CHOW YUK NG v. LAU MING FAI

1996, No. P.I. 899

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINSTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES

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J U D G M E N T

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Introduction

1. The Plaintiff claims against the Defendant for personal injuries sustained as a result of an alleged assault by the Defendant on 21 September, 1994. The Defendant defends the claim on the ground that the Defendant was assaulted by the Plaintiff and he acted in self-defence only. The Defendant also counterclaims for his injuries sustained by reason of the alleged assault.

2. Both the Plaintiff and the Defendant were working as public light bus ("PLB") drivers on 21 September, 1994. There is no dispute that at about 1:30 p.m. on that day, the Plaintiff parked his PLB at the PLB stand at Shantung Street/Portland Street, Kowloon. The Defendant also went there shortly later. A dispute erupted as to whether the Plaintiff had caused obstruction to the Defendant's PLB by not parking his PLB properly. This resulted in the assault incident which is the centre of dispute in this case.

3. After the incident, the Plaintiff was diagnosed to be suffering from various injuries to his left eye but the major permanent injury was double vision (diplopia) of his left eye. The Defendant testified that he was suffering from pain and bruising of his right chest area.

Liability

4. The Plaintiff testified that he was sitting on the driver's seat when he first noticed the Defendant. The Defendant was shouting and swearing at the Plaintiff and asked him to move his PLB forward. The Plaintiff replied that he was about to do so and there was no need for the Defendant to be angry. As the Plaintiff did so, his head and part of his upper body was outside his PLB. The Defendant was walking towards the Plaintiff's PLB during this time. He suddenly punched the Plaintiff in his left eye region. The Plaintiff felt dizzy and noticed that some blood was coming out from his left eye region. He then reported to the matter to the police and was later taken to the Kwong Wah Hospital ("KWH") for treatment.

5. The Defendant, on the other hand, testified that when he arrived at the PLB stand, he found the Plaintiff's PLB blocking 2 spaces. He also saw the Plaintiff chatting with other people there. He therefore sounded his horn to indicate to the Plaintiff to move his PLB forward or backward to enable the Defendant to park there. The Plaintiff however ignored him. The Defendant then went up to the Plaintiff and a row developed between them. The Plaintiff suddenly punched the Defendant in his right chest area. The Defendant said he might have lost his control and he hit the Plaintiff with his right fist. He felt that his punch landed on the Plaintiff but did not know where it landed. Since the Defendant's PLB blocked the traffic of the other vehicles, the drivers sounded their horns and the Defendant went back to his PLB and drove off. He took a round trip and returned to the PLB stand again. After the police and the ambulance arrived at the scene, he was then taken by the ambulance to KWH with the Plaintiff.

6. Having heard the testimony of the Plaintiff and the Defendant, I tend to accept the Defendant's testimony relating to the cause of the oral dispute. I consider that when the Defendant swore at the Plaintiff, there was a space between the Plaintiff's PLB and the PLB in front. In fact, this is confirmed in para. 3 on p. 2 of the Plaintiff's police statement in Chinese (see p. 2 of the Bundle of Documents (Not Agreed)). If what the Plaintiff testified were true, that is, there was no space between his PLB and those in front, there was no reason why the Plaintiff should board his PLB when the Defendant swore at him. I also find that it was more probable that both parties exchanged abusive language at the time and the Defendant was not alone in doing that.

7. As regards the assault incident itself, however, I find that the Plaintiff was telling the truth. I do not find the Defendant's testimony credible over this point because:-

(a) he asserted in his pleading and witness statement that he was acting in self-defence. This was withdrawn when he testified and the reason for his assault on the Plaintiff was instead his loss of control;

(b) when the Defendant cross-examined the Plaintiff, he suggested to the Plaintiff that the Plaintiff chased him and continued to hit him. This, however, was not mentioned in the Defendant's testimony. He said that he boarded his PLB and drove off because the drivers of other vehicles sounded their horn.

8. The third matter over which there was substantial dispute between the Plaintiff and the Defendant was whether they were taken to KWH in the same ambulance, or whether they were taken there separately. I also accept the Defendant's testimony over this point. In fact, the statements of the 2 police officers who attended the scene (see the statements of PC 53084 and PC PC 5196 at pp. 7-10 of the Bundle of Documents (Not Agreed)) confirm this. However, I do not find the Plaintiff to be deliberately lying but was inaccurate over this point only because his memory was faulted by the lapse of time.

9. For the above reasons, I find that the Plaintiff has established his case on liability. On the other hand, for the same reasons, I find that the Defendant has been unsuccessful in his Counterclaim and it is therefore dismissed.

10. I further consider that even on the Defendant's own testimony, the Plaintiff has established his case on liability. This is because in the Defendant's own testimony he admitted that he hit the Plaintiff probably because he lost control. I find this to be the sole reason for his assault on the Plaintiff. Self-defence has not been proven despite what was alleged in para. 2 of the Defence and Counterclaim and para. 5 of the Defendant's witness statement (see p. 2, Supplemental Bundle of Witness Statements).

Quantum

Plaintiff's Injuries

11. The Plaintiff and Dr. Paul M.K. Cheung testified as to the injuries suffered by the Plaintiff. I accept their testimony over this aspect of the case. I also consider Dr. Cheung to be an expert qualified to testify on this matter.

12. The Plaintiff's injuries can be summarized as follows:-

(a) he was admitted to the Neurosurgical Unit of KWH on 21 September, 1994 and was hospitalized for some 18 days from that day to 8 October, 1994;

(b) there was swelling and bruising over the left eye-socket;

(c) orbit CT scan showed fracture of both orbits which was more severe on the left side with initial double vision. The Plaintiff did not suffer from double vision before the incident;

(d) CT scan showed that there was soft tissue herniation into left maxillary antrum;

(e) when the Plaintiff was examined by Dr. Cheung on 28 January, 1997, he was still suffering from double vision. Optical prisms were prescribed to alleviate this problem but the problem could not be fully cured. There was some blurring of vision and loss of contrast. The degree of diplopia was quite unstable and the Plaintiff had to change his prisms many times.

13. Dr. Cheung assessed the Plaintiff to be suffering from 100% disability of the left eye and 50% disability of the visual system. He also assessed the Plaintiff to have 2% cosmetic disability, 52% loss of earning capacity and 49% loss of the whole person. Although surgery to correct the diplopia is possible, Dr. Cheung was of the view when he testified that this was not recommended.

14. After the Plaintiff was discharged from KWH, he continued follow-up treatment from time to time.

(1) Pain and Suffering & Loss of Amenities

15. Ms. Lau for the Plaintiff referred to the following cases in relation to this head of claim:-

(a) Chan Kwok Ping v. Hop Yick Engineering Co., P.I. No. 1230 of 1995;

(b) Ho Yam Pan v. Tse Tak Ming (t/a Ken's Co.), P.I. No. 91 of 1996;

(c) Lai Ka Wai v. Lo Tak Cheung t/a Luen Fat Construction Co., P.I. No. 1227 of 1995.

16. The eye injuries suffered by the plaintiffs in these cases were either total blindness of one eye or a 90% loss of vision of one eye. The range of awards was from $420,000 (in January, 1997) to $450,000 (in January, 1998). Ms. Lau submitted that the Plaintiff's injuries fell slightly below those suffered by the plaintiffs in the above cases and the proper award for the Plaintiff in this case should be $350,000. I agree with Ms. Lau and therefore award this sum to the Plaintiff under this head of claim.

(2) Loss of Earnings

17. I accept the Plaintiff's testimony that before the assault, he used to be able to earn an average daily income of $600 and that he worked on average 26 days per month. His average pre-assault income was therefore $15,600 (600 x 26) per month. I also accept his testimony that because of the eye injury, he was not able to work after the assault. There is however no evidence of the present day income of a PLB driver. The pre-trial loss of earning of the Plaintiff is therefore $686,400 ($15,600 x 44 months). This sum will be awarded in the Plaintiff's favour under this head of claim.

(3) Loss of Future Earnings

18. The Plaintiff testified that he is now 62 years old and he would have worked until 65 years old had there not been the assault. I accept his testimony on this point. I agree with Ms. Lau's submission that a multiplier of 2 should be adopted. As observed earlier, there is no evidence as to the present income of a PLB driver. The award under this head of claim is therefore $374,400 ($15,600 x 12 months x 2).

(4) Loss of Property

19. Evidence was adduced by the Plaintiff that he spent a total of $3,760 for the special spectacles prescribed for his impaired vision (see p. 5 of the Bundle of Documents (Agreed) and pp. 21-2 of the Supplemental Bundle of Documents). I accept this evidence and award $3,760 under this head of claim.

(5) Medical Expenses

20. The Plaintiff testified that medical expenses were incurred by him as a result of the assault. These expenses included doctors' fees, registration fees and charges for medical reports. I am only prepared to allow medical expenses which were supported by documents in the trial bundles:-

(a) pp. 2($918), 3 ($215) and 4 ($410) of the Bundle of Documents (Agreed);

(b) pp. 5($410), 18($36), 19($505) and 20($29) of the Supplemental Bundle of Documents.

The award under this head of claim is therefore $2,523.

(6) Taxi Expenses

I accept the Plaintiff's testimony that he attended:-

(a) KWH on 5 occasions and that he spent about $100-200 on each occasion. The total taxi fare was $750 ($150 x 5);

(b) the eye clinic on 13 occasions. However, the documents in the trial bundles showed that he went there on 16 occasions and I consider the documents to be more reliable. The taxi fare incurred on each occasion was $150-200. The total taxi fare was $2,720 ($170 x 16);

(c) Caritas Hospital on 3 occasions and spent about $100 on each occasion. The total taxi fare was $300 ($100 x 3);

(d) Yan Chai Hospital on 4 occasions and spent about $10-20 each time. The total taxi fare was $60 ($15 x 4).

21. The total award under this head of claim is therefore $3,830. The Plaintiff also testified that his wife incurred taxi expenses when she went to the hospital to take care of him. However, I consider that his testimony over this matter is hearsay evidence and therefore will not make any award for his wife's expenses.

Interest

22. I agree with Ms. Lau that the interest for the sum awarded for pain and suffering and loss of amenities should be at 2% per annum from the date of Writ to date of Judgment and that for the sums awarded for loss of property, medical expenses and taxi expenses should be at 6% per annum from date of the assault (21 September, 1994) to date of Judgment. The interest from date of Judgment to date of payment should be at judgment rate.

Costs Order Nisi

23. There is no apparent reason why a costs order nisi should not be made pursuant to R.H.C. Ord. 42 r. 5B(6). Further, there is no reason why costs should not follow the event. The costs of this action are therefore to be paid by the Defendant to the Plaintiff to be taxed if not agreed. It seems that the Plaintiff is legally aided. The Plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.

24. Since the Defendant is acting in person, I think it is better if I mention that pursuant to Ord. 42 r. 5B(6), he may apply within 14 days after this decision is pronounced to vary the costs order nisi, failing which it will become absolute.

(Andrew Chung)

Deputy Judge of the Court of the First Instance