, he was going to purchase some newspaper from the defendant who was the owner of the newspaper stall in King's Road. Then there was a dispute between the plaintiff and the defendant about the price of the newspaper and they swore at each other. The plaintiff said that the defendant grabbed his clothes and hit him on his face. Furthermore, the defendant picked up a hard rod to hit him. The plaintiff blocked off the blows with his arm. He said he did so because the defendant was aiming at his head. The defendant had hit him with the object for 2 to 3 times. The defendant then stopped when someone came to intervene. The plaintiff made a complaint to the police and at the time he was bleeding. He was first sent to Tang Shiu Kin Hospital and later to Queen Mary Hospital. He had to undergo an operation on his left fractured ulna and was hospitalised for about 10 days. He was given sick leave for several months and during the time, he had to rely on public assistance. He was a taxi driver at the time.

5. The defendant had cross-examined the plaintiff regarding the alleged metal object and the income during the sick leave period. He also questioned the plaintiff on the duration of the incident.

6. The defendant himself also testified. He said that on the day in question, the plaintiff came and asked him about the price of a newspaper. After making a reply, he walked away to buy something. Then he saw the plaintiff trying to take the magazine and heard the sound of coins falling at his stall. He thought that the plaintiff was trying to steal from the stall so he chased after the plaintiff and had a struggle with him. During the struggle, the defendant said the plaintiff had picked up a piece of stone to hit him. In trying to push the plaintiff away with force, the defendant said they both fell down. When he heard his infant daughter crying, the defendant went back to look after his daughter and the plaintiff went away. The police came later, and the defendant told the police what had happened.

7. The defendant agreed that he was later taken to court. He said that the Magistrate had reduced his charge to an offence under section 39. What transpired was that the defendant was originally charged with wounding and subsequently it was amended to assault occasioning actual bodily harm, to which the defendant had pleaded guilty.

8. The defendant was cross-examined by Mr Chow for the plaintiff. The defendant said when they fell, the plaintiff fell on his left side and at the time he did not see him bleeding in his left arm. He said that he also suffered from some minor abrasions. He said that he did not use any rod to hit the plaintiff, whether iron or copper. He pointed out that when the police appeared at the scene, they had fenced off the stall to conduct a search but no offensive weapon was found. He suggested that it was a fabrication on the part of the plaintiff to say that he had hit him with the object. The defendant also denied that the plaintiff was not acting in such a way as if to steal his things at the stall. He suggested that the injury of the plaintiff was caused by the fall.

9. Before considering the issue of credibility, I must deal with two legal issues raised in the defence concerning release of liability under section 38 of the Offences Against The Person Ordinance, Cap 212, and the relevant limitation period of the present action. Although the defendant did not specifically address the Court on these matters, Mr Chow had properly dealt with all these points fully in his final address.

10. Sections 37 and 38 read as follows:

"37. Certificate of dismissal of complaint

If the magistrate, on the hearing of any case of assault or battery upon the merits, where the complaint is preferred by or on behalf of the party aggrieved, deems the offence not to be proved, or finds the assault or battery to have been justified or so trifling as not to merit any punishment, and accordingly dismisses the complaint, he shall forthwith make out a certificate under his hand stating the fact of such dismissal, and shall deliver such certificate to the party against whom the complaint was preferred.

[cf.1861 c.100 s.44 U.K.]

38. Certificate of dismissal or conviction and punishment to bar any other proceeding

If any person against whom any such complaint is preferred by or on behalf of the party aggrieved obtains such certificate of dismissal, or, having been convicted, pays the whole amount adjudged to be paid, or suffers the imprisonment awarded, in every such case he shall be released from all further or other proceedings, civil or criminal, for the same cause.

(Amended 50 of 1911 Schedule)
[cf.1861 c.100 s.45 U.K.]"

11. In the interpretation of these sections, Mr Chow had analysed the background of the legislation and how these sections had been adopted from the English Acts. Having considered the authorities cited by Mr Chow and his submissions, I accept that the terms "assault" and "battery" referred to in section 37 do not apply to the offence of assault occasioning actual bodily harm or cases involving the more serious types of assault or wounding. Further, the criminal proceedings that took place before the Magistrate on 26th February 1991 was not preferred by or on behalf of the party aggrieved, i.e. the plaintiff. In the circumstances, I found that settlement of the fine of $1,000 imposed by the Magistrate do not entitle the defendant to claim release from the civil proceedings under the section.

12. Regarding the issue of limitation, section 27 of the Limitation Ordinance, Cap. 347, reads:

"27. Time limit for personal injuries

(1) This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under an Ordinance or imperial enactment or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.

(2) Section 4 shall not apply to an action to which this section applies."

Under section 27, the limitation period is three years.

13. However, as Mr Chow pointed out, the present claim is based on intentional tort of trespass to the person and is not a case of negligence, nuisance or breach of duty. In the House of Lords' decision in Stubbings v. Webb and another, (1993) 1 All ER 322, Lord Griffiths, giving judgment of the Court, stated that "even without reference to Hansard I should not myself have construed 'breach of duty' as including a deliberate assault". In that case, a similar point concerning the limitation period was raised in a claim based on indecent assault.

14. Hence, on this point of the limitation period, I also found in favour of the plaintiff. The limitation period for the present case is therefore governed by section 4 of the Limitation Ordinance, which is six years.

15. I must now consider the issue of credibility of the witnesses. I have seen and observed both the plaintiff and the defendant giving evidence in the witness box. Obviously both are rather hot tempered persons and the degree of animosity between them remains high even after such a long time. In considering the evidence, I have borne in mind that it is a one-to-one situation and that the alleged weapon was never found. However, in assessing all the evidence as a whole, and having regard to the nature of the injury, which is consistent with the plaintiff's account, I accepted the evidence of the plaintiff on a balance of probabilities. I found that the defendant had used a hard object to hit the plaintiff causing him injury as shown in the medical reports and in any case, I found that the assault was not a use of reasonable force for the purpose of preventing the plaintiff from stealing the defendant's money, or committing an offence, or to effect the arrest of the plaintiff as claimed and pleaded in paragraph 3 of the defence.

16. Hence, on the issue of liability, I found for the plaintiff.

17. Now I must turn to the issue of Damages.

Personal background of the plaintiff

18. The plaintiff was born on 15th July 1950 so he was 40 years of age on the date of the incident and is now 48 years old. He is married with a son. Before the accident, the plaintiff worked as a taxi driver with an income of $7,250 per month on average and during day time, the plaintiff claimed to work as a warehouse clerk with a basic salary of $3,500 per month.

Nature of Injuries and Treatment

19. After the incident, the plaintiff was sent to Tang Shiu Kin Hospital where he was diagnosed to have fracture of the left ulna and laceration in the left arm. He was transferred to Queen Mary Hospital where he received an operation a few days after his admission. The operation involved open reduction and internal fixation of the left ulna with plate and screw.

20. According to the medical report of Dr Lau Hoi Kuen dated 24th April 1998, the following findings were made :

1. Physical examination revealed that there was a 14.5 cm long scar over back of left elbow but there was no swelling or deformity. There was mild tenderness over proximal ulna. Movement of wrist joint was normal but extension movement of elbow joint was minus ten degree as opposed to zero degree in the right elbow joint. The left side forearm girths was less than the right side by 1 cm and the grip strength was 10 kg less in the left than the right.

2. Radiological examination revealed that the fracture had a solid union and the metal implants remained in situ.

3. Dr Lau observed that the fracture showed solid union in good alignment after internal fixation by plate and screw. There was good mobility of the elbow joint. However, there was mild residual pain in poor weather and mild weakness in his left limb. Apart from the removal of the metal plate, no further treatment was indicated.

4. 2% of permanent disability and 2% loss of earning capacity were assessed.

21. Obviously, apart from some mild discomfit and problem in lifting heavy object, the plaintiff has recovered from the injuries and has indeed returned to his former employment as a taxi driver.

22. Counsel for the plaintiff had prepared a revised statement of damages. It should be noted that the heads of damages covered only the following :

1. Special damages for losses and expenses incurred.

2. Accrued loss of earnings.

3. Pain, suffering and loss of amenities.

4. Future loss and expenses.

23. On the Special damages and expenses incurred under paragraph C of the Revised Statement of Damages, I shall allow all the items except the following :

a. The travelling expense claimed for the plaintiff's mother. The plaintiff's evidence did not support this item. When asked in evidence in chief, he said he did not know by what transportation his mother had used to visit him and no amount was mentioned in relation to his mother's expense in this regard.

b. Tonic food. There was no receipt shown and the plaintiff's evidence did not justify this amount.

c. The pair of spectacles. According to the plaintiff's own statement to the police, the spectacles were not damaged and therefore I shall not allow this item.

24. On the Accrued loss of earnings under paragraph D of the Revised Statement of Damages, I shall allow the income in relation to the taxi driving but not the alleged income from the part-time work as a warehouse clerk. The plaintiff was not even able to say with certainty the name of the company that he was working for. Although the incident had taken place some time ago, I am not prepared to allow that part of the income as the basis of calculation without some documentary proof.

25. On the Pain, suffering and loss of amenities under paragraph E of the Revised Statement, the plaintiff claims $250,000. Mr Chow had referred me to a number of authorities as relevant comparable. They are :

a. Lam Chi Fat, PI 67/94, unreported, dated 26th October 1995 by Master Jones.

b. Sin Sau Mui, HCA11319/93, unreported, dated 6th November 1996 by Registrar Betts.

c. Chung Hok Sung, PI393/95, unreported, dated 19th May 1997 by Master Chung.

26. In Chung Hok Sung, the injuries involved were much more serious and extensive than the present case, including the snapping of muscles over the left elbow joint, a condition of tennis elbow, and loosening of the distal radio-ulna joint. The loss of earning capacity was estimated to be 20%. The award made in that case was $200,000. In Lam Chi Fat, the fracture was in the left wrist, which was unlikely to unite because of an associated injury to a cartilage structure. The loss of earning capacity was assessed to be 20%. As to the case of Sin Sau Mui, the plaintiff was 75 years of age and the injury was again in the wrist. There was a weakness of right hand grip and some deformity of the right wrist with tenderness in the wrist-joint. The loss of earning capacity was assessed to be 99%, in view of her age. In that case, $200,000 was awarded.

27. I note that there was no permanent disability in the plaintiff's left arm despite that there was some lingering discomfort and weakness. The plaintiff has now returned to his former employment. The likely effect of the injuries on the plaintiff's enjoyment of the social amenities appears to be less. This case falls below the "serious injury" category in Lee Ting Lam v. Leung Kam Ming (1990) HKLR 657. Each case has to depend on its own facts and considering the circumstances, I shall make an award of HK$140,000 under this head.

28. On the last item of Future Loss and Expenses, I shall not allow the claim. In the medical report prepared by Dr David Lee dated 9th March 1993, he pointed out that the mobility of the elbow can have a great improvement if the internal fixture, the metal plants, were removed and this was advisable since the fracture had been well united. However, the plaintiff said in his evidence that although the flesh and bone would recover after the operation to take out the pins, he was afraid of operation and he would need three months to recover. This is a longer estimate than the doctor's. Based on what he said, I am not satisfied that the plaintiff will actually go for the operation and in the circumstances, I make no award under this head.

Conclusion

29. The damages payable to the plaintiff are therefore $206,044.5 consisting of the following:-

a. Special damages for losses and expenses incurred

$4,233 - ($200 + $486 + $360) = $3,187

b. Special damages for accrued loss of earnings

$7,250 x 8.67 months = $62,857.5

c. General damages for pain, suffering and loss of amenities

$140,000

Interest

30. There will be interest on the special damages at half the judgment rate from the date of the incident to the date of judgment. Interest on the general damages will be at 2% p.a. from the date of the Writ to the date of judgment. All sums awarded will carry interest at judgment rate from date of judgment to date of payment.

Costs

31. I also make an order nisi that the plaintiff shall have the costs of the action, to be taxed against the defendant, if not agreed; and that the plaintiff's own costs be taxed in accordance with the Legal Aid Regulation.

32. The order nisi to be made absolute after the expiration of 14 days from the date of judgment.