LO SIU WING v. LEE WAI CHUEN and Another

1995 No. P. I. 617
(formerly 1991 No. A2419)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST

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(By Order of Master Jones
dated 9th day of September 1996)

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J U D G M E N T

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1. The Plaintiff, who is a former security guard, has suffered for many years, and certainly since 1969, from the serious mental disease of schizophrenia. As a consequence his employment record has been somewhat patchy. He has been admitted to a psychiatric hospital on several occasions the longest period being from early July of 1975 until latter March of 1976. Although this has been described as two separate admissions, which clearly is correct technically, they were separated by only 4 days - to all intents and purposes he was in Castle Peak Hospital for inpatient treatment for the better part of nine months. No other period of admission for treatment approximates to that.

2. He is now approaching 50 years of age. Nearly 11 years ago whilst he was working as a security guard at the United Centre Car Park he had an altercation with the Defendants over the positioning of the First Defendants motor car in relation to the entrance to the car park. Some of the evidence as to what occurred is to be gleaned from the notes of evidence taken by the Magistrate who heard and adjudicated upon the proceedings taken again the Second Defendant and the Plaintiff. The alleged offence was fighting in a public place to which the First Defendant had pleaded guilty. He was called to give evidence in the prosecution of his mother and the Plaintiff. His mother was convicted but the charge against the Plaintiff was dismissed.

3. There was independent evidence that the Defendants' vehicle was blocking the entrance to the car park. The Defendants contended, and there was some support for this, that the Plaintiff used some strong and possibly vulgar language in remonstrating with the Defendants over the position which their car was occupying. Whilst there may have been some justification for the Plaintiff being irritated by the Defendants' actions, his language was unnecessary. However I am satisfied that the Plaintiff committed no aggressive act, nor did he do anything which suggests a threat of such.

4. The First Defendant's case at trial was that the Plaintiff stood in front of his car when his mother was at the wheel and this constituted an impending attack upon her causing him to attack the Plaintiff by kicking him to the ground. In his evidence he said he was overwhelmed with anger when he proceeded to attack the Plaintiff further after kicking him to the ground. When his mother came over to separate them her manual gestures were, he conceded, "exaggerated a bit". He saw the Plaintiff strike her on her face and he then rushed at the Plaintiff and started another struggle. After, a security guard came over and separated the Plaintiff and himself, it was apparent that the Plaintiff's glasses and watch were broken. The First Defendant said that he and his mother were prepared to compensate the Plaintiff in the sum of $300 for these losses, but the latter thought $500 was a more reasonable sum. This the Defendants were not prepared to pay.

5. The Second Defendant did not give evidence to the effect that she feared an attack by the Plaintiff. He was simply blocking her path from moving on. This may simply have been a position adopted by him to prevent further obstruction of the car park entrance. Her intervention she said was to stop the fighting.

6. Although the Plaintiff was unable to give evidence by reason of his mental disability, I am satisfied on all the evidence that he was assaulted by the First Defendant and, to a very limited extent by the Second Defendant. His unnecessary and inappropriate language may well have resulted from his long-standing mental state, but it did not contribute to what happened to him at the hands or feet of the Defendants. It was a serious assault on the part of the First Defendant. I consider the Second Defendant's role was as an interferer which put the Plaintiff at a disadvantage and made him less able to withstand the First Defendants attack upon him. As the Second Defendant's interference contributed to the attack although to a minor extent, she is jointly liable with her son. The Plaintiffs succeeds in full against both Defendants. As I have indicated earlier whatever he said or did in no way contributed to the attack upon him.

Quantum.

7. He suffered fractures of the left 6th, 7th, 8th & 9th ribs. These were not noted on X-ray on his first admission to hospital on the 25th May 1987 but were revealed by subsequent X-ray on the 2nd June, one week later. There is nothing surprising about the first X-ray not showing undisplaced rib fractures.

8. Additionally he suffered multiple abrasions over the left side of his face, his lips and his right knee. There was bruising of the left elbow and left knee. He was away from work for approximately three months. Undoubtedly they were painful injuries, and although he was complaining of some residual discomfort several years later, it is difficult to determine how genuine this is given his mental problem.

9. The greater difficulty concerns the extent to which his mental state has been aggravated or exacerbated by the assault upon him. At the time his employment with Security Alliance was of a few months duration. During the previous ten years he had had various occupations the length of which it is now impossible to ascertain, but they were undoubtedly interspersed with periods of unemployment.

10. Dr. Karam Singer was of the view, and this is reflected by the psychiatric hospital notes, that the Plaintiff was keen to work and to obtain better or more responsible positions. Undoubtedly his history of mental disease made that prospect unlikely. However since the relapse resulting in hospital admission in July 1975/March 1976, he had, in Dr. Singer's opinion, been in relative or partial remission. Although Dr. Chung See-Yuen appeared initially to disagree with Dr. Singer, in fact he accepted that there was a fair remission between 1982 and 1987, the last five years of Dr. Singers longer period, leading up to the assault. Dr. M. T. Shum in his short report of the 27th January 1984 to the Transport Department said "he suffers from a remitted schizophrenic illness," but that "he is mentally well now." This is consistent with Dr. Singer's appraisal.

11. As a general rule Dr. Chung also agreed that the mental problem would be worse after such an incident of violence which was a "very stressful life experience". Although he thought that such a victim would usually be more disturbed immediately after the experience he could not exclude the incident as the cause or a cause of the relapse in 1988. Dr. Singer is more definite - this is a man with paranoid delusions, being in fear of others harming him and therefore particularly vulnerable if he were to be subjected to violence. He could not categorically say he would not suffer further relapses after 1976 in the ordinary course of events but the incident was likely to cause greater risk of further relapse. I accept this view. It seems highly likely that the assault, with its painful injuries, would have an adverse effect upon him psychiatrically and the relapse in June 1988 was most likely to have been precipitated by it. Having had a relapse it was not surprising if some deterioration in his state occurred. That seems to be the picture revealed by the psychiatric evidence and all the standard authorities. But the picture after that relapse was not such a serious one as might have been feared. Not only did he return to his job but he gained promotion, modest though that appointment may have been in its context. However there are entries in his hospital notes which indicate that shortly after this relapse he was concerned in his thoughts with the threat against him, and the actual violence he suffered in May 1987.

12. The employment was brought to an end by an event wholly unrelated to the incident which is the subject of this action. The loss of such employment must have been a cause of some stress; no doubt the event which brought it about was also a cause of stress. It is quite impossible to ignore this situation as having brought about his reversion to a state of affairs whereby he was unable to obtain a permanent full-time job.

13. The evidence satisfies me that the attack upon him by these Defendants aggravated his schizophrenic state to the extent that he suffered a relapse in June of 1988 necessitating hospital admission. Although he was able to return to work and make some progress, that relapse left him unable to return to quite the same level of mental remission which had preceded the assault. Accordingly when he lost his job in September 1989 as a result of unrelated circumstances, he was less equipped than ever to get back into full employment and his relapse was responsible in some measure for that. There was always a risk of further deterioration following the loss of the job given his chronic state but that cannot of course be attributed to these Defendants.

14. To reflect the physical injuries and the effect of the assault upon his schizophrenic state, taking into account the foregoing features, I award damages of $100,000.00.

Special Damages.

15. There are no initial loss of earnings because he was paid for his period of absence following the assault. He would not, however, have been paid for the period of his relapse in June 1988. I award $1,500.00 in respect of that period of incapacity. There is no loss thereafter because he worked until September 1989 and his loss is attributable to the termination of employment.

16. The damaged spectacles are agreed at $300.00 as are the hospital expenses of $53.00. There is no evidence of the medicine and bonesetters fees and I cannot allow these.

17. Future medical expenses cannot be attributed to the assault.

18. There is no provable future loss of earnings although I have reflected in the award for general damages some element for the influence of the assault upon his psychiatric state and employment incapacity.

19. There will be judgment for the Plaintiff for $100,000.00 general damages and $1,853.00 special damages to which will be added interest at the appropriate rates and for the appropriate periods. There will also be an order for costs in favour of the Plaintiff and the Official Solicitor against the Defendants, to be taxed if not agreed. The Plaintiff's and the Defendants' costs will be taxed in accordance with the Legal Aid provisions. The Official Solicitor's costs will be paid either upon taxation or upon agreement by the Director of Legal Aid on an indemnity basis pursuant to the letter of undertaking of the 4th September 1996.

20. The damages of $101,583 plus interest will be paid into Court pursuant to order 80 rule 12 to be dealt with by the Court for the benefit of the Plaintiff, and

21. I appoint as receiver acting for and on behalf of the Plaintiff who is a person under disability, his brother Lo Zui Hung.